Josephine Chambers v. Sunnen Products Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modification set forth below.

Section 287.140.1 RSMo provides for an award of future medical treatment where the employee can prove a reasonable probability that she has a need for future medical treatment that flows from the work injury. Conrad v. Jack Cooper Transp. Co., 273 S.W.3d 49, 51-4 (Mo. App. 2008). We are convinced that employee has proven she has a need for future medical treatment flowing from the work injury.

Employee presented expert medical testimony from Dr. Volarich, who opined that employee likely will need ongoing care for pain related to the work injury using modalities including but not limited to narcotics and non-narcotic medications, muscle relaxants, physical therapy, epidural steroid injections, foraminal nerve root blocks, trigger point injections, TENS units, radiofrequency ablation procedures, evaluation for a spinal cord stimulator, and similar treatments as directed by the current standard of medical practice for symptomatic relief of employee's complaints. With respect to surgery, Dr. Volarich opined that additional surgeries are not presently indicated, while noting that orthopedic hardware in the spine can sometimes become infected, loosen, or fail.

Employee also provided expert medical testimony from Dr. deGrange, who opined that employee should undergo an additional back surgery to correct severe stenosis at the level above employee's prior fusion (described variously in the medical records as either L3-4 or L4-5 owing to the anomaly of employee having six lumbar vertebrae), and that employee's need for additional surgery at this level flows from the effects of the prior surgeries necessitated by the work injury.

Employer, on the other hand, presented expert medical testimony from Dr. Coyle, who opined that he does not see any indication that future medical treatment will be needed related to employee's injury of January 3, 2002. Dr. Coyle's opinion on this point stems from his opinion that the work injury and subsequent surgeries did not cause the pathology in employee's spine at levels adjacent to those that were surgically corrected, but instead that employee is suffering from normal degeneration in her spine due to age. Dr. Coyle described, in detail, the technique he employed during the lumbar fusion surgery he performed in April 2006, and explained that he specifically chose that technique because of the likelihood it would minimize postoperative stress to the adjacent levels of employee's lumbar spine. While we find Dr. Coyle's opinion with respect to postoperative degeneration and the absence of any additional surgical indication to be more

persuasive than that provided by Dr. deGrange, we note that Dr. Coyle did not specifically address the issue whether conservative treatment might be indicated to relieve employee's ongoing back pain and symptoms. Dr. Coyle thus does not appear to contradict the opinion from Dr. Volarich that nonsurgical, conservative treatment may be needed in light of employee's serious low back injury and subsequent surgeries.

After careful consideration of all of the expert medical opinions in this factually complex matter, we ultimately deem the opinion of Dr. Volarich to be most persuasive as to the issue whether employee may need future medical care as a result of the work injury. We find that there is a reasonable probability that employee will have a need for nonsurgical treatment to cure and relieve her ongoing low back pain and discomfort flowing from the work injury and related surgeries. We conclude, therefore, that employer is obligated under $\S 287.140 .1$ to furnish those non-surgical future medical treatments, that may reasonably be required to cure and relieve the effects of the work injury.

We modify the award of the administrative law judge as to the issue of future medical treatment.

Employee is entitled to, and employer is hereby ordered to provide, those future medical treatments, with the exception of additional back surgery, that may reasonably be required to cure and relieve employee from the effects of the work injury.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued December 12, 2013, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $31^{\text {st }}$ day of July 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Josephine Chambers

Departments: $\mathrm{n} / \mathrm{a}$

Employer: Sunnen Products

Additional Party: Second Injury Fund (SIF)

Insurer: Self

Hearing Date: August 6 and September 4, 2013

Injury No.: 02-002046

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: KMH

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: January 3, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured her low back while lifting boxes at work.
12. Did accident or occupational disease cause death? No Date of death? n/a
13. Part(s) of body injured by accident or occupational disease: low back and body as a whole
14. Nature and extent of any permanent disability: 50 % body as a whole referable to the low back from Employer and 50 weeks of PPD from the SIF
15. Compensation paid to-date for temporary disability: unknown
16. Value necessary medical aid paid to date by employer/insurer? $\ 119,874.00

Employee: Josephine Chambers

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 470.46
3. Weekly compensation rate: $\$ 313.32 / \ 313.32
4. Method wages computation: Stipulation

1. Amount of compensation payable:

200 weeks of permanent partial disability from Employer

$\ 62,664.00

1. Second Injury Fund liability: Yes

50 weeks of permanent partial disability from Second Injury Fund

$\ 15,666.00

TOTAL:

$\ 78,330.00

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Nile Griffiths

Employee: Josephine Chambers

Dependents: n/a

Employer: Sunnen Products

Additional Party: Second Injury Fund

Insurer: Self

Injury No.: 02-002046

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter August 6, 2013. The parties requested the record be kept open to review a proposed exhibit. The parties agreed the exhibit was admissible and the record was closed September 4, 2013. Josephine Chambers (Claimant) was represented by attorney Nile Griffiths. Sunnen Products (Employer) was represented by attorney Kevin Leahy. The SIF was represented by Assistant Attorney General Tim Maurer.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

Claimant alleges she is totally disabled as a result of her work injury.

The parties stipulated to the following:

1. Claimant sustained an injury by accident January 3, 2002, in the course and scope of her employment.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law on the date of injury.
3. Employer's liability was self insured.
4. Employer had notice of the injury and a claim for compensation was timely filed.
5. Claimant's average weekly wage was $\ 470.46. Her rated for TTD, PTD, and PPD benefits is $\ 313.32.
6. Claimant was paid her full salary while receiving authorized treatment from April 24, 2006 through June 19, 2006.
7. Claimant received $\ 119,874.00 in medical benefits.

The parties stipulated the issues to be resolved are as follows:

1. Future medical treatment.
2. Medical causation with respect to future medical treatment.
3. Permanent disability.
4. SIF liability.

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 61 year old female who appeared at trial walking with the assistance of a cane. She began working for Employer in 1985. She spent the majority of her career with Employer working full-time as a Bench Assembler. She worked on the bagging machine and lifted boxes, frequently lifting 30 pounds.
2. Prior to her 2002 work injury, Claimant had a compensable left hand injury and a compensable low back injury. In March 1992, she developed pain, numbness and tingling in her left hand. She had a carpal tunnel release but continued to have difficulty working on the assembly line and had difficulty with repetitive activities. Claimant settled this case with Employer for 17.5 % PPD of the left hand. She has had no treatment for her hand since the 1992 injury.
3. In 1993 and 1995 she treated with Dr. Aubuchon and Dr. Williams for bilateral foot and knee problems. She had a number of injections in her toes to relieve her hammertoe and testified she had trouble standing for a long time at work. She was diagnosed with chondromalacia and had cortisone injections in her knees. She testified she often had to sit down at work because of knee swelling. She had no treatment on her knees from 1999 until shortly before her knee replacement in 2008.
4. In 1993 she injured her low back at work. She received conservative treatment for her back strain, and settled this case for 10 % of the body in 1994. She settled her SIF claim based on a prior 17.5 % PPD to her left hand. She worked full duty with no restrictions following this injury until her 2002 injury. She testified she did not have back complaints at the time of her 2002 work injury.
5. On January 3, 2002, Claimant was lifting boxes when she developed a sharp pain in her low back that radiated into her right leg. She reported the injury to Employer, and they provided tre