Nancy McDonald v. Midland Radio Corporation

at oral argument in this matter, that the lifting event on June 23, 2007, involved employee's performance of a task that was within the scope of her normal work duties. Ultimately, we find insufficient credible expert medical evidence on this record to support a finding that the June 2007 lifting event was the prevailing factor resulting in anything more than an aggravation of the preexisting weakened condition of employee's left shoulder owing to her May 2007 rotator cuff tear. See Johnson v. Ind. Western Express, Inc., 281 S.W.3d 885 (Mo. App. 2009).

Third, we note that each of the experts to address the issue found that employee's psychological problems, particularly her emotional lability and uncontrollable crying episodes, are a major factor in her permanent total disability. Employee credibly testified (and we so find) that her crying spells began after her May 2007 accident, and employee's psychiatric expert, Dr. Todd Hill, assigned all of employee's psychiatric disability to the May 2007 event. We deem Dr. Hill's opinion on this point to be persuasive, and find that the May 2007 accident caused all of employee's permanent psychiatric disability.

Finally, we respond to employer's argument that the May 2007 accident should not be deemed to result in permanent total disability because employee did not receive any medical treatment until after the June 2007 event. Employer's argument is belied by the uncontested fact that employer denied, for no apparent reason, employee's timely and repeated requests for authorized medical care following the May 2007 accident. Employer cannot advance its own disregard of its duties under the Missouri Workers' Compensation Law as a basis for undermining the seriousness of employee's injuries sustained as a result of the May 2007 accident.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Lisa Meiners, issued May 23, 2014, is attached and incorporated by this reference.

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Nancy McDonald

Injury No. 07-106174

Dependents: N/A

Employer: Midland Radio Corporation

Insurer: Hartford Casualty Insurance Company

Additional Party: Missouri Treasurer as Custodian of the Second Injury Fund

Hearing Date: April 3, 2014

Checked by: LM/1h

1. Are any benefits awarded herein? No.
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: June 23, 2007.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Missouri.
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: While in the course and scope of employment, Claimant lifted two radios from a box aggravating her shoulders.
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: Shoulders
14. Nature and extent of any permanent disability: -0 -

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nancy McDonald

1. Compensation paid to-date for temporary disability: -0 -
2. Value necessary medical aid paid to date by employer/insurer? $\ 354.04
3. Value necessary medical aid not furnished by employer/insurer?
4. Employee's average weekly wages:
5. Weekly compensation rate: $\ 293.34.
6. Method wages computation: By agreement.

1. Amount of compensation payable: None. The employee did not sustain permanent disability due to the June 2007 accident.
2. Second Injury Fund liability: None.
3. Future requirements awarded: No future medical benefits are awarded.

Said payments to begin as of the date of the award 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: William Spooner

Employee: Nancy McDonald

Injury No. 07-106174

Dependents: N/A

Employer: Midland Radio Corporation

Insurer: Hartford Casualty Insurance Company

Additional Party: Missouri Treasurer as Custodian of the Second Injury Fund

Hearing Date: April 3, 2014

Checked by: LM/1h

On April 3, 2014, the parties appeared for final hearing. Nancy McDonald appeared in person and with counsel, William Spooner. The Employer and Insurer appeared by counsel with Shelly Naughtin as their representative. The Second Injury Fund was represented by counsel, Eric Lowe.

The parties stipulated to the following:

1) That Midland Radio Corporation was working subject to Missouri's workers' compensation law on June 23, 2007;

2) That Ms. McDonald was their employee;

3) That she sustained an accident that occurred within the course and scope of her employment on June 23, 2007;

4) That Missouri jurisdiction was proper;

5) That the claim was filed within the time allowed by law and notice was given;

6) That the Employer had provided medical expenses in the amount of $\ 354.04 and no temporary total disability benefits; and

7) That the compensation rate is $\ 293.34.

The issues to be determined by this award are:

1) Whether Claimant sustained any disability; and if so, the nature and extent of that disability;

2) Whether the Employer is liable to the Employee for past medical expenses in the amount of $\ 5,948.63;

3) Whether the Employer is liable to the Employee for future medical care that is reasonably required in order to cure and relieve the effects of the June 23, 2007 injury;

4) The liability of the Second Injury Fund; and

5) Future medical.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nancy McDonald

Injury No. 07-106174

As background information, the parties stipulated that the Claimant sustained two specific accidents: one on May 22, 2007 and one on June 23, 2007. On May 22, 2007, Claimant fell over a cart containing boxes. She landed on outstretched hands and tore her left pants leg. Claimant testified she felt pain in both shoulders, hands, pelvis, legs and toes. Claimant notified and requested medical care as a result of the fall but it was not provided until she sustained the second accident on June 23, 2007.

On June 23, 2007, Claimant felt increased pain and a pulling sensation of her left shoulder when she lifted two radios out of a box. The Employer at that time then sent Claimant to Concentra Medical Care where she was referred to an orthopaedic surgeon, Dr. Rhoades. Dr. Rhoades found Claimant sustained a partial rotator cuff tear of the left shoulder. Claimant underwent injections of the left shoulder as well without relief.

Claimant during this time period saw her own physician, Dr. Fox, for complaints relating to the neck and the lumbar spine. MRI scans revealed degenerative disc disease, annular tear and disc bulging of the low back. Claimant also saw Dr. Smith who diagnosed Claimant with significant psychological comorbidity that amplified Claimant's pain condition. Claimant received psychiatric treatment in January of 2008 by a Dr. Trombley. Dr. Trombley diagnosed Claimant with generalized anxiety disorder with moderate recurrent major depression. Another doctor who treated Claimant was Dr. Clinefelter. Dr. Clinefelter diagnosed Claimant with chronic myofascial pain syndrome and noted her anxiety and depression coincided with ongoing secondary gain from her workers' compensation case. Regardless, Dr. Clinefelter still recommended psychiatric treatment for depression and trigger injections for the myofascial pain.

Further medical records indicate Claimant received conservative care for chronic pain of the shoulders, back and neck. The majority of records described the accident of May 2007 as the mechanism of injury to her shoulders and back. These records coincide with the treatment she received for the chronic pain of the shoulders, back and neck. Eventually Claimant underwent a left shoulder acromioplasty on March 27, 2009. On July 1, 2009, Claimant was found to be at maximum medical improvement regarding her shoulder by Dr. Rhoades but he continued to administer steroid injections. Claimant then continued to treat at the Kansas Free Health Clinic for