Enisa Comic v. Wal Mart Associates, Inc.

For the reasons stated below, we modify the award of the administrative law judge referable to the issues of: (1) medical causation; (2) nature and extent of permanent disability; (3) future medical care; and (4) Second Injury Fund liability.

The administrative law judge's award sets forth the stipulations of the parties and the administrative law judge's findings of fact and conclusions of law referable to the numerous issues disputed at the hearing. We adopt and incorporate those findings and conclusions to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact and conclusions of law pertinent to our modifications herein.

We defer to and adopt as our own the administrative law judge's conclusion that the accident of February 2, 2010, was the prevailing factor causing employee to suffer lumbar, thoracic, and cervical strains with an associated 20\% permanent partial disability of the body as a whole. We disagree, however, with her conclusion that the accident was not the prevailing factor causing employee to sustain any psychiatric injury. Section 287.020.3(1) RSMo provides, in relevant part, as follows:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

Both of the parties' chosen evaluating psychiatric experts testified that the accident was the prevailing factor causing employee to suffer psychiatric injury with associated permanent partial disability. We find the uncontested expert opinions in this regard from Drs. Brockman and Stillings to be persuasive. We find that, in addition to the lumbar, thoracic, and cervical strains identified in the administrative law judge's award, the accident was the prevailing factor causing the resulting medical condition of major depressive disorder, as well as an associated psychiatric permanent partial disability of 2 % of the body as a whole.

We agree with the administrative law judge's conclusion that employer is not liable to pay employee's past medical expenses, but for somewhat different reasons than stated in the administrative law judge's decision. The administrative law judge concluded that employee exercised her right under $\S 287.140$ RSMo to select her own medical providers at her own expense. See Award, page 15. We disagree. Employee filed her claim for compensation in this matter on February 8, 2010, a mere six days after the accident of February 2, 2010. Therein, employee specifically demanded additional medical care, thus placing employer on notice of her position that she required additional medical treatment as a result of the accident. In response, employer chose to reject employee's request for additional treatment, relying on the opinions from its authorized treating physicians that employee did not need additional care. Faced with this rejection of her demand for additional medical care from employer, employee sought treatment on her own. Under the relevant and controlling case law, these circumstances preclude a finding that employee's claim for past medical expenses was "unauthorized," as there was no question of employer authorizing

additional treatment. See, e.g., Downing v. McDonald's Sirloin Stockade, 418 S.W.3d 526, 529 (Mo. App. 2014)(noting that "where an employer has refused requested treatment, the employer will be liable for medical treatment obtained at the employee's own expense").

In order to support an award of past medical expenses, however, there must be a showing that the treatment giving rise to the expenses was "reasonably required after the injury or disability, to cure and relieve from the effects of the injury." § 287.140 RSMo. With regard to this question, we find most persuasive the following testimony from Dr. Coyle:

Q. What did you advise Ms. Comic regarding the medications she was receiving?

A. I advised her she was being treated inappropriately. It was inappropriate to keep someone on high doses of narcotics and muscle relaxers for a period of three years, and, in fact, it was even more inappropriate in the absence of any objective findings on examination and in the absence of a diagnosis. In fact, it was my impression that her biggest problem was the fact that she was on those medications.

Transcript, page 647.

We agree with Dr. Coyle that the disputed treatment employee received was inappropriate, and may even have worsened or hindered her recovery. As explained more fully below, we are persuaded that employee's primary difficulty is her extreme psychiatric response to the relatively minor physical injuries she sustained on February 2, 2010. We conclude that the disputed treatment was not reasonably required to cure and relieve the effects of employee's work injuries, and deny employee's claim for past medical expenses for that reason.

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 defer to and adopt as our own the administrative law judge's finding that Dr. Coyle provided the more persuasive opinion with regard to whether there is a reasonable probability that employee needs future medical care to cure and relieve the effects of her physical lumbar, thoracic, and cervical strain injuries. We find particularly persuasive the opinion from Dr. Coyle (substantially corroborated by Dr. Brockman) that it would be beneficial for a physician to attempt to wean employee from the "massive" amount of narcotic pain medications and muscle relaxers she is presently taking. Transcript, page 648. As Dr. Brockman credibly testified, it appears employee is actually getting worse rather than improving under her current medication regime, and her use of Vicodin up to four times per day, combined with Ambien, Robaxin, and Seroquel is particularly concerning in light of the potential for iatrogenic complications and adverse side effects.

On the other hand, we have found that the accident of February 2010 caused employee to suffer a psychiatric injury, which requires us to revisit the question whether employee has any need for future psychiatric treatment flowing from the primary injury. Like the administrative law judge, we tend to agree with Dr. Stillings's opinion that the bulk of employee's current psychiatric disability is attributable to preexisting psychiatric injury

sustained as a product of her experiences in the Bosnian War; however, this does not rule out an award of future psychiatric care against the employer, because "it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition." Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 519 (Mo. App. 2011). After careful consideration, we deem most persuasive the opinion from Dr. Brockman (and so find) that employee will need ongoing treatment of her psychiatric symptoms with both medication managed by a psychiatrist and psychotherapy with a psychologist or therapist, including translation services.

We conclude that there is a reasonable probability that employee needs future psychiatric treatment to cure and relieve the effects of her work injury. Employer is ordered to provide employee with that future psychiatric care that may reasonably be required to cure and relieve the effects of her psychiatric injury.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that she suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed..." Id. The Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007)(citation omitted).

The administrative law judge appears to have cre