Lydia Pace v. Jefferson City Country Club

Injury No. 02-118249

Employee: Lydia Pace

- 2 -

An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor.

In both her temporary and final awards in this matter, the administrative law judge determined generally that employee "met her burden of proof" with respect to the issue of medical causation, but she did not specifically apply the statutory test set forth above. As a result, we must supplement the award to provide this necessary analysis.

We note that in its various briefs filed with the Commission in this matter, employer repeatedly urges that we cannot, "as a matter of law," find for employee with respect to the issue of medical causation. In support of this contention, employer identifies various perceived shortcomings with respect to the testimony and findings from employee's experts, and contrasts these with what employer believes are the superior opinions from its own experts. Employer's very argument belies its contention that the issue of medical causation is one of law. Instead, as the courts have consistently declared, "questions regarding medical causation of an injury are issues of fact for the Commission." *George v. City of St. Louis*, 162 S.W.3d 26, 30 (Mo. App. 2005). Stated simply, the issue of medical causation turns on which of the opinions from the parties' experts are most persuasive.

After careful consideration, we discern no compelling reason to disturb the administrative law judge's choice to credit employee's experts with respect to the issue of medical causation. This is because employer fails to advance a factual argument why its experts are more persuasive. Instead, employer devotes its briefing in this matter to the assertion that its experts' opinions "must" be accepted by this Commission, and that they "preclude" an award in favor of employee. Employer also repeatedly misstates the record by claiming that employee failed to present competent and substantial evidence in her favor.

Accordingly, we will defer to and hereby adopt as our own the administrative law judge's express findings with regard to the relative persuasive force of the competing expert medical opinions. We additionally adopt her implied finding that Dr. Daniel more persuasively established causation of employee's depression. We conclude work was a substantial factor in causing the resulting medical conditions and disability of which employee complains affecting her cervical spine, right shoulder, and body as a whole referable to the psychiatric injury of depression.

Sections 287.149 and 287.170 RSMo provide for the payment of temporary total disability benefits while an employee is engaged in the rehabilitative process following a compensable work injury. *Greer v. Sysco Food Servs.*, SC94724 (Dec. 8, 2015). Employee claims she was temporarily and totally disabled during the entire period between November 17, 2005, when Dr. Theodore Rummel first released her from authorized treatment, to August 25, 2011, the date the parties stipulate employee reached maximum medical improvement upon her release by Dr. Michael Chabot.

In her temporary award of November 30, 2010, the administrative law judge denied employee's claim for ongoing temporary total disability benefits, on the basis that some of employee's described limitations in sitting, standing, and walking did not result from the work injury, and because

1 We are not persuaded by employer's argument that Dr. Daniel both knew nothing of employee's subsequent knee and low back complaints, and also necessarily included them in his causation opinions; employer's cross-examination asked Dr. Daniel to speculate on these matters and we do not perceive any concession on the part of Dr. Daniel that would undermine his material opinions.

employer presented surveillance video showing employee engaging in active use of her right arm. In her final award, the administrative law judge found employee was entitled to temporary total disability benefits from January 3, 2011, because Dr. Chabot then placed her under restrictions of no lifting over 10 pounds and no overhead work. The administrative law judge did not specifically address the time period following issuance of the November 30, 2010, temporary award through January 3, 2011, or identify any change with respect to employee's actual physical condition that occurred on January 3, 2011, to render employee then temporarily and totally disabled, if she was not so disabled before.

Relying on the decision in Jennings v. Station Casino St. Charles, 196 S.W.3d 552 (Mo. App. 2006), employer argues that employee did not present "additional significant evidence" at the hearing for a final award to support a different result with respect to the issue of temporary total disability after November 17, 2005. Employer ignores the voluminous evidence of additional evaluation and treatment employee sought and required after November 30, 2010, as a result of the effects of the work injury. Notably, in Dr. Chabot's record of January 3, 2011, he memorialized complaints and symptoms affecting employee that were essentially the same as when he evaluated her on October 19, 2009. Specifically, employee continued to experience pain affecting her neck and right shoulder, with numbness and tingling radiating into the right arm. Cf. Transcript, pages 865, 884. In our view, if employee's continuing complaints and symptoms referable to the work injury as of January 3, 2011, warranted the restrictions Dr. Chabot then imposed-as well as an attendant finding that she was then temporarily and totally disabled-Dr. Chabot's notes memorializing identical complaints and symptoms as of October 19, 2009, compel a finding that she was also (at the very least) temporarily and totally disabled from October 19, 2009.

Employer also ignores that employee testified at the hearing for the final award that she did not believe she was able to work between the time Dr. Rummel released her in November 2005 and her return to Dr. Chabot in January 2011. Employee explained that she tried to perform part-time work offered by a friend, but ultimately was fired from that job because she couldn't consistently perform her duties because of her severe and uncontrollable pain. It is well-settled in Missouri that "[a] claimant is capable of forming an opinion as to whether she is able to work, and her testimony alone is sufficient evidence on which to base an award of temporary total disability." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. 2003). It appears to us from her determinations with respect to the issue of permanent and total disability that the administrative law judge ultimately credited the testimony from employee with respect to her complaints and symptoms referable to the work injury; we adopt this (implicit) credibility determination.

Employee also persuasively testified that she continually sought additional help for her condition after Dr. Rummel released her on November 17, 2005. ${ }^{2}$ Ultimately, we deem the evidence sufficient to demonstrate (and we so find) that employee continued in the rehabilitative process during the period from November 17, 2005, through August 24, 2011, and that her complaints and symptoms referable to the work injury remained consistent and unabated throughout that period. We further find that no employer would reasonably be expected to hire employee during this time period, given the physician-imposed restrictions and employee's ongoing and severely limiting complaints and symptoms referable to the work injury which affected her cervical spine, dominant right arm, and body as a whole in the form of depression.

We find that employee was temporarily and totally disabled from November 17, 2005, through August 24, 2011. Consequently, we conclude that employee is entitled to, and employer is

[^0]

[^0]: ${ }^{2}$ The parties' stipulation that employee did not reach maximum medical improvement until August 25, 2011, strikes us as an implicit acknowledgment that Dr. Rummel's release in November 2005 was premature, and that employee remained in need of additional and significant medical care as a result of the work injury.

- 4 -

obligated to pay, weekly payments of temporary total disability benefits for 301 weeks at the stipulated temporary total disability benefit rate of 294.16 for a total amount of 88,542.16 in temporary total disability benefits.

**Conclusion**

We modify the award of the administrative law judge as to the issue of temporary total disability.

Employer is liable for temporary total disability benefits during the time period from November 17, 2005, through August 24, 2011, for a total of $88,542.16.

The award and decision of Administrative Law Ju