Martha Robertson v. Southwestern Bell Telephone Co.

Improve: Martha Robertson

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regarding the nature of the surgeries, or the diagnoses that prompted them. It is clear, however, that employee suffered from considerable pain and limitations affecting her low back before the September 17, 2009, primary injury.

Employee began working for employer at some point in 2000, and ultimately worked for employer for about 12 years. Employee's title was "DSL Technician," and she performed troubleshooting work from a desk, which involved answering phones and using a computer. Owing to employee's low back pain and limitations, employer at some point provided employee with a special desk that accommodated her need to frequently alternate between sitting and standing. Employer also provided employee with an extra-long headphone cord so that she could move around more freely, and moved her workstation from the third to the first floor so she wouldn't have to climb stairs.

On January 23, 2009, employee underwent yet another low back surgery performed by Dr. Timothy Kuklo. Dr. Kuklo performed a multi-level posterior spinal fusion from L3 through S1 to address a diagnosis of multilevel lumbar spondylosis and pseudoarthrosis. Following a course of physical therapy, Dr. Kuklo released employee on May 26, 2009, with restrictions of working half-days, no sitting or standing over 1.5 hours, and no lifting over 20 pounds. It appears that on the same day Dr. Kuklo released employee, she saw Dr. Brian Grus. Under "reason for visit," Dr. Grus's record indicates "[u]nable to work anymore." Transcript, page 263. The record suggests that employee continued to suffer from very severe low back pain. Under "impression/plan" Dr. Grus's record indicates "refer to SSA for disability." Id. page 264.

However, despite the suggestion in Dr. Grus's record that employee was unable to continue working, she ultimately did so. Although employee's testimony was somewhat equivocal as to whether or for how long she worked half-days following the surgery performed by Dr. Kuklo, she testified on direct examination that she returned to full-duty work with employer at some point in May 2009; we so find. At that point, employee was no longer taking prescription pain medications, but continued using over-the-counter medications and a TENS unit to manage her pain.

Employee presented expert medical testimony from Dr. Robert Margolis, who opined that employee's preexisting low back condition constituted a permanent partially disabling condition, as well as a hindrance and obstacle to employment; we credit these opinions. Dr. Margolis rated employee's preexisting low back condition at 40% permanent partial disability of the body as a whole referable to the lumbar spine. In the absence of any contrary rating on this record, and because employee clearly suffered extensive preexisting limitations referable to her low back, we credit Dr. Margolis's rating and adopt it as our own with respect to the nature and extent of disability referable to employee's preexisting low back conditions.

Primary injury

On September 17, 2009, employee slipped in a puddle of water in employer's break room, and fell. As a result, employee experienced an immediate increase in the pain in her low back, as well as pain radiating into both legs. Apparently, employee received emergency treatment at a nearby hospital, but owing to employee's failure to provide these medical

records, we are unable to make any findings as to what treating physicians may have diagnosed or the treatment they may have provided.

On September 22, 2009, employee saw Dr. Jacob Buchowski, who noted her complaints of increased pain and left leg radicular symptoms referable to the workplace fall, prescribed Percocet and Flexeril, and recommended employee continue normal daily activity but avoid excessive low back strain. On December 8, 2009, Dr. Buchowski reviewed the results of a CT myelogram; he found it difficult to tell from the results of the study whether employee's preexisting low back fusion instrumentation was solid or not. Dr. Buchowski determined that employee's pain exacerbation was likely causally related to the workplace fall on September 17, 2009. He continued her prescription for Percocet, referred her to pain management, and recommended that she return to work with a restriction of having a 5 minute standing/walking break every hour.

We acknowledge that employee agreed to her attorney's generalized question suggesting that she missed "a lot" of work following the September 2009 accident, but employee did not specifically identify how much or how often she missed work, and after a careful review of the medical records available to us, we find insufficient evidence to permit us to make any specific findings as to the amount of work employee missed after September 17, 2009, or even to support employee's generalized suggestion that she missed "a lot" of work during this time period. Instead, it appears to us (and we so find) that employee did not stop working for employer for any significant time period following the accident on September 17, 2009, until (as discussed below) August 2012, when she underwent a subsequent low back surgery.

Following treatment she received with Dr. Buchowski, employee next saw the pain management physician Dr. Bakul Dave from January through October 2010. Dr. Dave prescribed narcotic pain medications, including Morphine. Although Dr. Dave recommended the possibility of low back injections or a spinal cord stimulator, employee chose not to pursue these treatment options.

On May 30, 2012, employee came under the care of Dr. Dennis Abernathie, an orthopedic surgeon. Based on a determination that employee's fusion was essentially solid, Dr. Abernathie theorized that employee's ongoing pain may be stemming from the hardware in her back. So, on August 16, 2012, Dr. Abernathie performed low back surgery to remove the hardware from L3 to S1, and also performed a posterolateral refusion using Orthoform Matrix.

It appears from the treatment records (and we so find) that Dr. Abernathie's surgery initially had a good effect, as employee was "walking miles and miles" and reported that a lot of her pain was gone as of August 29, 2012. Transcript, page 410. It also appears that employee was able to make a sporadic return to her work for employer at some point in October 2012. However, Dr. Abernathie took employee off work again on November 30, 2012, owing to an apparent flare-up in her left low back pain. Thereafter, Dr. Abernathie continued to see employee, and we note that on June 3, 2013, he determined that the primary problem was not with employee's low back pathology, and that the pain instead was stemming from inflammation in the SI joints, and that "some of

[employee's] activity outside the workplace makes her less prepared to be inside the workplace." Transcript, page 462.

Employee has not worked since November 30, 2012. Other than to agree that Dr. Abernathie took her off work on that date, employee did not provide any testimony to specifically explain whether or why she felt unable to continue working for employer. Employee settled her claim against the employer for the primary injury consistent with an approximate disability of 17.5 % permanent partial disability of the body as a whole referable to the low back.

Employee persuasively testified that she experienced a permanent increase in her pain and radicular complaints following the September 2009 accident; we so find. Employee's medical expert, Dr. Margolis, testified that the accident on September 17, 2009, was the prevailing factor causing employee to suffer a lumbar strain/sprain with exacerbation of pain related to employee's prior lumbar fusion. This opinion strikes us as reasonable and persuasive in light of the evidence that employee experienced a permanent increase of pain following the September 2009 injury.

We note that the record also contains an independent medical examination report from Dr. Donald DeGrange dated September 30, 2010, wherein he essentially agreed with Dr. Margolis that employee suffered a lumbar strain on September 17, 2009, but also provided the following observations:

The patient's work at [employer] is a factor for the development of her current condition but cannot be considered the prevailing factor given the extensive and complex history of six prior spine surgeries that have occurred over the last four years. ... These are by far the most significant factors in her current condition. The multiple surgeries that she has undergone have made the patient's back to [sic] susceptible to further injury and have to be considered the substantial factor in her current condition.

Transcript, page 271.

As seen above, Dr. DeGrange did not consider whether the accident was the prevailing factor in causing any new, identifiable medical condition; instead, he analyzed whether the accident was the prevailing factor causing employee's "current condition." We do not disagree that employee's disability referable to her low back is, overall, primarily related to conditions that pre-date her September 17, 2009, work accident. As will be discussed more fully below, however, we do not find Dr. DeGrange's credible analysis dispositive of the