Maria Maddaloni-Boughton v. Skaggs Community Hospital Association

(Modifying Award and Decision of Administrative Law Judge)

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 modifications set forth below.

The parties asked the administrative law judge to determine the following issues: (1) whether employee sustained injuries that will require future medical care in order to cure and relieve the employee of the effects of the injuries; (2) the nature and extent of any permanent disabilities; (3) the liability of the Second Injury Fund for enhanced permanent partial disability; (4) any disfigurement to be assessed; and (5) whether employer is liable for costs under § 287.560 RSMo.

The administrative law judge rendered the following determinations: (1) future medical treatment is not necessary to cure and relieve the claimant of the effects of her workrelated injury; (2) employee sustained a permanent partial disability of 25 % of the body as a whole as a result of her work-related injury of November 2, 2013; (3) the Second Injury Fund is liable for 16 weeks of permanent partial disability benefits; (4) employee is entitled to 4 weeks of compensation for disfigurement; and (5) there is no basis to award costs in this matter.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in declining to award costs; (2) in finding employee will not require future medical care as a result of the work injury and fusion surgery; and (3) in finding employee did not suffer any permanent partial disability to the thoracic and lumbar spine due to the injury.

The Second Injury Fund also filed a timely application for review with the Commission alleging the administrative law judge erred in awarding permanent partial disability

Improve: Maria Maddaloni-Boughton

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benefits from the Second Injury Fund because there is no evidence on this record establishing that employee's preexisting disabilities and the disability from her primary work injury combine to create a greater disability than the simple sum.

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

Section 287.140.1 RSMo provides for an award of future medical treatment where the employee can prove there is a reasonable probability of 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). Employee advances the expert medical testimony of Dr. Mitchell Mullins, who believes that it is likely employee, may require future medical intervention to cure and relieve the effects of the work injury.

The administrative law judge, however, declined to award any future medical treatment; despite her finding that employee suffers a 25 % permanent partial disability of the body as a whole referable to the pain and limitations resulting from the work injury, which ultimately necessitated a cervical fusion surgery. The administrative law judge expressly relied upon the opinion of the treating physician Dr. Jeffrey Woodward, who believes that cervical injections are too risky, that facet joint injections are not likely to provide long lasting relief, and that post-fusion adjacent level degeneration is much less of a concern with regard to the cervical spine versus the lumbar spine.

We find Dr. Woodward's opinions unpersuasive to the extent they may be viewed as ruling out any reasonable probability that employee may have a need for future medical treatment to cure and relieve the effects of the work injury. First, Dr. Woodward does not suggest there is no concern of adjacent level degeneration in the context of cervical spine fusions; he merely contrasts them as less concerning when compared to lumbar spine fusion surgeries. He otherwise acknowledged that, in his practice, he has personally witnessed the effects of fusion surgeries placing greater stress on adjacent vertebral levels and causing additional damage.

Second, with regard to facet joint injections, Dr. Woodward merely advances a clinical opinion that such would not be very effective in the long-term; this rationale ignores that $\S 287.140$ contemplates an award of any treatment that may "relieve" the effects of the work injury. We are not aware of any authority for the proposition that such "relief" must be of a certain minimum efficacy or duration to support an award of medical treatment. The case law, at least, would seem to run directly contrary to such a restrictive analysis, in that the courts have consistently declared that an award of medical treatment "[i]ncludes treatment that gives comfort or relief from pain even though a cure is not possible," because "[t]he employer has an absolute and unqualified duty to provide

statutorily-required medical aid to a claimant." Abt v. Miss. Lime Co., 420 S.W.3d 689, 704 (Mo. App. 2014)(emphasis added).

Third, we note that, at his deposition, Dr. Woodward specifically acknowledged that employee's pain complaints have been consistent since the date of her injury. He also opined that he personally found her, clinically speaking, to be credible, reliable, and worthy of belief. Yet, Dr. Woodward fails to rule out or explain why employee may not reasonably require medications to cure and relieve the ongoing pain she suffers as a result of the work injury.

Finally, to the extent that Dr. Woodward suggests that employee will never again need to see a doctor to-at the very least-evaluate the status of her cervical fusion and related hardware, we find such an opinion wholly unpersuasive. Again, Dr. Woodward admitted that he has firsthand experience with fusion surgeries contributing to adjacentlevel degeneration. He also agreed that the hardware from fusion surgeries can sometimes break.

In light of the foregoing concerns, we find Dr. Mullins's opinion ultimately more persuasive with respect to the issue whether future medical treatment may be reasonably required to cure and relieve the effects of the work injury. We are convinced (and we so find) that there is a reasonable probability that employee has a need for future medical treatment flowing from the work injury. We conclude that employer is obligated to provide that future medical treatment that may reasonably be required to cure and relieve the effects of employee's work injury.

Section 287.190 RSMo provides for the payment of permanent partial disability benefits in connection with employee's compensable work injury. The administrative law judge found that employee suffered a 25 % permanent partial disability of the body as a whole as a result of the November 2013 accident. Although the award is not explicit with regard to the issue, it appears to us (and the parties suggest in their briefs) that the administrative law judge awarded this amount solely for injury to the cervical spine, and declined to award any additional amount for permanent disability affecting the lumbar spine. After careful consideration, we agree with employee's position that she is entitled to some additional permanent partial disability benefits for her low back injury.

First, we note that the administrative law judge explicitly found employee to be a credible witness. After a careful review of the record, we agree. At the hearing in this matter, employee listed the low back as one of the injuries she suffered when she slipped and fell in the puddle of urine at work on November 2, 2013.

The contemporaneous medical treatment records also describe low back complaints referable to the accident. Specifically, the notes from Cox Medical Center and CoxHealth Occupational Medicine show that in addition to neck pain, employee suffered thoracic and low back pain. Employee also advances the expert medical testimony of

Dr. Mitchell Mullins, who believes she suffered 7\% permanent partial disability referable to the thoracic and lumbar spine in addition to the 25 % body as a whole rating he provided for the cervical spine injury.

Employer, on the other hand, relies upon Dr. Woodward, who acknowledged that employee's complaints of low back pain have been consistent since the date of injury, but who declined to rate permanent partial disability referable to the low back, because he did not render any medical treatment for this condition apart from oral medications prescribed at the initial visit. In our view, this rationale does not effectively rebut the contrary opinion from Dr. Mullins. We also find persuasive employee's argument that her cervical spine treatment and surgery understandably received more attention by treating personnel and thus overshadowed her ongoing low back complaints in the treatment records.

In light of the foregoing considerations, we deem Dr. Mullins more persuasive on the issue. We find that employee suffered an additional 5\% permanent partial disability of the body as a whole referable to the low back injury sustained in the accident of November 2, 2013. We conclude that employer is liable for a total of 120 weeks of permanent partial disability benefits at the stipulated weekly permanent partial disability benefit rate of $\ 263.93, for a total of $\ 31,671.60 in permanent partial disability benefits. We note that employer additionally remains liable for the four weeks of compensation for disfigurement (a total of $\ 1,055.72 ) awarded by the administrative law judge.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the Fund in all cases of permanent disability where there has been previous disability. Employee claims permanent partial disability benefits from the Second Injury Fund, advancing the argument that her preexisting diagnosis of type II diabetes interacts synergistically with her primary injuries of the cervical and lumbar spine. A synergistic interaction as between an employee's preexisting disabling conditions and a subsequent compensable injury is a necessary showing in a claim for permanent partial disability benefits from the Second Injury Fund:

[T]he claimant must establish that the present compensable injury and his preexisting permanent partial disability combined to cause a greater degree of disability than the simple sum of the disabilities viewed independently. This is referred to as the "synergistic effect." If a claimant establishes that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, then the Fund is liable for the degree of the combined disability that exceeds the numerical sum of the preexisting disabilities and the disability from the last injury, or the "synergistic effect" of the combined disabilities. In other words, the Fund is liable only for the amount attributable to the synergistic combination. Thus, the failure to prove a synergistic combination between

the primary injury and a preexisting disability is proper grounds for denying Fund liability.

Winingear