Rhonda Clark v. Dairy Farmers of America

Imprv No.: 11-053153

Employee: Rhonda Clark

- 2 -

On June 20, 2011, employee was engaged in her normal work for employer, when she pulled back on a shovel full of curds, and felt a pop inside her chest, along with pain under her right arm. This occurred while she had her chest pressed against the side of the vat. Employee tried to continue working, but discovered that she could not lift her right arm. So, employee went to the emergency room, where an x-ray revealed a posterior fracture of employee's right fifth rib, as well as the presence of an unusual, possibly lytic lesion affecting the same area.

A bone scan of July 22, 2011, confirmed the irregularity affecting the right fifth rib, which appeared to involve a possible malignancy or metastatic disease. Employee's primary care physician, Dr. Mark Costley, referred employee to an oncologist, Dr. William Cunningham, who recommended a CT-guided needle biopsy. That study, performed on August 26, 2011, revealed that the lesion affecting employee's right fifth rib was the product of an underlying condition, Langerhans cell histiocytosis (hereinafter "LCH"), a rare, cancer-like disorder. Dr. Cunningham referred employee to another oncologist, Dr. Todd Fehniger, who recommended employee undergo radiation therapy rather than a surgery to excise the lesion.

Employee's date of birth is March 8, 1979. Beginning when she was about 25 years of age, employee smoked approximately one pack of cigarettes per day; she quit smoking in December 2014. Cigarette smoking is a known risk factor for the development of LCH. Prior to the incident at work of June 20, 2011, and her subsequent course of treatment, employee was wholly unaware she was suffering from LCH or the lesion affecting her right fifth rib, as she had not experienced any symptoms referable to these conditions.

Between February and March 2012, employee underwent the recommended course of radiation therapy. Her LCH appears to be in remission; the record suggests her prognosis is generally good in light of the fact she suffered from only a unifocal lesion behind the right fifth rib. In connection with her rib fracture and the slow healing process that resulted from the need to address the LCH and underlying lesion, employee continues to experience some chronic pain and difficulty holding her right arm out in front of her, and with lifting overhead. Employee uses over-the-counter pain medications to treat pain referable to her rib fracture.

Employee provided her medical treatment records and the bills she incurred for the disputed treatment. In her testimony, she identified the bills as having been received in connection with her treatment. Our own review of the bills suggests the following charges in connection with treatment for employee's rib fracture, as well as the treatment necessary to diagnose and treat her lesion referable to LCH: $82,737.94 from Cox Health for dates of service between July 22, 2011, and September 18, 2015; $998.00 from Oncology-Hematology Associates for dates of service between August 4, 2011, and

1 We note that, in her brief, employee claims an additional $1,788.00 in charges from Cox Health for an August 22, 2014, MRI of the lower extremity joint without contrast. This charge appears to correlate to employee's treatment for an August 2014 knee injury; accordingly, we have deducted it from employee's claimed charges.

November 21, 2014; and $\ 32.14 from Wal-Mart Pharmacy. We find that employee incurred a total of $\ 83,768.08 in connection with the disputed treatment.

Employer presents the opinion of the occupational medicine specialist Dr. Allen Parmet, who believes employee suffered a fracture of the right fifth rib while in the course of her duties on June 20, 2011. Dr. Parmet explained that employee's underlying LCH caused a lesion that weakened the bone structure of employee's right fifth rib. While Dr. Parmet considered employee's work activity of shoveling curds sufficiently forceful to fracture the weakened bone in employee's rib, he declined to characterize such activity as involving any significant trauma. Instead, he considered employee's work activity and subsequent rib fracture as a serendipitous event that merely alerted her to the presence of the LCH. Ultimately, Dr. Parmet opined that employee's work activity was not the prevailing factor causing employee to suffer the rib fracture of June 20, 2011, because if the tumor had not existed and partly destroyed her rib, the fracture would not have occurred.

Interestingly, Dr. Parmet did not positively identify employee's preexisting lesion, or her condition of LCH, as the prevailing factor causing employee to suffer the rib fracture of June 20, 2011. Instead, it appears to us that he determined her work activity was not the prevailing factor causing her to suffer a rib fracture based on an implicit assumption that where any non-work-related, but-for cause of an injury is present, the accident cannot be deemed the prevailing factor. In other words, Dr. Parmet's theory in this case appears to involve a legal conclusion, as opposed to a purely medical opinion. As discussed more fully below, we do not endorse such a view of the statutory prevailing factor test under § 287.020.3(1) RSMo. Consequently, although we appreciate Dr. Parmet's persuasive commentary regarding LCH and its role in weakening the bone structure of employee's right fifth rib, we deem his ultimate causation opinion in this matter to be of limited assistance for our purposes.

Employee's primary care physician, Dr. Mark Costley, also provided his testimony in this matter. Dr. Costley agreed that the lesion caused by LCH significantly weakened the bone of employee's rib, and that employee's work activity of shoveling curds was also a contributing factor in causing her rib to fracture. However, he declined to identify either the lesion referable to LCH on the one hand, or employee's work activity on the other, as the prevailing cause of employee's rib fracture. Despite repeated questioning, he made clear that he was unable to assign a "percentage" of causation to either of these factors, or to identify one as any more important than the other.

Employee advances the opinion of the urgent care physician Dr. Mitchell Mullins, who believes that the force of employee's work activity of pulling the curds on June 20, 2011, was the most important factor contributing to her rib fracture. Dr. Mullins conceded that when a bone is markedly weakened by preexisting conditions such as the lesion referable to employee's LCH, a fracture can occur under a force load that is less than normal. However, Dr. Mullins believes that the force of employee's work activity was sufficient, standing alone, to cause a rib fracture, and because it was unknown how long employee had been suffering from the lytic lesion, the work activity was, in his view, the most

Important factor. Dr. Mullins rated employee's disability referable to the rib fracture at 18 % permanent partial disability of the body as a whole, owing to employee's ongoing rib pain radiating into the shoulder and back.

After careful consideration, we find Dr. Mullins's medical causation theory to be more persuasive; especially where (as further discussed below) Dr. Parmet's competing theory appears to rely on what we perceive to be a misapprehension of the appropriate statutory test. Dr. Mullins also testified that employee's rib fracture would not have healed absent the treatment employee underwent to treat the lesion referable to her LCH, including the course of radiation therapy. On this point, employer did not offer any rebuttal evidence. We find Dr. Mullins's unrebutted opinion in this regard persuasive, and adopt it as our own. We find that employee's treatment to address the lesion referable to LCH was a necessary precursor to the healing of the bone fracture employee suffered on June 20, 2011.

In his report, Dr. Mullins opined that employee may benefit from intercostal nerve blocks at some point, as guided by her primary care physician. He did not, however, specify whether he believed such recommended treatment would be necessary to cure and relieve the effects of employee's rib fracture, or some other condition, such as complaints referable to LCH. Nor did he address this ambiguity at the hearing before the administrative law judge. In her brief, employee does not direct us to any other evidence suggesting there is a reasonable probability that she has a need for future medical treatment to cure and relieve the effects of her right fifth rib fracture. Accordingly, we find that employee will not need future medical treatment to cure and relieve the effects of her right fifth rib fracture.

At the hearing, the parties asked the administrative law judge to determine whether employee was entitled to temporary total disability benefits from July 1, 2011, through April 8, 2013. Although employee described the initial feelings of discomfort which prompted her to seek medical treatment following the incident of June 20, 2011, employee did not provide any testimony as to her general physical condition, or ability to work, during the specific time period from July 1, 2011, through April 8, 2013. Nor did any of the testifying medical experts address employee's physical condition, or abil