| FINAL AWARD DENYING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion) |
| Injury No.: 14-097943 |
| Employee: | Gina Clark |
| Employer: | Almost Family, Inc. |
| Insurer: | Travelers Insurance Company of America |
| This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion. |
| Discussion |
| Medical causation |
| The parties asked the administrative law judge to resolve, among other things, the issue of medical causation. Section 287.020.3(1) RSMo sets forth the statutory test for medical causation, and 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. |
| Employee claims she suffered a cervical spine injury resulting from her action of attempting to lift a 400 pound patient in the course of performing her work for employer as an in-home health aide. In a section of his award entitled "Compensability," the administrative law judge concluded that employee was, instead, injured by an incident that occurred at employee's home three to five hours before her first emergency room visit on December 9, 2014, with an unknown mechanism of injury. SeeAward, page 7. After careful consideration of the competing evidence with regard to medical causation, we agree with the administrative law judge that the claim is not compensable, but for somewhat different reasons. |
| We note the considerable confusion in this case with regard to the date of injury. While various inconsistencies in reporting the date of injury are not, generally speaking, fatal to a claim, we are concerned that the confusion in this case significantly undermines the testimony from employee's expert medical witness, Dr. David Volarich. |
| Employee forthrightly conceded she is unsure of the date that she suffered the claimed accident. Employee was, however, able to remember that she suffered the claimed accident while providing services to the patient in question on a Saturday. Employee was also confident that she provided services on a Saturday for this individual on only one occasion: the date she was injured. |
The parties expressly stipulated that employee provided services for the patient in question on November 29, 2014, a Saturday. Transcript, page 2. "Stipulations are controlling and conclusive, and the courts are bound to enforce them." Boyer v. Nat'l Express Co., 49 S.W.3d 700, 705 (Mo. App. 2001). It follows that, if employee's testimony is believed, November 29, 2014, must have been the date that she suffered the claimed accident.
As to what happened after she was injured lifting the patient, employee testified that she went to the hospital "that [following] Monday, I guess," after experiencing extreme left arm pain while in the shower that morning. Transcript, page 12. The medical records in evidence, however, reveal that employee did not seek treatment until December 9, 2014, a Tuesday, and a full ten days after the claimed accident.
There is no explanation on this record to explain why employee waited ten days to seek emergency medical treatment for her claimed work injury. This is particularly troubling when we note that, according to the payroll records received in evidence, employee worked, in the interim, a total of five days for employer. If, following the accident, employee was continually suffering from the intractable, severely disabling pain she described at the hearing before the administrative law judge, it is wholly unclear to us how she was able to perform her duties for employer as an in-home health aide during this time period.
Turning to the testimony from employee's medical expert, Dr. Volarich, we find that he did not address any of these troubling issues. Instead, Dr. Volarich assumed, based on the history that employee provided to him, that she suffered her injury on December 6, 2014; experienced persistent neck pain thereafter; first developed the sudden onset of left arm pain in the shower on Monday, December 8, 2014; and then went to the emergency room the next morning because of ongoing pain. Clearly, Dr. Volarich's timeline with regard to the accident, employee's onset of symptoms, and her first seeking emergency medical treatment materially differs from the facts that we must find if we are to both (1) honor the parties' stipulation and (2) credit employee's testimony.
Dr. Volarich also failed to address the inconsistencies contained in the records generated during employee's treatment in the emergency department of St. Joseph Hospital on December 9, 2014. As noted by the administrative law judge, these records conflict, in numerous respects, with employee's testimony regarding the circumstances of the accident and the onset of her symptoms. We are most troubled by an indication that employee's pain, "a severity of 10/10" had been "constant since onset." Transcript, page 51. Although employee testified, at the hearing, that the records are in error to the extent they suggest she told attending providers that the injury occurred at home 3 to 5 hours before her arrival in the emergency room, she did not contest the record's indication that her pain following the accident was constant; instead, she suggested this extreme pain did, indeed, begin with the accident and continued, unabated, thereafter.
Again, we find it extremely unlikely that an individual suffering from 10/10 pain would wait a full 10 days to seek emergency treatment, much less continue to work a heavy demand job in the interim. This evidence strongly suggests to us (and we so find) that some injurious and/or aggravating event must have occurred between November 29, 2014, and employee's seeking treatment on December 9, 2014.
If Dr. Volarich had been properly apprised of the date of initial injury, 10-day gap in seeking treatment, employee's work in the interim, and the apparent aggravation and or worsening of employee's symptoms between November 29 and December 9, 2014, he might have been able to explain these circumstances in a manner that would, nevertheless, persuasively identify the accident as the prevailing factor in causing injury. Indeed, it is not outside the realm of possibility that employee suffered an initial injury on November 29, 2014, that gradually worsened as she continued to perform her duties for employer, until her symptoms became so severe that she required emergency care. Such a theory of injury might satisfy the statutory requirements, if supported by persuasive expert medical testimony.
As it stands, however, we are faced with a record where employee's evaluating expert relied upon demonstrably, and in our view, materially incorrect facts. For this reason, we are not persuaded to credit the medical causation opinion of Dr. Volarich. We find that the accident of November 29, 2014, was not the prevailing factor causing employee to suffer the resulting medical conditions of a cervical spine injury with left upper extremity radicular symptoms. We conclude, therefore, that the claim is not compensable pursuant to § 287.020.3(1) RSMo.
All other issues are moot.