Charles Jinkerson v. Hillsboro R-III School District

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, 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) medical causation; (2) liability for unpaid medical expenses; (3) the nature and extent of any unpaid temporary total disability; (4) liability for future medical treatment; (5) nature and extent of permanent disability; and (6) liability of the Second Injury Fund.

The administrative law judge determined as follows: (1) the evidence compels a finding that the reported injury was not the prevailing factor in causing a need for employee’s vertebroplasty with Dr. Jennings; (2) employee’s symptoms, while heralded as cured after surgery, were, nevertheless, unresolved by the vertebroplasty, and this is not a sufficient basis to impose liability against employer for the cost of this surgery and follow-up; (3) no liability is found for additional temporary total disability benefits; (4) no liability is found for future medical treatment as a result of the reported injury; (5) employee is found to have sustained a 15% permanent partial disability of the lumbar spine, and 5% permanent partial psychiatric disability as a result of the reported injury; and (6) the Second Injury Fund is liable for 79.1 weeks of permanent partial disability benefits.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in his determination of the issue of medical causation; (2) in failing to find that employee is entitled to be reimbursed for the medical expenses he incurred after being discharged by Dr. Coyle and Dr. Doll; (3) in failing to find that employee is entitled to additional temporary total disability benefits; (4) in his determination of permanent disability; and (5) in failing to find employer liable for future medical care benefits.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issues of: (1) medical causation; (2) nature and extent of permanent disability; (3) liability for past medical treatment; (4) liability for future medical treatment; and (5) Second Injury Fund liability.

The parties disputed the issue of medical causation. The administrative law judge rendered an award of permanent partial disability benefits suggesting he believed the accident caused a psychiatric injury as well as some injury to the spine, but he did not render any affirmative findings with regard to the particular medical condition(s) he believed to have resulted from the accident of February 8, 2011. Accordingly, we must resolve the issue herein. Section 287.020.3(1) RSMo sets forth the statutory test for medical causation applicable to this claim, 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.

The parties advance conflicting expert medical testimony with regard to the pathology resulting from employee's fall at work on February 8, 2011. Employee presents the evaluating physician Dr. David Volarich, who believes the accident was the prevailing factor causing the resulting medical conditions of an L2 compression fracture, and bilateral sacroiliac joint dysfunction. With regard to the latter diagnosis, Dr. Volarich explained that employee's sacroiliac joint was partially disrupted by the accident, resulting in movement that wasn't there beforehand, with corresponding inflammation and pain.

Employee also presents the treating physician Dr. Anthony Margherita, who agrees the accident was the prevailing factor causing an L2 vertebral body compression fracture, and sacroiliac joint dysfunction. In addition, Dr. Margherita identified a fracture of the coccyx and exacerbation of employee's degenerative lower lumbar spine condition at the L5-S1 level as resulting from the accident.

Employer, on the other hand, presents the authorized treating physician Dr. James Coyle, who disagrees that employee's sacroiliac joint dysfunction and related symptoms bear any relationship to the accident. Instead, Dr. Coyle believes the accident caused only an L2 fracture, and a coccyx fracture. In Dr. Coyle's view, any complaints and symptoms referable to the accident were essentially resolved as of September 2011, and employee's ongoing low back complaints are due to multiple preexisting conditions or comorbidities that overwhelm any disability employee may have experienced secondary to the accident. Dr. Coyle did, however, rate 5\% permanent partial disability for the L2 fracture, plus an additional 5\% for the coccyx fracture; Dr. Coyle did not specify which of employee's various ongoing symptoms or limitations correspond to these ratings.

In contrast, employer's authorized treating physician, Dr. James Doll, essentially agrees with Drs. Volarich and Margherita that employee's lumbosacral pain and SI joint dysfunction did result from the accident. In his award, the administrative law judge suggested that Dr. Doll was merely following good medical practice by treating all of employee's concurrent symptoms, and did not actually causally link these diagnoses to the work injury. We disagree with this view of the evidence. Asked at his deposition to distinguish between employee's preexisting pathology affecting the spine and the specific medical conditions that resulted from the work injury, Dr. Doll unequivocally identified both lumbosacral and sacroiliac joint pain as resulting from employee's fall at work. Dr. Doll explained that the fracture at L2 involved injury not just to the bone itself, but also the ligaments and surrounding muscle structures in the low back.

It appears that the administrative law judge found employee to be a generally credible witness; we discern no basis to find otherwise. Accordingly, we credit employee's testimony with regard to the symptoms he experienced following the accident. We find that employee suffered, and has continued to suffer, moderate to severe lower back and SI joint pain since the date of the accident.

Ultimately, after careful consideration of the voluminous record on this point, we are more persuaded to credit the opinions from Drs. Volarich, Doll, and Margherita that the accident caused employee to suffer not only the L2 and coccyx fractures, but also lumbosacral and sacroiliac joint injuries, over the sole contrary opinion from Dr. Coyle. While the evidence reveals employee certainly had preexisting degenerative pathology and disability referable to his lumbar spine, the overall weight of the medical evidence including the opinions of Dr. Doll, along with the credible testimony from employee, indicate that employee has sustained new injury and associated permanent partial disability referable to his lumbosacral spine and SI joint, as a result of the accident. Accordingly, we modify the administrative law judge's decision on this point.

Employee also alleges psychiatric injury as resulting from the accident. He presents the expert psychiatric opinion of Dr. Gregory Bassett, who believes the accident was the prevailing factor causing employee to suffer a recurrent depressive episode that manifested thereafter. On the other hand, employer's psychiatric expert, Dr. Elizabeth Pribor, opined in her report that the accident was the prevailing factor "in the initiation of the exacerbation of the particular major depressive episode in [employee], but it is not the prevailing factor in the overall episode and persistence of his clinical depression." Transcript, page 2085 (emphasis in original). At her deposition, Dr. Pribor testified that the accident, in her opinion, did cause the onset of an episode of major depressive disorder, but was not the prevailing cause in its continuation over time, and that employee's other medical conditions have instead caused the episode to continue. Dr. Pribor did, however, rate permanent partial disability referable to a major depressive episode as having resulted from the accident at work. After careful consideration of these expert psychiatric opinions, we are persuaded that the accident caused employee to suffer the resulting medical condition of a recurrent depressive episode, with associated permanent disability; we so find.

In light of the foregoing considerations, we conclude pursuant to § 287.020.3(1) that the accident was the prevailing factor causing employee to suffer the following resulting medical conditions, with associated disability: (1) an L2 fracture, (2) a coccyx fracture, (3) lumbosacral and sacroiliac joint dysfunction and pain, (4) exacerbation of employee's degenerative lower lumbar spine condition, and (5) a major depressive disorder.

Section 287.140.1 RSMo controls with respect to the issue of past medical expenses, and provides, in relevant part, as follows:

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

The administrative law judge concluded "the reported injury was not the prevailing factor in causing a need for [employee's] vertebroplasty with Dr. Jennings." Award, page 11. However, as the Missouri courts have instructed, the "prevailing factor" test pertains only to issues of causation under § 287.020.3 RSMo, and has no place in our analysis with regard to the issue of past medical expenses. See Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511 (Mo. App. 2011). Accordingly, we must disclaim the administrative law judge's use of a "prevailing factor" test in the context of the claim for past medical expenses.

We note also that the administrative law judge suggested that because employee did not obtain total, lasting relief of his low back symptoms following the vertebroplasty, the claim for disputed past medical expenses should be denied in full. See Award, page 12. We note that the claim for disputed past medical expenses includes other charges besides those associated with the vertebroplasty procedure. We are concerned that the administrative law judge's analysis might be construed to require that, to prevail on a claim for past medical expenses, each disputed procedure must be shown to have permanently cured or relieved the injured employee's symptoms and complaints. We are aware of no such requirement in the statute or relevant case law, so we must disclaim any imposition of such a test to the claim for past medical expenses.

Instead, we must begin by asking whether the disputed treatments were reasonably required to cure and relieve the effects of the work injury, or in other words, the resulting medical conditions of (1) an L2 fracture, (2) a c