Lucille Schoen v. Mid Missouri Mental Health Center

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 09-034298

**Employee:** Lucille Schoen

**Employer:** Mid Missouri Mental Health Center

**Insurer:** Self-Insured

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

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 briefs and considered the whole record. Pursuant to § 286.090 RSMo, we reverse the award and decision of the administrative law judge (ALJ).

At hearing, the ALJ cited the first issue to be decided as "[W]hether the work accident of May 8, 2009, is the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence."¹

In an award dated March 22, 2018, the ALJ found that employee was permanently and totally disabled due to her May 8, 2009, work injuries, including injuries sustained on May 22, 2009, in treating physician Dr. Runde's office; that employer was responsible for payment of weekly permanent total disability benefits; and that the Second Injury Fund (SIF) had no liability.

Employer filed a timely application for review alleging the ALJ's award was erroneous for the following reasons:

1. The weight of the evidence presented supports a finding the employee is not permanently totally disabled.
2. If employee is permanently totally disabled, the SIF is liable for those benefits;
3. The ALJ erred by including alleged injuries to employee's left knee, right knee, left shoulder, left hip, lumbar spine, and neck when assessing the nature and extent of her primary work-related injury; and
4. The ALJ erred in ordering employer/insurer to reimburse employee for past medical charges.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

¹ Transcript, 6.

Improved Health

Injury No.: 09-034298

Employee: Lucille Schoen

- 2 -

On May 8, 2009, employee complained of throat and eye irritation, coughing and wheezing after exposure to Cypermethrin sprayed around air conditioning units in her work place to control ants. Employee sought emergency room treatment on May 11, 2009. She thereafter returned to work immediately without limitations in regard to ant spray exposure.

In response to employee's continued complaints, employer sent her to occupational and environmental medicine specialist Dr. Eddie Runde for additional evaluation on May 22, 2009. In addition to employee, another person with a small dog was sitting in Dr. Runde's waiting room. While Dr. Runde's receptionist escorted employee from the waiting room to the patient area, in the process of attempting to divert the dog, Dr. Runde accidentally kicked employee under her right knee, causing her to trip and fall on her knees. As part of his evaluation, prior to discharging employee that day, Dr. Runde examined employee's knees. He found that she had some mild erythema, full range of motion, and was able to walk with normal gate. Dr. Runde released her to regular duty with no restrictions, and noted that no permanent disability would be expected related to her May 8, 2009, Cypermethrin exposure.

In August 2009, employer sent employee to Dr. Thomas Hyers for an independent medical evaluation. Dr. Hyers opined that employee's work exposure to ant spray was not the prevailing factor for any current complaints regarding her pulmonary functions. Dr. Hyers diagnosed employee with transient bronchitis. He opined that her work caused merely a temporary irritation that would have resolved in a matter of days after the initial exposure.

Dr. Volarich evaluated employee at her attorney's request on July 21, 2014. Dr. Volarich provided the following disability ratings relating to employee's primary, May 8, 2009, injury:

- 5% PPD of the body as a whole due to pulmonary exposure to Cypermethrin

- 15% PPD of the body as a whole due to cervical strain/sprain with aggravation of headaches

- 25% PPD of the body as a whole rated at the lumbar spine due to irreversible aggravation of her lumbar syndrome

- 25% PPD of the left upper extremity rated at the shoulder due to adhesive capsulitis

- 45% PPD of the left lower extremity rated at the knee due to bicompartmental meniscal tears and chondral injuries

On June 3, 2015, orthopedist Dr. George Paletta evaluated employee and assessed the following:

- End stage osterarthritis left knee, moderately severely symptomatic; and

- Degenerative joint disease right knee, minimally symptomatic

Injury No.: 09-034298

Employee: Lucille Schoen

- 3 -

Dr. Paletta ultimately concluded that employee's underlying chronic, progressive degenerative joint disease, not her May 8, 2009, injury was the prevailing factor in her need for future medical treatment.

Lastly, Dr. Michael Chabot evaluated employee on July 31, 2015. After reviewing the medical records and imaging studies, Dr. Chabot diagnosed the following conditions:

- History of trip and fall/back contusion;

- Back strain;

- History of chronic multi-level degeneration involving lumbar spine; and

- History of bilateral knee joint arthritis.

Dr. Chabot opined that symptoms relating to employee's strain injury had resolved, that she had reached maximum medical improvement, and that the employee's present complaints "are causally related to multiple pre-existing medical conditions to include multi-articular arthritis more specifically involving the knee joints, multi-level disc degeneration and facet degeneration involving the lumbar spine and degenerative spondylolisthesis unrelated to her work injury."

The employee alleged disabilities relating to her May 8, 2009, ant spray exposure involving pulmonary issues, left knee pain, left shoulder pain, low back pain, and neck pain with headaches.

The ALJ found that the parties "appear[ed] to concede" that injuries employee claimed to sustain as a result of the May 22, 2009, incident in Dr. Runde's office were compensable as part of her May 8, 2009, Cypermethrin exposure. Noting language in *Meinczinger v. Harrah's Casino* to the effect that "Injuries sustained during authorized medical treatment of a prior compensable injury are the natural and probable consequence of the compensable injury," the ALJ found that injuries the employee sustained while she was seeking authorized treatment from Dr. Runde on May 22, 2009, were compensable as part of her May 8, 2009, Cypermethrin exposure. Considering medical records, medical opinions, employee's testimony and her advanced age the ALJ found employee permanently and totally disabled due to her May 8, 2009, work injuries considered in isolation, including injuries employee sustained in the May 22, 2009, incident in Dr. Runde's office.

Employer's application for review alleges "The ALJ erred by including alleged injuries to Employee's left knee, right knee, left shoulder, left hip, lumbar spine, and neck when assessing the nature and extent of her primary work-related injury." On appeal, all parties brief the issue of compensability of injuries allegedly sustained by employee on May 22, 2009, in the office of her authorized treating physician, two weeks after her work injury on May 8, 2009. No party disputes that this issue is properly before us for review.

2 Transcript, 1328.

3 Award, p. 5, n.1.

4 *Meinczinger v. Harrah's Casino*, 367 S.W.2d 666,669 (Mo. App. 2012), citing *Lahue v. Missouri State Treasurer*, 820 S.W.2d 561,563 (Mo. App. 1991).

Injury No.: 09-034298

Employee: Lucille Schoen

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Section 287.020.3.1 provides, "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability."

We credit the expert opinions of Dr. Runde and Dr. Hyers that employee's exposure to Cypermethrin at work on May 8, 2009, was not the prevailing factor for any current complaints regarding her pulmonary functions. Dr. Volarich's de minimis evaluation of 5% PPD of the body as a whole due to employee's ant spray exposure on that occasion does not persuade us otherwise. We conclude that employee sustained no permanent partial disability to her pulmonary functions as a result of her May 8, 2009, Cypermethrin exposure.

The cases of *Meinczinger v Harrah's Casino* and *Lahue v. Treasurer, supra*, represent instances in which an employee is further injured as a direct result of the reasonable course of medical treatment and where the employee's initial injury was aggravated by the medical treatment itself. Those cases are dissimilar to the acts presented here. In this case, after employee's exposure to ant spray on May 8, 2009, while merely in Dr. Runde's office on May 22, 2009, employee slipped and fell after Dr. Runde accidentally tripped her. This unfortunate mishap though taking place in the doctor's office, was not part of the course of any medical treatment employee was undergoing due to her ant spray exposure and did not arise out of any risk source inherent in her employment.

In *Bear v. Anson Implement, Inc.*, the Court of Appeals cautioned against concluding, under Missouri law, that anything happening to an injured worker in the course of a visit to a doctor is compensable. The injuries employee allegedly sustained while visiting Dr. Runde's office were clearly not the direct result of any necessary medical treatment for her primary injury. We conclude there is no causal connection between alleged disabilities relating to employee's left knee pain, left shoulder pain, low back pain, and neck pain with headaches and her Cypermethrin exposure at work on May 8, 2009.

Because we have found that employee sustained no PPD in connection with her primary injury, her SIF claim for disability attributable to the combination alleged pre-existing disabilities together with disability attributable to the primary injury is moot.

---

5 *Bear v. Anson Implement, Inc.*, 976 S.W.3d 553,555 (Mo. App. 1998).

6 See also *Jennings v. Station Casino St. Charles*, 196 S.W.3d 552,557 (Mo. App. 2006); *Martin v. Town and Country Supermarkets*, 220 S.W.3d 836,847 (Mo. App. 2007).

Employee: Lucille Schoen

-5 -

We reverse the award of the administrative law judge.

Employee's claim is denied because she failed to meet her burden of proving that her May 8, 2009, work injury was the prevailing or primary factor causing any permanent disability.

The award and decision of Administrative Law Judge Robert J. Dierkes, issued March 22, 2018, is attached solely for reference.

Given at Jefferson City, State of Missouri, this $\qquad 10th \qquad$ day of October 2018.


DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member


Injury No.: 09-034298

Employee: Lucille Schoen

The pivotal issue in this case is whether the employee's work accident of May 8, 2009, is the prevailing factor causing the injuries and conditions alleged in her compensation claim.

The employee's exposure to Cypermethrin while at work on May 8, 2009, is not in dispute. On May 11, 2009, employee sought treatment for burning lungs, a persistent cough and wheezing at a hospital urgent care clinic. After discharge, she continued to have problems with her respiratory functions. In response to employee's complaints, employer referred her to Dr. Eddie Runde, an occupational medicine physician in Columbia, for evaluation on May 22, 2009. As the administrative law judge (ALJ) found:

> Dr. Runde sent Claimant "across the street" to get a chest x-ray. After obtaining the chest x-ray, Claimant returned to Dr. Runde's office and was sitting in the waiting room. Also in the waiting room was a person with a small dog. As Claimant was being escorted from the waiting room to the patient care area, the dog followed Claimant into the patient area