Cynthia Null v. Albany Medical Center, a/k/a Northwest Medical Center Association

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No. 12-100528**

**Employee:** Cynthia G. Null

**Employer:** Albany Medical Center, a/k/a

Northwest Medical Center Association

**Insurer:** Hospital Association Team

**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. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge awarding 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 (ALJ) with this supplemental opinion.

The disputed issues in this case are:

- Future medical treatment

- Past medical expenses of $41,407.04

Employer/insurer filed an application for review, citing the following errors in the ALJ's award:

- The ALJ erred in allowing future medical benefits based on aggravation of employee's pre-existing condition. The ALJ misapplied the law by not requiring that employee's work injury be the "prevailing factor", as defined in § 287.020.3 (1), causing employee's need for future medical treatment.

- The ALJ erred in relying on Dr. Hill's report, because Dr. Hill relied on incorrect information regarding employee's pre-existing conditions and was not furnished employee's extensive medical history.

- The ALJ erred in awarding future and past medical benefits based on a finding that employee was credible, in that the records includes clear instances where employee misled or plainly misinformed her treating physicians.

Section 287.140 RSMo provides, in pertinent part:

> 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 ... as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. ...

MNKOI 0001610658

Injury No. 12-100528

Employee: Cynthia G. Null

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Section 287.800, as amended in 2005, requires that the Commission construe the provisions of the chapter strictly. "[A] strict construction of a statute presumes nothing that is not expressed. [and] means that everything shall be excluded from its operation which does not clearly come within the scope of the language used." *Allcorn v. Tap Enters.* 277 S.W.3d 823, 828 (Mo. App. 2009). The plain language of § 287.140 does not require an employee who sustains a compensable injury to prove the injury is the "prevailing factor" in causing his or her need for future medical treatment. This is in contrast to the stricter standard for medical causation of a compensable condition and disability specifically set out in § 287.020.3(1)¹.

In this case, employer stipulated that the employee sustained an injury by accident arising out of and in the course of her employment on December 24, 2012. *Transcript, 8.* Employer does not dispute that employee injured her left foot, left ankle, and right knee as a result of falling on ice in employer's parking lot that day. Prior to hearing, employee and employer settled all issues relating to permanent disability for 120,000.00. As of the date of hearing, employer had paid 281,070.75 in medical aid related to the injury, including pain management treatment by Dr. Blacher and psychiatrist Dr. Hu, counseling by Dr. Jura and psychiatric treatment by Dr. Pronko.

In *Tillotson v. St. Joseph Medical Center,* 347 S.W. 3d 511 (Mo. App. 2011), the court held:

> The existing case law at the time of the 2005 amendments to The Workers' Compensation Law instructs that in determining whether medical treatment is "reasonably required" to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. Rather, once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant. *Id.* at 519 (citations omitted).

In *Greer v. Sysco Food Servd.,* 475 S.W.3d 655, (Mo. 2015), the Supreme Court confirmed that an employee "needs only to show a reasonable probability that the future treatment is necessary because of his work-related injury." In *Armstrong v. Tetra Pak, Inc.,* 391 S.W.3d 466 (Mo. App. 2012), the court of appeals clarified that *Tillotson* standard for awarding future medical does not apply where an employee fails to prove a compensable injury. Because employer/insurer concedes that the employee sustained injury to her left foot, left ankle and right knee as a result of her December 24, 2012, work injury, the *Armstrong* exception does not apply.

As a matter of law, we reject employer's argument that the ALJ erred in failing to require that the employee prove that her compensable work injury was the "prevailing factor" causing her need for future medical treatment for depression, psychological injury and chronic pain management. Consistent with the legislature's strict construction mandate, and judicial interpretation of § 287.140 in *Tillotson, supra,* we find that the ALJ properly concluded that the employee needed only to show a reasonable probability that future treatment was necessary because of her work-related injury.

1 § 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. 'The prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."

MNKOI 0000212998

Injury No. 12-100528

Employee: Cynthia G. Null

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related injury and that the need for future medical treatment and medication flowed from the injury.

**Sufficiency of Evidence in Support of ALJ's Award of Disputed Past Medical Treatment and Future Medical**

Employer argues that the ALJ erred in basing his award of disputed past medical treatment in the amount of $41,407.04 and future medical on the report of Dr. Todd Hill. Dr. Hill, an emergency room psychiatrist, treated employee at North Kansas City Hospital on March 8, 2017. Dr. Hill opined in a report documenting his consultation with employee on that date that employee suffered from depression and chronic pain as a result of her December 24, 2012, work injury. Employer asserts that Dr. Hill's opinions are not credible because they were based on the employee's statement that she "had no psychiatric issues" prior to her December 24, 2012, work injury and because Dr. Hill failed to independently review employee's past medical history.

We agree that the medical history employee gave Dr. Hill at the time of her emergency admission to North Kansas City Hospital on March 6, 2017, was incomplete. We disagree with employer's suggestion that Dr. Hill's evaluation of employee's medical condition, based on her presentation in the hospital emergency room that day, is not credible. Dr. Hill noted:

> It does appear that Psychiatry has been prescribing her 200 mg of trazodone with 120 mg of Cymbalta and Xanax for anxiety where the workman's comp doctors is also putting her on muscle relaxers as well as some pain medication. The patient at this point is having significant side effects it appears from all of her medications. She is on multiple medications that are prescribed not only by her psychiatrist, but by the workman's comp pain physician, all of which can cause significant drug interactions. (emphasis added) Transcript, 1156, 1158.

The above findings and conclusions did not stem from Dr. Hill's reliance on employee's self-reported health history.

With respect to employer's suggestion, the ALJ placed "undue weight" on Dr. Hill's opinion as the basis for his award of future medical, we note the ALJ also relied on the opinion of licensed psychologist Dr. Allan Schmidt. On March 16, 2016, after a comprehensive review of the employee's medical records, Dr. Schmidt conducted a four-hour evaluation of the employee in his office. We credit Dr. Schmidt's opinion, based on his independent medical evaluation, that the employee's December 24, 2012, work injury caused her need for future medical treatment for major depression and chronic pain disorders. We affirm the ALJ's finding that Dr. Schmidt's opinion is more credible and persuasive than the opinions of employer's experts Drs. Pronko and Rosenthal.

**ALJ's Reliance on Employee's Credibility as a Basis for Awarding Future and Past Medical Benefits**

Employer asserts the ALJ erred in relying on employee's testimony in his award, without acknowledging or explaining less than entirely consistent statements regarding her health history.

Impr

Injury No. 12-100528

Employee: Cynthia G. Null

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The ALJ found:

Claimant credibly described her symptoms and complaints since the December 24, 2012 work injury. She has had continuing and ongoing physical and psychological symptoms and complaints caused by her compensable work injury. The evidence demonstrates she has continued to receive treatment, and has continued to have prescriptions filled for her left ankle and psychological injury caused by the work accident. Her work injury is permanent. The evidence supports the conclusion that Claimant will continue to need treatment in the future to treat her work injury. The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant. (emphasis added). Award, p. 53.

As a factual matter, we adopt the ALJ's finding that employee was credible with respect to her description of symptoms and complaints she has experienced since her December 24, 2012, compensable injury.

North Kansas City Hospital's March 6, 2017, admission history documents employee's report that "most of the time she just feels like she can't think straight." Transcript, 1147. We reject employer's theory that the employee deliberately intended to mislead Dr. Hill. We find employee's less than entirely accurate accounts of her multiple diagnoses and past medical treatment were attributable to the complexity of her medical history as well as the mental confusion she experienced due to side effects of multiple medications, including those prescribed for her work injury.

Award

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Robert B. Miner, issued October 26, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the ALJ's allowance of attorney's fee herein as being fair and reasonable.

Given at Jefferson City, State of Missouri, this 20th day of December 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Concurring Opinion Filed

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No. 12-100528

Employee: Cynthia G. Null

Employer is entirely reasonable in objecting to an award of future medical benefits where, as here, the employee's work injury is clearly not the prevailing factor causing the need for such treatment. Employee's long history of physical and mental ailments predating her December 24, 2012, work injury included depression, anxiety, and chronic pain disorder. It is unfair to require employer t