Judith Gustin v. Macy's Retail Holdings, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 14-102494

**Employee:** Judith Gustin

**Employer:** Macy's Retail Holdings, Inc. (settled)

**Insurer:** Self-insured (settled)

**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 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.

Employee alleges the administrative law judge erred in denying permanent total disability against the Second Injury Fund (SIF) by giving more weight to subjective medical opinions over objective medical evidence, in contravention of § 287.190.6(2). This section states, in pertinent part, "In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures."

In finding that the employee suffered no permanent disability related to her November 27, 2014, trip and fall at work, administrative law judge relied on the expert opinions of orthopedic physicians David C. Hicks and Brent Koprivica.

Dr. Hicks conducted an independent medical examination of employee and later personally reviewed employee's August 30, 2016, MRI. On August 4, 2016, after examining employee and reviewing her past radiographic history, Dr. Hicks concluded, "Based on the information that I have at this point I do not feel that her work related injury was the prevailing factor resulting in the arthritic changes she has throughout her midfoot and forefoot." On September 19, 2016, after reviewing the employee's August 30, 2016, MRI, Dr. Hicks concluded, "[T]he MRI shows chronic degenerative changes and no acute pathology as a result of the work related injury that Ms. Gustin sustained on November 27, 2014 [emphasis added]."

1 Transcript, 4135.

2 Id., 4136.

Injury No.: 14-102494

Employee: Judith Gustin

- 2 -

In his June 23, 2019, report Dr. Brent Koprivica opined, based on his independent medical evaluation of employee and her past treatment records:

> In my opinion, Ms. Gustin's injury on November 27, 2014, is not felt to represent a condition that resulted in permanent disability.

>

> I would characterize Ms. Gustin as having suffered a contusion to her dorsal left midfoot and anterior ankle based on the injury.

>

> The nature of this type of injury from a structural standpoint is not one which produces new permanent structural injury, in my opinion.

>

> My opinion regarding the lack of disability would be consistent with the objective imaging on the MRI scan [emphasis added].

We find that Drs. Hicks and Koprivica's opinions constituted objective medical evidence as defined by § 287.190.6(2), in that both physicians based their conclusions regarding disability attributable to employee's primary injury based on a physical examination of the employee as well as review of the employee's August 30, 2016, MRI.

Case law construing § 287.190.6(2) suggests that the courts do not interpret § 287.190.6(2) as usurping the Commission's authority as fact finder. See *Ballard v. Woods Supermarkets*, 422 S.W.3d 473 (Mo. App. 2014); *Johnson v. Ind. Western Express, Inc.*, 281 S.W.3d 885 (Mo. App. 2009); and *Hall v. Mo. State Treasurer*, 500 S.W.3d 282 (Mo. App. 2016). Based in the above analysis of evidence in the record we are not persuaded that § 287.190.6(2) requires the Commission, as a matter of law, to reverse the administrative law judge's award in this case.

Employee alternatively argues that § 287.220.3 does not require proof of any degree of permanent partial disability as result of a primary injury in order to establish permanent and total disability against the SIF, but rather only requires that an employee's preexisting disability "aggravate or accelerate the work related injury." This argument overlooks the definition of "injury" included in Section 287.020.3 of the act. This section states, in pertinent part, "An injury by accident is compensable only if the accident was the prevailing factor causing both the resulting medical condition and disability [emphasis added]."

Finally, we regard administrative law judge's findings regarding employee's lack of motivation to return to work extraneous to her denial of compensation based on employee's failure to meet her threshold burden of establishing any degree of permanent disability attributable to her November 27, 2014, primary injury.

The above clarifications of the administrative law judge's award do not detract from her correct analysis of the evidence in the record or her ultimate legal conclusions.

3 *Id.*, 4017-4018.

4 *Application for Review*, p. 3.

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

The award and decision of Administrative Law Judge Victorine R. Mahon, dated June 7, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 21st day of February 2020.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:


Injury No.: 14-102494

Employee: Judith Gustin

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find the employee has proven that injury sustained in her compensable work injury on November 27, 2014, and in combination with her prior disabilities caused permanent total disability.

Employee, a seasonal sales worker in the shoe department of employer's department store, sustained injury on November 27, 2014, when she stumbled over a shoebox. On January 30, 2017, employee settled her case with employer/insurer for $4,966.88, based on approximate permanent partial disability of 15% of the left foot. The administrative law judge heard employee's remaining claim against the Second Injury Fund (SIF) on April 2, 2019.

The administrative law judge denied employee's SIF claim, based partly on her finding that employee suffered no permanent disability from her November 27, 2014, work injury. In so doing, the administrative law judge erred in prioritizing subjective medical opinions over objective medical findings of disability, in the form of well-documented visual swelling that started immediately after the injury, as reflected in all of employee's doctor visits over the following three years.

Section 287.190.6(2) provides, in pertinent part, "In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures."

Physicians consistently observed objective swelling in sequential examinations of employee after her work injury. Dr. Walz found "some ecchymosis of the ankle and a little bit of swelling." Dr. Hicks noted "localized swelling" in employee's mid-foot.² Finally, Dr. Koprivica reported, "Ms. Gustin does get swelling and tries to elevate [her] foot associated with the swelling."³

Employee's credibility is not in dispute. She reported, and the physicians observed, swelling in her left foot that began immediately after her work injury and was persistent and permanent. Employee testified that she has pain and discomfort that requires her to rest her leg and sometimes elevate it. Even Dr. Koprivica conceded that if swelling began immediately after employee's injury and persisted, there would be disability: "If truly there was the onset of the swelling follow[ing] a soft tissue injury and persisted from that date, from that point forward, then I think that is arguable that in fact it would

1 Transcript, 4128.

2 Id. 4135.

3 Id. 4008.

Injury No.: 14-102494

Employee: Judith Gustin

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flow from the work injury."4 Dr. Koprivica also admitted that the MRI of employee's left ankle two years after the accident was "positive for nonspecific soft tissue changes consistent with inflammation," an objective finding.5 The administrative law judge erred in ignoring objective evidence of swelling and in concluding that there was no permanent disability.

The administrative law judge discredited Dr. Mullins on the basis that he "abruptly" changed his mind as to whether there was a ligamentous injury after viewing employee's MRI results.6 Dr. Mullins in fact testified that employee's MRI, performed in August of 2016, almost two years after her fall, could not be used to rule in or exclude a ligamentous injury. He stated, "An MRI doesn't prove anything two years after. She could have had a completely torn ligament that healed by then."7 Employee's MRI confirmed objective structural evidence of a traumatic injury in the form of swelling.8 Transcript, 3833. Dr. Mullins ultimately concluded, based on review of employee's MRI, that her work injury aggravated her preexisting arthritis, causing it to become symptomatic. Employer waited so long to authorize treatment, that it was impossible for the MRI to detect a traumatic injury.9

Dr. Mullins went on to explain that while no one could use the MRI by itself to determine what injuries were caused by the November 27, 2014, injury, he could make that determination by looking at employee's medical history and his exam findings.10 Dr. Mullins concluded that employee's work accident was the prevailing factor in causing 22% disability to her left foot, explaining, "[T]he difference is the fall. It caused those chronic changes in the ankle to become chronically painful. And that's a phenomenon we frequently see in the business is without a traumatic event, degenerative changes can go on many years without ever causing an individual any limitations or significant pain. In her case, it caused her to have chronic pain and limp and decreased her ability to function [emphasis added]."11 Even Dr. Koprivica admitted that one can have permanent disability from a soft tissue injury and that swelling can be an indication of permanent disability, however, he was unaware of employee's documented history of swelling from the date of the accident.12

In crediting the opinions of Drs. Hicks and Koprivica over that of Dr. Mullins, the administrative law judge relied upon a critically inaccurate understanding of the progression of employee's treatment and ignored how her work injury negatively affected her ability to do her job. Employee saw Dr. Walz on January 29, 2015. When her condition did not improve, she requested treatment from her employer but none was authorized. She filed a claim for compensation with an express request for treatment on September 21, 2015, after employer denied authorized treatment. The administrative law

4 Id. 4053-4054.

5 Transcript, 4054.

6 Award, p. 12.

7 Transcript, 3832.

8 Id. 3812.

9 Id. 3813.

10 Id. 3815-3816.

11 Id. 3826-3827.

12 Id. 4053-4054.

Injury No.: 14-102494

Employee: Judith Gustin