Shelly Dale v. Washington University

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

Injury No. 09-099305

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 filings, 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.

On February 28, 2020, an administrative law judge issued an award denying compensation to employee in this workers' compensation claim. On March 6, 2020, employee filed a timely application for review with the Labor and Industrial Relations Commission (Commission).

On March 18, 2020, employer filed with the Commission an answer to employee's application for review. Therein, employer argues that employee's application for review fails to comply with Commission rule 8 CSR 20-3.030(3)(A), and requests that we therefore dismiss the application for review.

The Commission allowed employee 15 days to respond to the request by employer that his application for review be dismissed. To date, the Commission has not received any response from employee.

Commission rule 8 CSR 20 3.030(3)(A) provides, in relevant part, as follows:

> An applicant for review of any final award, order or decision of the administrative law judge shall state specifically in the application the reason the applicant believes the findings and conclusions of the administrative law judge on the controlling issues are not properly supported. It shall not be sufficient merely to state that the decision of the administrative law judge on any particular issue is not supported by competent and substantial evidence.

Employee's application for review states the following, in its entirety:

> The [ALJ] erred in not ruling that [EE]'s fall and resulting Injuries more likely than not resulted in her Injuries. The [ALJ] erred in not considering [EE]'s competent, credible, and persuasive medical evidence of causation and resulting permanent disability. The [ALJ] erred in excluding the report of Dr. Hinton.

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At minimum, our rule requires an applicant for review to identify the administrative law judge's particular findings and/or conclusions with which the applicant disagrees, and to state specifically why the applicant disagrees with them. As the court held in *Taluc v. TWA*, 34 S.W.3d 831, 834 (Mo. App. 2000), the Commission is not required to "figure out on its own" the issues an applicant for review wishes to contest, and is authorized to dismiss applications that are insufficiently specific.

It appears employee is challenging the administrative law judge's evidentiary rulings. Employee fails, however, to identify a single reason why such rulings were in error. To proceed with a review of the administrative law judge's evidentiary rulings absent a specific allegation or argument why said rulings were in error would inappropriately place the Commission in the role of advocate for the employee.

We conclude that employee's application for review fails to satisfy the minimum requirements under Commission rule 8 CSR 20-3.030(3)(A). Therefore, we grant the request by employer, and dismiss employee's application for review.

Additionally, employer's cross application for review that it filed with this Commission on March 5, 2020 does not affect our decision to affirm the administrative law judge's award, because it does not disagree with the administrative law judge's ultimate disposition of this case, and only disputes findings of facts #3 and #8, which it finds to be contradictory.

We therefore change the administrative law judge's response in finding of fact #8 ([d]id accident or occupational disease arise out of and in the course of the employment?) from "yes" to "no" so that it does not appear to contradict the "no" response within finding of fact #3 ([w]as there an accident or incident of occupational disease under the [l]aw?).

We affirm and adopt the award of the administrative law judge as supplemented herein. The award and decision of Administrative Law Judge Karla O. Boresi is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this 29th day of July 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Secretary

Injury No. 09-099305

**Employee:** Shelly Dale

**Dependents:** N/A

**Employer:** Washington University

**Additional Party:** Second Injury Fund

**Insurer:** Colleges and University Trust c/o Cannon Cochran Management Services

**Hearing Date:** November 6, 2019

**Injury No.:** 09-099305

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: December 10, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant clocked out, left Employer's building, and slipped on a metal grate outside the building.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Body as a whole - low back
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 09-099305

1. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: 351.06

1. Weekly compensation rate: 234.04/$234.04

1. Method wages computation: By agreement and using the table

COMPENSATION PAYABLE

1. Amount of compensation payable from the Second Injury Fund: NONE

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Law Offices of MacArthur Moten, P.C.

Employee: Shelly Dale

Departments: N/A

Employer: Washington University

Additional Party: Second Injury Fund

Insurer: Colleges and University Trust c/o Cannon

Cochran Management Services

Hearing Date: November 6, 2019

Injury No.: 09-099305

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

A Hearing was held in the above-referenced matter on November 6, 2019. Shelly Dale ("Claimant") appeared in person and was represented by counsel, Mr. Steve Brooks on behalf of MacArthur Moten, P.C. Washington University ("Employer") and its insurer, Colleges and University Trust c/o Cannon Cochran Management Services ("Insurer"), were represented by Mr. David Ware and Ms. Mary Anne Lindsey. Assistant Attorney General Da-Niel Cunningham represented the Second Injury Fund ("Fund").

Prior to the start of the Hearing, the admissibility of Dr. Paul Hinton's report was raised as an issue. When the report was not admitted, Claimant moved for a continuance to secure the deposition of Dr. Hinton. The admissibility of Dr. Hinton's report, and the denial of Claimant's request for a continuance, will be discussed in detail later in this Award.

The parties stipulated to the following facts:

1. Claimant and Employer were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. On or about December 10, 2009, Claimant sustained an accident;
3. Claimant was an employee of Employer;
4. Claimant provided Employer with proper notice of her accident;
5. Claimant filed her Claim for Compensation in a timely manner;
6. At the relevant time, Claimant earned an average weekly wage of $\ 351.06, for applicable rates of compensation of $\ 234.04 for total disability benefits, and $\ 234.04 for permanent partial disability benefits;
7. Employer and Insurer did not pay any temporary total disability benefits;
8. Employer and Insurer did not pay any medical benefits;
9. Venue for the Hearing in this matter is proper at the St. Louis office of the Missouri Division of Workers' Compensation.

The issues to be resolved at this Hearing are:

1. Did Claimant's accident arise out of and in the course and scope of her employment?
2. Was Claimant's accident the prevailing factor in causing both the resulting medical condition and disability?
3. Is Employer/Insurer liable for past medical bills?
4. Is Employer/Insurer liable for future medical care?
5. What is the nature and extent of Claimant's disability?
6. What liability, if any, falls on the Second Injury Fund?
7. Is Dr. Hinton's medical report admissible under Section 287.210.7?

Claimant offered and had admitted into evidence, the following Exhibits:

Exhibit 1: Fax to David Ware

Exhibit 2: Fax to Da-Niel Cunningham

Employer/Insurer offered and had admitted into evidence, the following Exhibits:

Exhibit A: Curriculum vitae of Dr. Daniel Kitchens

Exhibit B: Report of Dr. Daniel Kitchens, dated July 5, 2016

Exhibit C: Supplemental report of Dr. Daniel Kitchens, dated October 19, 2016

Exhibit D: Report of Dr. Russel Cantrell, dated November 11, 2009

Exhibit E: Report of Dr. Russell Cantrell, dated May 4, 2010

Exhibit H: Medical records and report of Dr. Bruce Schlafly

Exhibit I: Medical records of Dr. Fatoki

Exhibit J: Medical records of Christian Hospital

Exhibit M: Medical records of Pain Management \& Spine Specialists

Exhibit N: Medical records of Dr. Peter Mirkin

Exhibit P: Medical records of Dr. Ravindra Shitut

Exhibit Q: Medical records of Dr. Selam Deutschmann

Exhibit R: Medical records of Dr. Siddharth Kaul

Exhibit S: Medical records of Spine and Wellness Center

Exhibit T: Medical records of St. Luke's Hospital

Exhibit U: Medical records of Dr. William Hoffman

Exhibit V: Records of the Division of Workers' Compensation Exhibit W: Letter from CMS regarding conditional payments Exhibit X: Request for Hearing

The Fund offered and had admitted into evidence, the following Exhibits:

Exhibit I: Letter from Da-Niel Cunningham, dated January 24, 2017

Exhibit II: Letter from Da-Niel Cunningham, dated February 1, 2017

Exhibit III: Section 287.210.7 RSMo (2005) notice for Dr. Cantrell's report

Exhibit IV: Section 287.210.7 RSMo (2005) notice for Dr. Kitchens' report

Claimant offered, but did not have admitted into evidence, the following Exhibit:

Exhibit 3: Report of Dr. Paul Hinton

Employer/Insurer offered, but did not have entered into evidence, the following Exhibits:

Exhibit F: Medical records of BarnesCare

Exhibit G: Medical records of Dr. David Brown

Exhibit K: Medical records of Memorial Hospital

Exhibit L: Radiology report of Missouri Baptist Hospital

Exhibit O: Medical records of Dr. Rafat Nashed

Note: Some of the records submitted at the Hearing contain handwritten remarks or other marks on the exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on November 6, 2019.

Based upon the relevant testimony of Claimant at Hearing, and the Exhibits introduced into evidence, I make the following Findings of Fact:

Claimant worked for Employer as a custodian. Her job was to dust, mop, buff, vacuum, and clean the restrooms and offices. On the date of the accident, Claimant was working the night shift; her hours were midnight to 8:30 a.m.

Claimant was injured in 1992 when a car, in which she was a passenger, was hit by an 18 wheeler. She sustained a sprain injury to her neck. Claimant went to the chiropractor two or three times after the accident. She did not receive any injections or surgery.

In 2008, while working for Employer, Claimant injured her left shoulder when she was dumping trash from a tilt cart. Claimant "bruised" the bone in her shoulder. She saw a chiropractor for eight visits. Claimant received a settlement for this injury. Claimant still has "complications" with her left shoulder. Claimant gets injections in her shoulder from Dr. Stynowick of Pain Management. Her last injection was one week before this Hearing.

Claimant first injured her back in 1998. At the time, Claimant was working for Contico International. She sustained a wear and tear injury to her back. Claimant had surgery on her low back. Claimant also saw a chiropractor six or eight times for her back. Claimant received a settlement. Claimant testified that her back fully recovered following her surgery.

Claimant's primary accident occurred on December 10, 2009. She was leaving work at approximately 8:35 a.m. when she clocked out, headed to her car, and fell after she stepped outside. Claimant's co-worker warned her not to step just as she took a step. Her foot landed on a grate that was covered with ice. Claimant landed on her back on the metal grate. As she was walking to the office, she felt pain in her ankle and pain in her neck that went down her back.

After Claimant filled out a report in the office, she was sent to BarnesCare. At BarnesCare, her ankle and wrists were x-rayed and then she was sent back to work. Claimant testified that she reported her low back pain to BarnesCare.

When Claimant returned to work the day after her fall, she would feel pain in her neck when she tried to clean and she would experience sharp pain in her low back when she tried to mop or sweep. Claimant testified she reported the pain to her supervisor, but she was not provided any further treatment.

In June of 2010, Claimant went to her own doctor because her legs were giving out and she was in pain. Claimant's family doctor sent her to see Dr. Brown. Dr. Brown gave Claimant an injection. When the injection did not help, he referred Claimant to another doctor.

Claimant received one or two injections a month. She received a total of six injections. Dr. Stynowick performed the injections. When the injections did not work, Claimant was told that her "discs were separating" and she needed surgery.

On March 11, 2011, Dr. Hoffman operated on Claimant's low back. Claimant informed Employer that she was having back surgery. When Claimant was off work, she used her sick and vacation time. Claimant continued to treat with Dr. Hoffman until he released her with restrictions. Claimant then received a letter from Employer stating she could not work with restrictions. Dr. Hoffman told Claimant she would always have restrictions, therefore, Claimant never returned to work for Employer following her back surgery.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 09-099305

Other than pain management, Claimant did not receive any rehabilitative services following her surgery. Claimant still treats with Dr. Stynowick, her pain management doctor, once a month. Dr. Stynowick prescribes pain medication, hydrocodone, to Claimant which makes her drowsy and tired. He also gives her injections when the pain medication is not working. Dr. Stynowick gives Claimant a steroid injection in the area of her body where she is hurting the most.

Claimant testified that her neck began hurting at the same time as her low back, but her back was so bad that she focused more on it. Claimant testified that she told all of her doctors about her neck pain. Claimant testified that Dr. Stynowick treated her low back and neck. Claimant went to Dr. Shitut in 2011 or 2012 for her neck pain when she began to have headaches.

Dr. Shitut sent Claimant for a CT scan. According to Claimant, the CT scan revealed that she had four ruptured discs in her neck. Since the surgery, Claimant's neck pain has improved. She also has fewer headaches. However, Claimant reports difficulty talking and choking since her neck surgery. Claimant attributes her neck complaints to her December 10, 2009, fall at work.

Claimant takes pain medication every day. She can only get an injection in one part of her body at a time, so she often is still hurting when she leaves pain management. At the Hearing, Claimant was stiff and her lower back hurt. Claimant suffers from anxiety due to her physical condition and pain.

Claimant's neck and back conditions impair her everyday life. She still does her own housework, but it causes pain. Claimant testified that she no longer has a social life. Her pain prevents her from dancing and exercising. She has a hard time sleeping through the night.

Claimant is currently on disability. She started receiving it in 2014 before her neck surgery but after the back surgery.¹ In 2011, she began receiving long-term disability from Employer.

On cross-examination by Employer, Claimant first testified she did not have back pain before December 10, 2009, then testified that she did.

Claimant was asked about a bus accident in 1984 when she was treated at Belleville Memorial Hospital ("Memorial") with complaints of back pain. Claimant agreed that in September of 1990, when she was a passenger in a car that collided with an 18 wheeler, she made complaints regarding her neck, low back, and left shoulder. Claimant treated with a chiropractor following this accident.

Claimant did not recall going to Memorial in 1992 with complaints of low back pain after lifting boxes at work. Nor did she remember being given medication and prescribed bedrest. Claimant did recall going to Memorial in 1997 after she struck her hand on a machine at work.

¹ Claimant did not specify the type of disability she began receiving in 2014.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 09-099305

and sustained fractures in her right hand. Claimant filed a claim against her employer, Contico, and received 12.5% of the hand.

In March of 1998, Claimant had an injury to her back while working for Contico. Claimant treated at Memorial where she complained of low back pain and left leg numbness. Eventually Claimant was referred to Dr. Marchosky. Dr. Marchosky performed surgery on Claimant's low back to repair herniated discs at L3-4 and L4-5. According to Dr. Marchosky's records, when he was discharging her, Claimant reported her complaints were worsening. Claimant then had additional diagnostic testing and treated with her primary care doctor ("PCP"). Claimant received a settlement of 25% of the body for this injury.

In 2005, Claimant treated with her PCP for a head injury. At that time, she also reported complaints of neck and low back pain. Claimant could not recall having an injury to her neck and left shoulder in April of 2006. Claimant did not recall continuing to have complaints regarding her neck and low back through 2006, 2007, and 2008, nor could she remember treating with her PCP for those complaints. Claimant did not recall being referred to Memorial for x-rays of her cervical spine. She did not recall being told she had multi-level degenerative changes in her neck.

Claimant did not recall having neck complaints after an accident in January 14, 2009, when a flatbed truck backed into her car. Claimant did not recall treating with Dr. Deutschmann. However, when Claimant was told Dr. Deutschmann is a chiropractor, she testified she treated with him for her shoulder. She did not recall telling him about an auto accident, that she had neck pain, or being told she would have problems and exacerbations from then on.

On June 15, 2009, Claimant injured her upper extremities while working for Employer. She had pain in her neck, left elbow, left shoulder, and both hands. She treated with several doctors, and continued to have complaints.

In September of 2009, Claimant injured her back and left shoulder at Employer when she was pushing a cart. Claimant treated at BarnesCare following that incident and reported pain in her upper back, middle back, left shoulder, arm, and neck. Claimant was given medication and was prescribed physical therapy. Claimant was also sent to Missouri Baptist Hospital for x-rays. Claimant did not recall telling BarnesCare she had no prior injuries to her left upper extremity or her neck.

Claimant admitted that she had complaints to her neck, low back, upper extremity, and lower extremity prior to December 10, 2009. Further, she had received treatment for those body parts prior to December 10, 2009.

When Claimant went to Dr. Shitut in March of 2013, she told him she had been experiencing neck pain since August of 2012. Claimant denied telling Dr. Shitut she was feeling much better when he discharged her on October 22, 2013. He did not place any restrictions on her when she was discharged.

**Injury # 09-099305**

Claimant did not recall being referred to Dr. Mirkin by Dr. Stynowick. She did not recall Dr. Mirkin telling her she should not have any further surgery. Claimant did not recall treating with Dr. Kaul in 2014.

On the date of her fall, Claimant had clocked out and had left the building. She was right outside the door when she fell. The door is used by the general public; anyone can go through the door.

At Claimant's first visit to BarnesCare, she did not make any complaints about her neck. She returned to work the next day and worked full duty until her surgery in March of 2011. She worked all of her regular job duties during that time period. She did not have any lost time immediately following the fall.

Since Claimant was released from BarnesCare, all of her treatment has been paid for by group insurance or Medicare.

Claimant was not clear about to whom and when she reported her fall as an injury under workers' compensation. Her response was: "Whatever happened, I reported it to my supervisor." Before her surgery, she went to HR to fill out forms.

Claimant performs all household tasks herself, although they cause pain. She performs all tasks of self-care without assistance. She is able to drive. Claimant does not use any type of assistive device. Claimant applied for a housekeeping job in 2019. She wanted to try to see if she could perform the necessary tasks.

On cross-examination by the Fund, before her fall at work, Claimant testified that, before her fall at work, she did not have any doctor-imposed restrictions. Before her fall, no doctor told Claimant she couldn't work because of any of her physical conditions. Claimant's medical conditions did not cause any problems performing her job prior to her fall.

**Treatment after December 10, 2009**

*(Exhibits D, E, U, M, S, I, P, J, N, R, A, B, & C)*

Claimant was examined by Dr. Russell Cantrell, on behalf of Employer, on November 11, 2009 and May 4, 2010. (Exhibits D & E)² Claimant's November evaluation was scheduled to determine the causation of her complaints in her left shoulder, parascapular muscles, and left upper extremity. In his November 11, 2009 report, Dr. Cantrell notes that Claimant reported a complete resolution on her neck and shoulder complaints following a motor vehicle accident in

² Although these examinations related to Claimant's alleged work injuries in June 2009 and September 2009, they also overlapped with her alleged injury of December 2009; therefore, they will be discussed here.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 09-099305

January of 2009. Dr. Cantrell noted Claimant was seen by Drs. Rotman and Kibby in June and July of 2009 with left arm and left shoulder complaints due to an alleged work-related injury in June of 2009. Neither doctor found a work-related injury to Claimant's shoulder or neck. Upon examination, and after taking x-rays of Claimant's neck, Dr. Cantrell determined Claimant's complaints were due to progressive degenerative disease in her cervical spine causing cervical radiculopathy in the left upper extremity.

When Claimant returned to Dr. Cantrell in May of 2010, he noted she was still performing the same job for Employer. In the interim, Dr. Cantrell had reviewed Dr. Deutschman's treating records following Claimant's auto accident in January 2009, and noted that, contrary to her report at her earlier examination, she had symptoms in her neck and shoulder through the end of her treatment in May 2009. In fact, Dr. Deutschman opined Claimant would continue to experience pain complaints with activity. Therefore, Dr. Cantrell opined Claimant's neck and shoulder complaints were not due either to her alleged June 15, 2009, or September 24, 2009 work accidents, but instead due to her automobile accident and degenerative processes in her neck.

Claimant first saw Dr. Hoffman on September 1, 2010. (Exhibit U) She reported falling on a grate on the sidewalk outside work and experiencing low back pain ever since. Initially, Claimant continued to work and was referred to pain management. However, when her symptoms did not improve with pain management, Dr. Stynowick sent Claimant back to Dr. Hoffman. Claimant was sent for a CT myelogram that revealed multilevel disc disease with spinal stenosis. Claimant had a possible lateral disc herniation on the left side at L3-4 and L4-5.

On March 25, 2011, Dr. Hoffman performed surgery which included an interbody fusion at L4-5. Following her surgery, Claimant continued to voice complaints of pain in her low back. Dr. Hoffman released her to return to work on October 5, 2011. Then, her pain management doctor indicated she could not return to work. On November 9, 2011, Dr. Hoffman noted Claimant's fusion was incomplete; he was concerned that Claimant smoked. Claimant continued to have complaints of back pain when she last saw Dr. Hoffman on January 31, 2012. However, Dr. Hoffman noted a recent CT scan showed a progressing fusion and no foraminal stenosis or new herniated discs.

Claimant began treating with Dr. Gregory Stynowick on October 7, 2010. (Exhibit M) Dr. Hoffman referred Claimant to Dr. Stynowick for pain management because of low back pain radiating into her buttock and leg. Claimant reported her low back pain began when she fell on a grate at work. Dr. Stynowick treated Claimant with medication and epidural steroid injections. Claimant received three injections with no lasting relief. In March of 2011, Claimant reported that Dr. Hoffman had released her to return to work, but she did not feel ready. In August of 2011, Claimant reported her pain had improved following surgery, but was still present.

Claimant continued to treat with Dr. Stynowick, receiving Epidural Steroid Injections ("ESIs"), trigger point injections, and pain medication. In 2014, she received cervical ESIs as well as lumbar ESIs. In 2014, Dr. Stynowick referred Claimant to Dr. Mirkin to determine if further surgery would help her low back and leg pain.

10

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 09-099305

Claimant began treating with Dr. Khampraseut, a chiropractor, at the Spine and Wellness Center, LLC, on June 13, 2011. (Exhibit S) It appears that Dr. Hoffman referred Claimant to Dr. Khampraseut. Claimant indicated in her initial paperwork that her low back complaints began on December 10, 2009, when she fell on a grate at work. Dr. Khampraseut treated Claimant for chronic postsurgical pain. Claimant last treated with Dr. Khampraseut on August 25, 2011, at which time she was making slow progress.

Claimant treated with Dr. Akinrinola Fatoki from 2011 through 2015. (Exhibit I)³ He was her primary care physician ("PCP"). Although he noted back and neck complaints, it does not appear he treated those issues, instead he referred her to other treating doctors.

Claimant first saw Dr. Ravi Shitut in April of 2013. (Exhibit P) She reported having neck pain since August/September of 2012. Claimant was referred to Dr. Shitut by her PCP, Dr. Fatoki. On April 2, 2013, Claimant reported she had undergone back surgery which she did not think helped. Since that time, Claimant was receiving pain management with Dr. Stynowick. Initially, Dr. Shitut was hesitant to perform surgery because the fusion would have to be extensive (C3-C7) and Claimant was a smoker. He advised her to begin pain management for her neck as well as her low back.

When she returned to Dr. Shitut, Claimant reported she had quit smoking and wanted surgery on her neck. On May 1, 2013, Claimant underwent a fusion on her cervical spine from C3-C7. (Exhibit J) Following the surgery, Claimant reported continued improvement in her cervical spine and was discharged by Dr. Shitut on October 22, 2013. Claimant returned to Dr. Shitut on March 6, 2014, with complaints of neck and shoulder pain. Dr. Shitut determined she had developed adhesive capsulitis in her left shoulder and recommended physical therapy. Claimant reported her cervical spine was doing well.

Claimant saw Dr. Peter Mirkin on September 15, 2014. (Exhibit N) Claimant was referred to Dr. Mirkin by Dr. Stynowick. At the time Claimant saw Dr. Mirkin, she had already had both her lumbar and cervical fusions. Claimant told Dr. Mirkin she did not want any more surgery. Dr. Mirkin sent Claimant for a myelogram that revealed mild foraminal narrowing at L5/S1. She also had upper lumbar lesions that did not correlate with her symptoms. Dr. Mirkin did not think additional surgery would help Claimant's symptoms.

On January 7, 2015, Claimant first treated with Dr. Siddharth Kaul for low back complaints. (Exhibit R) She reported experiencing low back pain for many years. Claimant told Dr. Kaul she received very little relief from her two back surgeries. Claimant also had headaches and neck pain. Dr. Kaul diagnosed Claimant with cervical and lumbar radiculopathy and lumbar stenosis. He recommended Claimant have additional diagnostic testing and be tested for peripheral neuropathy in her lower extremities. Claimant had an MRI of her cervical spine and lumbar spine on January 14, 2015. The MRI of her lumbar spine showed multi-level degenerative disc changes in her low back with no focal disc protrusion and no overt central canal stenosis. Her cervical MRI showed a solid fusion with no cord compression, disc protrusion, or nerve root compression. The EMG/NCV revealed a possible L4/5 neuropathy.

³ Dr. Fatoki's medical records are duplicative and not clear about precise dates of treatment.

11

On July 5, 2016, Dr. Kitchens examined Claimant on behalf of Employer. (Exhibits A, B, \& C) Dr. Kitchen's examination was specifically for any injuries allegedly sustained in Claimant's December 2009 fall. Claimant reported neck pain, low back pain, and pain into her hips and legs. She reported to Dr. Kitchens that she had received no prior treatment to any of these areas before her December 2009 fall.

Claimant reported to Dr. Kitchens that after she fell, she treated with her PCP, and then saw Dr. Hoffman who performed a lumbar fusion. Claimant reported that the lumbar fusion did not provide much relief. She also reported that Dr. Shitut performed surgery on her neck in 2013, but reported continuing numbness and tingling in her hands. Dr. Kitchens reviewed extensive medical records, ${ }^{4}$ including an operative report from Dr. J. Alexander Marchosky dated March 13, 1998. Dr. Marchosky performed a micro-discectomy at L3-4 and L4-5.

After examining Claimant and reviewing her treatment records, Dr. Kitchens opined that neither Claimant's cervical or low back complaints were related to her fall at Employer. He further opined that none of the treatment she received was necessary to treat injuries from her fall. Last, Dr. Kitchens found Claimant did not require any further treatment, had reached MMI, and had sustained no permanent partial disability related to her fall at work. He did find Claimant had a pre-existing diagnosis of cervical spondylosis at C3-C7 with permanent partial disability of 5 %.

Claimant settled Injury Number 97-053379 for 12.5\% of the right hand. This injury occurred on June 10, 1997, when Claimant struck her right hand while working for Contico International, Inc. Claimant sustained $4^{\text {th }} and 5^{\text {th }}$ closed metacarpal fractures.

Claimant injured her low back on January 22, 1998 when she was packing product at Contico International, Inc. Initially, she treated with her own doctor; but she reported the injury to her employer on February 11, 1998 and her employer began to provide treatment.

[^0]

[^0]: ${ }^{4}$ Those records are discussed at length in the pertinent sections, therefore, Dr. Kitchens' review of the records will not be included in this summary.

Claimant began treating with Dr. J. Alexander Marchosky on March 10, 1998, after her low back did not improve with treatment and physical therapy at BarnesCare. (Exhibit T) An MRI revealed herniated discs at L3-4 and L4-5, extraforaminal to the left. Because Claimant could no longer tolerate the pain, she underwent L3-4 and L4-5 lateral microdiscectomies. Initially, Claimant reported complete improvement in her radicular pain and substantial improvement in her low back pain. However, her symptoms then worsened, and on June 26, 1998, she underwent a lumbar myelogram with a post-myelogram CT. The post-myelogram CT revealed mild inflammatory process, but no disk herniation or nerve root compression.

Claimant settled Injury Number 98-008525 for 25\% body as a whole referable to the lumbar spine.

Claimant began treating with Dr. Selam Deutschmann, a chiropractor, on February 2, 2009, following her January 1, 2009 auto accident. (Exhibit Q) Dr. Deutschmann noted Claimant had muscles spams and pain in her neck. Claimant reported neck pain and headaches that were "intense/dreadful/horrible." On March 30, 2009, Dr. Deutschmann found that Claimant had reached maximum medical improvement. He noted that, even though Claimant's symptoms had improved, she would continue to have pain. He also told Claimant she would have remissions and exacerbations in her neck pain for no apparent external reason.

Claimant settled a June 15, 2009, injury to her left shoulder for 2 % of the left shoulder. In Injury Number 09-074455, Employer paid $\ 2,376.34 in medical benefits and no temporary total disability benefits.

In a workers' compensation proceeding, the "claimant has the burden of proving all the essential elements of the claim." Cook v. Sunnen Products Corp., 937 S.W.2d 221, 223 (Mo.App. E.D. 1996) ${ }^{5}$. Under Section 287.020, "total disability" is defined as the "inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident." The test for permanent and total disability is

[^0]

[^0]: ${ }^{5}$ In clarifying the proper standard of review, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003), overruled Cook and a number of prior appellate decisions on this discrete point of law. I cite and rely on several such Hampton cases in this opinion for legal propositions unrelated to the standard of review, without further notation.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 09-099305

whether Claimant is able to compete in the open labor market given his or her present physical condition. *Messex v. Sachs Elec. Co.*, 989 S.W.2d 206 (Mo. App. E.D. 1999). The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. *Molder v. Mo. State Treasurer*, 342 S.W.3d 406, 411 (Mo. App. W.D. 2011). However, before considering the numerous issues surrounding Employer and Fund's liability, it must be decided whether Claimant bore her burden of proof.

**Claimant did not meet her burden of proof that her fall at work was the prevailing factor in her back and neck complaints, the treatment for those complaints, and the alleged resulting disability.**

*(Addressing Issues 2 & 7)*

Considering the date of the injury, it is important to note the statutory provisions that are in effect, including Section § 287.800 RSMo (2005), which mandates that the Court "shall construe the provisions of this chapter strictly" and that "the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts." Additionally, Section 287.808 RSMo (2005) establishes the burden of proof that must be met to maintain a claim under this chapter. That section states, "In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true."

Claimant bears the burden of proof on all essential elements of her Workers' Compensation case. *Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute*, 793 S.W.2d 195 (Mo. App. E.D. 1990). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. *Id.* at 199.

According to Section 287.020.2 RSMo (2005), an accident is defined as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." Further, under Section 287.020.3(1) RSMo (2005), "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 main issue to be addressed in this section, then, is the medical causation issue. In order to meet her burden of proof on that issue, Claimant needed to present competent, credible and reliable medical evidence to medically causally connect her claimed injuries to her back and neck, as well as her need for treatment and her alleged disability to her fall at work. In other words, Claimant needed to present competent, credible and persuasive medical evidence to support her contention that the accident that occurred at work was the prevailing factor in causing the resulting medical condition and disability.

Based on my thorough review of the medical records and evidence submitted in this case, I am unable to find any such medical evidence that allows Claimant to meet her burden of proof

14

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 09-099305

on this issue. Of the medical evidence submitted at Hearing, I find that the only expert report admitted into evidence does not find Claimant's fall at work was the prevailing factor in causing her resulting medical condition or disability. Further, there is no medical evidence in which any disability is attributed to Claimant's fall at work.

Of additional concern regarding this medical causation issue, is the fact that pre-existing medical treatment records contain references to neck and back complaints and problems for which Claimant received treatment. In fact, Claimant previously had surgery on her low back and received treatment for her neck the same year as her fall. In the absence of any opinions from a physician to attribute Claimant's complaints, problems and diagnoses to the work injury, I find that it is impossible for me, as a layperson without medical training, to appropriately determine if her complaints, problems and diagnoses were the result of her December 10, 2009 work injury or instead her pre-existing medical conditions for which she received treatment in the past.

Necessarily, the ruling to exclude the rating report of Dr. Paul Hinton must be discussed because that report may contain evidence that Claimant's fall at work was the prevailing factor in her back and neck complaints, treatment, and disability. There are two relevant sections regarding the admission of a doctor's report, the first is Section 287.210.3 RSMO (2005), which reads in part:

> The testimony of any physician who treated or examined the injured employee shall be admissible in evidence in any proceedings for compensation under this chapter, but only if the medical report of the physician has been made available to all parties as in this section provided. Immediately upon receipt of notice from the division or the commission setting a date for hearing of a case in which the nature and extent of an employee's disability is to be determined, the parties or their attorneys shall arrange, without charge or costs, each to the other, for an exchange of all medical reports, including those made both by treating and examining physician or physicians, to the end that the parties may be commonly informed of all medical findings and opinions. The exchange of medical reports shall be made at least seven days before the date set for the hearing (emphasis added).

Further, Section 287.210.7 RSMO (2005), commonly called the "60 Day Rule", outlines the procedure for admitting a physician's report without taking the doctor's deposition, it states:

> The testimony of a treating or examining physician may be submitted in evidence on the issues in controversy by a complete medical report and shall be admissible without other foundational evidence subject to compliance with the following procedures. The party intending to submit a complete medical report in evidence shall give notice at least sixty days prior to the hearing to all parties and shall provide reasonable opportunity to all parties to obtain cross-examination testimony of the physician by deposition.

There is no question Claimant did not comply with either Section 287.210.3 RSMO (2005) or

15

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 09-099305

Section 287.210.7 RSMo (2005).

Prior to the Hearing, counsel for the Fund twice requested supporting records for Dr. Poetz's report, which were never received. (Exhibits I and II) Further, both Employer and the Fund submitted Dr. Cantrell's and Dr. Kitchens' reports using Section 287.210.7 RSMo (2005). (Exhibits III & IV) Therefore, Claimant's attorney was aware there was medical information that had not been supplied to at least one opposing party. Further, Claimant's attorney was aware of the procedure to introduce a doctor's report without taking a deposition, because both Employer and the Fund had already done so.

The attorney who appeared for Claimant was given the case to try the day before it was set. In reviewing the file, he discovered a supplemental rating report from Dr. Hinton dated June 21, 2018.6 When Claimant's counsel discovered Employer's counsel had not received Dr. Hinton's report, he faxed it to him. (Exhibit I) Claimant's counsel also faxed the report to the attorney for the Fund. (Exhibit 2).

At the Hearing, Claimant's counsel requested that the report be admitted or the record be left open to take the deposition of Dr. Hinton. Both counsel for Employer and the Fund objected to the introduction of the report or to leaving the record open. Counsel for Employer and the Fund noted Claimant's counsel had not followed either Section 287.220.3 RSMo (2005) or Section 287.220.7 RSMo (2005). In addition, they argued it was prejudicial to allow a report, that they did not know existed until the day before trial, to be entered into evidence as it stood or after a deposition.

Before ruling, this Court noted this case had been set 13 times for mediation and 12 times for prehearing. In the last year prior to the Hearing, there were four settings. Therefore, the parties had ample time to discuss their case and their evidence. This Court agreed that leaving the case open would prejudice Employer and the Fund, and found Claimant's counsel had ample time to produce Dr. Hinton's report and secure its admission.

The report of Dr. Hinton was properly excluded. The rules and procedures contained in Section 287.210 are meant to prevent this exact situation. They are in place to prevent surprise and prejudice and to allow all parties a fair opportunity to prepare for Hearing. Claimant neither produced Dr. Hinton's report within seven days before the Hearing nor did Claimant comply with the 60 Day Rule, therefore, the report of Dr. Hinton was properly excluded.

Without the report of Dr. Hinton, Claimant cannot meet her burden to prove her fall at work was the prevailing factor in causing her back and neck conditions, medical treatment, and disability. None of the medical records in evidence meet Claimant's burden. The only expert report directly contradicts causation. Since Claimant has failed to meet her burden of proof on the threshold issue of medical causation in this case, the rest of the issues are moot, and this Claim is denied.

6 Claimant previously acquired a rating report from Dr. Robert Poetz, who is deceased. Prior to his death, Dr. Poetz's report was not submitted pursuant to Section 281.210.7 nor was he deposed. Dr. Hinton assumed Dr. Poetz's practice and re-examines claimants and writes supplemental reports when needed.

16

Issued by DIVISION OF WORKERS' COMPENSATION

This claim is denied against both Employer and the Second Injury Fund as Claimant failed to prove her fall at work was the prevailing factor in causing her medical condition, medical treatment, and resulting disability.

I certify that on 2-28-20

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By $\qquad$