Jeannie Harper v. Springfield Rehab and Health Care Center/ NHC Health

shall contain a synopsis of the doctor's opinion, basis for the opinion and the reason for not submitting same at the hearing before the administrative law judge; and

1. Tender of merely cumulative evidence or additional medical examinations does not constitute a valid ground for the admission of additional evidence by the commission.

(B) The commission shall consider the motion to submit additional evidence and any answer of opposing parties without oral argument of the parties and enter an order either granting or denying the motion. If the motion is granted, the opposing party(ies) shall be permitted to present rebuttal evidence. As a matter of policy, the commission is opposed to the submission of additional evidence except where it furthers the interests of justice. Therefore, all available evidence shall be introduced at the hearing before the administrative law judge.

Employer/Insurer does not claim it could not have produced the records referenced in its Judicial Notice Request at the time of hearing. Nor does employer/insurer assert that it newly discovered this alleged evidence. Employer/insurer fails to specifically describe the records broadly referenced in its Judicial Notice Request. For these reasons, we deny employer/insurer's Judicial Notice Request for failure to comply with Commission Rule 8 CSR 20-3.030(2)

We now address the merits of employer/insurer's application for review. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the ALJ allowing 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 ALJ's award and decision.

We deny employer/insurer's Request for Judicial Notice.

We affirm and adopt the February 10, 2021, award and decision of Administrative Law Judge Victorine R. Mahon, which we attach and incorporate herein.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

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Given at Jefferson City, State of Missouri, and this 13th day of September 2021.


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls

Shalonn K. Curls, Member

Attest:

Secretary

I have read the administrative law judge's award, the employer/insurer's application for review, the briefs filed by the parties, employer/insurer's Request for Judicial Notice, and other parties' objections to and suggestions in opposition thereto. I concur with the majority's denial of the employer/insurer's Request for Judicial Notice. However, based on my review of the evidence and my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's decision to adopt the conclusions of law and award as rendered by the administrative law judge (ALJ).

Employee's pushing of a wheeled cart one to two feet against the wall did not constitute a compensable accident under $\S 287.020 .2$ RSMo because it was not "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence that produced at the time objective symptoms of an injury caused by a specific event during a single work shift [emphasis added]" as the statute requires.

Employee did not slip, trip or fall. Employee consistently testified that she never felt the immediate onset of pain or discomfort after moving the cart, but that "something developed later in her shift when she was walking. Based both on employee's deposition and hearing testimony it is uncontroverted that she did not suffer any traumatic event. Employee merely rolled a cart one to two feet against the wall and went about her business. She could not identify any specific event because she admitted that lifting and transferring patients throughout her shift that day produced no low back pain or discomfort.

The ALJ erroneously awarded lifetime weekly benefits based on speculation that the cart event was an "unusual strain." In response to her own attorney's question, employee testified, "Yes, I just leaned against it [the cart], that's the last thing I can remember doing, but I did nurse work that night so it could have been anything [emphasis added]."2 Tr. 118. Employee admitted to lifting and assisting patients to and from the toilet, as well as in and out of wheelchairs and did not experience any pain, discomfort or injury from those activities after the cart-pushing event.

In the absence of a traumatic event or unusual strain, employee proves only an unknown or idiopathic onset of discomfort. Using the "more likely than not" standard, employee sustained a nonspecific, uncertain, triggering or precipitating event, which the Missouri Workers' Compensation Law specifically deems not compensable. Section 287.020.3.(2) RSMo. Furthermore, the Law's definition of "injury" requires proof of violence to the physical structure of the body. Section 287.020.3(5) RSMo. The ALJ determined there was no traumatic injury. Based on everyday common experience, the pushing of a wheeled cart one to two feet without evidence of any obstruction or commensurate trauma does not rise to the level of "violence" to the physical structure of the body. Employee testified the event produced no pain, and she considered it a minor or "small" thing. Employee further acknowledged that she didn't miss a step in continuing her duties.

The ALJ struggled with the facts in trying to equate the symptoms described at trial as a "pull" sensation to represent objective signs of "injury." This proposition fails because it is uncontroverted that the onset of employee's symptoms began later, while walking. Employee's alleged low back pain was not even experienced upon lifting and transferring patients. The ALJ based her award on a description of a "pull" that Dr. Brent Koprivica concluded was more than a soft tissue injury and who added a psychological component that was not plead or proven by medical expert testimony. Dr. Koprivica's opinion must be disregarded.

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[^0]: ${ }^{1}$ Transcript, 118.

The expert opinions regarding causation as to the onset and nature of symptoms of pain and discomfort were inconsistent and conflicting. Dr. Russell Cantrell concluded there was no evidence of trauma or injury from moving the cart. The law provides that "objective" medical findings shall prevail over subjective medical findings. Section 287.190.6.(2). Since all the medical experts uniformly treated subjective presentations of low back pain, without objective diagnostic or clinical evidence of any work injury, employee's claim remains non-compensable. The most logical inference, supported by the employee's testimony, is that merely walking while at work aggravated or precipitated her preexisting, chronic low back condition, consistent with her 2013 post-surgery rehabilitation, relearning to walk, and Dr. Laura Kresta's ordering a handicapped parking plate in 2017.

The employee failed to prove by convincing evidence that pushing a cart one to two feet without any evidence of trauma was the prevailing factor causing any injury or that it did not come from a hazard or risk unrelated to the employment to which employee would have been equally exposed outside of and unrelated to her employment in normal non-employment life.

Even assuming a compensable accident occurred employee's testimony, actions, and the medical evidence establish that little if any residual permanent partial disability (PPD) resulted from a minor "pull." The alleged event did not cause employee to miss time from work for over four months at which time she voluntarily retired at age sixty-eight. Employee had walking, stamina, and occasional flare-ups of low back pain both before and after returning to work for employer. Her injury did not result in a change in shift, a change in work hours, or a change in duties. Employee's actions undermine Dr. Koprivica's theory that the work event caused preexisting, structural changes in her back at the time that became disabling. If this were an accurate medical extrapolation based on subjective presentations, employee would have developed immediate pain generators and been unable to work much closer in time to her alleged injury. Dr. Cantrell identified preexisting spondylolisthesis and degenerative disk disease and ongoing cervical myelopathy, none of which was work related. The treating and evaluating physician records, reports, and testimony address and treat the same subjective presentations independent of direct trauma associated with any work event. Employee's subjective symptoms presented at trial included the back, but also neck, arms, shoulders, and lower extremities. These symptoms represent the same intermittent, chronic pain syndrome documented after employee's 2013 surgery. They are unrelated to any event on June 22, 20