The Final Ruling. Presented by: L. Timothy Wilson Administrative Law Judge Missouri Division of Workers Compensation Springfield Adjudication Office

Transcription

1 The Final Ruling Presented by: L. Timothy Wilson Administrative Law Judge Missouri Division of Workers Compensation Springfield Adjudication Office

2 Factual Outline of Hypothetical Description of Accident: EE is a truck driver and sustained a MVA while operating his 18 wheel tractor-trailer. The accident occurred as a consequence of EE sliding on ice and crossing the median. The MVA resulted in a rollover crash. There is no evidence of EE not wearing his seat belt, or otherwise violating any safety rules or other rules relating alcohol or drug use. Presenting Symptoms (Immediate to MVA): MVA caused EE to experience physical trauma to his head and neck. EE suffered loss of consciousness, headaches and dizziness. Additionally, EE presents with complaints of pain and spasms to his neck, as well as right scapular pain. (Working Diagnosis: Concussion & Cervical Strain)

3 Factual Outline of Hypothetical (continued) Presenting Symptoms (During Treatment): Headaches, dizziness, visual changes, cognitive difficulties, neck pain, right scapular and upper extremity tingling and pain. Also, by exam, EE demonstrated limited range of motion, altered sensation in the right middle finger, and poor balance. Treatment of Cervical Spine (Conservative): Prescription medication, with changes in prescription medication, altered activity, physical therapy, cervical traction, epidural steroid injections at the level of C6-C7. Diagnostic studies include: EMG: demonstrated abnormal RUE. MRI of Cervical Spine: demonstrated degenerative changes at C4-C5, C5-C6, and C6-C7. CT Myelogram: demonstrated Right Nerve Root Compression at C7.

4 Factual Outline of Hypothetical (continued) Treatment of Cervical Spine (Surgical): Following failed conservative treatment, and in light of continuing symptoms and a neurosurgical consultation, EE underwent surgery in the nature of an anterior cervical discectomy and fusion of the cervical spine, at the level of C6-C7. EE experienced no complications associated with surgery. Treatment of Cervical Spine (Post-Surgical): RUE pain resolved, but neck pain remained present. EE received post-operative physical therapy. EE experienced overall improvement in neck, including improvement in right triceps strength. EE suffers residual limitations in cervical range of motion, tenderness (pain) in neck, and continuing sensation in right 3 rd finger, but with improvement.

5 Factual Outline of Hypothetical (continued) Treatment of Concussion (Conservative): Prescription medication, with changes in prescription medication, physical therapy, multiple follow-up examinations with Neurologist. However, EE continued to experience side effects with most medications, headaches, dizziness, and persistent balance problems. Neuropsychological Evaluation: (1) Symptom Magnification; and (2) Depression.

6 Factual Outline of Hypothetical (continued) Current Situation: In Re: Neck: moderate neck pain, RUE intermittent pain, 3 rd digit numbness (pain is worse with prolonged activities). Activities or exercises involving neck aggravates his pain. In Re: Head: Headaches, dizziness, balance problems. Medications reduce his headaches. Depression is controlled with medications. Generally: EE continues to smoke one pack of cigarettes per day. EE weighs 280 pounds; has gained 10 pounds over last 3 months. EE is unable to return to previous work b/c of restrictions imposed by the treating physician.

7 Factual Outline of Hypothetical (continued) Medical History: EE suffered two prior concussions with loss of consciousness (2006 & 2010), resulting in EE suffering residual effects occasional headaches, occasional dizziness, and psychological diagnosis of mild cognitive impairment. EE suffered a prior w. c. accident and an injury to his neck, resulting in EE undergoing surgery in the nature of an anterior cervical discectomy and fusion at the level of C5-C6. The treating physician discussed possibility that in the future, there is a possibility of EE requiring additional surgery extending the fusion. EE & ER/IR settled w. c. claim based on 20% ppd, with no future medical care.

8 Factual Outline of Hypothetical (continued) Medical History (continued): Diabetes & Depression Treatment with PCP: : (EE c/o neck pain and headaches) : (EE c/o being upset with ER, thinking about quitting his job. ) : (EE c/o dizziness, neck pain, and headaches.) Social History: Divorced with five children High School Education Tobacco Use (smokes 1 pack per day, since 1995) Alcohol Use (moderate consumption)

9 Factual Outline of Hypothetical (continued) Final Evaluation, Ratings & Opinions FCE: Test deemed invalid. 35 to 45 pound lifting limit recommendations. Driving Test avoid commercial driving. MMI: Oct. 1, 2012 Medical Opinions of Treating & Examining Physicians

10 Issues for Adjudication Did the employee sustain a compensable work injury? (Does ER/IR owe any w. c. benefits to EE?) If the employee sustained a compensable work injury, what is the nature and scope of the medical care he is entitled to receive? (What medical care, if any, does ER/IR owe to EE?) If the employee sustained a compensable work injury, what is the nature and extent of the permanent disability sustained by the employee? (What permanent disability compensation, if any, does ER/IR owe to EE?)

11 Adjudication of First Issue (Did EE sustain a compensable injury?) Section , RSMo, [Applicable Statute]: (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. 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. (2) An injury shall be deemed to arise out of and in the course of the employment only if: (a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and (b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. [Emphasis added.]

12 Adjudication of First Issue (Did EE sustain a compensable injury?) Three-step Process: The adjudication of this issue involves consideration of three questions: What is the injury (medical condition & disability)? Which factor among the factors is the prevailing factor in causing the injury? Does the injury come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life?

13 Adjudication of First Issue (Did EE sustain a compensable injury?) Consideration of Hypothetical: Step 1: Question: What is the injury (medical condition & disability)? Answer: Concussion & Cervical Strain Comments & Analysis:

14 Adjudication of First Issue (Did EE sustain a compensable injury?) Consideration of Hypothetical: Step 2: Question: Which factor among the factors is the prevailing factor in causing this injury)? Answer: The evidence is overwhelming MVA involving an 18-wheel tractortrailer rollover crash is the prevailing factor in causing EE to sustain an injury in the nature of a concussion and a cervical strain. Evaluation Process:

15 Adjudication of First Issue (Did EE sustain a compensable injury?) Consideration of Hypothetical: Step 3: Question: Does the injury come from the hazard or risk unrelated to employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life? Answer: No ER/IR argument: The risk involved sliding on an ice is one that EE would have been equally exposed to in daily life, and therefore the injury is not compensable. In asserting this argument ER/IR seek to have the inquiry apply generally slipping on ice in general (in the community). This approach is inconsistent with the statute, and has been rejected by the courts.

16 Adjudication of First Issue (Did EE sustain a compensable injury?) The correct approach is to examine the risk specific to EE the hazard of slipping on that ice in that particular environment or work site. In this case, The MVA occurred while EE was completing a task related to his work making a delivery. The MVA occurred during employee s work day while he was on the clock. The sliding on that particular ice occurred due to EE s employment operating an 18-wheel tractor-trailer, a vehicle EE does not operate in his normal nonemployment life. EE had no control over the particular ice in question, including removal and use of salt or other ice prevention material. Similarly, EE had no control over that particular environment, insofar as the variance in road surfaces, as well as the variances in temperature and precipitation affecting the road surface, differs from location to location.

17 Adjudication of First Issue (Did EE sustain a compensable injury?) Conclusion: EE sustained a compensable work injury. There is nothing in the record to support a conclusion that EE was equally exposed to the hazard of sliding on that icy road at that particular work site in his nonemployment life. See applicable case law: Scholastic, Inc. v. Viley, 2014 WL , S.W.3d (Mo. App. W.D. Oct. 28, 2014); Duever v. All Outdoors, Inc., 371 S.W.3d 863 (Mo. App. E.D. 2012); and Dorris v. Stoddard County, 436 S.W.3d 586 (Mo. App. S.D. 2014).

18 Adjudication of Second Issue (What medical care does ER/IR owe to EE?) Legal Question: What medical treatment is reasonably required in order to cure and relieve the employee from the effects of the injury? This inquiry does NOT include consideration of the prevailing factor analysis. Rather, the test is governed by Section , RSMo.

19 Adjudication of Second Issue (What medical care does ER/IR owe to EE?) Section , RSMo: 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, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. [Emphasis added.]

20 Adjudication of Second Issue (What medical care does ER/IR owe to EE?) Implications [Broad Application of Medical Care for Treatment of the Injury] The injury may be one of multiple factors, including a lesser factor, in causing need for EE s receipt of the medical treatment. The prescribed treatment need not cure EE s medical condition. The obligation includes treatment that will provide EE with relief from the effects of the injury. The prescribed or recommended treatment must be reasonable? [EE may easily satisfy his or her burden of proof in establishing the treatment is reasonable with evidence of medical opinion. Does ER/IR have a physician willing to state that the other physician is prescribing unreasonable medical treatment? Having a different medical opinionwherein the physician states simply that he or she would not prescribe such treatmentis not proof of the treatment being prescribed by the other physician is unreasonable.] See, Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. W.D. 2011)

21 Adjudication of Second Issue (What medical care does ER/IR owe to EE?) Illustrative Example: In re: Maria Rodriguez v. Abbco Services Corporation, et. al., Injury No , Springfield Adjudication Office, Hon. Victorine Mahon decision (January 2, 2014), Settled Before LIRC June 12, 2014.

22 Adjudication of Second Issue (What medical care does ER/IR owe to EE?) Hypothetical Case [Evidence Considered]: Trauma to Head Injury = Concussion Effects of Injury = Loss of Consciousness, Headaches & Dizziness, Blurred Vision, Cognitive Difficulties, Depression Medical Opinions Prescribed treatment = Medicines (& changes in Medicines), Diagnostic Studies (including MRI of Head), Physical Therapy, referral to Neurologist and Neuropsychologists. Findings & Conclusion: The prescribed medical treatment flows from the concussion, notwithstanding prior symptoms involving dizziness and headaches, as well as a prior injury resulting in mild cognitive impairment. Further, the evidence supports a finding that EE experienced a worsening of his prior symptoms a change in pathology.

23 Adjudication of Second Issue (What medical care does ER/IR owe to EE?) Hypothetical Case [Evidence Considered]: Trauma to Neck Injury = Cervical Strain [Immediate or Near Immediate] Effects of Injury = neck pain, right scapular pain, and neck spasms. [Immediate or Near Immediate] Medical Opinions prescribed treatment = medicines (& changes in medicines), altered activity, physical therapy, and physiatry referral.

24 Adjudication of Second Issue (What medical care does ER/IR owe to EE?) Hypothetical Case [Evidence Considered]: Trauma to Neck Injury = Cervical Strain (with nerve root compression at C7) [Later] Effects of Injury = worsening of neck pain & headaches; continuing right scapular pain but progression of right upper extremity symptoms to include tingling and pain radiating to the hand (including tingling or altered sensation in 3 rd digit of right hand); degenerative changes at C4-C5, C5-C6, and C6-C7; and right nerve root compression at C7. Medical Opinions Prescribed Treatment = medicines (& changes in medicines), diagnostic studies (including MRI of Cervical Spine; EMG; CT Myelogram), epidural steroid injections, neurosurgical consultation, ACDF at C6-C7; post-operative care, including FCE.

25 Adjudication of Second Issue (What medical care does ER/IR owe to EE?) Hypothetical Case [Evidence Considered]: Trauma to Neck Injury = Cervical Strain (with nerve root compression at C7) Consideration of Prior Medical Condition: In Feb EE underwent ACDF, and in Sept EE is noted to have tingling in right 3 rd digit. Later, in July 2006 EE is noted to have intermittent right upper extremity pain, tingling in right 3 rd digit. However, after 2006, and prior to January 15, 2012, there are no medical records of continuing symptomology involving right upper extremity pain or tingling, including altered sensation in 3 rd digit of right hand. Only continuing symptoms (including as recent as October 2011 to January 2012) relate to neck pain and headaches. Evidence (prior medical condition & MVA medical condition) Change in Pathology = aggravation of degenerative disc disease, including nerve root compression at C7.

26 Adjudication of Second Issue (What medical care does ER/IR owe to EE?) Hypothetical Case [Evidence Considered]: Trauma to Neck Injury = Cervical Strain (with nerve root compression at C7) Findings & Conclusion: The radiculopathy is consistent with C7 nerve root compression. The MVA of Jan. 15, 2012, and mechanism of injury provide biological plausibility to cause a neck strain, sufficiently severe to cause aggravation of degenerative disc disease. The prescribed medical treatment flows from the cervical strain (MVA injury), notwithstanding prior medical condition and prior symptoms.

27 Adjudication of Second Issue (What medical care does ER/IR owe to EE?) Hypothetical Case [Evidence Considered]: Trauma to Head Injury = Concussion (with loss of consciousness) Trauma to Neck Injury = Cervical Strain (with nerve root compression at C7) Future Medical Care: EE is future medical care in order to cure and relieve EE from the effects of the work injury. Future medical care relates primarily to treatment for the concussion, insofar as EE continues to suffer from headaches, dizziness, and balance problems; and EE is continuing to receive prescriptions for medication to treat these conditions.

28 Adjudication of Third Issue What permanent disability compensation, if any, does ER/IR owe to EE? Hypothetical Case [Evidence Considered]: Trauma to Head Injury = Concussion (with loss of consciousness) Permanent Residual Effects of Injury = headaches reduced with medications, dizziness, balance problems, depression controlled by medications

29 Adjudication of Third Issue What permanent disability compensation, if any, does ER/IR owe to EE? Hypothetical Case [Evidence Considered]: Trauma to Neck Injury = Cervical Strain (with nerve root compression at C7) Permanent Residual Effects of Injury = moderate neck pain right upper extremity pain (intermittent) w/ numbness and tingling in 3 rd digit of right hand headaches pain is worse with prolonged activities neck exercises aggravate EE s pain

30 Adjudication of Third Issue What permanent disability compensation, if any, does ER/IR owe to EE? Hypothetical Case [Evidence Considered]: Permanent Restrictions (Head & Neck): EE is deemed unable to return to work due to permanent restrictions prescribed by the treating doctor. Restrictions in the record reflect the following: pound lifting restriction (based on FCE?) Driving Test avoid commercial driving

31 Adjudication of Third Issue What permanent disability compensation, if any, does ER/IR owe to EE? Hypothetical Case [Evidence Considered]: Miscellaneous Points FCE (Failed Validity Test) Differences in Medical Opinions (Treating Physician vs. Examining Physician) Neuropsychological evaluation Symptom Magnification & Depression Prior Medical Conditions (Head & Neck) EE must have expert opinion apportioning the prior disability from the disability attributable to the work injury. See, Plaster v. Dayco Corp., 760 S.W.2d 911, 913 (Mo. App. S.D., 1988) Personal Factors: 45 year old male; continues to smoke cigarettes (1 ppd); obese weighs 280 pounds (has gained 10 pounds over the past 3 months). MMI: Oct. 1, 2012 EE is now working for a different ER (x 6 months) with minimal lifting required

32 Adjudication of Third Issue What permanent disability compensation, if any, does ER/IR owe to EE? Hypothetical Case [Evidence Considered]: Permanent Disability (FINDINGS & CONCLUSIONS): EE sustained a permanent partial disability of percent to the body as a whole, referable to the head (concussion with loss of consciousness). EE sustained a permanent partial disability of percent to the body as a whole, referable to the cervical spine (cervical strain with radiculopathy and ACDF at C6-C7).

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