Tuesday, June 14, 2011

287.140: Future treatment "as may reasonably be required"

The problem:  Claimant has a knee injury at work but a menisectomy won't fix it because of arthritis.  Does the employer owe for the more complicated surgery of a TKR?  The Western District now says it does.  The case is Tillotson v St. Joseph Medical Center, WD 72948 (Mo. App. 6-14-2011). 

Claimant injured her knee when she lost her balance while moving a patient and tore her meniscus. The torn meniscus and  degenerative changes  both contributed to her pain and symptoms.  The doctors agreed that claimant was not a candidate for an arthroscopy because of arthritis, and only a knee replacement would resolve her symptoms.  The employer's expert concluded that the prevailing reason for the knee replacement flowed from her arthritis, and not the work injury.  Claimant underwent a total knee replacement.  Claimant returned to her regular job duties as a registered nurse for about 10 months after her surgery and retired.   Claimant's expert concluded the accident caused the tear and caused the arthritis to progress.

The Division found that the accident was the prevailing factor in causing an acute lateral mensicus injury.   The Commission found that Dr. Koprivica's causation opinions were less credible, noting the other experts were board certified and had practices centered on treating patients.  The Commission noted that he was a well-qualified rating doctor.  The Commission denied any claim for medical costs, TTD, future medical or PPD. 

The Court of Appeals reversed and concluded that the Commission applied the wrong standard and a heightened burden of "prevailing factor" in 287.120.1 to interpret the requirements to provide medical care under 287.140.1, adopting the opinion of the dissenting commissioner. The parties agreed that the accident was the prevailing factor in the meniscus tear. The proper standard was whether the disputed treatment (TKR) was "reasonably required", not whether it was the "prevailing" factor.  No expert indicated that it was not reasonably required, and the employer conceded such treatment was reasonable.   The court noted as long as some portion of the treatment flowed from the accident, it is irrelevant whether such treatment also alleviates pre-existing conditions such as arthritis.  No medical expert disputed that a total knee was the only effective available means to cure or relieve the effects of claimant's torn meniscus. 

In Gordon v City of Ellisville, 268 S.W.3d 454 (Mo. App. 2008) the Eastern District found claimant had failed to prove injury when a shoulder surgery identified no acute changes.  The Western District concludes that Gordon did not involve construction of 287.140.1 but was an issue whether a compensable injury occurred.  The court in Gordon, however,  framed the issue whether the accident was the prevailing factor in causing claimant's need for shoulder surgery.

The court remanded the case for a determination of disability.  Claimant's expert  Dr. Koprivica assigned 50% but the Commission rejected his opinion because he did not allocate disability from the meniscus tear and total knee replacement.  No other doctors furnished any PPD opinion.  The court of appeals concluded the disabilities "coalesce" and apportionment was not required.  The court concluded claimant established future medical care based on the uncontroverted opinion of Dr. Koprivica when other experts were silent on the subject whether or not future care was  indicated or not.

The Tillotson case is factually similar to an earlier western district case, Conrad v Jack Cooper Transport, 273 S.W.3d 49 (Mo. App. 2008) in a pre-reform case.  "Conrad had a pre-existing condition, which is the primary reason he needs a future knee replacement, the undisputed evidence also establishes that, at the very least, his work related injury aggravated his pre-existing condition to the point that he will need a future knee replacement. Because Conrad's work related injury aggravated his pre-existing condition to the point that he will need future treatment, his future treatment is compensable under § 287.140.1."  The court in Tillotson noted statutory reform did not change 287.140.1.

Tillotson shifts the fight  to 287.020.3 and whether the accident was the most important factor to cause both the medical condition and disability and does not disturb defenses when there is evidence that an accident did not reasonably cause any need for a disputed surgery.   The implications of the decision may have long term exposure for any arthritic employee applying  the unfortunate adage :  "You break it, you buy it."

Experts:  Koprivica
Treaters:  Van den Berghe

The Commission awarded future medical to a claimant who injured his neck working in a psychiatric unit and underwent a fusion, despite contrary evidence from an orthopedic surgeon that no further treatment was required.  The ALJ found a specific need for prescription care.  Claimant underwent a second surgery to the neck following a car accident.  Harmon v Research Psychiatric Center, 2014 Mo WCLR Lexis 44 (March 28, 2014).
ALJ:  McKeon
Atty:  Slocum
Experts:  Koprivica, Clymer

The Commission modified an award for future medical to include pain management, but reversed an award to include total knee replacement. Claimant prior to the accident was told he would need a knee replacement, and alleged he felt he needed it sooner because of the accident. The Commission in a separate 2-1 award found that the employer was not responsible for medical when an accident merely accelerated the time employee would agree to have a total knee replacement, as the need for treatment itself did not flow from the accident. The Commission awarded Dr. Volarich's rating when the employer offered no evidence on PPD. The award of the ALJ is not attached to the decision. Shelton v Levy Restaurant, DOLIR 5-25-11.  affirmed without separate opinion, 2012 Mo. App. Lexis 50, ED 96886 (Mo. App. 1-17-2012). 

ALJ: Denigan
Experts: Anderson, Kramer, Ralph, Volarich

The Commission awarded 10% PPD but denied future medical involving a back injury when claimant had a 5 year history of recurring back pain.  The ALJ noted an acute onset of symptoms although the defense expert could find no basis on comparing MRIs to explain an acute change.  Simpson v Lyon Sheet Metal, 2012 Mo WCLR Lexis 190 (Nov. 9, 2012)
Atty:  Christianson
Experts:  Volarich, Bernardi
Tx  Crane

Adjacent disc
The claimant is entitled to more treatment at levels adjacent to an operated disc, according to Commission in a 2-1 decision which reversed a denial by the ALJ.  Mueller v. Noranda Aluminum, 2013 Mo WCLR  Lexis 144 (August 8, 2013).

This case begins more than 10 years ago in January 2003 when claimant lost control of a 90-pound block and hurt his back.  Dr. Park performed L5-S1 fusion  in 2003.  His condition worsened after the surgery with chronic pain, radiculopathy and sexual dysfunction.  Claimant underwent a second surgery to remove hardware, his condition did not improve, and he was admitted to a psychiatric ward. He received a spinal cord stimulator in 2005 and his doctor concluded he was unemployable.  Dr. Coyle in 2010 removed the spinal cord stimulator and found claimant's findings contradictory.  In 2010 claimant received injections at other disc levels.  The employer cut off medical benefits, after paying more than $475,000 alone in medical, based on expert opinion that the broadening pain complaints at L3-4 and L4-5  more likely flowed from degenerative aging.  The Commission disagreed:  "We adopt Dr. Smith's opinion (and so find) that the work injury and fusion at L5-S1 put stress on the adjacent levels of employee's spine and caused the symptomatic degenerative pathology at L3-4 and L4-5."

The Commission further modified a 35% PPD award against the employer to an award of permanent total disability to the 59-year old claimant.  A treating surgeon reviewed surveillance and concluded:  "I would be surprised if anybody would look at those films and say this is somebody who is disabled".  A majority of the commission noted the tapes were not persuasive as the employer had obtained days of footage with nothing persuasive.   310 hours of surveillance were condensed for the hearing.

ALJ  Tilley
Atty  Padberg, Rost
Experts:  Volarich, Cantrell, Coyle

Aqua therapy

Claimant failed to establish that aqua therapy was reasonably required based on 4-year old medical report when claimant no longer used medications or clarified the  current symptoms supported the prior recommendation.  Smith v Roberts Dairy Co., 2014 MO WCLR Lexis 81 (June 13, 2014), affirmed a denial of future medical benefits. 
ALJ  Siedlik
Experts:  Koprivica, Drieling

Bill for cardiac workup

This is a  fight about who pays a large hospital bill.  In Gonzales v Butterball, SD 22369 (Mo App. 2-11-2015), 2015 Mo App. Lexis 139;  the worker claimed he had chest pain and was taken by ambulance from work to a hospital in Carthage and then transferred to a hospital in Joplin where he underwent a cardiac cath. 

The Commission awarded benefits, and the court of appeals affirmed, based on expert testimony that bills totally nearly $20,000 were necessary and reasonable to treat his work injury from lifting a heavy turkey.   The employer argued there was no medical evidence linking his treatment to any work injury and that he never had a work injury nor provided any timely written notice of an accident. 

Claimant did not have any work-related cardiac condition from lifting a turkey and that the accident only strained a chest muscle which produced no permanent disability.  The court of appeals concluded it was "not unreasonable" for the hospital to perform tests to rule out cardiac pain  in "no doubt in an effort to mitigate the potentially fatal consequences of such a possible ailment"  while the medical providers waited for an interpreter.

The employer has a statutory obligation to cure or relieve the effects of work-related injuries.  In this case it appears the finding of a relationship between the symptoms and the reasonableness of medical treatment was not controverted by other medical evidence as the only expert identified is claimant's expert.  The suggestion raised in the appeal is that the treating medical records may have been silent as to any relationship or specific history.   The opinion highlights it is reasonable to perform a cardiac work-up for a worker with chest pain and the obligation appears independent of the determination whether there was any permanent work-related cardiac condition that needed any "cure" or "relief". The claimant's entire course of medical treatment was deemed reasonable to rule out an acute cardiac event which never existed.

The court rejected the employer's written notice defense and found there was a lack of prejudice as the employer's own representative called an ambulance and had actual knowledge of the incident. 

The court further criticized the employer's argument regarding sufficiency of evidence that did not comply with its earlier 4-step model and identify by not fully identifying the supporting evidence or the credibility determination.  The court identified the four step as: 

"1. Identify a factual proposition needed to sustain the result;

2. Marshal all record evidence supporting that proposition;

3. Marshal contrary evidence of record, subject to the factfinder’s credibility determinations, explicit or implicit; and6

4. Prove, in light of the whole record, that the step 2 evidence and its reasonable inferences are so non-probative that no reasonable mind could believe the proposition. "

The court of appeals agreed that the ALJ erred to award TTD benefits based on medical discharge instructions to take off a week when claimant  did not miss any time from work and conceded the error in his brief. 
The Commission opinion provides some further details.  In the  case, 2014 MO WCLR Lexis 29, ALJ Fisher noted claimant had lifted an 80 pound turkey in June 26, 2009 and had immediate chest pain.  The 66 year old claimant who did not speak English and had a 3rd grade education reported a second accident in August 2009 and was deemed totally disabled as a result of a crush injury to the dominant hand resulting in disuse atrophy or RSD.   Butterball fired him a few months after the second accident