Tuesday, January 10, 2017

Claimant's unrelated depression likely caused a relapse after her back surgery

Replogle  v.  Mexico School District, Employer; Missouri United School Insurance Company, Insurer; Treasurer of Missouri as Custodian of Second Injury Fund

2017 MOWCLR LEXIS 2  (Jan 4, 2017)

This case involved a back injury in 2006 from lifting a child into a wheelchair. Claimant was initially treated for a sprain and released from care.  She later  lost more than 100 pounds after a  gastric bypass. In the course of that care, she had discogenic symptoms.   In 2009 she underwent a two level fusion.  In 2011 she applied for disability.   She became dependent on narcotics to treat back pain. The commission affirmed in a 2-1 decision and  denied PTD benefits but affirmed an award of future  following a back surgery, and enhanced the PPD in a modified award.
Claimant alleges she was totally disabled, and relied upon expert opinion that she had a failed back syndrome and was unemployable in the open labor market.   Her symptoms became dramatically worse 14-19 months after her surgery with 10/10 pain complaints and symptoms unresolved by narcotics.  Her surgeon felt the most likely cause was that claimant regained significant weight although it was possible psychiatric conditions were also a contributing cause. 
The Commission was unable to conclude the surgery was  the prevailing cause in her current pain symptoms.  No psychiatric testimony is identified.
"Again, it appears equally likely to us that employee's recurrence of debilitating low back and radicular pain in 2011 was a product of her depression rather than the purely physical sequelae from the work injury and fusion surgery.   Employee's ability to work two jobs for approximately two years following her June 2009 surgery is further evidence undermining the claim for permanent total disability benefits. For these reasons, we adopt the administrative law judge's finding that employee failed to meet her burden of proving that she is permanently and totally disabled owing to the effects of the work injury considered alone."  (emphasis added)
The ALJ affirmed the finding that the accident caused the discogenic pain and need for surgery but she did not develop a failed back syndrome or establish a need for medical treatment related to the accident.  The ALJ awarded 35% and denied future medical.  The Commission awarded 40%.
The majority cautioned the award seemed to suggest the ALJ questioned the cause based his experience rather than the record.  The dissent criticized the ALJ for "punishing" the employee because she declined exploratory surgery to investigate a source of her complaints.  The dissent argues that claimant had established a medical condition (pain) and in the absence of a finding that her testimony of pain was not credible, the  claimant was entitled to total disability.
The majority found the employee failed in her burden of proof to establish evidence of synergy based only a conclusory opinion of her expert.
 The employee and the second injury fund appealed and the finding on future medical was undisturbed. The stipulated issue at hearing was  "Employer's liability, if any, for future medical benefits" and the award was for future medical.   The ALJ found "Employer and Insurer are also ordered to provide Claimant with future medical care as required by Section 287.140, RSMo." and notes she has retained hardware in her back. Section 287.140 imposes a general duty to "cure and relieve" and is not narrowly related to treatment of hardware.  He finds "I find that the work accident of August 29, 2006, is not the prevailing factor in the cause of Claimant's pain complaints which began fourteen months post-surgery" 
 Chronology of symptoms has a  profound impact on credibility and causation. The case further demonstrates difficult  tactical choices to include or exclude psychiatric claims.  Claimant had originally pled "psyche" but then removed the allegation.