The Commission reverses a denial of Fund benefits to a worker who asserted she had new injuries to her back and had 6 previous spinal surgeries in a recent period. Robertson v Southwestern Bell Telephone Co., 2016 MO WCLR Lexis 19 (March 15, 2016).
The SIF asserted a defense that the accident was not a prevailing factor in claimant's condition when she slipped in a puddle and fell in September 2009. She had multiple previous back surgeries and had been advised earlier in 2009 when she was placed on restrictions and told she could no longer work. Claimant continued to work for about another 3 years and then pursued another back surgery and then, at age 44, dropped out of the open labor market.
The ALJ found "The only expert to provide a rating is Dr. Margolis, whose opinion is flawed because he considers Claimant's disability as of 2013, which is four years after she reached MMI for the compensable injury and includes factors unrelated to the compensable injury. "
The Commission reversed and found that claimant had sustained new disability from a lumbar strain. The Commission found claimant's expert unrebutted that claimant sustained a new medical "condition" even if her "overall" condition flowed from prior conditions. "We do not find Dr. DeGrange's credible analysis dispositive of the critical issue: Is this accident the prevailing factor in causing an identifiable medical condition and disability..... But the relevant question for our purposes is whether--despite the preexisting low back condition--the accident of September 17, 2009, was the prevailing factor in causing any resulting medical condition and disability."
The Commission regarded vocational opinion premised on the notion that claimant needed to lie down unpersuasive and inconsistent with the treating records and lacking proper foundation. The Commission disregarded allegations against the second injury fund based on hearing loss or ADHD due to lack of persuasive evidence on the issue of synergy.
ALJ: Boresi
Atty: Griffiths
