Clark v Dairy Farmers of America
2018 MO APP. LEXIS 56 SD 34826
January 25, 2018
The employer appealed on the narrow issue whether the claimant suffered an unexpected traumatic event or unusual strain when she was performing her regular duties stirring cheese and she heard a pop in her ribs. Employer claims the claimant must prove a traumatic event as a prerequisite to accident.The court of appeals finds substantial evidence to support the finding that claimant sustained an unusual strain by mixing cheese curds and proved she had an accident.
The Court noted 287.120.1 requires proof in a disputed accident whether claimant sustained an unexpected traumatic event or an unusual strain. The commission did not expressly identify what was the "accident" and what was the "injury" and the court felt it was "unduly restrictive" for the employer to infer the Commission meant the injury was only the "pop" as an "unexpected event."
The court noted the facts supported claimant sustained an "unusual strain" and had an unordinary act of excessive physical or mental tension, difficult exertion, or violent or overtaxing effort. The court found an unusual strain could occur from regular activity and does not require something distinguishable from and in addition to routine work. Claimant testified it took a lot of force to use a 35 to 40 pound shovel when she was precariously balanced. These facts support an act of physical tension or unusual strain to fracture her rib even though the employer argued the Commission muddled its findings of what is an injury and what is an accident.
The court relied upon White v Conagra, 2017 MO Lexis 585, for the proposition that the Commission does not commit reversible error if it can identify the key issue in the case if the accident was the prevailing factor in causing the injury, even when the commission fails to accurate identify the accident. Similarly, the court notes Young v Boone Electric Coop, 462 S.W.3d 783 (Mo. App. 2015) held an award can be supported by an accident from an unusual strain even though it is not an unexpected event.
Clamant fractured a rib in the course of her duties. Claimant had a lytic lesion which can cause bone weakness.
The court limited its discussion of facts to the narrow issue regarding the interpretation of accident and whether the Commission reached the right result even if it gave a wrong or insufficient reason for its ruling without mentioning the elephant in the room that the fight was over $84,000 in bills that far exceeded customary medical bills for a rib fracture because claimant had a rare malignant lesion that was treated at the same time.
Clark v Dairy Farmers of America
2016 MO WCLR Lexis 78
December 7, 2016
Clark in May 2011 worked in Monett Mo for DFA and claims she leaned against a vat to stir curds and felt a pop and pain in her chest and experienced an acute onset of symptoms in her right arm. She underwent imaging which identified an irregularity in the rib which was investigated as a possible malignancy (LCH). She underwent radiation treatment.
The Commission reversed a denial of benefits for a fracture to the rib, and found the accident an aggravating factor even though the rib had been weakened by a prior non-occupational lesion. What is striking about the case is the award of nearly $84,0000 in bills for radiation and other treatment "reasonably necessary" to diagnose and treat her lesion referable to LCH.
"Employee's right fifth rib was, undoubtedly, weakened when she went to work on the morning of June 20, 2011, owing to a preexisting degenerative condition, namely, the lesion referable to LCH. However, employee was not suffering from a broken right fifth rib until after she suffered the accident at work on that date. In other words, employee suffered an aggravation of her preexisting degenerative condition as a product of the work accident."
Dr. Parmet concluded that the lesion had already weakened the bone. He concluded that the fracture was a pathological fracture and could occur through activities of normal daily living or even a sneeze. Essentially,the rib fracture could have occurred without or without any precipitating work event.
Dr. Mullins, claimant's expert, concluded that the fracture was not typical, it had not healed, and claimant had occupational limitations because of fear of re-injury. Claimant had further scarring and nerve irritation as a result of radiation treatment. He felt the forces were sufficient to cause the fracture, independent of weakness from her LCH disease and that work was the prevailing factor even if the LCH was a contributing factor." He concluded that "the LCH might have gone undiagnosed and never needed treatment. He opined that people live with a condition and have no issues until a work-related accident occurs, which requires testing and other treatment to fix the underlying problem", like an asymptomatic degenerative arthritis.
ALJ House denied benefits, found a failure of proof of accident or injury by accident and denied medical bills.
"Claimant did not suffer an injury under Section 287.020. Her shoveling was not the prevailing factor causing her fractured rib or any disability from that rib fracture. In addition, her medical treatment did not flow from her work activity."
"I find and conclude that the greater weight of the evidence supports the conclusion that Claimant suffered a pathological fracture from Langerhan's cell histiocytosis the prevailing factor in causing her condition and disability . rather than from her shoveling at work. Claimant's fracture matches the profile of a pathological fracture. Her tumor was close to the fracture site on the fifth rib. The bone was weakened by her LCH. The rib failed by fracturing at or near the site of the LCH lesion under a load less than normal force."
The commission reversed and found the accident arising out of her employment related to an identifiable work hazard. The Commission reversed and awarded disability and medical bills to treat the malignancy.
"Employee was wholly unaware she was suffering from LCH or the lesion affecting her right fifth rib, as she had not experienced any symptoms referable to these conditions."
The Commission found the bills reflected necessary treatment to cure and relieve the effects of the rib fracture as a "precursor" to heal the bone fracture. "We conclude that the disputed treatment was reasonably required to cure and relieve from the effects of employee's compensable work injury of a right fifth rib fracture." The employer did not challenge the reasonableness or whether all the charges were related, and the Commission it was bound by that stipulation.
"We have credited Dr. Mullins's unrebutted testimony that the workup and radiation treatment to cure and relieve the specific lesion behind employee's right fifth rib was a necessary precursor to the healing of her work-related rib fracture; consequently, we can easily conclude that such expenses "flow" from the work injury. See Tillotson v St. Joseph Med. Ctr, 347, S.W.3d 511 (Mo. App. 2011). With regard to the numerous, additional diagnostic procedures intended to measure the extent and seriousness of the LCH itself (e.g. whether the condition had metastasized to different areas of employee's body) the work connection would seem more tenuous. However, given that the parties stipulated that the issue of past medical expenses would "rise and fall" with causation, and because we are bound by that stipulation, see Hutson v Treasurer of Mo, 365 S.W.3d 269 (MO. App. 2012). it appears that we are precluded from parsing such additional expenses or from even reaching the issue whether they must be denied."
The Commission concluded the defense expert "did not positively identify employee's preexisting lesion, or her condition of LCH, as the prevailing factor causing employee to suffer the rib fracture of June 20, 2011. Instead, it appears to us that he determined her work activity was not the prevailing factor causing her to suffer a rib fracture based on an implicit assumption that where any non-work-related, but-for cause of an injury is present, the accident cannot be deemed the prevailing factor. In other words, Dr. Parmet's theory in this case appears to involve a legal conclusion, as opposed to a purely medical opinion"
The Commission noted that the treating physician declined to allocate whether the work event or the prior LCH was the prevailing cause of her rib fracture.
The employer did not raise idiopathic cause as a defense.
The Commission denied future medical care. She continues to treat over the counter mediation for her "rib fracture." Her expert did not provide persuasive testimony that the pain management treatment he proposed flowed form the work injury.
In addition, the Commission awarded an additional 10% PPD.
The Commission denied a claim of past TTD benefits of nearly two years and found claims of fatigue during radiation treatment were insufficient alone to support an incapacity to work.
National Cancer Institute notes: "Langerhan's cell histiocytosis is a malignancy without known cause, but most closely associated with smoking in adults. Six percent of bone involvement in adults involves the ribs, and most adult cases are polyclonal, not monoclonal, a factor which would only affect their spread in chemotherapy but not the use of radiation."
Randy Alberhasty represented the employee.
