Beatrice v. Curators of the Univ. of Mo.

438 S.W.3d 426

Deborah BEATRICE, Respondent,

v.CURATORS OF the UNIVERSITY OF MISSOURI, Appellant.

No. WD 76807.

Missouri Court of Appeals, Western District.

Aug. 5, 2014.

William D. Rotts, Columbia, for respondent.

Richard L. Montgomery, Jr., Columbia, for appellant.

Before Division Two: VICTOR C. HOWARD, Presiding Judge, JAMES E. WELSH, Judge and ANTHONY REX GABBERT, Judge.

VICTOR C. HOWARD, Judge.

Curators of the University of Missouri (Employer) appeal the Labor and Industrial Relations Commission's award of worker's compensation benefits to Deborah Beatrice. It claims that the award was not supported by competent and substantial evidence and is against the overwhelming weight of the evidence. The award is affirmed.

Background

Ms. Beatrice began working for Employer in 2004 as a labor and delivery nurse at Columbia Regional Hospital. In October of that year, one and a half years before the work-related injury at issue in this case, Ms. Beatrice slipped on water while walking into an operating room and fell on her right buttock. She sustained strains of her neck, back, right knee, and ankle and a gluteal contusion. The incident required minimal treatment, and no claim for compensation was filed.

On March 28, 2006, while assisting with positioning a struggling patient during a difficult delivery, she experienced immediate pain in her low back. She finished her shift and applied ice to her back at home that night. The next day, on March 29, 2006, Ms. Beatrice was pushing a patient in a hospital bed and experienced worsening back pain and spasms radiating down her left leg. She reported the injury to Employer, and Employer referred her to Dr. Robert Conway.

Dr. Conway ordered an x-ray of the lumbar spine, which showed no bony abnormalities. He diagnosed Ms. Beatrice with aggravation of lumbar spondylosis with possible left L5 radiculopathy, prescribed physical therapy and medication, and placed her on a ten pound lifting restriction at work with only occasional bending and twisting. When Ms. Beatrice continued to complain of pain in her low back, Dr. Conway ordered an MRI, which he reported showed mild degenerative changes of the spine with possible mild stenosis at L5–S1 but no evidence of disc herniation or significant stenosis. He continued to prescribe physical therapy. On June 15, 2006, Ms. Beatrice reported to Dr. Conway that her back pain worsened as she increased work activities. Dr. Conway noted that she had made very limited progress in physical therapy, proclaimed her at maximum medical improvement, and released her from his care giving her permanent restrictions of lifting no more than twenty pounds and working no more than 8–hour shifts. He assigned a permanent partial disability rating of 4% of the body as a whole related to her work injury.

Because of her work restrictions, Ms. Beatrice was no longer able to perform her job, and Employer terminated her on June 22, 2006. She filed a claim for compensation on July 6, 2006. In August 2006, Ms. Beatrice began working full-time for Litigation Management reviewing medical records from home.

Continuing to have pain in her low back, Ms. Beatrice began seeing Dr. Thomas Highland, an orthopaedic surgeon with Columbia Orthopaedic Group, at her own expense in July 2006. Dr. Highland ordered a CT and myelogram of her lumbar spine. He prescribed epidural steroid injections in July 2006 and November 2006 for disc bulge at L4–5. Ms. Beatrice received some relief from the July injection but very little from the November injection.

In January 2007, Ms. Beatrice sought a second opinion on her own from Dr. Keith Bidwell, a spine specialist in St. Louis. Dr. Bidwell examined Ms. Beatrice and reviewed her medical records. He noted that her MRI showed only mild disc degeneration. He determined that surgical treatment was not advisable and recommended physical therapy. Ms. Beatrice also saw Dr. George Carr for an independent medical evaluation at the request of her attorney. After examining Ms. Beatrice and reviewing her records, Dr. Carr opined that the work accident on March 28, 2006, caused the development of her chronic back pain syndrome. He concluded that she was at maximum medical improvement and suffered a permanent partial disability of 15% body as a whole rated at the lumbosacral spine due to chronic low back pain. Dr. Carr agreed that surgery was not indicated.

Still experiencing persistent pain in her back and pain and weakness in her left leg, Ms. Beatrice saw Dr. Highland again in January 2007. She reported that she had begun to develop pain in her groin, right low back, and buttock area. She had also had several minor falls due to her left leg weakness. Dr. Highland referred Ms. Beatrice to Dr. Jennifer Clark, a physiatrist, to address the leg weakness. Dr. Clark's electrodiagnostic testing produced normal results. Believing that Ms. Beatrice's leg weakness was a result of her pain, Dr. Highland then referred her to Dr. Steven Street, a pain management specialist. Dr. Street administered an epidural steroid injection in February 2007.

In March 2007, Dr. Highland ordered another CT and myelogram of Ms. Beatrice's lumbar spine. After reviewing the test results, Dr. Highland opined that Ms. Beatrice had a bulging disc at level L4–5 that was directly related to her work injury in March 2006 and that surgical treatment of the bulging disc would give her relief of her back and leg pain, recommended a two-level vertebral fusion at levels L4–5 and L5–S1, and scheduled the surgery for March 8, 2007. Employer did not authorize the surgery, and it was cancelled.

In April 2007, Ms. Beatrice saw Dr. Dos Santos, a psychiatrist. Dr. Santos diagnosedher with major depression, chronic back and leg pain, and history of abuse and prescribed antidepressants. He continued to treat Ms. Beatrice with regular follow up visits.

Employer sent Ms. Beatrice to Dr. James Coyle for an independent medical evaluation in May 2007. Dr. Coyle ordered an MRI and also reviewed the March 2007 CT and myelogram. His impression was that the work injury of March 28, 2006, caused an aggravation of degenerative disc disease and facet arthritis at levels L4–5 and L5–S1. He suggested that surgical intervention was a potential treatment but that the prognosis from surgery would be very guarded because the findings on the MRI were relatively mild with the exception of severe arthritis at L5–S1. He wanted better quality testing before considering surgery. Employer authorized no further treatment.

Ms. Beatrice returned to Dr. Highland in July 2007 with continuing pain in her back and both legs. Dr. Highland examined Ms. Beatrice and reviewed the new MRI and Dr. Coyle's notes from May. He maintained that Ms. Beatrice would benefit from surgical treatment but could not proceed because of the insurance issues.

Ms. Beatrice saw Dr. Street for another epidural steroid injection in November 2007. At that time, she reported continued left-side pain with new right-side groin pain.

Employer sent Ms. Beatrice to Dr. Michael Chabot, an orthopaedic doctor in St. Louis, in December 2007 for its own second opinion regarding diagnosis and the need for further treatment. Dr. Chabot examined Ms. Beatrice and reviewed her medical records. He concluded that the etiology of the chronic back pain of which Ms. Beatrice complained was poorly defined. He noted evidence of mild disc degeneration and more advanced facet degeneration at L4–5 and L5–S1 and opined that her perceived disability far exceeded the objective physical findings suggesting psychosocial overtones. He agreed with Dr. Conway's opinion in 2006 that Ms. Beatrice reached maximum medical improvement then and his assignment of a permanent partial disability rating of 4% of the body as a whole related to her work injury. Dr. Chabot opined that no additional medical treatment was necessary and surgery was not indicated. Dr. Chabot revised his opinion in March 2008 after reviewing the depositions of Dr. Highland and Dr. Coyle. He maintained his earlier opinion that the etiology of Ms. Beatrice's back pain complaints remained poorly defined but recommended a lumbar discogram extending from L3–S1 and post-discogram CT by Dr. Anthony Guarino for further diagnosis.

In the spring of 2008, Ms. Beatrice began to experience urinary incontinence, difficulty voiding, and urinary tract infections. Dr. Highland directed Ms. Beatrice to Dr. Jerrold Schermer, an urologist, in May for testing to address her bladder dysfunction. Dr. Schermer determined that Ms. Beatrice's bladder dysfunction was likely related to her back problems. His impression was that she had a neurogenic bladder or that her difficulties were the result of severe pain and the need for pain medication. In Ms. Beatrice's medical records relating to the exam, Dr. Schermer wrote, “I am concerned that she has a neurogenic bladder and I have communicated this with Dr. Highland, surgery has already been recommended for her back.” Dr. Schermer instructed Ms. Beatrice to perform self-catheterization twice daily.

Ms. Beatrice also saw Dr. Highland again in May 2008, and he ordered a new lumbar myelogram and post-myelogram CT. Dr. Highland opined that Ms. Beatrice'surinary incontinence and need for self catheterization was related to her lumbar spine problems caused by the work injury. He again recommended spinal decompression surgery as soon as possible to avoid any permanent damage to the nerve to the bladder.

In August 2008, at Ms. Beatrice's request, a hardship hearing was conducted before an administrative law judge. The purpose of the hearing was to determine the need for additional treatment, specifically back surgery, and Employer's duty to provide workers' compensation benefits. The ALJ considered Ms. Beatrice's testimony, reports of Dr. Carr, Dr. Highland, Dr. Coyle, Dr. Chabot, and Dr. Bridwell, deposition testimony of Dr. Highland and Dr. Coyle, and medical records. It issued a...