Case
Law Update - April 2013 - June 2013
LEGISLATIVE
UPDATE
SB1
has passed the House and Senate and is awaiting the Governor's signature. Below
are some of the major changes that will go into effect on January 1, 2014 if
the Governor approves the Bill.
Employee:
“Employee”
does not include any person performing services for board, lodging, aid or
sustenance received from any religious, charitable or relief organization. '287.020.1
Occupational
Disease:
Workers’
Compensation is the exclusive remedy for occupational diseases. '287.120.1 & .2
“Occupational
diseases due to toxic exposure” include: mesothelioma, asbestos, berylliosis,
coal workers pneumoconiosis, bronchiolitis obliterans, silicosis,
silicotuberculosis, manganism, acute myelogenous, leukemia and myelodysplastic
syndrome. '287.020.11
In
cases of “occupational diseases due to toxic exposure” (but not including
mesothelioma) which result in permanent and total disability or death, the
claimant shall receive 200% of the state’s AWW for 200 weeks. Currently using
the state’s AWW of $788.33, this would amount to $157,666.00. '287.200.4
Mesothelioma
cases are treated differently. Employers can elect to accept or reject
mesothelioma liability. Employers can elect to insure liability by qualifying
as a self-insurer or by becoming a member of a group insurance pool. '287.200.4 A Missouri Mesothelimoa
Risk Management Fund will also be created and any employer can participate in
the Fund which uses funds collected by members to pay mesothelioma Awards made
against any member of the Fund. Participation in the Fund has the same effect
as becoming a member of a pool or a self-insured. '287.223
When
mesothelioma results in permanent and total disability or death, if the
employer has elected to accept mesothelioma liability, the claimant shall
receive an additional amount of 300% of the state’s AWW for 212 weeks from the
employer or the group of employers in which the employer is a member. Currently
using the state’s AWW of $788.33, this would amount to $501,377.88. '287.200.4
If
the employer has elected to reject mesothelioma liability, than Workers’
Compensation is not the employee’s exclusive remedy. In other words, the
employee can move forward with his/her claim in civil court. '287.200.4
The
benefits for “occupational diseases due to toxic exposure” must be exhausted
before the regular PTD or death benefits are paid. '287.200.4
If
the claimant dies before the benefits for “occupational diseases due to toxic
exposure” are fully paid, the claimant’s spouse or children are entitled to the
benefits. If the claimant has no spouse or children, the unpaid benefits go to
the claimant’s estate. '287.200.4
The
employer has no subrogation rights for any benefits that were paid for an Aoccupational disease due to toxic
exposure” when the claimant or his/her dependents receive compensation from a
third party claim. '287.150.7
Fund
Responsibility:
There
no longer will be PPD claims against the Fund. '287.220
PTD
cases will be allowed where the prior injury(ies) amount to at least 50 weeks
of PPD which is due to an active military disability, a prior workers’
compensation disability, any prior disability which directly and significantly
aggravates or accelerates the work-related disability, or is a pre-existing
disability to an extremity when there is a subsequent compensable work injury
involving the opposite extremity. '287.220
When
an employee is entitled to compensation from the Fund, the employer at the time
of the last work-related injury shall only be liable for the disability
resulting from the subsequent work-related injury considered alone and of
itself. '287.220
The
Fund is no longer liable for death benefits and medical bill benefits for an
injured worker working for an illegally uninsured employer. '287.220
The
Fund is no longer responsible for second job wage loss. '287.220
Surcharge:
There
is a supplemental surcharge not to exceed 3% in the calendar years 2014 - 2021.
The surcharges are for the sole source of payment for Second Injury Fund
obligations. '287.715
Medical
Fee Disputes
Medical
providers are required to apply for reimbursement within 2 years from the date
the first notice of disputed medical charges was received by the health care
provider for services rendered before July 1, 2013 and within one year if
services are rendered on or after that date. '287.140.4
EVIDENCE
One Medical Opinion Relating an
Occupational Disease to a Job is Sufficient For Claim tobe Found Compensable
Top
Stephen Smith (deceased) v.
Capital Region Medical Center, Case No. WD75078 (Mo. App. 2013)
FACTS: The claimant worked in the
hospital from 1969 - 2006 as a lab technician. At one time the lab technicians
pipetted blood samples using their mouths. The claimant testified that he once
got blood in his mouth while doing so. Also, in 1970, he received a blood
transfusion following a non work-related hunting accident. The claimant was
diagnosed with Hepatitis C in December 1999, and ultimately died on February
27, 2007 of sepsis, Hepatitis C and acute tubular necrosis. Dr. Parmet, the
claimant’s expert, opined that the claimant’s work was Aclearly the largest risk factor
and the most probable source” of his Hepatitis C, as well as the prevailing
factor. Dr. Bacon, the employer’s expert, opined that the claimant likely
contracted Hepatitis C when he had the blood transfusion in 1970.
The ALJ concluded that the
claimant failed to prove that he contracted an occupationally induced disease,
and therefore, his claim was denied. The Commission agreed because there was no
evidence of any person with Hepatitis C treated in the employer’s facility
while the claimant worked there. The Commission noted that the claimant worked
at the employer for many years and it would seem that someone with Hepatitis C
must have, at some point, treated at the hospital. However, the Commission
could not speculate.
HOLDING: The Court reversed the Commission’s
Decision and remanded the case back to the Commission. The Court noted that
Courts have found that in an occupational disease case Aa claimant must submit medical
evidence establishing a probability that working conditions caused the disease,
although they need not be the sole cause. Even where the causes of a disease
are indeterminate, a single medical opinion relating the disease to the job is
sufficient to support a decision for the employee.” The Court further noted
that Courts have found that the Statute does not require a claimant to
establish, by a medical certainty, that his injury was caused by an
occupational disease in order to be eligible for compensation. The Court found
that Dr. Parmet’s opinion was sufficient evidence to meet the claimant’s burden
on the issue of causation since he opined that the claimant’s work was the
prevailing factor in him contracting Hepatitis C.
Claim Denied Because Claimant Not
An Employee Nor Statutory Employee
Top
Brito-Pacheco v. Tina Hair Salon, Case No. WD75062 (Mo.
App. 2013)
FACTS: The claimant, a hairdresser,
worked for the employer which was a hair salon owned by Tina Diaz, and she
supplied a work station to the hair dressers. Ms. Diaz provided salon business
cards to which hair dressers could add their name. The owner did not schedule
appointments, limit or mandate work hours, provide employee benefits, pay taxes
or mandate fees. The hair dressers would use the space provided and divide
proceeds of compensation paid by the customers. The claimant was covering for
another employee when he was shot and killed during a robbery at the salon. The
ALJ noted there was no evidence to support Ms. Diaz had the right to control
the claimant’s work. Therefore, the claimant was unable to sustain his burden
of proof regarding the employer/employee relationship. The ALJ looked to
whether the claimant was a statutory employee. The Courts have noted that the
elements to establish statutory employment were whether the work done was under
contract on or about the premises of the employer which was in the usual
business of the employer. The ALJ found there was no evidence that the work of
the claimant was pursuant to contract either written or verbal, and therefore,
the employer was not the claimant’s statutory employer. Therefore, the Claim
was denied. The Commission affirmed the decision of the ALJ.
HOLDING: The Court upheld the denial of
benefits. The Court found that the Commission properly found that the stylist
was not a statutory employee because his work was not performed in the usual
course of the employer’s business, specifically because he was doing his own
work rather than work of his employer. The Court noted that the employer simply
provided him the facility.
Fund Has No Liability Because
Claimant was PTD Prior to Last Work Injury
Top
Schussler v. Treasurer of the
State Custodian of the Second Injury Fund, Case No. WD74596 (Mo. App.
2012)
FACTS: The claimant worked for the
employer from June 2006 through June 2008. In March 2008 she began to
experience symptoms of bilateral carpal tunnel; she reported the carpal tunnel
to the employer; and a week later she was terminated. She subsequently
underwent two surgeries for carpal tunnel and was released to work without
restrictions in April 2009. The employer and the claimant settled, and the
claimant then went to a hearing against the Fund for PTD benefits.
It was noted that the claimant
had an extensive history with respect to pre-existing conditions involving her
knees, her cervical and lumbar spine, brittle type 1 diabetes, Hepatitis C,
depression and post-traumatic stress disorder. Dr. Koprivica testified on
behalf of the claimant opining that she was PTD as a result of her pre-existing
conditions, as well as the 2008 carpal tunnel syndrome. He did note that she
had Asignificant industrial disability”
prior to her carpal tunnel syndrome. Ms. Titterington, a vocational expert,
opined that she was not employable on the open labor market and further noted
that she was unemployable Afrom
all the restrictions that are in Dr. Koprivica’s report, even if the hand
injuries were not considered.” The ALJ found the claimant was not entitled to
benefits from the Fund because she was PTD prior to the carpal tunnel injury.
The Commission affirmed the decision of the ALJ.
HOLDING: The Court also found that the
Fund was not liable for PTD benefits because the claimant was PTD prior to the
carpal tunnel. The Court noted that the fact that the claimant maintained
employment with the employer did not bar a finding that she was PTD. The Courts
have made it clear that the Commission is not prevented from finding that the
claimant is PTD simply because she holds limited, sporadic and/or highly
accommodated employment. The Court noted that the test is whether the claimant
could compete in the open labor market, and certainly the fact that the
employer discharged the claimant almost immediately after learning of her
carpal tunnel syndrome suggests that her employment was tenuous.
PROCEDURE
Appellate Court Only Has
Jurisdiction to Review Commission’s Final Award, Not Temporary Award
Top
Maria White v. Anderssen Mobile
X-ray Service,
Case No. ED98181 (Mo. App. 2012)
FACTS: The claimant was a staff
technologist and her job duties involved taking x-rays at various locations
throughout the metropolitan area. She drove the employer’s minivan containing
the employer’s equipment, films and office paper. The gas and vehicle repairs
were paid for by the employer. The claimant was to be in the office by 3:00
P.M. and was to call 30 minutes before her shift, or 2:30 P.M., to see if there
were any assignments or she was to go directly to the employer’s office. The
claimant called the dispatcher and was on her way to the office when she was in
a motor vehicle accident which occurred at 3:10 P.M. In the Temporary Award,
the ALJ found that this was not a case of a casual drive to work in which the
claimant was driving from her home to the employer and concluded that the
accident arose out of and in the course and scope of her employment. The
Commission affirmed this Temporary Award noting that its Award was also
Temporary.
HOLDING: The Court found that it was
without jurisdiction to review the Commission’s Temporary Award. The Court
noted that '287.495 only allows appellate
review of a final award. The Court further noted that before the 2005
Amendments appellate courts created two exceptions allowing appellate review of
a temporary award. The first was when the award was one of permanent total
disability and the second was when the employer denies all liability. The Court
acknowledged that the 2005 Amendments did not alter the Commission’s authority
to enter temporary or partial awards or its appellate jurisdiction. However,
the Amendments did change the construction of the Statute, to a strict
construction.
The Court looked to a prior
decision, Norman v. Phelps County Regional Med. Ctr. (Mo. App. 2008).
In Norman, the Court did not apply the exception to the general rule
that employers can appeal the temporary award of the Commission as long as the
employer denied all liability. The Norman Court found that application
of the prior judicially-created exception would violate the clear legislative
intent to limit appellate review to a final award from the Commission.
Therefore, it determined that it lacked jurisdiction to review the Commission’s
temporary or partial award. Here, in this case, the Court noted that the employer
argued that the Commission’s Award was a final award, but it was not. The
Commission designated its award in this case as a ATemporary Award,” and expressly
stated that the proceedings were continued and held open until a final award
could be made. Therefore, since the Commission’s Award was not final, the Court
could not review it.
Editor’s Note: The Court did not address
whether the Commission has the right to review an ALJ’s Temporary Award.
Minor Dependents Entitled to
Continuing PTD Benefits for Life (Applies only if Claim was pending from January 9, 2007
through June 26, 2008)
Top
David Spradling (deceased) v.
Treasurer of the State of Missouri as Custodian of the Second Injury Fund Case No. SD31907 (Mo. App. 2013)
FACTS: The claimant alleged that in
August or September 1998 he was injured while lifting pallets while working for
the employer. He initially filed his Claim in September 1998, and several
amended Claims thereafter. On November 30, 2005 the claimant passed away from
causes unrelated to his work injury. At the time of the injury, the claimant
had three minor children and there was no dispute that each of them were
dependents. On October 27, 2008, the claimant’s dependents filed an amended
Claim alleging they were entitled to the claimant’s continuing PTD benefits.
The dependents settled their Claim against the employer and proceeded to a
hearing against the Fund for PTD benefits.
The ALJ found that the claimant
was PTD prior to his death, and that the Fund was liable for PTD benefits. The
ALJ also found that the three dependents should receive his benefits continuing
after his death for life. The Commission affirmed the Award of the ALJ.
HOLDING: The Fund appealed arguing that
the minor dependents were only entitled to benefits until they attained the age
of 18, at which time benefits ceased. The Court disagreed noting that dependent
status is determined at the time of the injury, not the time of death and all
three children were dependents at the time of the injury.
The Court then looked to whether
the dependents were entitled to an Award of Alifetime workers’ compensation
benefits.” The Court noted that Schoemehl applies. Please note that the Schoemehl
Court found that when an injured worker dies from causes unrelated to the
work injury, the worker’s dependents become the Aemployee” for purposes of
receiving PTD benefits. The Court further noted it has been held that surviving
dependents are deemed to have the same rights as the employee under the
Statute. As a result, the law in effect at the time of the claimant’s injury
required compensation to be paid for PTD benefits not only over the lifetime of
the claimant, but also over the lifetime of any of his surviving dependents.
Therefore, the Court found that the Commission was correct in determining that
the claimant’s dependents were entitled to receive PTD benefits for their
lifetime, despite the fact that their entitlement to death benefits would, in
most cases, cease when they reached the age of 18.
VA Entitled to Become a Party in
a Workers’ Compensation Proceeding)
Top
United States Department of
Veteran Affairs v. Karla O. Boresi, Case No. SC92541 (Mo. S.Ct. 2013)
FACTS: The claimant alleged that on
November 20, 2002 he sustained a work-related injury. He received care and
treatment for that injury in the amount of $18,958.53 from the VA medical
facility. It was undisputed that the employer did not authorize care at the VA
facility. The VA filed a Motion in the claimant’s workers’ compensation
proceeding asserting its right under 38 U.S.C ' 1729 (2006) which allows it to
intervene in an action or proceeding brought by the veteran against a third
party to recover charges they have paid which were Aincurred incident to the veteran’s
employment and...covered under workers’ compensation law or plan.” The ALJ
overruled the VA’s Motion on the ground that she had no authority to permit the
intervention. The VA filed a Petition in the Circuit Court again asking to be
able to intervene in the workers’ compensation proceeding and after a hearing,
the Court denied the VA’s Petition. The VA then appealed to the Court of
Appeals, who transferred the case to the Supreme Court.
HOLDING: The Supreme Court found that
although Missouri Workers’ Compensation Statutes do not allow the VA to
intervene in the proceedings, 38 U.S.C '
1729 (2006), a federal law, does allow the VA to intervene. Pursuant to the
Supremacy Clause of the United States, which states that federal laws are
supreme, the VA had the right to intervene in the workers’ compensation
proceeding, and therefore the Court directed the ALJ to allow the VA to
intervene.
COMMISSION DECISIONS
Employer Found Responsible For
PTD Benefits After Conservatively Treated Back Injury
Top
In William Rook v. Bodine
Aluminum and Treasurer of Missouri as the Custodian of the Second Injury Fund,
Injury No. 07-041658, the claimant sustained a herniated disc at L4-5 on
April 22, 2007. He treated conservatively with Dr. Coyle with injections and
physical therapy and was then released from care. He subsequently saw Dr.
Kuntz, an unauthorized physician, who recommended a 3-level fusion which the
claimant did not undergo. However, the employer did send him back to Dr. Coyle
who disagreed with Dr. Kuntz’s assessment and again placed the claimant at MMI.
It was noted that he had extensive pre-existing injuries to his low back
including a central disc protrusion at L4-5 and L5-S1 and he had been diagnosed
with transverse myelitits and treated with traction therapy. It was further
noted that the claimant was symptom free for three years prior to his injury. The
ALJ opined that the claimant was PTD as a result of a combination of his
pre-existing disabilities and the primary low back injury. The ALJ determined
that the employer was liable for 40% PPD referable to the body, and the Fund
was responsible for PTD benefits. The Fund filed a timely Application for
Review alleging the employer rather than the Fund was liable for PTD benefits.
The Commission agreed with the
Fund opining that the employer, not the Fund, was liable for PTD benefits. The
Commission noted that the ALJ failed to consider the effects of the work injury
in isolation before inquiring as to the claimant’s pre-existing conditions. The
Commission noted that the claimant’s testimony showed that after his work
injury he needed to lie down 5 - 6 times per day, which precluded him from
competing in the open labor market. The claimant testified that this began
after his work injury. Therefore, the Commission found that the employer, not
the Fund, was liable for PTD benefits because the claimant was PTD due to the
work injury alone.
Commission Can Only Double
Benefits Awarded By ALJ and Unpaid By Employer
Top
In Jennifer Thomas v.
Forsyth Care Center, Injury No. 05-080783, the ALJ issued a Temporary
or Partial Award ordering the employer to provide medical care, as may be
authorized and directed by Dr. Cornelison, which is reasonable and necessary
and causally related to the accident. Thereafter, the employer failed to pay
for various treatments ordered by the doctor, despite the fact that the doctor
made it clear in her records that she continued to make recommendations and was
unable to obtain authorization from the employer. The claimant asked that the Commission
double the amount of the TTD both paid and unpaid by the employer, the medical
expenses paid by the employer, and the amount of PTD benefits owed from the
date of the Final Award.
The Commission noted that the
only discretion they have with respect to doubling any Award is when an ALJ
orders benefits to be paid and then the employer does not pay them. Therefore,
the Commission cannot double any amounts the employer paid to the claimant, nor
can it double any amount that was not ordered by the ALJ. It is noted in this
case that the ALJ did not order the employer to pay TTD or PTD benefits. The
Commission noted that it would be inclined to order such a doubling in this
case, however, they were unable to do so because the claimant failed to prove the
value of medical expenses ordered by the ALJ and unpaid by the employer because
the claimant did not put any of her medical bills into evidence to establish
the dollar value of the medical treatments which she was unable to obtain due
to the employer’s conduct. Therefore, the Commission affirmed the ALJ’s
Decision in not doubling any part of the Award. The Commission did go on to
condemn the employer's refusal to comply with the ALJ’s Temporary Award, and
noted that the employer offered no explanation for refusing to authorize any
treatments recommended by the doctor.
Editor's Note: Please note that pursuant to
previous Commission decisions, the ALJ cannot direct the employer to authorize
treatment with a specific physician, as the employer has the right to choose
the physician. However, the employer in this case did not make that argument,
as the Commission noted that it was silent on why it refused any recommended
treatment.
Claimant on Job Site Walking to
Truck and Tripping Over Pile of Dirt Found
Top
Compensable
In Milton Young v. Boone
Electric Cooperative, Injury No. 08-123324, the claimant was on a job
site walking to his bucket truck to get materials for the job when he stepped
on frozen dirt and his left knee buckled and popped, causing him to fall down.
Other crew members helped him to his feet, at which time he experienced another
pop in his left knee. The ALJ found that the claimant sustained a left knee
sprain arising out of and in the course of his employment on January 4, 2008.
The employer appealed arguing that the claimant did not sustain an unexpected
traumatic event or unusual strain and also that the claimant was equally
exposed to that risk or hazard in his normal non-employment life. Therefore,
his accident did not occur in the course and scope of his employment.
The Commission found that this
was an Aunexpected traumatic event or an
unusual strain” as the claimant testified credibly that he tripped on a pile of
dirt and fell, which would qualify as a traumatic event. The employer argued
that the injury was not compensable because he was merely walking to his truck.
However, the Commission noted that the claimant was not merely walking to his
truck, but instead fell because he stepped on a pile of frozen dirt. The
Commission found that the record did not contain substantial and competent
evidence to support a finding that the claimant was equally exposed to the risk
of stepping on a pile frozen dirt and falling in his normal non-employment
life. Therefore, the claimant’s left knee injury arose out of and in the course
of his employment and his injury was compensable.
Claimant PTD Due to Work Injury
and Prior Shoulder Injury
Top
In Daneen Pennington v.
Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No.
10-020750, the claimant sustained an injury to her back lifting a box of
paper. She treated conservatively and eventually underwent surgery with Dr.
Ciccarelli. She was then released from care with permanent restrictions of no
lifting over 25 pounds, and she settled her claim against the employer for
22.5% of the body. The claimant then proceeded to a hearing against the Fund
for PTD benefits. The ALJ denied the claimant’s claim against the Fund
concluding that the claimant was PTD due to the work injury alone.
The Commission disagreed and
found that the claimant was PTD as a result of her work injury and her
pre-existing disability, specifically a prior shoulder injury. The Commission
noted that the ALJ determined that after her prior shoulder injury the doctor
released her from his care without any restrictions. However, the Commission
noted that this was not quite accurate, and it was clear from the doctor’s final
report that the claimant was still having problems with her shoulder and
although she did not have any specific restrictions, she was to limit her
activities to those that she could tolerate. The Commission further noted that
the claimant testified that her shoulder had continued to bother her after she
was released from care. Also, the Commission disagreed with the ALJ’s finding
that the expert opinions of Michael Dreiling, who found that the claimant was PTD
as a result of her work injury and her pre-existing shoulder disability, and
the opinion of Dr. Stuckmeyer, who noted that the claimant’s shoulder condition
was a hindrance to her employment, were not credible. The Commission reversed
the Award of the ALJ and opined that the claimant was PTD and entitled to
benefits from the Fund.
Employer Not Entitled to
Reduction in Benefits for Drug Violation
Top
In Tyler Kelsey v. Loy
Lange Box Company, Injury No. 08-114802, the claimant sustained an
injury to his left upper extremity on December 30, 2008. Dr. Goldfarb performed
two surgeries and released the claimant from treatment in August 2009. The
employer alleged a 50% reduction in all three benefits because the claimant's
drug test on his day of injury was positive which was in violation of the
employer's drug policy. The Employer’s Alcohol and Drug Policy provided in part
that employees shall not use prohibited drugs while on the job or on company
property. Also, employees are not allowed to work while under the influence of
illegal drugs. The policy ends by stating that the Employer will not tolerate
use on the premises or allow employees to work while under the influence of drugs.
At the hearing, the drug test was
admitted into evidence and both parties had expert testimony. It was noted that
the claimant’s drug test was positive for marijuana metabolite, carboxy-THC,
which lasts in the body for an average of 3 days after smoking or ingesting
marijuana. However, the test showed that THC, marijuana’s active ingredient
that causes the physical effects or altered sensation, was no longer in the
claimant’s system.
The ALJ found that the claimant
did not violate the employer’s drug policy because he was not impaired at the
time of this injury. The ALJ noted that the experts agreed that the claimant
had smoked or ingested marijuana before the injury, and noted that it was
difficult to pinpoint the exact time of usage. The experts further agreed that
there was no evidence suggesting the claimant was physically impaired at the
time of the accident, and even if the claimant had smoked marijuana right
before he left for work, he would not have been suffering an impairment or
physical effect at the time of the accident, which was four hours into his
shift. Also, the medical records revealed no suspicion on the part of the staff
at the hospital that the claimant was impaired by any drug. Therefore, the
employer was not entitled to a reduction in benefits. The Commission affirmed
the decision of the ALJ.
Editor’s note: Please note it appears that
this decision relied on the employer’s policy which didn’t state that the
employer is a Adrug
free” work place. It simply noted that employees can not use drugs on the
premises or be under the influence.
Claimant Sustained Accident
However No Disability Since Treating With Injections Weeks
Top
Prior to Injury
In Lester Taylor v. Penmac
Personnel Services, Inc., v. Ace American Insurance Company, Injury No.
08-089380, the claimant was riding on a bus driven by a co-worker, at which
time the co-worker made a turn, cutting the corner too tightly which caused the
bus to travel into a ditch. The claimant fell out of his seat and onto the
floor, and the co-worker continued to proceed uninterrupted to the destination.
Upon arrival, the claimant got off the bus and expressed concern that his feet
had become numb and he was experiencing pain in his low back. It was noted the
claimant had a multitude of prior medical conditions including prior injuries
to his lower back. In fact, the claimant had received epidural injections just
6 weeks before this incident. Both medical experts agreed that there were no
acute findings on the MRI. The claimant's expert also admitted that the
claimant was given the same restrictions after the work injury as he had prior
to the injury. The employer's expert opined that the claimant did not sustain
any permanent disability as a result of the work injury.
The ALJ found that the claimant
did sustain an accident which caused him to sustain a soft tissue injury to his
lumbar spine. However, the ALJ noted that it was significant that the claimant
was treating and had undergone epidural steroid injections in his low back a
month and a half prior to the injury. Also, according to the expert testimony,
there was no change in pathology between an MRI which was performed before the
work injury, and the MRI that was performed after the work injury. Furthermore,
the claimant’s symptoms prior to and after the injury were essentially the
same. Therefore, the ALJ found that the claimant did not sustain any permanent
disability as a result of the work injury. The Commission affirmed the Award of
the ALJ.
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