Cooper v. Medical Center of Independence, WD

• Decision Date: 21 October 1997
• Docket Number: No. WD,WD
• Citation: 955 S.W.2d 570
• Parties: Hannelore COOPER, Respondent, v. MEDICAL CENTER OF INDEPENDENCE, Appellant. 52768.
• Court: Missouri Court of Appeals

Page 570

955 S.W.2d 570

Hannelore COOPER, Respondent, v. MEDICAL CENTER OF INDEPENDENCE, Appellant.

No. WD 52768.

Missouri Court of Appeals,

Western District.

Oct. 21, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 25, 1997.

John R. Fox, Fox, Stretz & Quinn, Kansas City, for appellant.

Robert H. Schnieders, Barton & Hall, Oak Grove, for respondent.

Before BRECKENRIDGE, P.J., and LAURA DENVIR STITH and HOWARD, JJ.

BRECKENRIDGE, Presiding Judge.

The Medical Center of Independence (MCI) appeals from a decision of the Labor and Industrial Relations Commission awarding temporary total disability benefits to its employee, Hannelore Cooper, for the period from April 26, 1994 through August 4, 1994. MCI contends that the Commission erred because during the period from April 5, 1994 through August 4, 1994, Ms. Cooper had been released to work and, under the criteria of § 287.020.7, RSMo 1994, ¹ she was not totally disabled and not entitled to temporary total disability.

Ms. Cooper was employed by MCI as an obstetric technician at the time of her injury on August 25, 1993. As an obstetric technician, Ms. Cooper assisted the doctors in normal vaginal deliveries and caesarean sections, lifted patients out of beds and onto tables, and moved heavy equipment from room to room. At the time of her injury, Ms. Cooper was working in the labor and delivery unit of the hospital, assisting the staff with a caesarean section. Pursuant to instructions, Ms. Cooper attempted to lift a patient from a prostrate position on a caesarean section table into a sitting position so the staff could insert an epidural block in the patient's back. Ms. Cooper tried several times to lift the patient so her back would face the nurse anesthetist but was unable to do so. As she was trying to lift the patient up, Ms. Cooper felt what she thought was a pull or a snap, and had pain on the right side of her back that went down her hip and leg. At this point, Ms. Cooper informed the patient that she could not lift her, and she enlisted the assistance of the nurse anesthetist.

After finishing her shift, Ms. Cooper went home and told her husband that she thought she had injured her back at the hospital. She took Flexeril and aspirin, but neither medication did anything to relieve her pain or improve her condition. Ms. Cooper worked another shift on August 26, 1993, although she continued to have back pain. After that shift, she had a couple of days off before her next shift. Her condition did not improve during those two days off work. Before her next shift, Ms. Cooper notified her nursing supervisor that she would not be able to come to work because of her back pain. The following day, Ms. Cooper scheduled an appointment with a chiropractor, who diagnosed her condition as a muscle strain or sprain, and treated it with hot, moist packs and electrical stimulation. The chiropractor also gave Ms. Cooper a work release slip for one week off work, with no lifting, pulling or pushing.

Following her appointment with the chiropractor, Ms. Cooper contacted MCI. She was told that she needed to come in, fill out an incident report, and go to the emergency room at MCI. Ms. Cooper went to the emergency room at MCI the next day. The emergency room physician told her to stay off work for the rest of the week, with no lifting, and advised her to consult another doctor of her choice if she had any more problems. Ms. Cooper consulted Dr. West. From September through October, 1993, Dr. West prescribed medication, physical therapy, and two epidurals. This course of treatment failed to relieve her pain. Dr. West then recommended surgery, and referred Ms. Cooper to Dr. Collins. Ms. Cooper saw Dr. Collins in November, 1993. Dr. Collins suggested an outpatient discectomy. Ms. Cooper did not undergo this procedure because the workers' compensation insurance carrier, Health Midwest, would not authorize it. Health Midwest referred her to Dr. Tackacs for a second opinion. Dr. Tackacs agreed with the diagnoses of Drs. West and Collins, and he advised her to remain off work, but he did not believe that surgery would be beneficial. Instead, Dr. Tackacs referred Ms. Cooper to Dr. Karges.

In January of 1994, Ms. Cooper consulted Dr. Karges. Dr. Karges diagnosed Ms. Cooper as having an acute lumbosacral strain. He advised her to remain off work, and prescribed a course of treatment involving medication, a preconditioning program, and a work hardening program. Ms. Cooper had follow-up appointments with Dr. Karges in February and March of 1994. On April 5, 1994, Dr. Karges recommended that Ms. Cooper resume work at the "light duty" level and issued a routine "return to work" statement. "Light duty" included restrictions on lifting, pushing and pulling which prohibited Mrs. Cooper from performing her duties as an obstetric technician. Ms. Cooper was restricted to lifting no more than thirty pounds from twelve inches to her waist, and no more than twenty pounds from her waist to overhead. Although he issued the "return to work" statement, Dr. Karges did not release Ms. Cooper from his care. According to Ms. Cooper, Dr. Karges advised her to continue to see him because he believed he might have more to offer her as far as her care.

Since Dr. Karges told Ms. Cooper she could return to work at light duty, Ms. Cooper contacted MCI and inquired as to whether they had a light duty position she could fill until she could return to her normal capacity. She was informed that MCI did not have a position with restrictions. On July 6, 1994, Ms. Cooper had a check-up with Dr. Karges, who determined that there was no change in her condition. Because her condition had not improved, Dr. Karges continued her on medication, performed trigger point injection therapy, and referred her for myofascial detriggering therapy and limbering exercises. Dr. Karges also issued another "return to work" statement, recommended that Ms. Cooper's work status stay the same, and indicated that she was to continue under his care. On July 19, 1994, Ms. Cooper had another follow-up appointment with Dr. Karges. Dr. Karges continued her on medication, recommended she use a TENS ² unit, and advised that her work duty status should remain the same. Ms. Cooper contacted MCI after the July 6th and July 19th appointments to request light duty employment, but was told on both occasions that there was no job for her with restrictions.

Ms. Cooper had a final appointment with Dr. Karges on August 4, 1994. During this appointment, Dr. Karges decided that Ms. Cooper had reached maximum medical improvement. Dr. Karges made permanent the earlier job restrictions concerning lifting, and he released Ms. Cooper from his care. Ms. Cooper contacted MCI after her final appointment with Dr. Karges, and was informed again that there was no job for her with restrictions.

From April 5, 1994 through August 4, 1994, Ms. Cooper was an employee of MCI. She did not obtain employment elsewhere during that period. On February 11, 1995, approximately six months after Dr. Karges released her from his care, Ms. Cooper returned to work at MCI as a unit secretary on the surgical floor. Unit secretary is a clerical position that involves little to no lifting or physical work. She continues to work at the hospital in that position.

At the hearing before an administrative law judge of the Division of Workers' Compensation, the parties stipulated that on August 25, 1993, Ms. Cooper suffered an injury by accident arising out of and in the course of her employment at the hospital, and that the provisions of the workers' compensation law apply. The parties also stipulated that MCI had already paid Ms. Cooper $7,475.78 in temporary total disability benefits for the period of August 26, 1993 through April 25, 1994. The dispute was whether Ms. Cooper was entitled to temporary total disability benefits totaling $3,320.78 for the period of April 26, 1994 through August 4, 1994, when she was released to light work duty by Dr. Karges. ³

The evidence presented at the hearing included Ms. Cooper's testimony, the deposition testimony of Dr. Karges, various medical records of the other treating physicians and several "return to work" slips. In his deposition testimony, Dr. Karges testified that when he first examined Ms. Cooper on January 18, 1994, he concluded that Ms. Cooper suffered from an acute lumbosacral strain that was not isolated anatomically. At the April 5, 1994 appointment, Dr. Karges instituted the lifting restrictions because her condition had not improved. However, Dr. Karges testified that he felt that Ms. Cooper could return to other gainful employment at that time if she functioned under the lifting restrictions. As of August 4, 1994, Dr. Karges believed that Ms. Cooper "had reached maximum medical improvement", and that they "had exhausted the routine medical interventions at that point." Dr. Karges testified that it was his opinion that Ms. Cooper has a "significant soft tissue injury with some dysfunction in the lumbar spine which will probably be chronic and will restrict her to the lifting range that [he] had stated."

The administrative law judge awarded Ms. Cooper temporary total disability benefits for the period from April 26, 1994 through August 4, 1994. In her findings, the ALJ acknowledged that an employer has no obligation to provide light duty employment to an employee under the Workers' Compensation Law. However, the ALJ found that if no light duty is made available to the employee, the employee is under active medical care, and there is a reasonable medical expectation that with treatment and time the employee's functional level will improve, the employer must provide temporary total disability benefits. The ALJ reasoned that it would be absurd to expect an employee such as Ms. Cooper to search for temporary employment in the open labor market when she is recovering from a work-related injury, under active...