Hawthorne v. Lester E. Cox Medical Centers

• Decision Date: 30 June 2005
• Docket Number: No. 26291.,26291.
• Citation: 165 S.W.3d 587
• Parties: Carol A. HAWTHORNE, Claimant-Respondent, v. LESTER E. COX MEDICAL CENTERS, Employer-Appellant.
• Court: Missouri Supreme Court

165 S.W.3d 587

Carol A. HAWTHORNE, Claimant-Respondent, v. LESTER E. COX MEDICAL CENTERS, Employer-Appellant.

No. 26291.

Missouri Court of Appeals, Southern District, Division Two.

June 30, 2005.

David F. Sullivan, Springfield, MO, for Appellant.

William W. Francis, Jr., Springfield, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

Lester E. Cox Medical Centers ("Cox") appeals from a final award of workers' compensation benefits to Carol Hawthorne ("Hawthorne"). The Labor and Industrial Relations Commission ("Commission") found Hawthorne had a permanent partial disability of 12.5% of the body as a whole based on an injury to her back and awarded her $18,736.88. On appeal, Cox claims the Commission erred by: (1) determining that Cox waived any objection based upon § 490.065 to the testimony of Hawthorne's expert, Dr. Andrew Myers ("Dr. Myers") by failing to raise this objection during Dr. Myers' depositions or at the division hearing; (2) refusing to strike Dr. Myers' deposition testimony or remand the case for further evidentiary proceedings because his testimony failed to meet the standards for admissibility required by § 490.065; (3) concluding that Hawthorne sustained a compensable disability because she failed to offer credible medical testimony that her work was a substantial factor in causing any such disability; and (4) concluding that Hawthorne sustained a permanent partial disability of 12.5% to the body as a whole because this finding was not supported by competent and substantial evidence on the whole record.¹ Because all of these arguments lack merit, we affirm.²

I. Statement of Facts and Procedural History

Hawthorne herniated a disk in her back in 1990. Her treatment included a rhizotomy, injections into the nerves around the disk, physical therapy and work hardening therapy. After finishing her treatment in 1990, she gradually resumed her normal activities over time. Hawthorne attended school from 1991 to 1994 and began working again in 1995. She did not receive any further regular treatment by any doctor for her back injury.

In May 1998, Hawthorne began working for Cox as an admissions clerk. Her job was to assist in admitting outpatients who came to Cox for treatment. In the latter part of September 1998, Hawthorne began doing telephone pre-registrations for patients who needed future medical procedures performed at Cox. Hawthorne was moved downstairs into a small cubicle measuring about 3.5 feet square. She sat at a desk in front of a computer monitor with a telephone and a filing cabinet located to her left. The telephone list from which she made calls was located to the right of the computer monitor and keyboard. The work space was very cramped. Many old files and papers were stacked underneath the desk where Hawthorne sat. Because of the positioning of the file cabinet and the old files under the desk, Hawthorne could only turn about 45 degrees to the left or right unless she rolled her chair backwards out from under the desk. As Hawthorne made telephone calls from the chair with her legs under the desk, she was required to reach around, bend, stretch and twist back and forth as she read names from the list and wrote down pertinent information she obtained during the calls. She made between 25 and 60 calls during her eight-hour work day.

In the latter part of September or early October 1998, Hawthorne noticed that her back seemed like it was pinching a lot in the area of her hips, her low back was getting tight, and she was having pain in both legs that radiated down to her ankle. She first noticed these symptoms after she had been moved downstairs into her cubicle. These symptoms gradually got worse as the work week progressed and then improved during the weekends when she was off work.

Hawthorne went to see her family physician, Dr. Chase, about her symptoms. She received treatment from Dr. Chase and several other physicians for her back condition. Pursuant to Dr. Chase's orders, Hawthorne was off work because of her back problems from October 20, 1998 through February 23, 1999. On the latter date, Hawthorne was fired by Cox.

In February 1999, Hawthorne saw Dr. Myers. He performed a physical examination of Hawthorne and examined many of her prior medical records. He was deposed by the parties in March 2001. At no point during Dr. Myers' deposition did Cox assert § 490.065 as the basis for an objection to any question concerning the doctor's opinions or conclusions.

The divisional hearing was held before an administrative law judge ("ALJ") on April 8, 2002. Hawthorne and her husband testified on her behalf. The deposition of Dr. Myers, which was marked as Exhibit V, was one of the many exhibits offered into evidence by Hawthorne's counsel. Exhibit V was admitted only after Cox stated that it had "no objection" to the exhibit. In Dr. Myers' deposition, he testified that Hawthorne had a herniated lumbar disk at the L5-L6 level. He opined that Hawthorne's injury was primarily a new one, although there may have been some aggravation of her pre-existing facet arthrosis. Dr. Myers also testified that Hawthorne's injury was job-related because "sitting in a cubicle where she had the lower part of her torso in one position and the upper part of her torso twisted in an opposite position for a prolonged period of time gives you a perfect scenario for a typical disk herniation." The type of work being performed by Hawthorne was a substantial factor in her herniation because the twisting she did at work exposed her to risk factors that would cause this sort of injury. Dr. Myers rated Hawthorne as having a permanent partial disability of 15% of the body as a whole.

At the division hearing, Cox adduced testimony from its examining physician, Dr. Norbert Belz. He had examined Hawthorne, reviewed many of her prior medical records and conducted a study of her workplace environment. Based on a review of Hawthorne's magnetic resonance imaging films, Dr. Belz concluded that Hawthorne had a herniated disk at the L5 level. She suffered one herniation slightly to the left side of this disk in 1990 and another herniation slightly to the right side of this disk in 1998. During the time that Hawthorne worked at Cox, Dr. Belz acknowledged that "she did become more symptomatic." In Dr. Belz's opinion, however, Hawthorne's 1998 disk herniation was not caused by her occupational exposures at work. Based on Hawthorne's pre-existing history of intermittent left side radiculopathy, Dr. Belz rated Hawthorne as having a permanent partial disability of 10% of the body as a whole. Hawthorne did not reach maximum medical improvement until May 1999, at which point her disease had progressed to the point that Dr. Belz rated Hawthorne as having a 15% permanent partial disability of the body as a whole.

During Dr. Belz's testimony, Cox announced that it intended to take a rebuttal deposition of Dr. Myers and offered a packet of authoritative articles it intended to use during the deposition. In response to this request, the ALJ stated, "I'll just have to deal with it when I take up the deposition. I intend to admit the deposition by agreement, subject, however, to any appropriate objections made on a timely basis during the deposition. And they will be taken up as I review the evidence, as with all depositions that are admitted into evidence." At the conclusion of the divisional hearing, the ALJ declared the record closed and ordered that Dr. Myers' rebuttal deposition be filed by May 7, 2002.

Dr. Myers' rebuttal deposition was taken on April 24, 2002. At no point during this rebuttal deposition did Cox object to any of Dr. Myers' opinions or conclusions on the ground that they failed to comply with the requirements of § 490.065. The record was closed when Dr. Myers' second deposition was filed on May 1, 2002. In this deposition, Dr. Myers reiterated his conclusion that Hawthorne suffered a herniated disk at the level of L5-L6 as a result of the accident and injury that occurred in October 1998. This 1998 herniation was a new condition, even though Hawthorne had previously experienced problems at the level above this. Dr. Myers testified to a reasonable degree of medical certainty that Hawthorne's rotation and twisting on the job caused or contributed to cause this herniation. Dr. Myers' "bottom line opinion was that this activity herniated this disk."

On February 14, 2003, the ALJ entered an award in the amount of $18,736.88 in Hawthorne's favor. The ALJ found that Hawthorne sustained a compensable injury beginning October 1, 1998 and that the injury to her back and body as a whole resulted in a 12.5% permanent partial disability.

In March 2003, Cox filed an application for review with the Commission. It affirmed and adopted the findings and conclusions of the ALJ on all but three issues: (1) whether Cox failed to timely object to Dr. Myers' testimony based on § 490.065; (2) whether Hawthorne's disability resulted from an accident or occupational disease; and (3) whether Cox could avoid liability based on the "three-month rule" found in § 287.067.7. These three issues were addressed in the Commission's supplemental opinion and final award allowing compensation.

The first issue had not been presented to the ALJ and was not included in Cox's application for review. The challenge to Dr. Myers' testimony was apparently first raised in a brief Cox filed with the Commission.³ In the supplemental opinion, the Commission summarized Cox's argument in this fashion:

[Cox] argues on appeal before this Commission that the Supreme Court enunciated a new principle of law [in State Board of Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. banc 2004)] that governs the admissibility of Claimant's expert witness' testimony. It argues that the testimony of Dr. Myers should be stricken because his testimony does not qualify as expert testimony pursuant to section 490.065 RSMo.

The Commission rejected the argument on the...