Landman v. Ice Cream Specialties, Inc.

• Decision Date: 17 June 2003
• Docket Number: No. SC 84933.,SC 84933.
• Citation: 107 S.W.3d 240
• Parties: Laura LANDMAN, Respondent/Cross-Appellant, v. ICE CREAM SPECIALTIES, INC., and Old Republic Insurance Company c/o Crawford & Company, Appellants/Cross-Respondents, Second Injury Fund, Additional Party.
• Court: Missouri Supreme Court

107 S.W.3d 240

Laura LANDMAN, Respondent/Cross-Appellant, v. ICE CREAM SPECIALTIES, INC., and Old Republic Insurance Company c/o Crawford & Company, Appellants/Cross-Respondents,

Second Injury Fund, Additional Party.

No. SC 84933.

Supreme Court of Missouri, En Banc.

June 17, 2003.

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Mary A. Lindsay, St. Louis, for Respondent/Cross-Appellant.

Michael A. Gerritzen, St. Louis, for Appellants/Cross-Respondents.

Jeremiah W. (Jay) Nixon, Atty. Gen., Plia D. Cohn, Asst. Atty. Gen., St. Louis, for Additional Party.

PER CURIAM.¹

Laura Landman and Ice Cream Specialties, Inc. (ICS) appeal two awards by the Labor and Industrial Relations Commission, one relating to a shoulder injury and one relating to a condition in Landman's legs. ICS appeals the findings that the leg condition caused Landman's permanent total disability, that ICS alone is responsible for that disability and that no liability is assessed to the Second Injury Fund. ICS also appeals the award of temporary total disability and future medical expenses relating to Landman's shoulder and the award of costs on both claims. Landman cross-appeals on the issue of costs and attorney fees.

Both awards are affirmed in part and reversed in part; one award is modified, and the other is remanded to the commission for a determination of attorney fees.

I. FACTS

Landman worked full time as a machine operator at ICS for almost 17 years. Her duties were physically demanding. Landman continuously stood next to or on top of her machine in a cold, damp factory. She lifted 50-pound rolls of wrapper paper, climbed steep steps, carried supplies and cleaned her machine with heavy-duty hoses.

A. Leg Problems Begin

In 1995, Landman developed a wound on her left leg and went to her family physician, Dr. Mammen. He noted a small lesion on her left shin and edema (swelling) in her left leg. A couple of months later, the lesion disappeared. In 1996, she developed another lesion on her left leg and painful swelling in both legs. The swelling continued, but the lesion again resolved within a couple of months. By November 1996, Landman's legs were in good condition, and she reported no further trouble with either leg until 1997.

B. The 1997 Shoulder Injury and Further Problems with Leg

In July 1997, Landman fell at work and injured her left shoulder, left leg and right ankle.² At ICS's direction, Landman went to Barnes Hospital. The Barnes' doctors found that her left shoulder was severely bruised. She returned to work on August 6th, but could no longer handle the rolls of paper, carry supplies or lift more than 15 pounds by herself. Because of these difficulties, Landman made demands for further treatment, but ICS refused.

The Barnes' doctors had concluded that the left leg injury was not work-related, so in late August 1997, Landman went to her own physician, Dr. Mammen, for treatment of the lesion and swelling in her left leg. The lesion went away a few months later, but returned in May 1998. By September, after another flare-up in August, the condition had improved. Landman reported no further problems with lesions until February 1999.

In December 1998, Landman underwent a physical, during which the doctors found a trace of edema and diagnosed her as obese. Otherwise, all tests were normal. Visits to the emergency room and her physician in January 1999 did not reveal any abnormalities in Landman's legs.

C. The 1999 Injuries

In February 1999, Landman fell again at work and hit her left leg on a metal bar. She instantly developed a bruise and had severe pain. She reported the injury to ICS, but continued working until March 17, 1999. On March 18th, she went to Dr. Mammen, who noted a larger lesion in a different location than before. That day, she again reported the injury to ICS and was told to go to Barnes. She went on March 19th and was referred back to Dr. Mammen. She reported this to ICS and was told to stay off work.

A few days later, Dr. Mammen referred Landman to a general and vascular surgeon for treatment of her leg. The surgeon concluded that a contributing cause of her leg condition was venous stasis with lower leg edema, which was prolonging healing. A few days later, Dr. Mammen noted that Landman still had the large lesion on her left leg and it was draining fluid. Dr. Mammen made similar findings up through early April 1999. At the end of April, Landman was referred to a wound care center, where she was treated for several months. Unlike previous wounds that had healed within months, this lesion had still not completely healed by the time of the hearing in December 2000.

D. Further Treatment for the 1997 Shoulder Injury

Because ICS refused to provide further treatment for her shoulder, Landman returned to Dr. Mammen. On July 14, 1999, Dr. Mammen referred her to Dr. Dusek. She did not see Dr. Dusek, however, until August 11th due to the doctor's schedule. It was stipulated that from August 11, 1999, to March 3, 2000, Landman was temporarily and totally disabled because of the shoulder injury. She began physical therapy in October 1999.

In November 1999, Dr. Dusek believed further physical therapy would be necessary for future improvement and the ability to return to work. Landman continued with the therapy until January 2000, which resulted in some increase in strength and range of motion. But her pain level was still high. Dr. Dusek recommended surgery to relieve the pain, but he was unable to perform the surgery due to the poor healing quality of Landman's tissue. By February 2000, Dr. Dusek did not think that the shoulder would get well, but recommended that Landman continue therapy for several weeks to regain what strength and mobility she could.

ICS eventually agreed that if its orthopedic surgeon, Dr. Petkovich, found that the shoulder symptoms were work-related, it would provide treatment and temporary disability. Landman agreed that she would refrain from seeking a hardship hearing until receiving Dr. Petkovich's report. Dr. Petkovich examined Landman in February 2000 and concluded that the injury resulted from the July 1997 accident. He recommended additional surgery depending on the outcome of an MRI. Dr. Petkovich sent a copy of his report to ICS. Despite its agreement to provide treatment based on this report, ICS did not give Landman a copy of it. Even after Landman's repeated requests for the report, ICS refused to provide it.

Landman underwent additional physical therapy on her shoulder in January and March 2000, but she was discharged without achieving the desired increased range of motion and strength. On March 3, 2000, Dr. Dusek declared that Landman was at maximum medical improvement. Landman said that because of her shoulder she could not work from July 15, 1999, through March 3, 2000.

By May 2000, ICS had still refused her requests, so Landman went directly to Dr. Petkovich for his report and, after learning his conclusions, filed a request for a hardship hearing. The issues — temporary disability and payment for treatment — were eventually resolved in mediation and stipulated to at the hearing before the administrative law judge. Eventually, ICS paid temporary total disability for the shoulder injury covering the period immediately after the accident and also for August 11, 1999, to March 3, 2000. But it refused to pay for the period July 14, 1999, through August 10, 1999 (the period between the referral to and examination by Dr. Dusek).

E. Opinions about Leg Condition

Dr. Altsheler examined Landman and found that her legs were swollen with brawny edema. He explained that this condition develops over months or years and indicates that the legs have lost their resiliency. Dr. Altsheler opined that her wound, which had not healed, related to the February 1999 injury.

Dr. Altsheler found that venous stasis accounted for the swelling and resulting lesions in Landman's legs. By process of elimination, Dr. Altsheler believed that Landman's 17 years at ICS — moving and standing in the ways she did and in the cold damp environment — caused her condition. While he admitted she had some element of predisposition, he did not believe her obesity was a contributing factor in the development of venous stasis.

Dr. Altsheler did not know when the sequence started, but Landman's condition developed as follows: slowly, over 17 years, the cold conditions at work caused her veins to dilate, and she developed incapacity of the valves, which caused irreversible venous stasis disease. He concluded that when she developed lesions in February 1999 that would not heal, that "show[ed] a progression of the venous stasis condition up to that point." The condition has not changed since March 1999.

F. Opinions about Shoulder Injury

Dr. Poetz examined Landman and concluded that her shoulder injury was permanent, could not be corrected with the attempted surgery, would get progressively worse and caused pain. Dr. Poetz agreed that Landman had reached maximum medical improvement, but believed that her symptoms could be modified with future treatment. He recommended physical therapy, Cox II inhibitors to relieve discomfort and reduce or slow the progression of inflammation in the shoulder, and physician visits for medication. These treatments would not increase physical ability, but they would decrease pain and provide comfort.

G. Opinions about Nature and Extent of Disabilities

Dr. Poetz concluded that Landman's shoulder injury caused her to be temporarily and totally disabled from July 14, 1999 — when she was referred by Dr. Mammen to Dr. Dusek — until March 3, 2000. Dr. Poetz opined that this injury would be a hindrance or obstacle to re-employment in the open labor market. James England, a vocational rehabilitation expert, concurred in this opinion. Both also believed that Landman's weight was a hindrance to her re-employment.

Dr. Poetz found that from March 18, 1999, to July 13, 1999, and...