Martin v. Town and Country Supermarkets

• Decision Date: 01 March 2007
• Docket Number: No. 26689.,26689.
• Citation: 220 S.W.3d 836
• Parties: Lana MARTIN, Employee-Respondent, v. TOWN AND COUNTRY SUPERMARKETS, Employer-Appellant.
• Court: Missouri Court of Appeals

220 S.W.3d 836

Lana MARTIN, Employee-Respondent, v. TOWN AND COUNTRY SUPERMARKETS, Employer-Appellant.

No. 26689.

Missouri Court of Appeals, Southern District, Division Two.

March 1, 2007.

Motion for Rehearing or Transfer to Supreme Court Denied March 23, 2007.

J. Bradley Young, St. Louis, MO, for appellant.

James E. Bowles, Piedmont, MO, for respondent.

JEFFREY W. BATES, Chief Judge.

Town and Country Supermarkets (Employer) appeals from a final award of workers' compensation benefits to Lana Martin (Martin). The Labor and Industrial Relations Commission (the Commission) found Martin was permanently and totally disabled from a back injury that she sustained at work. The Commission's award also included reimbursement of Martin's expenses for medical treatment that Employer refused to provide. On appeal, Employer contends the Commission erred in the three respects: (1) awarding Martin permanent total disability benefits because her disability resulted from unauthorized medical care that was neither reasonable nor necessary; (2) awarding Martin permanent total disability benefits because her disability resulted from an independent intervening cause attributable to her own conduct in seeking unauthorized medical care; and (3) awarding Martin temporary total disability benefits and reimbursement for medical expenses following surgery that was not authorized by Employer. Finding no merit in any of Employer's arguments, we affirm.

I. Statement of Facts and Procedural History

On January 20, 1997, Martin was working in the delicatessen at Employer's grocery store. As she was reaching up to get a box of donuts from a freezer, she felt something pop in her back and "just went down ...." She was taken by ambulance to Lucy Lee Hospital in Poplar Bluff, Missouri, and treated by Dr. Michael Turner. Dr. Turner initially believed Martin had a back fracture based on x-rays taken in the emergency room. Later, Dr. Turner changed his mind and told Martin that her back pain was caused by a congenital defect in her lower spine. He put her in a back brace and took her off work for eight weeks. Martin was discharged from the hospital after a three-day admission.

On February 10, 1997, Martin had a CT scan performed on her lumbar spine and sacroiliac joints at Lucy Lee Hospital. The osteopathic doctor who read the film found no indication of disc herniation. Dr. Turner referred Martin to Dr. Shahid Choudhary, a neurologist.

Dr. Choudhary examined Martin on February 24, 1997. Dr. Choudhary's impression was that it was possible Martin's low back pain was being caused by a mild herniated disc. He decided to treat her conservatively and gave her a home-exercise program. That same day, Martin tried the exercise program and started having severe pain. She reported this problem to Dr. Choudhary by telephone. He gave her the option of trying pain medication or being referred for a neuro-surgical evaluation. Martin chose the latter option, so Dr. Choudhary referred her to Dr. Joseph Miller.

Dr. Miller examined Martin on February 27, 1997. He diagnosed her as having a back strain, gave her some mild back exercises and asked her to gradually increase her activities. He released Martin to return to work on March 10, 1997. Thereafter, Employer provided no further medical aid to Martin.

Martin returned to her job as directed, but she was not able to work 40 hours per week as scheduled. In spite of the medical treatment previously provided by Employer, Martin could only work 4-5 hours, and sometimes less, per day. The pain in her back increased to the point that she was dragging her right leg, and the pain was "almost unbearable." The pain was mostly located in her lower back and down the back of her right leg. Martin asked for permission to see Dr. George Schoedinger, an orthopedic surgeon, but Employer refused to authorize care by this physician. Employer also failed to send Martin to any other physician for treatment of these symptoms.

On March 31, 1997, Martin went to see Dr. Schoedinger. Martin reported that she had burning low back pain that radiated down into her right leg. Dr. Schoedinger reviewed Martin's February 10, 1997 CT scan, which he read as revealing an L5-S1 disc rupture. Dr. Schoedinger initially followed a conservative course of treatment. He ordered additional diagnostic tests and advised Martin to continue working, which she did. In April 1997, Martin underwent magnetic resonance imaging (MRI), myelography and post-myelographic CT scanning. None of these tests revealed any abnormalities. Dr. Schoedinger suspected Martin had a disc injury to her back, but the abnormality that Dr. Schoedinger observed in the February 10, 1997 CT scan was not mirrored by the other tests. For that reason, he advised Martin to continue working and live with the problem. She followed that advice.

Martin saw Dr. Schoedinger again on May 5, 1997. She was still reporting persistent low back pain that radiated down into her right leg. Although Dr. Schoedinger did not consider Martin to be a surgical candidate at that point, he referred her to a neurologist, Dr. Joe Hanaway, for further diagnostic tests.

Martin's symptoms continued to get worse. She was unable to sleep, sit longer than 30 minutes or do anything around the house. She saw Dr. Hanaway on May 15, 1997. He scheduled her for electromyographic (EMG) studies and advised her not to continue working. Martin complied with this instruction. By June 10, 1997, the EMG studies had been conducted. The results were positive and demonstrated "a lumbar radiculopathy from root pressure in the right lower lumbar region." This was indicative of a ruptured disc. Dr. Hanaway advised Martin to be evaluated again by Dr. Schoedinger to see whether she should have surgery.

Martin saw Dr. Schoedinger again on June 20, 1997. She was still suffering from pain in her low back and right leg. Due to weakness in that leg, she intermittently caught her toe while walking. These were classic symptoms for a ruptured disc and suggested a problem at L4-L5, L5-S1 or both. Martin had gotten to the point that she simply could not stand the pain anymore, and she was told by Dr. Schoedinger that her condition probably would not get any better without surgery. She agreed to undergo a lumbar discectomy.

The operation was performed on July 10, 1997. Dr. Schoedinger found and removed a ruptured disc at the L5-S1 level that was causing pressure on a nerve root. Martin's post-operative course was uneventful, and she was released from the hospital on July 13, 1997. As a result of this surgery, Martin no longer dragged her right leg, and the pain radiating down into the lower part of that limb occurred much less frequently.

About two weeks after surgery, however, Martin began having severe low back pain radiating to the outer surface of her right hip and the back of her right thigh. This pain, which was caused by inflammatory changes and scarring at the level of the surgery, continued over the next three months. On October 20, 1997, a myelogram performed on Martin revealed a displacement of the thecal sac by reason of a posterior disc protrusion at the L4-L5 level. This was one level above the disc on which Dr. Schoedinger operated in July 1997. The results of the myelogram were replicated by a discogram performed on October 21, 1997. The discogram elicited a pain response at the L4-L5 and L5-S1 levels.

Martin's back pain was severe enough that she was unable to live with her problem. Therefore, Dr. Schoedinger readmitted Martin to the hospital on November 17, 1997 and performed a decompressive laminectomy, discectomy and instrumented interbody fusion at the L4-L5 and L5-S1 levels.¹ During the second surgery, Dr Schoedinger observed another central disc rupture at the L4-L5 level. He believed the stresses imposed on Martin's back after the first surgery probably caused this herniated disc to become symptomatic.

This second surgery produced relief from pain for about two weeks. At that point, Martin began having back and leg pain again. An MRI revealed a fluid collection in the soft tissues of her back. On December 13, 1997, Martin underwent a third operation to determine whether she was having a cerebrospinal fluid leak. No such leak was found. The fluid was removed, and the wound healed without incident. Once again, this procedure produced a substantial, though ultimately temporary, reduction in Martin's back pain.

Following the third surgery, the pain in Martin's back returned. The pain in her right leg, however, became less frequent and less severe than it had been prior to her first surgery. Martin's continuing back pain resulted from nerve root irritation, which was caused by considerable scarring in the area of her surgeries. Dr. Schoedinger was concerned that Martin might be developing arachnoiditis, which is an inflammation of the membranous coverings of the nerve roots and spinal cord.

Dr. Schoedinger continued to treat Martin for her back injury until September 1999. At that point, he concluded that she was unable to return to work due to failed back syndrome. No further orthopedic treatment was recommended. It was Dr. Schoedinger's opinion, to a reasonable degree of medical certainty, that all three surgeries were reasonable and necessary to treat symptoms that arose by reason of Martin's work-related injury. Her disability resulted from the significant scarring that developed around the nerves in the lumbar spine after the first and second surgeries were performed. These continuing symptoms, which prevented Martin from being able to work, were directly related to this scarring.

In March 2004, a hearing was held before an administrative law judge (ALJ) to determine the final award in Martin's workers' compensation claim. Employer stipulated that it had paid $13,143.44 for the medical care Martin received through February 1997 and that she had been paid seven and one-half weeks of temporary total...