Lucille Schoen v. Mid-Missouri Mental Health Center and Treasure of The State of Missouri- Custodian of The Second Injury Fund ( 2019 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
LUCILLE SCHOEN, )
)
Appellant, )
v. )
) WD82258
)
MID-MISSOURI MENTAL HEALTH ) OPINION FILED:
CENTER and TREASURER OF THE ) September 3, 2019
STATE OF MISSOURI - CUSTODIAN )
OF THE SECOND INJURY FUND, )
)
Respondents. )
Appeal from the Labor and Industrial Relations Commission
Before Division Two: Lisa White Hardwick, Presiding Judge, and
Thomas H. Newton and Mark D. Pfeiffer, Judges
Ms. Lucille Schoen (“Schoen”) appeals from the final award of the Labor and Industrial
Relations Commission (“Commission”), which reversed the Administrative Law Judge’s
(“ALJ”) award granting Schoen permanent total disability benefits. We reverse and remand to
the Commission for further proceedings consistent with today’s ruling.
Factual and Procedural Background
In May 2009, Schoen was working as a charge nurse for Mid-Missouri Health Center
(“Center”). On May 6, 2009, Cypermethrin was sprayed around the Center’s air conditioning
units to control ants. When Schoen reported to work on May 8, 2009, and was exposed to the
chemical, she complained of throat and eye irritation, as well as coughing and wheezing. After
going to an urgent care clinic on May 11, 2009, Schoen returned to work with no work
restrictions.
In response to Schoen’s continued complaints, the Center sent her for additional
evaluation to occupational and environmental medicine specialist Dr. Eddie Runde. On May 22,
2009, Schoen arrived at Dr. Runde’s office for her appointment. Dr. Runde sent Schoen “across
the street” to get a chest x-ray. After obtaining the chest x-ray, Schoen returned to Dr. Runde’s
office and, while being escorted to the patient exam area for pulmonary function tests, Dr. Runde
inadvertently and accidentally tripped Schoen and caused her to trip and fall on her left knee and
left shoulder, injuring her left knee, left shoulder, back, and neck.
Dr. Runde examined Schoen’s lungs and found “diffuse wheezes and some rhonchi.” His
diagnosis was “[m]uscosal irritation due to possible inhalation of ant poison.” He prescribed an
inhaler. As part of Dr. Runde’s evaluation of Schoen, and prior to discharging her that day, he
also examined her for injuries she sustained as a result of the tripping incident at Runde’s
medical facility. Dr. Runde found that she had some minimal erythema, full range of motion,
and was able to walk with normal gait. He released her to regular duty with no restrictions and
noted that no permanent disability “would be expected” related to her May 8, 2009 Cypermethrin
exposure. Schoen did not return to Dr. Runde.
On June 10, 2009, Schoen self-referred to Dr. Lawrence Lampton, a pulmonary and
internal medicine specialist, complaining of chest discomfort, shortness of breath, chronic cough,
and chronic sinusitis. He diagnosed her chronic cough and chronic sinusitis as probably
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allergy-related to previously unrecognized asthma. He reviewed her pulmonary functions, which
he found to be within normal limits.
Also on June 10, 2009, Schoen filed a claim for compensation with the Division of
Workers’ Compensation (“Division”), alleging that “[w]hile in the course and scope of
employment, [Schoen] was required to work in an area where bug spray had been sprayed into
the air conditioning vents on May 6, 2009, and [Schoen] breathed in the fumes while working
8 hours on May 8, 2009.” She also asserted a claim against the Second Injury Fund (“Fund”) for
permanent disability based upon pre-existing disabilities, identified as “back” in 1996, “psyche”
in 1996, and “finger on right hand” in 2001.
Dr. Lampton re-evaluated Schoen on June 22, 2009, for her chronic sinusitis and chronic
cough and found that her coughing had become rare and her breathing had improved.
On July 14, 2009, Schoen saw her primary care physician, Dr. Robert Bynum,
complaining of left knee and shoulder pain from the May 22, 2009 fall in Dr. Runde’s office.
On August 3, 2009, the Center sent Schoen to Dr. Thomas Hyers, a pulmonary specialist,
for a medical evaluation. Dr. Hyers assessed Schoen to have transient bronchitis and upper
airway irritation as a result of exposure to insect spray, which conditions were not chronic or
permanent and were limited to the date of exposure and several days thereafter. He placed
Schoen at maximum medical improvement and assessed no permanent partial disability.
On September 10, 2009, the Center sent Schoen to Dr. Herbert Haupt, an orthopedic
surgeon, for evaluation of ongoing complaints regarding her left and right knees and left
shoulder from being tripped by Dr. Runde on May 22, 2009, and falling to the floor.1 Dr. Haupt
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The Center’s actions in authorizing orthopedic consultation and physical therapy treatment for injuries
sustained as a result of the tripping incident during the Dr. Runde medical consultation are contradictory to the
position later taken by the Center with the Commission that these injuries were not causally related to a workplace
injury.
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assessed that the fall in Dr. Runde’s office was the prevailing factor resulting in a mild left
shoulder adhesive capsulitis and in contusion to both knees and likely resulting in the worsening
of or the development of left knee flexion contracture and weakness. Dr. Haupt prescribed
physical therapy. Dr. Haupt examined Schoen again on September 30, 2009, when she presented
with headaches. She admitted to improvement in her shoulder and her knees with the benefit of
physical therapy. Dr. Haupt opined that, regarding Schoen’s fall in Dr. Runde’s office, she was
at maximum medical improvement, and he released her from care. He also opined that she
sustained a permanent rateable disability of zero percent at the level of the left shoulder and
bilateral knees.
Schoen returned to Dr. Bynum on December 11, 2009, presenting with pain in her left
knee and irritated back issues from the May 22, 2009 tripping accident in Dr. Runde’s office.
On September 30, 2010, Schoen filed an amended claim with the Division. In addition to
her original allegations regarding breathing the bug spray fumes, Schoen alleged that the tripping
incident at Dr. Runde’s medical facility during the course of receiving authorized medical
treatment caused her to suffer additional injuries. She renewed her claim against the Fund for
permanent disability.
On July 21, 2014, Dr. David Volarich evaluated Schoen at her attorney’s request. He
took a medical history from Schoen, performed a physical examination and tests, and reviewed
Schoen’s medical records, including x-rays. In Dr. Volarich’s report, he opined that Schoen’s
exposure to Cypermethrin on May 8, 2009, was the prevailing factor causing her symptoms,
need for treatment, and resulting disabilities. He further stated regarding causation:
During the course of treatment for her pulmonary exposure, she was accidentally
tripped by her treating physician at his office, causing the fall onto her left side,
striking her left shoulder, hit the knee, and causing a sideways type whiplash
injury to the neck and low back, in turn causing left shoulder adhesive capsulitis,
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a bicompartmental left knee meniscal tear, and chondral injuries that subsequently
developed accelerated post-traumatic arthropathy as well as causing a cervical
strain/sprain and increase in headaches and significant irreversible aggravation of
her lumbar syndrome due to spondylosis and prior disc osteophyte complex at
L5-S1 that required extensive pain management.
Dr. Volarich provided disability ratings related to Schoen’s primary, May 8, 2009 injury and her
subsequent trip and fall on May 22, 2009:
 5% permanent partial disability (“PPD”) of the body as a whole due to pulmonary
exposure to Cypermethrin;
 15% PPD of the body as a whole due to cervical strain/sprain with aggravation of
headaches;
 25% PPD of the body as a whole rated at the lumbar spine due to irreversible aggravation
of her lumbar syndrome;
 25% PPD of the left upper extremity rated at the shoulder due to adhesive capsulitis;
 45% PPD of the left lower extremity rated at the knee due to bicompartmental meniscal
tears and chondral injuries.
Based on his medical assessment, Dr. Volarich was of the opinion that Schoen had achieved
maximum medical improvement and was “permanently and totally disabled as a direct result of
the work related injury of 5/8/09 standing alone.”
On February 17, 2015, Schoen filed another amended claim with the Division, changing
her claim against the Fund to one for permanent total disability.
Orthopedic surgeon Dr. George Paletta performed a medical examination of Schoen on
behalf of the Center on June 3, 2015, and assessed: end stage osteoarthritis left knee, moderately
severely symptomatic; and degenerative joint disease right knee, minimally symptomatic.
Dr. Paletta ultimately concluded that Schoen’s underlying chronic, progressive degenerative joint
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disease, not her May 2009 injury in Dr. Runde’s office, was the prevailing factor in her need for
future medical treatment.
Finally, orthopedic spine surgeon Dr. Michael Chabot performed a medical examination
of Schoen on July 31, 2015, regarding back pain from her May 2009 fall in Dr. Runde’s office.
After reviewing the medical records and imaging studies, Dr. Chabot diagnosed the following
conditions: history of trip and fall/back contusion; back strain; history of chronic multi-level
degeneration involving lumbar spine; and history of bilateral knee joint arthritis. Dr. Chabot
opined that symptoms relating to Schoen’s strain injury had resolved, that she had reached
maximum medical improvement, and that her present complaints were “causally related to
multiple pre-existing medical conditions to include multi-articular arthritis more specifically
involving the knee joints, multi-level disc degeneration and facet degeneration involving the
lumbar spine[,] and degenerative spondylolisthesis unrelated to her work injury.” Dr. Chabot
opined that Schoen could perform clerical administrative-type work in the light range.
The ALJ conducted a hearing on February 2, 2018, and identified the first of four issues
as “whether the work accident of May 8, 2009, is the prevailing factor in the cause of any or all
of the injuries and/or conditions alleged in the evidence[.]” The ALJ issued an award on
March 22, 2018. The ALJ found that Schoen was permanently and totally disabled due to her
May 8, 2009 work injuries, including injuries sustained as a result of the tripping incident in the
course of receiving authorized medical treatment from the employer-directed medical provider,
Dr. Runde, on May 22, 2009; that the Center was responsible for payment of weekly permanent
total disability benefits; and that the Fund had no liability.
On April 10, 2018, the Center applied to the Commission for review of the ALJ’s award
to Schoen of compensation for permanent total disability benefits, alleging that: (1) the weight
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of the evidence presented supported a finding that Schoen was not permanently totally disabled;
(2) if she was permanently totally disabled, the Fund was liable for those benefits; (3) “[t]he ALJ
erred by including alleged injuries to [Schoen’s] left knee, right knee, left shoulder, left hip,
lumbar spine, and neck when assessing the nature and extent of the primary work-related injury”;
and (4) the ALJ erred in ordering the Center to reimburse Schoen for past medical charges. The
Commission issued its Final Award Denying Compensation, with one member dissenting. The
majority of the Commission concluded:
 Schoen sustained no permanent partial disability to her pulmonary functions as a result of
her May 8, 2009 Cypermethrin exposure;
 Schoen’s slip and fall on May 22, 2009, after Dr. Runde accidently tripped her, though
taking place in the doctor’s office, was not part of the course of any medical treatment
she was undergoing due to her ant spray exposure and did not arise out of any risk source
inherent in her employment;
 there was no causal connection between alleged disabilities relating to left knee pain, left
shoulder pain, low back pain, and neck pain with headaches and her Cypermethrin
exposure at work on May 8, 2009; and
 because Schoen sustained no PPD in connection with her primary injury, her claim
against the Fund for disability attributable to the combination of alleged pre-existing
disabilities with disability attributable to the primary injury was moot.
Schoen timely appealed.
Standard of Review
In reviewing a workers’ compensation final award, “[w]e review the decision of the
Commission, not that of the ALJ.” Glasco v. Treasurer of State-Custodian of Second Injury
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Fund, 534 S.W.3d 391, 397 (Mo. App. W.D. 2017). The court, on appeal, may modify, reverse,
remand for rehearing, or set aside the Commission’s final award solely on the following grounds:
(1) “the [C]ommission acted without or in excess of its powers”; (2) “the award was procured by
fraud”; (3) “the facts found by the [C]ommission do not support the award”; or (4) “there was
not sufficient competent evidence in the record to warrant the making of the award.”
§ 287.495.1.2
We defer to the Commission’s findings on issues of fact, witness credibility, and the
weight given to conflicting evidence. Malam v. State, Dep’t of Corr., 492 S.W.3d 926, 928 (Mo.
banc 2016). However, “[t]he whole record must be examined in order to determine whether
there is sufficient and competent evidence to support the Commission’s decision.” Mantia v.
Mo. Dep’t of Transp., 529 S.W.3d 804, 808 (Mo. banc 2017) (citing Hampton v. Big Boy Steel
Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003)). “Questions of law are reviewed de novo.”
Id. (citing Malam, 492 S.W.3d at 928).
Analysis
Schoen raises three points on appeal, all of which challenge the Commission’s conclusion
as a matter of law that her injuries sustained at Dr. Runde’s office were not the product of
“medical treatment” that she was receiving for her work-related injuries and/or condition or that
her injuries sustained at Dr. Runde’s medical facility were not causally connected to her
workplace injury and treatment thereof. Hence, we address Schoen’s points on appeal
collectively in the analysis of our ruling today.
2
“With regard to workers’ compensation cases, the statute in effect at the time of injury is generally the
applicable version.” Kayden v. Ford Motor Co., 532 S.W.3d 227, 229 n.1 (Mo. App. W.D. 2017). Thus, all
statutory references are to the REVISED STATUTES OF MISSOURI 2000, as updated by the 2008 Cumulative
Supplement.
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The Commission majority determined that Schoen’s May 22, 2009 injuries were not
compensable because they were “not part of the course of any medical treatment [Schoen] was
undergoing due to her ant spray exposure and did not arise out of any risk source inherent in her
employment.” The Commission majority further concluded that the injuries Schoen allegedly
sustained while visiting Dr. Runde’s office on May 22, 2009, were “clearly not the direct result
of any necessary medical treatment for her primary injury” and that there was no causal
connection between the May 22, 2009 injuries and her work injury due to ant spray exposure on
May 8, 2009.
Under the Missouri Workers’ Compensation Law (“Act”), “[a]n injury by accident is
compensable only if the accident was the prevailing factor in causing both the resulting medical
condition and disability.” § 287.020.3(1). A “prevailing factor” is “the primary factor, in
relation to any other factor, causing both the resulting medical condition and disability.” Id. The
Commission found, and the Center does not dispute, that Schoen was exposed to Cypermethrin
bug spray on May 8, 2009, while at work and that the Center authorized and directed her for
additional evaluation of pulmonary complaints by Dr. Runde at his medical facility on May 22,
2009.
The parties do not dispute the proposition stated in Bear v. Anson Implement, Inc., 976
S.W.2d 553, 557 (Mo. App. W.D. 1998), that not everything that happens to an injured employee
surrounding a visit to the doctor is compensable. However, the Bear court’s ruling was based on
the application of the going and coming rule, which is not at issue in this case. In Bear, the
employee sought workers’ compensation benefits for injuries he received in an automobile
accident on his way home from employer-authorized medical treatment he was receiving for a
prior workers’ compensation injury. 976 S.W.2d at 555. The issue on appeal was whether the
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automobile accident arose out of and in the course of Bear’s employment. Id. The court
extended the going and coming to work rule to going and coming to authorized medical
treatment and denied coverage for the injuries sustained by the employee “coming from” the
employer-directed medical appointment, stating that “[t]he going to and coming from rule, as
articulated by Missouri courts, is that injuries sustained while an employee is going to or coming
from work are not compensable because the injuries do not arise out of and in the course of
employment.” Id. at 556.
Here, however, Schoen was not “going to” or “coming from” her employer-directed
medical appointment when she was injured; rather, she was at the doctor’s medical facility and
received her orthopedic injuries in the course of receiving authorized medical treatment by
Dr. Runde. Neither the Commission’s ruling, the Center’s briefing, nor our independent research
has identified a single Missouri case in which the courts of this state have concluded that an
employee’s injuries sustained while at the medical facility for employer-directed and authorized
medical treatment are not compensable as the natural and probable consequence of the original
injury for which medical treatment was authorized in the first instance.3 To the contrary,
Missouri case precedent holds the opposite.
In Lahue v. Missouri State Treasurer, 820 S.W.2d 561, 562 (Mo. App. W.D. 1991), the
employee, in the course of her employment, received an injury to her right ankle. As she was
3
The Commission’s reliance on Meinczinger v. Harrah’s Casino, 367 S.W.3d 666 (Mo. App. E.D. 2012),
is misplaced as that case is inapposite to the present case. In Meinczinger, the employee tripped over a manhole
cover at her place of employment in 2002 and injured her left knee. Id. at 667. In 2008 she filed another claim for
compensation, reporting that she injured her right knee and left hip in 2007 by compensating for her left knee injury.
Id. In 2008, employee, employer, and insurer entered into a stipulation for compromise settlement of the 2002
injury, releasing employer from all liability for the 2002 accident. Id. In 2009, employee filed an amended claim
for compensation for the 2007 injury to her right knee and left hip, reporting that she received that injury at a
physical therapy center while receiving physical therapy treatment for her 2002 injury. Id. The court concluded that
the Commission lost jurisdiction over the 2002 injury and all injuries flowing as a natural consequence of it,
including the 2007 injury, because the parties entered into a settlement agreement approved by an ALJ that closed
out all claims stemming from the 2002 injury. Id. at 668. Thus, Meinczinger was decided on the basis of a
procedural issue and did not directly discuss the causal connection between the employee’s 2002 and 2007 injuries.
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undergoing whirlpool therapy for her ankle injury, she fell off the chair upon which she was
sitting and injured her right hip and low back. Id. She filed a claim for additional compensation,
which was denied. Id. The question on appeal was whether her fall from the chair as she was
undergoing whirlpool physical therapy was a subsequent injury that was not causally related to
her original injury, or whether the ankle injury she sustained at work and the hip and low back
injury she sustained nine days later while receiving treatment for the ankle injury constituted a
single injury. Id. The court concluded that the fall from the chair was a part of the same injury
as the ankle injury, based on the rule of law that injuries sustained during authorized medical
treatment for the original injury are the natural and probable consequence flowing from the
original injury. Id. The Lahue court did not require that the subsequent injury be an aggravation
of the original injury.
The Lahue court noted that the “natural consequence” rule has been recognized by other
Missouri courts. In Manley v. American Packing Co., 253 S.W.2d 165 (Mo. 1952), the
employee sustained severe injuries to his right knee in a work-related automobile accident. Id. at
166. Thereafter, he suffered a fall while visiting the home of his father, reinjuring his right knee.
Id. During the course of a surgical operation to repair his knee, he died as the result of a
pulmonary embolism. Id. The court concluded that:
The evidence in this case warranted the Commission in finding that the injuries
sustained by Manley in the automobile accident seriously weakened and impaired
the use of his right knee, rendering him unstable in walking and, without warning,
frequently causing him to fall; that his fall in the orchard while walking on level,
unplowed grassland, was due to the weakened and injured knee rather than to
some external force; and that the fatal embolism which followed was, in fact, the
culmination of a series of injuries, beginning with the original, each in sequence
thereafter being the result of the one immediately preceding. The award is
supported by competent and substantial evidence.
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Id. at 170. In Wilson v. Emery Bird Thayer Co., 403 S.W.2d 953 (Mo. App. 1966), the court
recognized the “well established rule” enunciated in Manley. In Wilson, the employee slipped
and fell in a work-related accident, injuring her neck, arm, and shoulder. Id. at 955. Employer
arranged for treatment, which included employee being placed in traction. Id. As a result of the
traction, employee sustained a jaw injury. Id. Employer’s doctors discharged her without
treating her jaw injury, and thereafter, employer and insurer terminated her medical treatment.
Id. Relying on Manley, the court determined that employee’s new condition in her jaw caused
by the treatment of her original injury was compensable because her jaw injury followed as a
legitimate or natural consequence of the original accident. Id. at 958.
Here, the employer directed Schoen to Dr. Runde’s medical facility for medical treatment
of her pulmonary-related symptoms that began on May 8, 2009, after exposure to Cypermethrin
in the workplace environment—the original injury. While Schoen was at Dr. Runde’s medical
facility and after she was directed by Dr. Runde’s medical staff to proceed to an examination
room, Dr. Runde himself accidentally tripped Schoen while she was being escorted to the patient
examination room. Dr. Runde directed the location for his patient’s pulmonary testing; Schoen
merely followed the directive of her doctor and, while doing so, sustained new injuries.
Therefore, Schoen’s new injuries were sustained in the course of Schoen receiving authorized
medical treatment for her original injury and, hence, were part of the natural consequence
flowing from her original injury. The Commission’s conclusion to the contrary is neither
supported by the factual record nor the law applied to the factual record as set forth by the
Commission’s decision.
The Commission’s majority ruling seems to suggest that, absent some sort of medical
instrument or intended hand of a doctor placed upon the patient for a diagnostic or surgical
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procedure, no medical “treatment” has occurred. This narrow view of “medical treatment” belies
the reality of how doctors function in the business of diagnosing and treating their patients.
Medical intake forms provide valuable insight about a patient’s history. Obtaining radiological
or magnetic resonance imaging studies assist a doctor in evaluating and assessing the patient’s
medical needs. Pulmonary testing provides valuable data to doctors. Laboratory testing of a
patient’s blood or urine can provide valuable diagnostic data to doctors. Surely, then, while at a
medical facility, the course of receiving authorized treatment from a doctor includes being
transported by wheelchair or otherwise escorted to a radiological consultation room, a laboratory
testing location, a surgical operating room, or a patient examination room. Simply put, the
doctor cannot do the doctor’s job if the patient refuses to cooperate with the doctor’s directive on
how and where the process of diagnosis or medical procedures are to take place.
Accordingly, based on the rule of law that injuries sustained during authorized medical
treatment for the original injury are the natural and probable consequence flowing from the
original injury, the work accident of May 8, 2009, was the prevailing factor in the cause of the
injuries Schoen sustained in Dr. Runde’s office on May 22, 2009. The Commission acted in
excess of its powers in concluding otherwise, warranting reversal.
Schoen’s appeal is granted.
Conclusion
The Commission’s ruling is reversed and remanded for further proceedings before the
Commission consistent with our ruling today. Specifically, this matter is remanded to the
Commission with instructions that the Commission enter an award finding that the injuries
sustained by Schoen as a result of her fall at Dr. Runde’s office on May 22, 2009, are medically
causally connected with the work-related injury that occurred on May 8, 2009. In light of this
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finding, the Commission is instructed to consider all remaining issues that were raised by the
Center in its appeal of the ALJ’s award of compensation to Schoen, including but not limited to,
issues relating to the nature and extent of Schoen’s disability, the extent of any disability and/or
medical benefits due Schoen, and whether the Center or the Fund or both have liability to Schoen
as a result of her claim for workers’ compensation.
/s/Mark D. Pfeiffer
Mark D. Pfeiffer, Judge
Lisa White Hardwick, Presiding Judge, and Thomas H. Newton, Judge, concur.
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