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Banks v. Springfield Park Care Center12/14/1998
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Deborah A. Banks, Claimant/Respondent, v. Springfield Park Care Center, Employer/Appellant, and Missouri Nursing Home Insurance Trust, Insurer/Appellant.
Case Number: 22327
Appeal From: Labor and Industrial Relations Commission
Opinion Summary: None
Opinion Vote: AFFIRMED. Shrum, P.J., and Barney, J., concur.
Opinion
In this worker's compensation case, Springfield Park Care Center ("Employer") appeals the decision of the Labor and Industrial Relations Commission (the "Commission") to award Deborah A. Banks ("Employee") certain medical expenses associated with surgery for a lumbar fusion. The issue is whether Employer or Employee should be responsible for the expense of medical and surgical treatment performed by Dr. Jeffries, an orthopedic surgeon.
The parties agree that Employee, a licensed practical nurse, sustained a low back injury while lifting a patient at Employer's facility on November 1, 1993. She initially received care at the emergency room of Springfield Community Hospital on the date of the injury. She was later seen by an orthopedic surgeon, Dr. McMillin, who noted a slight listhesis at the L4-5 level of the spine with an anterior spondylophyte. Employee was subsequently seen by a physiatrist, Dr. Mauldin, who referred her for an MRI, which showed a slight bulge at L4-5 and L5-S1 and mild degenerative disc changes.
Approximately thirty days after the injury, Employee was seen by Dr. Lennard, another physiatrist, who assumed the role of primary treating physician. His initial treatment of Employee consisted of physical therapy, but he later performed a selective nerve root block on December 21, 1993. On December 28, 1993, Employee reported to Dr. Lennard that she was not feeling better, and she was referred to Dr. Whitlock, a neurosurgeon. Dr. Whitlock hospitalized her for a myelogram and CT scan that revealed mild spinal stenosis at L4-5, which he treated with a caudal block.
On January 20, 1994, Employee returned to Dr. Lennard who prescribed the use of a TENS unit and obtained a nerve conduction study and EMG of the right leg, the results of which were both normal. Dr. Lennard last saw Employee on April 12, 1994, at which time he noted that she was no better and that she continued to have back and hip pain as well as generalized weakness in the right leg. He released her, saying that he did not believe that additional treatment would change her condition, and recommended a permanent lifting restriction of 25 pounds, occasional Tylenol for the next six months, and the use of a TENS unit.
Between April 12, 1994 and December 20, 1994, Employee's physical activities were limited, with the result that she needed help doing such things as cooking and laundry. On December 20, 1994, at the request of her attorney and without advance notice to Employer, Employee went to see Dr. Jeffries. Dr. Jeffries' report of that visit gave a diagnosis of "degenerative disc disease at L4-5 with segmental instability and lateral recessed stenosis" and "pain amplification." The possibility of surgery was apparently discussed during that examination as his report also set out the risks of surgery and stated:Her decompression would require a fusion due this instability. I have told her than I will not proceed with surgery until she is smoke-free. She understands that the indication for surgery is pain relief.
Dr. Jeffries' office note of that visit stated:Ms. Banks is going to consider her options and call me if she can discontinue her use of tobacco. She wi
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