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Hawthorne v. Lester E. Cox Medical Centers6/30/2005
Opinion Vote: AFFIRMED.
Shrum, J., and Barney, J. - Concur.
Opinion:
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 section 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 section 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. Because all of these arguments lack merit, we affirm.
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 bac
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