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Mrs. Baird's Bakery v. Cox4/26/2005
uild-up, so that their daughter may breath. Claimant's daughter has Down's Syndrome and is apparently otherwise physically disabled, having had two heart surgeries. Upon lifting his daughter as aforesaid, claimant again experienced back pain and right leg pain. At the time of the lifting event involving his daughter claimant had not been completely released from medical care in relation to the February 2002 work-related incident.
A new MRI scan revealed recurrent disc herniation at L4-5, as well as the degenerative disc changes at L3-4. The doctor that had performed the initial surgery recommended claimant undergo further surgical procedure, some type of fusion surgery. A Dr. T (a doctor of osteopathy), who examined claimant and whose report was admitted at trial, essentially opined that claimant's lifting his daughter caused a "recurrence" or "re-injury" of the February 9, 2002 L4-5 disc herniation and that claimant's need for the fusion procedure was as "a direct result of the February 9, 2002 injury." In other words, Dr. T, in effect, opined that claimant's need for the surgery was caused by the February work-related accident/event and that the August 2002 event of lifting his daughter caused a recurrence of the work-related injury. A Dr. P (also a doctor of osteopathy), who examined claimant and whose report was admitted at trial, opined, in effect, that any further medical care that claimant may require was not related to the February 2002 work-related incident or to his employment with employer.
In his order, the WCC trial judge found that the February 9th work-related accident caused personal injury to claimant's low back, with sciatica and radicular symptoms into his right leg and foot. In other words, the injury arose out of and in the course of claimant's employment with employer. The trial judge also found the necessary act of picking up his daughter to suction her for secretions was not sufficient to break "the chain of compensable causality" to the earlier work-related accident and, in essence, that the home event caused a recurrence of the initial work-related injury (the phrase used by the trial judge was a "disc reherniation" as seemingly being indicated by the medical evidence). Thus, the order directed employer to provide claimant with reasonable and necessary medical care to his low back, including fusion surgery.
The three-judge panel order affirmed all of the trial judge's order, but found one paragraph thereof, 5, contrary to law and against the clear weight of the evidence. However, in substance and in effect, the three-judge panel order agreed with the trial court that the August 2002 home incident involving claimant picking up his daughter caused only a recurrence of the original work-related injury, that the home event was not sufficient to break the causal nexus to the work-related injury and employer was required to provide claimant necessary treatment to his low back, including fusion surgery.
Paragraph 5 of the WCC trial judge's order provided:
THAT the Court concludes that the claimant was still debilitated and not out of the woods medically when he performed the reasonable act of picking up his handicapped daughter. The activity was necessary and not reckless behavior and thus the Court concludes that the intervening event aggravated an already disabled back but did not break the chain of compensable causality.
The three-judge panel substituted the following language for the trial judge's 5:
THAT the Court concludes that the claimant was still debilitated and not out of the woods medically when he performed the reasonable act of picking up his handicapped daughter. The Court has deter
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