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Fitzwilson v. AT&T Corp.

Court of Appeals of Oklahoma, Division IV

July 12, 2019

TERRI JEAN FITZWILSON, Petitioner,
v.
AT&T CORP., OLD REPUBLIC INSURANCE CO., and THE WORKERS' COMPENSATION COMMISSION, Respondents.

          Mandate Issued: 09/11/2019

          PROCEEDING TO REVIEW AN ORDER OF THE WORKERS' COMPENSATION COMMISSION HONORABLE P. BLAIR McMILLIN, ADMINISTRATIVE LAW JUDGE

          Darrel R. Paul, QUANDT LAW FIRM, Tulsa, Oklahoma, for Petitioner

          Nichole S. Bryant, Matthew R. DeFehr, McANANY, VAN CLEAVE & PHILLIPS, P.A., Tulsa, Oklahoma, for Respondents

          JANE P. WISEMAN, VICE-CHIEF JUDGE

         ¶1 Claimant Terri Fitzwilson seeks review of an order of the Workers' Compensation Commission affirming the decision of an administrative law judge denying Claimant's claim as not compensable. After review, we vacate the order of the WCC and remand for further proceedings consistent with this Opinion.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Claimant filed a CC-Form 3 on December 8, 2016, for injuries to her back and right leg, which she alleged occurred on November 22, 2016, while she "was rolling forward in chair when it toppled over." Claimant's employer, AT&T Corp. (Employer), denied Claimant suffered an injury arising out of and in the course of her employment.

         ¶3 At trial held on February 6, 2018, Claimant described the accident this way: "We have roller chairs and we sit in groups so that we can ask each other questions during phone calls. I had rolled back to ask a question, when I went to roll forward, my chair fell over and I fell out of my chair." Claimant said she believes her right hip and buttocks struck the ground. Claimant testified she had four surgeries prior to this event. She had an L4-5 and L5-S1 fusion, she had hardware removed, she had another surgery in the same area, and she had hardware removed again. The surgeon she saw for her back was Dr. Hendricks in 2011. None of her surgeries involved the L3-4 disk. She has been seeing Dr. Martucci for pain management every three months. She experienced new symptoms after this fall--her pain levels were higher and she had pain radiating down her right leg. According to Claimant, her prior issues were in her left leg.

         ¶4 The ALJ denied compensability in an order filed February 27, 2018. The ALJ noted Claimant requested a hearing and "a finding of compensability to the lumbar spine in the form of an aggravation of a preexisting condition." Employer admits the incident occurred on November 22, 2016, but denies Claimant's claim is compensable and "asserts that her injury is degenerative and preexisting in nature and excepted from the definition of compensable injury pursuant to Title 85A O.S. §2 (9)(b)(5) and (6)." Employer also "denies that the major cause of her degenerative condition is her employment."

         ¶5 The ALJ found Claimant has worked as a customer service representative for Employer for eight years. She testified she fell out of her chair after she rolled forward and was talking to another employee and she landed on her buttocks and right hip when she fell. Claimant "reported to her treating physicians thereafter that her chair had broken and caused her to fall to the floor." The ALJ noted: "Prior to the incident at work, Claimant received a significant amount of medical treatment for her lumbar spine to include numerous surgeries, injections, medications, and implantation of two spinal column [stimulators] as evidenced by the voluminous amount of records submitted by [Employer]." The ALJ explained that Claimant injured her lumbar spine in a work-related injury in 2001, resulting in her undergoing the following surgeries: (1) an L5-S1 diskectomy (Dr. Greg Wilson); (2) an L5-S1 fusion (Dr. Mark Hayes and Dr. Allen Fielding); (3) L4-5 fusion in 2003 (Dr. Randall Hendricks); (4) L4-5 and L5-S1 hardware removal in 2004 (Dr. Hendricks); (5) L4-5 and L5-S1 fusion in 2006 (Dr. Hendricks); and (6) L4-5 hardware removal with revision decompression in 2008 (Dr. Hendricks). Dr. Hendricks released Claimant from his care for the 2001 injury on November 5, 2008, and she settled her workers' compensation "claim on Joint Petition for 30% permanent partial impairment to the lumbar spine on August 30, 2014." [1]

         ¶6 Claimant returned to Dr. Hendricks on December 22, 2010, after "she fell and twisted her low back going up stairs." The ALJ stated, "Claimant complained of mild hypesthesia on the dorsum of her right foot. Dr. Hendricks read her MRI of the lumbar spine on January 14, 2011, as normal and stated that she might be developing stenosis at L3-4, but was unable to truly confirm that finding []." Dr. Hendricks found Claimant was not a candidate for surgery and referred her to pain management.

         ¶7 The ALJ said:

Claimant began a pain management regimen at Pain Consultants on April 11, 2011 and reported low back pain radiating to her right side down to her large toe. She reported a burning sensation down her right leg and that her right leg twitched on her intake sheet. She was given Lortab and referred for a L5-S1 epidural steroid injection, which she had on April 13, 2011. She had an EMG study of her right lower extremity on April 19, 2011, and the physician opined that her likely diagnosis was radiculopathy, but noted a possibility of plexopathy or peripheral neuropathy. She had additional injections at that level on May 11, 2011, July 20, 2011, and February 22, 2012. Up until 2016, Claimant tried various medications for nerve pain such as Lyrica and was switched to Norco 10 mg on November 17, 2012, [2] which she was still taking at the time of her work-related incident.

(Citation to the record omitted.)

         ¶8 The ALJ noted that Claimant had a spinal column stimulator implanted on December 6, 2011, and January 7, 2014, but they were removed on September 16, 2014. The ALJ stated, "Although Claimant testified at hearing that she had no further injections after 2011 until her work-related incident, she discussed resuming injection therapy with her pain management physician on October 15, 2013, October 14, 2014, May 11, 2015, [and] August 17, 2015." Four months before she fell from her chair, she "reported a 10 out of 10 pain on a VAS scale without medication," and 2 months before the incident Claimant "reported a 8-9 out of 10 pain on a VAS scale without medication" and she also reported she was having back pain which radiated down her right leg.

         ¶9 Claimant contacted her primary care physician Dr. Patrick Vanschoyck "on December 1, 2016 and reported that she fell out of a chair at work and requested an increase in her medication and an injection." She saw Dr. Vanschoyck the next day "report[ing] pain in her low back radiating to her right foot and received an injection and medication." On December 6, 2016, she returned to Pain Consultants for a L5-S1 epidural steroid injection for her back pain and right leg pain. On January 31, 2017, she had another injection on the L3-4 level.

         ¶10 On December 28, 2016, Claimant underwent an MRI of her lumbar spine. Dr. Hendricks found that Claimant had "L3-4 stenosis, worse on the right, with impingement and scar tissue at L4-5." On February 27, 2017, Dr. Hendricks "noted some quadriceps and dorsiflexor weakness of the ankle of the right side, sensory deficit mixed at L4 and L5, and a positive sciatic stretch maneuver on his examination." On March 21, 2017, Dr. Hendricks performed a laminectomy of L3, a revision laminectomy of L4-5 and L5-S1, and neurolysis.

         ¶11 The ALJ stated that in his report, Dr. Hendricks found "Claimant sustained a significant and identifiable aggravation of her preexisting injury." The ALJ further stated that in his deposition, when asked about the cause of her most recent lumbar surgery, Dr. Hendricks said "that it may have been due to some adjacent-level disease and her fall from the chair." He recognized "that adjacent-level disease can result from the passage of time and ongoing deterioration or that a single-event incident may aggravate it substantially." He noted there was no stenosis at the L3-4 level on her January 2011 MRI and "found that her fall had aggravated her severe canal stenosis."

         ¶12 Employer submitted the report of Dr. Gillock, who "found no objective medical evidence of a work-related injury." He concluded, "Claimant has a preexisting degenerative condition and that she did not sustain[] a significant and identifiable ...


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