Court of Appeals of Missouri, Eastern District, Fifth Division
from the Labor and Industrial Relations Commission Injury No.
M. DOWD, CHIEF JUDGE.
Treasurer of Missouri, as Custodian of the Second Injury
Fund, appeals the award of the Labor and Industrial Relations
Commission which found the Fund partially liable to Robin
Barnes ("Claimant") for his permanent total
disability benefits. The Treasurer claims that the Commission
erred by finding that Claimant was permanently and totally
disabled due to a combination of his preexisting disabilities
and the disability from the work injury giving rise to this
case. The Treasurer asserts that such a finding and the
Commission's award were not supported by competent and
substantial evidence and were against the overwhelming weight
of the evidence. Specifically, the Treasurer argues that the
Commission made its own determination of medical causation
unsupported by medical expert testimony by finding Fund
liability where no single expert testified both that Claimant
was permanently and totally disabled and that such resulted
from a combination of preexisting disabilities and the
disability from the last work injury. The Treasurer also
contends that the Commission violated the hearsay rule with
regard to the admission of the report of a non-testifying
examining physician. Finding no error, we affirm.
and Procedural Background
November 11, 2009, Claimant, an employee of the airport
parking and shuttle company Park Express, LLC
("Employer"), injured his lower back while changing
a tire on a shuttle bus. Employer initially sent Claimant to
an occupational medicine clinic to treat his lower-back and
buttocks pain which radiated down his right leg. Claimant
received medication, physical therapy, and an MRI.
Claimant's pain spread to both hips and both thighs over
the course of the next month, and on December 14, 2009,
Employer sent Claimant to Dr. James Doll for further
evaluation and treatment. Dr. Doll prescribed three epidural
steroid injections, medication, physical therapy, and ordered
another MRI. Dr. Doll diagnosed Claimant with inflammation at
the L5-S1 level of the spine, but released Claimant from care
and retuned him to work without restrictions.
Employer denied Claimant's request for additional
treatment for his ongoing back pain, Claimant sought
treatment on his own first from Dr. William Droege, a
chiropractor, and then from Dr. George Schoedinger, a
neurosurgeon. In his June 2010 report, Dr. Schoedinger
diagnosed disc protrusions at both the L4-L5 and L5-S1 levels
of the spine, and recommended surgery. After Dr. Schoedinger
retired, Claimant continued treatment with an orthopedic
surgeon, Dr. Keith Wilkey. Dr. Wilkey diagnosed recurrent
disc herniation at L5-S1 and central disc herniation at
L4-L5. He recommended a two-level fusion surgery, which
involved fusing Claimant's vertebrae at two levels-L5-S1
and L4-L5. When Employer refused to authorize any further
treatment, Claimant's own health insurance provider
authorized fusion surgery but only at the L5-S1 level.
November 15, 2011, Dr. Wilkey took Claimant to surgery
performing a decompression procedure at the L4-L5 level and
fusion with hardware at L5-S1. Claimant experienced some
relief after the surgery, but his symptoms returned over
time. During the course of post-operative treatment, Dr.
Wilkey imposed increasingly strict permanent restrictions on
Claimant's activities. He directed Claimant to limit
lifting to fewer than 20 pounds, to alternate standing and
sitting, and to take a break every two hours to recline for
15 minutes. He also warned that Claimant would probably need
to be absent from work twice a month and would need narcotic
pain medications on an ongoing basis to treat his back pain.
terminated Claimant's employment in April 2010 since he
was unable to return to full duty. Claimant continued to try
to work elsewhere until the November 15, 2011 surgery by Dr.
Wilkey. Claimant has not returned to any kind of work since
prior injuries and pre-existing disability.
his November 11, 2009 work injury, Claimant suffered a
previous lower-back injury. In May 2000, Claimant hurt his
lower back in a motor vehicle accident while working for the
Missouri Department of Transportation. As a result, in
September 2000, Claimant underwent surgery on his spine at
the L5-S1 level, which involved a right-sided laminectomy and
discectomy. Laminectomy involves the removal of a portion of
the vertebrae bone and discectomy means that the disc between
the L5 and SI vertebrae was removed.
Claimant was released to return to work full-duty with no
permanent restrictions, he settled his workers'
compensation claim with his employer based on a stipulation
that he suffered permanent partial disability of "25% of
the body as a whole referable to the lower back" as a
result of the November 2000 accident.
2009 workers' compensation claim giving rise to this
result of the November 11, 2009 injury he sustained while
changing a tire, Claimant filed a claim for workers'
compensation benefits asserting that he was permanently and
totally disabled. The claim was tried before an
administrative law judge ("ALJ"). The ALJ concluded
that the November 11, 2009 work injury was the prevailing
factor in causing Claimant's medical
condition at L4-L5 and L5-S1 and the resulting disability,
and that Claimant was permanently and totally disabled due to
the effects of the last work injury considered in isolation.
As a result, the ALJ awarded Claimant workers'
compensation benefits to be paid by Employer and found the
Second Injury Fund had no liability for such benefits. The
ALJ also excluded from evidence as hearsay the report of a
non-testifying examining physician.
appealed the ALJ's award and findings to the Commission.
The Commission modified the ALJ's finding on the nature
and extent of disability resulting from the last injury and
reversed the ALJ's decision on the issues of Employer and
Fund liability. The Commission found that the November 11,
2009 work injury did not, considered in isolation, cause
Claimant to be permanently and totally disabled, but that
Claimant was rendered permanently and totally disabled as a
result of the combination of preexisting disabilities and the
disability from the last work injury. Accordingly, the
Commission awarded Claimant permanent partial disability
benefits from Employer and permanent total disability
benefits from the Second Injury Fund. The ...