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Morris v. Captain D's

Court of Appeals of Missouri, Southern District, Second Division

January 24, 2018

JAMES MORRIS, Claimant-Respondent,
v.
CAPTAIN D'S, Employer-Appellant, and TREASURER OF THE STATE OF MISSOURI, AS CUSTODIAN OF THE SECOND INJURY FUND, Respondent.

         APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

          JEFFREY W. BATES, J.

         Captain D's (Employer) appeals from two unanimous final awards from the Labor and Industrial Relations Commission (Commission) awarding James Morris (Morris) workers' compensation benefits arising out of injuries he sustained from two work-related accidents. Employer challenges only one aspect of each award. According to Employer, the award of future medical treatment for pain management is not supported by substantial and competent evidence in the record. Because we find no merit in this contention as to each award, we affirm.

         Factual and Procedural Background

         In January 2007, Morris was injured in two work-related accidents just a week and a half apart: (1) a car accident on January 3rd; and (2) a slip-and-fall accident on January 14th. As of the dates of these accidents, Morris had worked for Employer for 21 years. Although most of Morris' career was spent in supervisory positions, his job required extensive standing, walking, driving and some lifting. Morris performed these job duties despite preexisting injuries involving his right knee, back and neck. Morris also experienced chest pain and high blood pressure due to heart disease. Following the two work accidents in January 2007, Morris quit his job with Employer in May 2007. Thereafter, Morris filed a claim for workers' compensation benefits with respect to each accident.

         After a hearing, an administrative law judge (ALJ) determined that Morris was permanently and totally disabled from injuries caused by the last 2007 accident on January 14th, combined with the permanent disability preexisting that date.[1] With respect to Employer only, the ALJ found that Morris sustained "permanent disability from each of the two separate work accidents." With respect to each accident, Employer was ordered to pay benefits for: (1) permanent partial disability; (2) past medical treatment; and (3) future medical treatment for pain management. Because Employer only challenges the award of future medical treatment on each claim, the following facts are relevant to Employer's claim.

         In January 2008, Morris was evaluated for the first time by his medical expert, Dr. David Volarich. Dr. Volarich opined that Morris was permanently and totally disabled as a result of both of his January 2007 work-related injuries to his neck and back, when considered in combination with each other and his preexisting medical conditions. According to Dr. Volarich, Morris had reached maximum medical improvement as of the January 2008 evaluation date. Dr. Volarich also opined that Morris "will require ongoing care for his pain syndrome using modalities including but not limited to narcotics and non-narcotic medications (NSAID's), muscle relaxants, physical therapy, and similar treatments as directed by the current standard of medical practice for symptomatic relief of his complaints."

         In January 2009, Morris was seen by his treating physician, Dr. Wade Ceola, due to complaints of: (1) low back pain; (2) radiating pain in his lower extremities; and (3) cervical pain with radiation into both arms. Dr. Ceola diagnosed a failed response to physical therapy and injections, and he recommended surgery. In July 2009, Morris underwent surgery involving a fusion at C5-6 and C6-7, followed by physical therapy. Morris continued to have complaints of ongoing low back pain.

         In late May 2010, Morris saw Dr. Ceola again. Morris had been in two rear-end car collisions on May 1st and 24th of that month. Dr. Ceola diagnosed Morris with a whiplash and concussion. He recommended physical therapy for Morris' cervical and lumbar spine. Over the next year, Morris continued to experience ongoing neck and back pain. Dr. Ceola subsequently diagnosed Morris with, inter alia, a new large herniation at L4-5. Dr. Ceola again recommended surgery. In May 2011, Morris underwent a second surgery, which included "left L4-5 hemilaminectomy with discectomy." In July 2011, due to ongoing complaints, Dr. Ceola performed a third surgery involving a fusion at L4-5.

         In December 2012, Dr. Volarich evaluated Morris after his additional surgeries. In the doctor's opinion, there was a causal connection between Morris' January 2007 work accidents and his total and permanent disability. Dr. Volarich also opined that Morris required ongoing care for his pain syndromes and listed additional treatment modalities. As the doctor explained in his report:

Mr. Morris would benefit from ongoing treatment at a pain clinic for his chronic cervical and lumbar pain including his left lower extremity neuropathic pain. Epidural steroid injections, foraminal nerve root blocks, trigger point injections, TENS units, radiofrequency ablation procedures, and consideration for a spinal cord stimulator are all indicated. He also requires chronic pain management and treatment of his neuropathic pain with oral medications.

         In an August 2013 deposition, Dr. Volarich was asked whether these treatments were directly related to his work injuries and gave the following answer:

Not completely. They would be related to the fact that he had injuries to the neck and back from work, but he also had subsequent deterioration, a couple of car wrecks and such, and had surgeries during that time, so it's - it's a mixture of subsequent problems as well as the work injuries and I think also as well as the preexisting difficulties in his low back.

         In February 2015, Morris was evaluated by Employer's expert, Dr. Ted Lennard. According to Dr. Lennard, Morris suffered a cervical strain and lumbar strain related to the 2007 work injuries on January 3rd and 14th, respectively, but those injuries resolved without further problems. With respect to future ...


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