Court of Appeals of Missouri, Eastern District, Second Division
and Industrial Relations Commission
M. Hess, Presiding Judge.
Harris ("Claimant") appeals the Labor and
Industrial Relations Commission's (the
"Commission") decision modifying the decision of
the Administrative Law Judge ("ALJ"). The ALJ
awarded Claimant permanent total disability and future
medical benefits because a work-related accident was the
prevailing factor in causing him to suffer injuries to his
low back. In modifying the ALJ's decision, the Commission
determined Claimant was not permanently and totally disabled
and instead found the work-related accident was the
prevailing factor in causing him to suffer a chronic back
sprain or strain. Therefore, the Commission concluded
Claimant suffered only five percent permanent partial
disability. The Commission also determined Claimant was not
entitled to future medical benefits.
appeal, Claimant argues the Commission erred in modifying the
ALJ's award because in doing so: it misstated the record
and disregarded the findings of Claimant's employer-
authorized treating physicians so its conclusion was against
the overwhelming weight of the evidence (Point I) and it
rejected Missouri law that recognizes an asymptomatic,
preexisting condition can be compensable if a work accident
aggravates it to a level of disability (Point II). We find
the Commission's award concluding Claimant was not
permanently and totally disabled and Claimant was not
entitled to future medical treatment is supported by
sufficient competent evidence. However, we find the
Commission's award determining medical causation and
concluding Claimant suffered only five percent permanent
partial disability is not supported by sufficient competent
evidence. Accordingly, the award is affirmed in part and
reversed and modified in part.
and Procedural Background
began working for Ralls County ("Employer") in July
2007 performing road work, including driving a dump truck. On
March 9, 2009, Claimant and a co-worker were told to change a
350-pound tire and wheel assembly on a backhoe. They began by
breaking the seal on the tire away from the rim. After
completing one side of the tire, Claimant stooped forward to
lift the tire and flip it over. As Claimant lifted the tire,
he felt a painful sensation in his lower back and legs, which
he described as feeling like someone was "squishing a
jelly donut" and "stabbing [him] in the back with a
knife." Claimant finished his shift but could not
complete any of his duties and instead laid on a couch in a
breakroom. Claimant drove himself home after his shift ended.
next day, Claimant drove himself to work and requested
medical treatment. After a few hours of work, he went to the
emergency room. While in the emergency room, x-rays showed
spondylosis. He was prescribed some medicine and was
told to follow up with his primary physician. Claimant was
thirty years old, and he experienced no low back pain or
radiculopathy in either leg before the 2009 work accident.
Two days later, Claimant followed up with Dr. R.W. Hevel, his
primary physician. Dr. Hevel noted Claimant complained he was
experiencing low back pain, muscle spasms, and numbness and
tingling in his right lower extremity. Dr. Hevel diagnosed
lumbar radiculopathy and ordered an MRI of Claimant's
spine ("the March 2009 MRI").
was referred to Dr. James Coyle, a neurosurgeon, for further
authorized treatment. In his initial evaluation of Claimant
on March 23, 2009, Dr. Coyle reviewed the March 2009 MRI and
determined it showed "evidence of degenerative disc
disease at L4-5 and L5-S1 with central disc
protrusions at both levels" and bilateral L5
spondylolysis. (emphasis added). Dr. Coyle diagnosed
lumbar disc herniations and prescribed physical therapy,
medication, and epidural steroid injections with restrictions
of no lifting over ten pounds, no repetitive bending,
stooping, or twisting at the waist, and intermittent sitting,
standing, and walking. Dr. Coyle also recommended Claimant
not drive dump trucks. Claimant received epidural steroid
injections from Dr. Gregory Smith. Upon his evaluation of
Claimant, Dr. Smith assessed lumbrosacral
"radiculitis," right S1 "radicular" pain,
and L5-S1 spondylolysis without listhesis. At his physical
therapy sessions, Claimant was described as "a middle
aged man who presents today with acute onset of back pain
after an injury at work while changing a tire on
machinery." The therapists noted Claimant repeatedly did
not give consistent effort during strength testing,
suggesting symptom magnification.
Coyle subsequently examined Claimant on April 20, 2009, and
again on May 20, 2009. On May 20, 2009, Dr. Coyle noted
Claimant complained of "back pain, right sided buttock
and posterior thigh pain, and dysesthesia radiating into his
right foot." Dr. Coyle again reviewed the March 2009
MRI, this time concluding "[h]e has a central disc
prolapse at L4-5. He has isthmic spondylolisthesis at L5-S1
with a very small central disc
protrusion." Dr. Coyle also noted Claimant had
undergone three epidural steroid injections without relief.
Dr. Coyle recommended pain management and a rehabilitation
program and advised against surgery, stating surgery should
be an "absolute last resort" because a "two
level fusion" would not return Claimant to his
Coyle referred Claimant to Dr. Russell Cantrell, a
physiatrist, who he saw on May 27, 2009. Dr. Cantrell noted
Claimant presented with complaints suggestive of right L5
"radiculopathy." Dr. Cantrell ordered an EMG study,
which was conducted June 6, 2009. The results of the EMG were
normal; no electrodiagnostic evidence of lumbar radiculopathy
was detected. Dr. Cantrell also reviewed the March 2009 MRI
and concluded it showed evidence of "degenerative disc
disease at the L4-5 and L5-S1 levels with broad
based disc bulging at L5-S1 and a more focal central and
paracentral disk protrusion at L5-S1 appearing to result in
some compression of the descending S1 nerve root."
(emphasis added). Dr. Cantrell concurred in Dr. Coyle's
opinion that Claimant was not a good surgical candidate. Dr.
Cantrell prescribed Claimant Tramadol and Prevacid to manage
17, 2009, Dr. Cantrell released Claimant to return to work
with the restriction he not lift over ten pounds. Claimant
returned to work for Employer that same day. Claimant said he
used leave to reduce the number of hours he drove so he did
not consider himself to be working a full time schedule.
Claimant underwent a functional capacity evaluation on June
29, 2009. At the evaluation, Claimant lifted fifty-five
pounds from floor to waist and seventy-five pounds from both
waist to shoulder and from shoulder to overhead.
Claimant's performance at the evaluation reflected
inconsistent effort and symptom magnification behaviors. The
evaluation found him able to return to safe function in the
heavy work demand level but not the employer-reported job
demand level. The evaluation reflected Claimant was limited
by his decreased heavy load handling ability, his decreased
tolerance to constant sitting, and his moderate-to-high
subjective pain reports.
saw Dr. Cantrell immediately following the functional
capacity evaluation on June 29, 2009, and again on July 21,
2009. Because of Claimant's ongoing complaints, Dr.
Cantrell referred him for a lumbar myelogram and
post-myelogram CT scan. According to Dr. Cantrell, that scan
showed mild spondylolisthesis of L5-S1, with associated
spondylolysis, a small left foraminal disc extrusion at
L5-S1, circumferential disc bulging at L5-S1, small central
disc protrusions at L3-4, and a degenerative disk
bulges at L3-4 and L4-5. (emphasis added).
reviewing the results of the July 2009 lumbar myelogram and
post-myelogram CT scan, Dr. Cantrell rated Claimant's
permanent partial disability at eight percent of the body as
a whole referable to his low back, with one-half attributable
to his work injury and one-half attributable to preexisting
degenerative and congenital abnormalities unrelated to his
work injury. On August 31, 2009, Dr. Cantrell placed Claimant
at maximum medical improvement and released him from care
with a permanent restriction he not lift over fifty pounds
and that his dump truck driving be limited to one hour of
sitting per run.
August 25, 2010, Claimant saw Dr. Coyle, claiming his
symptoms remained intolerable. Dr. Coyle continued to
recommend against surgery, stating "a fusion at L5-S1
may possibly result in very brief relief of symptoms and
aggravate the pathology proximal to this." Dr. Coyle
referred Claimant for a follow-up EMG to "see if there
is any possibility that we can help [Claimant] with a
one-level anterior interbody arthrodesis alone." On
September 15, 2010, Dr. Cantrell conducted the follow-up EMG
study ("the September 2010 EMG"). The results
revealed "abnormalities of fibrillations and polyphasic
motor unit potentials in the left gastrocnemius and
polyphasic motor unit potentials in the right gastrocnemius,
both of which are supplied by the S1 nerve root." No
radiculopathy at L4 or L5 was noted.
October 27, 2010, Dr. Coyle reviewed the September 2010 EMG
study's results and concluded they showed "S1
radiculopathy." Dr. Coyle ordered a second MRI, which
showed "mild dessication at L4 and L5 with annular tears
at each level, L4-L5 as generalized bulging with
focal and central and right paracentral disc protrusion with
the same finding at L5-S1, with the addition of an annular
tear." (emphasis added). He noted Claimant had an
abnormally small spinal canal and a congenital condition. Dr.
Coyle found there was mild disc pathology but no focal
compressive pathology. Dr. Coyle continued to recommend
against surgery, stating, "In summary there is no good
surgical solution for him, and he may be a mismatch for
driving a dump truck over time." Dr. Coyle did not see
Claimant again after October 27, 2010. In a letter to Dr.
Coyle dated November 15, 2010, Dr. Cantrell indicated that he
planned to see Claimant every six months, even though
Claimant remained at MMI, to maintain Claimant's
Cantrell saw Claimant again on June 8, 2011, regarding a
refill of his prescriptions. In a letter to Dr. Coyle, Dr.
Cantrell stated that, as of June 8, 2011, there was "no
objective evidence to support his subjective complaints of
radiating pain into both lower extremities." However, in
that same letter, Dr. Cantrell recounted that the March 2009
MRI scan of Claimant's lumbar spine "revealed a
central and paracentral disc protrusion at the L5-S1 level
that appeared to result in some compression of the descending
S1 nerve root." He also stated that the July 2009lumbar
myelogram and post-myelogram CT scan "revealed evidence
of spondylolisthesis of L5 on S1, along with circumferential
disc bulge and a small central disc protrusion at the L3-4
level, with degenerative disc bulge at L3-4 and L4-5."
letter to Employer's attorney dated June 17, 2011, Dr.
Cantrell stated the September 2010 EMG study revealed
findings consistent with "chronic bilateral S1
radiculopathy in the absence of any L4 or L5 denervation and
the absence of any peripheral polyneuropathy." (emphasis
added). Dr. Cantrell further stated he believed the
medications and relief symptoms Claimant sought resulted from
a degenerative process rather than the specific work injury
Claimant sustained on March 9, 2009. Dr. Cantrell opined the only
basis to suggest Claimant's current and ongoing back pain
complaints relate to his 2009 work accident was
Claimant's "verbal history that prior to that date
he was asymptomatic, and subsequent to that date, he remained
symptomatic." He based his opinion, in part, on the June
2009 EMG study's failure to reveal acute
electrodiagnostic abnormalities suggesting an acute
radiculopathy attributable to his 2009 work injury. He also
opined that the September 2010 EMG study's results seemed
more consistent with a progressive degenerative process in
the lower lumbar spine rather than an acute injury at the
nerve root level.
paid temporary total disability benefits to Claimant in the
amount of $4, 586.29 from March 9, 2009, through June 14,
2009, at a rate of $330.97 per week. Employer paid medical
aid to Claimant in the amount of $51, 464.55.
continued working until March 25, 2011. On March 29,
2011, four days after stopping work, Claimant saw Dr. Hevel
because he was experiencing symptoms of depression. Dr. Hevel
noted Claimant's depression "originate[d] from his
back" and assessed Claimant as having major depression
as secondary to a history of chronic back pain. Dr. Hevel
recommended Claimant not work for one month and referred
Claimant to see Dr. Jonathan Colen, a psychiatrist.
May until July 2011, Claimant saw Dr. Colen several times.
During their May and June 2011 sessions, Dr. Colen and
Claimant discussed that Claimant was recently separated from
his wife and children. Claimant said his wife left him, took
the children, and falsely reported to the Missouri Department
of Family Services he molested his eleven-year-old
stepdaughter and beat all of the children. Dr. Colen
diagnosed Claimant with moderate single episode major
depression and prescribed medication. By July 7, 2011,
Claimant reported to Dr. Colen that he felt better and had
experienced some improvement in his mood.
addition to seeing Dr. Colen, Claimant saw therapist Sean
Meyer in June 2011. Claimant discussed his personal problems
relating to his home life, the abuse allegations, and his
pending divorce with Mr. Meyer. Mr. Meyer noted Claimant was
not working due to his back injury and felt frustrated by the
pain and physical limitations placed on his work abilities.
Mr. Meyer diagnosed Claimant with adjustment disorder with
anxiety and partner relational problem and concluded the
source of Claimant's mental stress was the abuse
allegations against him, his marital problems, and the
ongoing stress and uncertainty as to whether he would return
to work due to work-related injury.
22, 2011, Claimant saw Dr. Hevel again for his depression.
Dr. Hevel recommended Claimant remain off work for three more
months because of his recurring mood swings and the added
stress from his divorce. On August 30, 2011, Claimant was
arrested, charged with statutory sodomy of his stepdaughter,
and taken into custody. Claimant remained incarcerated from
August 30, 2011, until he was released on bail on
approximately August 15, 2013. After several months of absence
from work, Claimant received a letter from Employer stating
he was terminated in December 2011.
filed a claim for workers' compensation benefits for his
back injury. Before trial, Claimant dismissed his claim
against the Second Injury Fund. On November 17, 2017, a
hearing was held before an ALJ. The parties asked the ALJ to
determine (1) whether Claimant sustained an injury arising
out of and in the course of his employment; (2) medical
causation regarding Claimant's low back injury; (3)
whether Claimant was permanently and totally disabled; and
(4) whether Employer was responsible for future medical
treatment to treat and relieve the effects of Claimant's
low back injury.
hearing, Claimant testified about the circumstances of his
2009 work accident and the physical pain he felt in his low
back that continued to worsen. He testified he was no longer
depressed. He indicated he was using a cane while walking to
support himself for two or three years because he would fall
for no reason. Claimant testified he goes to the
emergency room because of pain around twenty times per
presented the deposition testimony of Dr. Thomas Musich, a
family practice medical doctor and independent medical
examiner. Dr. Musich conducted an independent medical
examination of Claimant on June 5, 2013, at Claimant's
attorney's request. He found Claimant's March 2009
MRI identified "a broad based disc bulge causing
effacement of the anterior thecal sac with associated
hypertrophy at L4-5. At L5-S1 a central disc protrusion was
identified which abutted the S1 and S2 neural roots in the
thecal sac. Suggestion of bilateral pars defect was also
identified." He found Claimant suffered acute lumbar
trauma from the 2009 work accident. He noted Claimant had no
preexisting disability and found the 2009 work accident was
the prevailing factor in causing all Claimant's
persistent and ongoing low back pain and radiculopathy.
Musich further opined that Claimant suffered depression
secondary to the 2009 work accident and chronic low back pain
and may require psychiatric evaluation intermittently. Dr.
Musich noted Claimant had seen Dr. Colen for a psychiatric
exam in May 2011, where he was diagnosed with single episode
major depressive disorder but was otherwise unaware of
Claimant's personal struggles-that his wife left him,
took his children, filed for divorce, and accused him of
statutory sodomy for which he was charged, arrested, and
jailed for two years.
Musich embraced the treatment records and observations of Dr.
Coyle and recommended Claimant observe permanent work
restrictions of not lifting over fifty pounds and alternating
sitting and standing. Dr. Musich's conclusions were
derived from the history Claimant relayed to him and his own
physical examination of Claimant. Dr. Musich reviewed the
reports of the other doctors who read the results of the
diagnostic studies, but he did not review those studies
himself. Dr. Musich concluded if Claimant could not be placed
in an appropriate job setting through vocational
rehabilitation, then Claimant was permanently and totally
disabled solely because of the 2009 work accident. Dr. Musich
concluded if Claimant could be placed, then Claimant suffered
permanent partial disability of sixty-five percent of the
body as a whole secondary to acute, work related,
symptomatic, low back pain and residual bilateral lower
extremity radiculopathy solely because of the 2009 work
accident. Dr. Musich did not prescribe or recommend
also presented the deposition testimony of Mr. Gary Weimholt,
a vocational rehabilitation consultant. On July 19, 2013, Mr.
Weimholt reviewed Claimant's medical records and
interviewed Claimant. Mr. Weimholt noted Claimant was
divorced. When his report was made, Claimant's visitation
rights had not been solidified and Claimant mentioned he was
having money issues regarding supporting the children. Mr.
Weimholt noted Claimant said he could not continue to work
for Employer because he became depressed and had continued
pain from the 2009 work accident. Although Mr. Weimholt noted
Claimant had seen Dr. Colen for a psychiatric exam in May
2011, he did not know Claimant's wife accused him of
statutory sodomy for which he was charged, arrested, and
jailed for two years.
Weimholt noted he did not know of any medical records of low
back treatment or diagnoses preexisting the 2009 work
accident. He further noted Dr. Coyle's initial ten pound
lifting restriction and Dr. Cantrell's permanent fifty
pound lifting restriction. Mr. Weimholt concluded Claimant
had no transferable skills and Claimant would need assistance
completing a GED diploma. In reaching his opinion, Mr.
Weimholt also emphasized Claimant had never sent an email,
had no typing or keyboard training, and had never used a
computer before in any of his jobs. Based solely on the
permanent work restrictions related to Claimant's work
injury to his low back, Mr. Weimholt found Claimant was
without access to the open labor market and totally
vocationally disabled from employment.
presented the deposition testimony of Dr. Edwin Wolfgram, a
psychiatrist. On January 16, 2015, Dr. Wolfgram examined
Claimant. Dr. Wolfgram noted Claimant's personal legal
problems, including his divorce and the abuse allegations.
Dr. Wolfgram noted Claimant had an addictive personality
because he smoked from one-half to one and one-half packs of
cigarettes per day from an early age and drank fifteen cups
of coffee per day. Dr. Wolfgram noted Mr. Meyer's
conclusion that the more likely cause of Claimant's
mental stress was that he was involved in a dangerous
marriage with a wife who had conspired with his stepdaughter
to charge him with child molestation. Dr. Wolfgram also noted
that neither Dr. Musich nor Mr. Weimholt knew of the personal
struggles ongoing in Claimant's life, including the fact
Claimant spent two years incarcerated. Dr. Wolfgram stated
that the source of Claimant's depression was his marital
and social problems and his addictive personality. Dr.
Wolfgram concluded Claimant suffered no psychiatric
disability due to the injury he sustained on March 9, 2009,
and the 2009 work accident was not the prevailing factor in
causing his depression. Dr. Wolfgram further concluded the
use of pain medications to treat Claimant's back pain was
unnecessary and not advisable, as pain medications that
elevate mood should only treat injuries for a short period
because they "are highly addicting and dangerous to use
for any chronic conditions."
also presented the deposition testimony of Dr. Robert
Bernardi, a neurosurgeon. Dr. Bernardi conducted an
independent medical examination of Claimant at Employer's
request on November 10, 2015. Dr. Bernardi diagnosed Claimant
with congenital lumbar stenosis, multi-level degenerative
disk disease, L5-S1 isthmic spondylolisthesis, and low back
and bilateral leg pain of uncertain cause. Dr. Bernardi
stated all of the diagnosed conditions except the low back
and bilateral leg pain were preexisting conditions to the
2009 work accident. Dr. Bernardi opined Claimant was born
with the congenital stenosis, the degenerative disc disease
is governed by genetic influences, and it is extremely
unusual for spondylolisthesis to become symptomatic in
adulthood because of a singular traumatic
event. Dr. Bernardi concluded the 2009 work
accident may have caused a strain or sprain in Claimant's
back, but those symptoms should have resolved within four to
six weeks. Dr. Bernardi concluded the radiographic studies
showed no acute injury and no objective findings explain
Bernardi acknowledged Claimant's lack of back pain before
the 2009 work accident suggested the 2009 work accident was
the prevailing cause of his pain. But Dr. Bernardi concluded
the underlying condition causing the pain was not clearly
identifiable from the objective evidence available. Dr.
Bernardi did not have a medical explanation for
Claimant's back pain. Dr. Bernardi concluded the work
accident caused Claimant to suffer permanent partial
disability of two percent of the body as a whole related to a
chronic sprain or strain or non-specific back pain. Dr.
Bernardi stated he did not believe Claimant required any
prescription medication to cure and relieve him from the
effects of the back injury caused by the 2009 work accident.
According to Dr. Bernardi, Claimant required no restrictions.
Bernardi's summary of Dr. Coyle's May 20, 2009, notes
did not include Dr. Coyle's positive findings of
dysesthesias into the anterior thighs and calves plus diffuse
tingling in both feet or of "herniations" at L4-5
and L5-S1. Dr. Bernardi reviewed the September 2010 EMG
results and concluded "polyphasic motor unit potentials
were present in both gastrocnemii suggestive of
chronic S1 radiculopathy." (emphasis added).
Dr. Bernardi reviewed the July 2009 lumbar myelogram and
post-myelogram CT scan and concluded there was presence of
degenerative disc disease at both L3-4 and L4-5 manifested by
central disc bulging and posterior spur formation. Dr.
Bernardi reviewed the October 2010 MRI and reached the same
cross-examination, Dr. Bernardi disagreed with Dr.
Coyle's conclusion that Claimant showed symptoms of
radicular pain. Although Dr. Bernardi acknowledged Dr.
Hevel's note of radiating pain just two days after the
2009 work accident, he disagreed about whether that
demonstrated actual "radicular" pain. He stated
radicular pain occurs for several reasons besides a
"pinched nerve in the back" but gave no opinion as
to what caused Claimant's leg pain. Dr. Bernardi admitted
that "disk herniations are by definition acute."
Dr. Bernardi also agreed that, in the younger population,
disk herniations and acute disk prolapses are the most common
cause of radiculopathy.
also presented the deposition testimony of James England, a
vocational rehabilitation counselor. On January 19, 2016, Mr.
England reviewed Claimant's medical records and Mr.
Weimholt's rehabilitation report and testing. Mr. England
summarized the heavy lifts recorded at Claimant's
functional capacity evaluation conducted on June 29, 2010.
Mr. England noted the restrictions imposed by Dr. Coyle,
which included medium work activity with frequent positional
changes every hour, and Dr. Cantrell's recommended
permanent lifting restriction of fifty pounds. He also noted
Dr. Bernardi did not recommend any restrictions and agreed
Dr. Bernardi's opinions were "inconsistent"
with the other doctors' findings. Mr. England concluded
Claimant had transferable skills for service writing for
general mechanics and equipment operation. He found, assuming
the restrictions of Drs. Coyle and Cantrell, there were many
jobs at the medium demand level in the open market that
Claimant could perform, such as cashier, security positions,
cab driver, courier, and others. Mr. England noted through
review of achievement test results that Claimant had the
apparent ability to complete the preparation and requirements
for a GED diploma, but he had made no efforts to pursue it.
Mr. England concluded Claimant was capable of returning to
work in the open labor market and was not totally and
concluded: (1) On March 9, 2009, Claimant sustained a
work-related accident arising out of and in the course of his
employment; (2) Claimant's low back injury was medically
causally related to the 2009 work accident; (3) Claimant was
permanently and totally disabled; and (4) Employer was
responsible for future medical treatment to cure and relieve
the effects of Claimant's work injury. In his findings
and conclusions, the ALJ specifically found Claimant's
testimony he never had low back pain or treatment before the
2009 work accident credible. The ALJ determined Dr.
Coyle's initial diagnosis of lumbar disc herniations with
a history of a work-related accident also proved consistent
with Claimant's treatment record and patient history.
Largely because it paralleled Dr. Coyle's diagnosis and
treatment plan, the ALJ also specifically found Dr.
Musich's testimony "more convincing" than Dr.
Bernardi's. In so finding, the ALJ reasoned that Dr.
Musich's opinions were traceable to the objective
findings in the treatment records and tests and were
consistent with Claimant's credible testimony.
supported his conclusion that the 2009 work accident caused
Claimant to be permanently and totally disabled, despite any
of his preexisting asymptomatic degenerative conditions, by
citing Weinbauer v. Grey Eagle Distributors, 661
S.W.2d 652, 654 (Mo. App. E.D. 1983), which held "[a]n
inherent weakness or bodily defect, such as
spondylolisthesis, occurring in conjunction with an abnormal
strain . . . will support a claim for compensation."
Finally, because "Dr. Musich, and to a lesser extent Dr.
Cantrell's plan to follow up with Claimant every six
months to monitor his medication, each credibly endorse[d]
Claimant's need for ongoing medication," the ALJ
determined Claimant was entitled to future medical benefits.
Employer applied for review with the Commission, ...