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Harris v. Ralls County

Court of Appeals of Missouri, Eastern District, Second Division

October 1, 2019

DANNY HARRIS, Appellant,

          Labor and Industrial Relations Commission

          Philip M. Hess, Presiding Judge.


         Danny 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.

         On 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.

         Factual and Procedural Background[1]

         Claimant 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.

         The 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.[2] 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").

         Claimant 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.[3] (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.

         Dr. 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."[4] 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 pre-injury state.

         Dr. 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 his pain.

         On June 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.

         Claimant 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).

         Upon 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.[5]

         On 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.

         On 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 medications.

         Dr. 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."

         In a 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.[6] 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.

         Employer 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.

         Claimant continued working until March 25, 2011.[7] 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.

         From 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.

         In 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.

         On July 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.[8] After several months of absence from work, Claimant received a letter from Employer stating he was terminated in December 2011.

         Claimant 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.

         At the 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.[9] Claimant testified he goes to the emergency room because of pain around twenty times per year.[10]

         Claimant 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.

         Dr. 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.

         Dr. 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.[11] 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 medication.

         Claimant 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.

         Mr. 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.

         Employer 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."

         Employer 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.[12] 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 Claimant's complaints.

         Dr. 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.

         Dr. 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 conclusion.

         On 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.

         Employer 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 permanently disabled.

         The ALJ 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.

         The ALJ 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, ...

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