I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.
Employee testified that during the first week of June 2002, near the end of a work shift, he was placing baskets
and steel forms. After placing a basket, employee was unable to straighten up and experienced soreness in his back and numbness in his leg. Employee thought he had pulled a muscle and figured he would feel better by the next day. He did not. Employee informed his supervisor who failed to offer any medical attention. Instead, his supervisor encouraged employee to keep working. Employee worked with the back pain (and, subsequently, the pain from a shoulder injury suffered in October 2002) because his work stopped in the winter months and he wanted to earn as much money as he could before work ended for the winter.
The administrative law judge places undue emphasis on the entry in Dr. Wilt's records indicating that employee reported back pain of three months duration. Employee saw Dr. Wilt for his back and shoulder conditions in January 2003, after his winter layoff. Employee explained that he gave a three month history of shoulder pain but that he told the doctor he had been experiencing back pain since June 2002. I conclude the employee's physician confused the shoulder and back histories reported by employee. I find employee's testimony credible regarding when he began experiencing back and leg symptoms and what he was doing when the symptoms began. I also find credible employee's testimony that he informed his supervisor of the injury.
"[A]n injury is compensable when it is an unexpected result of the performance of the usual and customary duties of an employee which leads to physical breakdown or a change in pathology. Wolfgeher, 646 S.W.2d at 784; See also § 287.020.3." Smith v. Climate Engineering, 939 S.W.2d 429, 436 (Mo. App. 1996), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003) (citing Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. banc 1983)).
The medical evidence establishes that employee suffered from a preexisting degenerative condition in his lumbrosacral spine. However, before June 2002, employee suffered only the usual aches and pains associated with heavy manual labor but employee did not experience disabling symptoms. Since the June 2002 work incident, employee has experienced pain and numbness in his lower back and left leg. He has difficulty bending, lifting, and walking distances. Employee is unable to sleep for more than a couple hours at a time. Employee must alternate between sitting and standing. Employee has been unable to work since employer laid him off in December 2002.
It has long been the rule in Missouri that an inherent weakness or bodily defect, such as degenerative spine disease, occurring in conjunction with an abnormal strain will support a claim for compensation. See Johnson v. General Motors Assembly Division G.M.C., 605 S.W.2d 511, 513 (Mo. App. 1980). (citations omitted) (overturned on other grounds). To prove a compensable injury, employee must prove he experienced a change in pathology as a result of the work incident. "The worsening of a preexisting condition, i.e., an increase in the severity of the condition, or an intensification or aggravation thereof, is a 'change in pathology.'" Winsor v. Lee Johnson Construction Co., 950 S.W.2d 504, 509 (Mo. App. 1997), citing Rector v. City of Springfield, 820 S.W.2d 639, 643 (Mo. App. 1991).
Dr. Smith testified that the lifting and bending associated with employee's job duties were substantial contributing factors in causing his lumbrosacral spine problems. Although Dr. Chilton explained that employee's work duties did not cause the anatomical changes to employee's back, he testified within a reasonable degree of medical certainty that the heavy labor physical activity associated with employee's employment (highway paving work) aggravated employee's preexisting back condition. The medical evidence convinces me that employee's performance of his usual and customary work duties aggravated his preexisting back condition.
I find employee's work activities aggravated his pre-existing, asymptomatic, non-disabling back condition resulting in a symptomatic disabling back condition. I conclude employee sustained an injury by accident arising out of and in the course of employment in June 2002.
I would reverse the award of the administrative law judge denying compensation. I would award compensation including past medical expenses, further medical treatment, and temporary total disability benefits. For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.
| Employee: | Gary C. Shroder | Injury No. 02-148095 |
| Dependants: | N/A |
| Employer: | Clarkson Construction Company |
| Additional Party: | N/A |
| Insurer: | ACIG Insurance Company |
| Hearing Date: | April 5, 2005 |
| Briefs Filed: | April 26, 2005 | Checked by: RCM/rm |