William Davis v. Associated Electric Cooperative

provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

The administrative law judge concluded that employee suffered a work-related accident on October 17, 2002. The administrative law judge nonetheless concluded that employee suffered no permanent disability as a result of the accident. Both medical experts who testified in this matter concluded that employee sustained a permanent disability. Neither the administrative law judge nor the majority of the Commission criticize the uncontradicted and unimpeached opinion of the physicians that employee suffers some permanent disability. Under these circumstances, it is error for the majority to exercise its "trier-of-fact" prerogative to ignore the doctors' opinions and reach a contrary conclusion, i.e. that employee has no permanent disability. See Houston v. Roadway Express, Inc., 133 S.W.3d 173, 180 (Mo. App. 2004).

There is ample evidence in the record to establish that employee has sustained a permanent disability. Of paramount importance is employee's credible testimony that he could work with minimal disruption related to his back before the October 2002 injury but he had to miss a significant amount of work for treatment after the injury.

The medical records and physician impressions confirm that the primary accident caused a change in employee's condition, specifically at L4/5, which change was manifested by additional symptoms. Dr. Park noted that employee, "had done quite well from his previous surgery prior to [the October 17 injury]." Dr. Schumer, who saw employee shortly before and shortly after the accident, recorded a difference in symptoms, when he noted that prior to the October 17, 2002, injury, employee's "chronic back pain had been pretty well controlled with Celebrex..." The records of Restart confirm that employee did well with his symptoms after the 2001 surgery until he suffered the October 2002 injury. After the October 2002 injury, employee's symptoms became so severe he had to miss work and seek medical treatment. It was at this point in time, when employee's condition became disabling.

Not only were the pain symptoms more difficult to control after the October 17 accident, but employee experienced pain in different areas of the body. Employee testified to a pain higher in his back than he experienced before the October 2002 injury. Dr. Park records that after the pallet pulling accident, employee experienced left leg pain that was different from the left leg pain he experienced before the accident. Employee testified to new pain on the front of his left leg, on his lower leg below the knee on his left shin, and in his foot (toes and increased heel pain). The occurrence of pain in different areas of the body evidences a new injury and not just an aggravation of a preexisting condition.

I find most credible the testimony of Dr. Palen that employee sustained a 30\% permanent partial disability to the body as a whole as a result of the October 2002 accident and I would award same. I would also award to employee his past medical expenses, temporary total disability, and future medical.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission to deny compensation to this injured employee.

John J. Hickey, Member

Employee: Billy Davis

Injury No. 02-109968

Dependents: N/A

Employer: Associated Electric Cooperative

SUMMARY OF FINDINGS

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the law? Yes
4. Date of accident or onset of occupational disease? October 17, 2002
5. State location where accident occurred or occupational disease contracted: New Madrid County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by law? Yes 10.Was employer insured by above insurer? Self-insured 11.Describe work employee was doing and how accident happened or occupational disease contracted: Employee was trying to move a pallet when a board broke and caused the employee to pull his back 12.Did accident or occupational disease cause death? No 13.Parts of body injured by accident or occupational disease: Alleged injury to low back 14.Nature and extent of any permanent disability: None 15.Compensation paid to date for temporary total disability: None 16.Value necessary medical aid paid to date by employer-insurer: $697.00 17.Value necessary medical aid not furnished by employer-insurer: None (Employee alleged that employer is liable for an additional sum of 93,704.11 for medical expenses) 18.Employee's average weekly wage: 806.00 19.Weekly compensation rate: 537.36 for temporary total disability and 340.12 for permanent partial disability 20.Method wages computation: By agreement 21.Amount of compensation payable: Claim denied

1. Second Injury Fund liability: Claim denied based on denial of underlying claim against employer.
2. Future requirements awarded: None

On November 17, 2004, the employee, Billy Davis, appeared in person and by his attorneys, Mr. Steven Taylor and Ms. Kim Heckmeyer, for a hearing for a final award against the employer. By agreement, the employee's claim against the Second Injury Fund was left open. The employer, Associated Electric Cooperative, was represented at the hearing by its attorney, Ms. Beverly Figg. Ms. Alice Swilley, the safety coordinator for the employer, was also present at the hearing.

Prior to the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

1. On or about October 17, 2002, Associated Electric Cooperative was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self-insured employer.
2. On or about October 17, 2002, Billy Davis was an employee of Associated Electric Cooperative, and was working under the provisions of the Missouri Workers' Compensation Act.
3. On or about October 17, 2002, the employer had notice of the employee's accident.
4. The employee's claim for compensation was filed within the time allowed by law.
5. The employee average weekly wage was $\ 806.00, and his rate of compensation is $\ 537.36 for temporary total disability and $\ 340.12 for permanent partial disability.
6. The employer furnished medical aid in the amount of $\ 697.00.
7. No temporary total disability benefits were paid.

1. Accident.
2. Medical causation.
3. Additional medical aid.
4. Nature and extent of disability - temporary total disability and permanent partial disability.
5. Medical fee dispute.

The employee, Billy Davis, started working for Associated Electric Cooperative in 1984. At the time of his accident on October 17, 2002, the employee was attempting to move a pallet when a "slat" (board) that he was pulling on broke. The employee testified that this caused an injury to his back.

Both the employee's testimony and the medical records confirm that the employee had a long history of back pain. The employee first started experiencing back pain sometime around Christmas of 1995. Medical records from Dr. Mellies and St. Francis Medical Center indicate the employee was complaining of back pain and left leg pain in January and February of 1996. An MRI confirmed the employee had degenerative changes with a disc bulge and spondylolisthesis at the L5/S1 level. Additional records from Dr. Masters demonstrate the

employee continued to have low back complaints in July and September of 1997. All of these early records indicate that the employee's low back pain and left leg pain were degenerative and were not associated with any work activity or other trauma (Employee's Exhibit A).

By October of 2000, the employee's low back pain with radiating pain into his left foot had increased to the point where he sought additional treatment. Dr. Masters, the employee's family doctor, ordered a second MRI that showed a herniated disc at the L5/S1 level. Dr. Masters initially referred the employee to Dr. Joel Ray, who is a neurosurgeon in Cape Girardeau. Dr. Ray's records from October 11, 2000, indicate the employee had a possible pars defect with mild spondylolisthesis. The employee told Dr. Ray he had a long history of back pain that had become severe in the last few weeks. A C/T scan showed a disc bulge at L4/5, a diffuse disc bulge at L5/S1 with a "probable healed bilateral pars defect" (Employer's Exhibit 3).

After Dr. Ray suggested conservative treatment, the employee had Dr. Masters refer him to Dr. Kee Park for a second opinion. Dr. Kee Park is a neurosurgeon with Cape Neurological Surgeons. Dr. Park's records from December 28, 2000 indicate the employee reported "back pain for years," but noted it got significantly worse in October. After therapy failed to improve his symptoms, the employee and Dr. Park agreed that they should proceed with surgery. A C/T scan on February 1, 2001, showed the employee had bulging at L4/5 and L5/S1 associated with degenerative changes. Prior to surgery, Dr. Park also ordered a diskogram. Although the injection at the L5/S1 level produced severe pain at the 8 out of 10 level, it is significant to note that the injection at the L4/5 level also caused pain at the 5 out of 10 level with "extravasations of dye with discordant type pain" (Dr. Park's Febru