Bob Burnett v. Murphy Company

I join my fellow commissioners in awarding compensation in this claim. However, I dissent from the portion of the award denying compensation for employee's disc injury. I would modify the award to award compensation for the disc injury.

The administrative law judge concluded that employee did not establish a medical causal relationship between his March 15, 2002, accident and his disc injury. I disagree.

The claimant has the burden of proving all the essential elements of the claim and must establish a causal connection between the accident and the injury. Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195, 198 (Mo.App. E.D.1990). The claimant does not, however, have to establish the elements of his case on the basis of absolute certainty. Id. It is sufficient if he shows them by reasonable probability. Id. "Probability means founded on reason and experience which inclines the mind to believe but leaves room for doubt." Id. at 198-99; Ellis v. Western Elec. Co., 664 S.W.2d 639 (Mo.App.1984).

Cook v. Sunnen Products Corp., 937 S.W.2d 221, 223 (Mo. App. 1996).

"[A]ll doubts should be resolved in favor of the employee and in favor of coverage, but a claim will not be validated where some essential element is lacking." Id. at 223 .

Employee credibly testified that before the March 2002 accident he did not experience radicular symptoms on his left side. The medical records in evidence confirm that all previous reported radicular complaints related to employee's right side. Employee testified that he began experiencing left radicular symptoms as early as July 2002. Employee's testimony of left-sided symptoms is bolstered by the August 14, 2002, entry in the medical records of Dr. Murphy, chiropractor; "less lower back pain, left side looser." Employee credibly testified that his radicular symptoms progressively worsened over time until they became so unrelenting that he reported to his physician who ordered an MRI to identify the source of the symptoms.

Dr. Lichtenfeld explained how the twisting injury resulted in a disc herniation. He further explained how over time normal activities can result in inflammation of the bulging disc material, resulting in increased pressure on the nerve root and a progressive worsening of employee's radicular symptoms.

Both Dr. Taylor and Dr. Lichtenfeld are of the opinion that employee's March 15, 2002, work accident was the substantial factor in causing his work injury. Dr. Taylor, treating neurosurgeon, believes, "his pathology is clearly related to his on the job injury. I feel that his injury either completely caused the present pathology or significantly contributed to and/or aggravated his present spinal condition."

Dr. Lichtenfeld diagnosed the following:

1. Chronic lumbrosacral spine strain.
2. Herniated nucleus pulposus on the left at L4-5 and L5-S1.
3. Incitation, exacerbation and acceleration of pre-existing degenerative changes in the lumbar spine.
4. Status post left L4-5 and left L5-S1 microdiscectomy, foraminotomy, and laminotomy.
5. Recurrent disc herniation on the left at L5-S1.
6. Bulging disc at L4-5.
7. Residual left L5 and S1 radiculopathy.

He believes, "[t]he substantial cause of these diagnoses was the accident at the patient's workplace on or about March 15, 2002." Dr. Lichtenfeld assesses employee's overall lumbar disability at 45 % permanent partial disability of the person as a whole, not adjusting for employee's preexisting lumbar disability.

Employee sustained no accidents between the time he sustained the March 15, 2002, work injury and the time he began experiencing left-sided radicular symptoms. Dr. Lichtenfeld's explanation of the gradual occurrence of the symptoms is consistent with employee's testimony of the development of his symptoms, the medical records in evidence, and the opinion of the treating surgeon, Dr. Taylor.

Dr. Cantrell would expect a report of radicular symptoms closer in time to the accident before he would find a causal connection. Dr. Lichtenfeld's explanation of the progressive onset of the symptoms persuades me that an immediate, acute onset of symptoms is not necessary to make the causal link.

I find Dr. Lichtenfeld's opinion regarding causation to be more credible than 2002, work accident caused his disc herniation and radicular pain. Employee's lumbar surgery was necessary to cure and relieve him of the effects of the work injury.

I would award to employee the following compensation: additional temporary total disability for the period of time he was off work due to his surgery and recovery; permanent partial disability of 30 % of the body as a whole referable to the lumbar spine; all past medical expenses he claims; and future medical treatment as needed to cure and relieve him of the effects of his work injury.

For the foregoing reasons, I respectfully dissent from decision of the majority of the Commission affirming the administrative law judge's denial of compensation for employee's disc injury.

John J. Hickey, Member

Employee: Bob D. Burnett

Injury No. 02-026220

Employer: Murphy Company

Add. Party: State Treasurer, as Custodian of the Second Injury Fund

Insurer: St. Paul Fire \& Marine Insurance Co.

Hearing Date:3/22/05; finally submitted 4/12/05

Checked by: KD:df

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: $3 / 15 / 02$
5. State location where accident occurred or occupational disease was contracted: St. Charles County, MO
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? Yes

Employee: Bob D. Burnett

Injury No: 02-026220

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: Murphy Company

Add. Party: State Treasurer, as Custodian of the

Second Injury Fund

Insurer: St. Paul Fire \& Marine Insurance Co. Checked by: KD:df

The claimant, Mr. Bob D. Burnett, and the employer and its insurer, Murphy Company and St. Paul Fire \& Marine, appeared at hearing by and through their counsel and entered into certain stipulations and agreements as to the issues and evidence to be presented in this claim for compensation. The claimant requested in advance of hearing that the issue as to the liability of the Second Injury Fund remain open. The parties have agreed that the issues to be resolved at hearing are as follows:

Medical causation;

Liability for certain past medical expense;

Future medical care;

Temporary total disability;

Permanent disability; and

Mileage reimbursement

Mr. Burnett appeared at hearing and testified on his own behalf. Claimant further submitted the deposition testimony of Dr. Mark A. Lichtenfeld. The employer and insurer submitted the deposition testimony of Dr. Russell Cantrell.

The following exhibits are in evidence:

A. Deposition of Mark A. Lichtenfeld, M.D.

B. Certified medical records of Hannibal Clinic

C. Certified medical records of Hannibal Clinic

D. Certified records of Murphy Chiropractic Health Center

E. Certified records of Murphy Chiropractic Health Center

F. Record of Firsthand Chiropractic (1 page, front and back)

G. Certified medical records of SSM Corporate Health

H. Certified medical records of Washington University Medical School

I. Certified medical records of Washington Univ. Medical School

J. Certified medical records of Barnes West County Hospital

K. Certified records of Advance Physical Therapy

L. Medical bill summary and compilation

M. Letter of Dean L. Christianson dated 12/04/02

N. Certified medical records of Hannibal Clinic

1. Compilation of prior reported work injuries
2. Report of Dr. Russell Cantrell dated 8/11/04
3. Deposition of Dr. Russell Cantrell taken on 12/22/04
4. Certified medical records and billing statements of Murphy Chiropractic Health Center

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