Jack Carte v. Tri-State Motor Transit

his cervical injury; and the Commission affirms the conclusion of the associate administrative law judge that employee is not permanently totally disabled on account of this injury.

For the reasons set forth in this award and decision, the Commission reverses the associate administrative law judge's award against the Second Injury Fund. Further, the Commission modifies the associate administrative law judge's awards of temporary total disability and permanent partial disability against employer because such awards are excessive.

In this section, the Commission will briefly outline the facts in summary fashion. As necessity dictates later in this opinion, the more pertinent, detailed and relevant facts will be emphasized as related to the specific issue being determined.

The date of birth of employee is April 25, 1937; employee attended school through approximately the sixth grade and has marginal reading and writing skills; he served in the United States Army being honorably discharged in 1957; employee underwent low back surgery in approximately 1972; in 1989 employee sustained a degloving injury to his left hand resulting in an amputation of his left middle finger; and employee suffered a "heart attack" in 1991 as well as 1995.

On April 27, 1998, employee sustained an injury due to an accident arising out of and in the course of his employment; employee was injured when he fell approximately thirteen feet, landing upright on his feet; employee had immediate onset of pain in his neck and left shoulder; and employee continued working until June 25, 1998. Employee has not worked or attempted to work since June 25, 1998.

In chronological fashion, employee's principal treatment was rendered as follows: Freeman Hospital in Joplin, Missouri; Dr. Corsolini; Dr. Budnick; Dr. Lippert; and ultimately Dr. Donich.

Mr. Wilbur Swearingin performed a vocational assessment and evaluation in behalf of the employee. Employee obtained two medical evaluations, not treatment, from Dr. Myers. On behalf of the Second Injury Fund, Dr. Belz performed a thorough, detailed, and complete review of employee's medical records, history, treatment, and MRI scans, as well as a review of the deposition testimony of the other experts, before rendering his opinions. Due to the thoroughness of the review conducted by Dr. Belz as compared to the other expert witnesses, the Commission finds Dr. Belz's subsequent opinions to be the most convincing, persuasive and worthy of belief.

The Commission finds these issues so intertwined, they will be discussed simultaneously. The Commission emphasizes again, the reliability of Dr. Belz as to these issues, based on his thorough, complete, in depth evaluation and analysis of employee's injury, treatment, and resultant medical condition. On the contrary, the opinions rendered as to these issues by the other experts are not persuasive or convincing to the Commission, as we find their respective reviews, assessments and evaluations as well as their work-ups, to be insufficient, not comprehensive, lacking in detail, resulting in incomplete, superficial and cursory analyses.

Employee's initial treatment was principally rendered under the auspices of Dr. Budnick from July 21, 1998, inclusive of December 9, 1998. Prior to treating with Dr. Budnick, employee treated briefly with Dr. Corsolini who ordered a cervical MRI scan which was undertaken June 10, 1998.

While treating with Dr. Budnick, employee significantly improved and by October 1, 1998, Dr. Budnick released employee to return to work with the following restrictions applicable only to his left arm: no lift/carry greater than 20 pounds; no push/pull greater than 40 pounds; and employee can bend, twist, turn, kneel, squat, sit, stand, walk, ladder/stair climb and do rotational activities as tolerated. Employee was instructed to follow up in one month. Employee did not attempt to return to work.

Employee followed up with Dr. Budnick on December 9, 1998, indicating his neck pain had returned to its previous level and he wanted to settle his workers' compensation claim. At that point in time, treatment under the auspices of Dr. Budnick ceased and Dr. Budnick was of the opinion employee had obtained maximum medical improvement.

Employee did not return to work or attempt to return to work after being released by Dr. Budnick. Employee was seen and evaluated by Dr. Myers in March 1999.

Subsequently, employee came under the treating auspices of Dr. Donich. Dr. Donich initially saw employee on August 23, 1999, and as part of his treatment, Dr. Donich ordered a second cervical MRI scan which was conducted September 15, 1999. After reviewing the cervical MRI scan conducted September 15, 1999, Dr. Donich recommended a cervical diskectomy and fusion.

The surgery recommended by Dr. Donich was scheduled on at least two occasions but could not be performed because employee developed a subsequent non-occupational medical condition, chronic obstructive pulmonary disease and asthma, which prevented surgery. Dr. Donich continued to monitor employee's cervical condition and Dr. Donich last saw employee December 30, 2002. At that time, Dr. Donich noted employee was clinically better as to his symptomatology, that he had improved significantly, and Dr. Donich retracted employee's need for surgery as of December 30, 2002.

Dr. Donich was of the opinion that employee was totally disabled from his initial visit of August 23, 1999, up to and including December 30, 2002. Dr. Donich was of the opinion that employee's total disability was referable to his cervical spine condition.

Dr. Belz thoroughly and meticulously reviewed employee's treatment chronology. As testified by Dr. Belz, and found to be true by the Commission, Dr. Belz had more complete information than anyone else who evaluated and treated employee and Dr. Belz spent more time evaluating employee's data than any other examiner and treater. (Transcript 933).

Dr. Belz formulated three scenarios based on employee's accident, medical treatment, and complex set of facts. Scenario No. 1 was that maximum medical improvement was attained October 1, 1998/December 9, 1998 under the treatment of Dr. Budnick. Dr. Belz noted the significant improvement of employee under the care of Dr. Budnick such that by October 1, 1998, Dr. Budnik released employee to return to work. He was to follow up in approximately one month and from October 1, 1998, through December 9, 1998, there existed minimal residual signs and symptoms of left C6 and C7 radiculopathies.

Dr. Belz was of the opinion that the MRI study of the cervical spine dated June 5, 1998, demonstrated the following: (1) mid-line posterior herniation C3-C4; (2) left posterior lateral herniation C5-C6; and (3) lateral herniation C6-C7.

As to restrictions, Dr. Belz agreed with the restrictions imposed by Dr. Budnick, but also thought it would be appropriate to add the following: (1) not to perform cervical extension in excess of 30 degrees sustained for over one-half of the work cycle; (2) not to fun