James Flannery v. Breckenridge Material Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-079558

Employee: James Flannery

Employer: Breckenridge Material Company

Insurer: Missouri Employers Mutual Insurance

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: July 9, 1999

Place and County of Accident: St. Louis County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 15, 2005. The award and decision of Administrative Law Judge John Howard Percy, issued August 15, 2005, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\underline{26^{\text {th }}}$ day of July 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: July 9, 1999
5. State location where accident occurred or occupational disease was contracted: St. Louis 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
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Motor vehicle accident.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 40% permanent partial disability of body as a whole referable to low back and 10% permanent partial disability of body as a whole due to depression against employer/insurer and 9.625% permanent partial disability of body as a whole against Second Injury Fund.
15. Compensation paid to-date for temporary disability: $\ 36,072.96
16. Value necessary medical aid paid to date by employer/insurer? $\ 83,206.55

Employee: James Flannery Injury No.: 99-079558 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $\ 883.29 19. Weekly compensation rate: $\ 578.48 PTD/TTD; $\ 303.01 PPD 20. Method wages computation: Stipulation

1. Amount of compensation payable:

1. Second Injury Fund liability: Yes

38.5 weeks of permanent partial disability from Second Injury Fund \$11,665.89

Subrogation credit due Second Injury Fund <$11,665.89>

TOTAL: <$95,,920.20>

1. Future requirements awarded: See Award

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

$\mathrm{N} / \mathrm{A}$

A hearing in this proceeding was held on January 13, 14, and 21, April 2, May 5, September 17, 2004 and April 1, 2005. All parties submitted proposed awards on July 30, 2004. The record comprises 601 pages of medical records reports, 36 pages of vocational reports, 79 pages of other documents reports, and 326 pages of medical and vocational depositions. In addition, two physicians testified at the hearing. Additional time was required in issuing this award due to the voluminous record and complexities of this case.

The parties stipulated that on or about July 9, 1999:

1.the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law;

2.the employer's liability was insured by Missouri Employers Mutual Insurance Company;

3.the employee's average weekly wage was $\ 883.29;

4.the rate of compensation for temporary total disability and permanent total disability was $\ 578.46 and the rate of compensation for permanent partial disability was $\ 303.01; and

5.the employee sustained an injury by accident arising out of and in the course of employee's employment occurring in St. Louis County, Missouri.

The parties further stipulated that:

1.the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law;

2.compensation for temporary total and temporary partial disability was paid in the amount of $\ 36,072.96 for various periods [1] after July 10, 1999 through January 8, 2001;

3.the employee reached maximum medical improvement and a state of permanency with respect to the work-related injury on January 9, 2001;

4.employer/insurer have paid $\ 83,206.55 in medical expenses; and

5.the employee settled a third-party tort claim pertaining to the work-related accident for $\ 800,000.00.

The issues to be resolved in this proceeding are:

1.whether some or all of the employee's current symptoms are the result of a preexisting condition or the result of the work-related accident;

2.whether the employee should be provided with any future medical treatment;

3.whether and to what extent the employer is entitled pursuant to Section 287.170.3 Mo. Rev. Stat. (2000) to a credit with respect to temporary total disability compensation for unemployment compensation paid to the employee during any period of temporary total disability;

4.the nature and extent of any permanent disability sustained by the employee as a result of the work-related injuries of July 9, 1999;

5.whether and to what extent the employee sustained any additional permanent partial or permanent total disability for which the Second Injury Fund would be liable as a result of the combination of any preexisting disabilities with the primary injuries;

6.the extent of any subrogation credit due the employer/insurer pursuant to Section 287.150.3 Mo. Rev. Stat. (2000); and

7.whether and to what extent the Second Injury Fund is entitled to a subrogation credit under section 287.220 Mo. Rev. Stat. (2000).

There is no dispute that as a result of the July 9, 1999 accident claimant sustained a herniated disk at L5-S1 which required a microdiscectomy and subsequently a laminectomy, diskectomy and fusion. James Flannery, employee herein, claims that he also developed major depression due to unrelenting back and left leg pain. Employer/insurer contend rather that his preexisting depressive personality was aggravated as a consequence of the work-related accident of July 9, 1999.

The employee must establish a causal connection between the accident and the claimed injuries. Davies v. Carter Carburetor Div., 429 S.W.2d 738 (Mo. 1968); McGrath v. Satellite Sprinkler Systems, 877 S.W.2d 704, 708 (Mo. App. 1994); Blankenship v. Columbia Sportswear, 875 S.W.2d 937, 942 (Mo. App. 1994); Fisher v. Archdiocese of St. Louis, 793 S.W.2d 195, 198 (Mo. App. 1990); Cox v. General Motors Corp., 691 S.W.2d 294 (Mo. App. 1985); Griggs v. A.B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974); Smith v. Terminal Transfer Company, 372 S.W.2d 659, 664 (Mo. App. 1963).

Amendments made to Section 287.020 .2 in 1993 require that the injury be "clearly work related" for it to be compensable. An injury is clearly work related "if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor." The Supreme Court held in Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo. 1999) that the foregoing language overruled the holdings in Wynn v. Navajo Freight Lines, Inc., 654 S.W.2d 87 (Mo. 1983), Bone v. Daniel Hamm Drayage Company, 449 S.W.2d 169 (Mo. 1970), and many other cases which had allowed an injury to be compensable so long as it was "triggered or precipitated" by work. Injuries which are triggered or precipitated by work may nevertheless be compensable if the work

is found to be a "substantial factor" in causing the injury. Kasl, supra at 853. A substantial factor does not have to be the primary or most significant causative factor. Bloss v. Plastic Enterprises, 32 S.W.3d 666, 671 (Mo. App. 2000); Cahall v. Cahall, 963 S.W.2d 368, 372 (Mo. App. 1998). An accident may be both a triggering event and a substantial factor in causing an injury. Id. Subsection 2 also provides that an injury must be incidental and not independent of employment relationship and that "ordinary, gradual deterioration or progressive degeneration of the body caused by aging" is not compensable unless it "follows as an incident of employment." The extent to which the 1993 amendments have further modified prior caselaw will be determined by the appellate courts. See Cahall, supra at 372.

The quantum of proof is reasonable probability. Davies, supra at 749; Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. 1995); White v. Henderson Implement Co., 879 S.W.2d 575, 577 (Mo. App. 1994); Fischer at 199; Banner Iron Works v. Mordis, 664 S.W.2d 770, 773 (Mo. App. 1983);Griggs at 703. "Probable means founded on reason and experience which inclines the mind to believe but leaves room to doubt." Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo. App. 1986); Fischer at 198.

Such proof is made only by competent and substantial evidence. It may not rest on speculation. Griggs v. A. B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974). Expert testimony may be required where there are complicated medical issues. Goleman v. MCI Transporters, 844 S.W.2d 463, 466 (Mo. App. 1993); Griggs at 704; Downs v. A.C.F. Industries, Incorporated, 460 S.W.2d 293, 295-96 (Mo. App. 1970). Expert testimony is required where the cause and effect relationship between the claimed injury or condition and the alleged cause is not within the realm of common knowledge. McGrath v. Satellite Sprinkler Systems, 877 S.W.2d 704, 708 (Mo. App. 1994); Brundige v. Boehringer Ingelheim, 812 S.W.2d 200, 202 (Mo. Ap