Tracy Mayes v. Suntrup Ford, Inc.

The administrative law judge found that employee failed to present expert opinions as to two important fact patterns including de minimis treatment during the first six months following his reported injury and a treatment gap ranging from September 15, 1997 to September 10, 1999. However, contrary to the administrative law judge's findings, the record clearly shows that employee consistently sought treatment and was evaluated by multiple doctors after his work-related injury on March 28, 1997.

The administrative law judge found that Dr. Gornet's admissions on the diagnosis of degenerative disc disease and his inability to make attribution rendered his opinions on what caused employee's disability unpersuasive and undercut employee's burden to prove causation and attribution. However, I found Dr. Gornet's expert medical opinion to be most persuasive and worthy of belief.

Employee's surgeon, Dr. Gornet, opined that employee's herniated discs at L4-5 and LS-1 were causally related to his work-related accident. Dr. Gornet based his opinion on the analysis of an MRI taken of employee's back as well as his examinations of employee and a thorough medical history. Dr. Gornet stated that employee exhausted conservative measures and that surgery was the only option for improving his quality of life. Dr. Gornet stated that employee did suffer from degenerative disc disease; however, since it was not significantly symptomatic prior to his injury, it would be difficult to quantitate. He further stated that the surgery was performed as a result of employee's back trauma, specifically the herniated discs at L4-5 and LS-1, not degenerative disc disease. Dr. Gornet's testimony constitutes competent and substantial evidence of the medical causal relationship between employee's work accident and back condition. Silman v. William Montgomery \& Associates, 891 S.W.2d 173, 176 (Mo. App. E.D. 1995).

Employee was not only able to establish causation between his accident and physical injury, but was able to establish a causal link between his physical injury and subsequent psychological impairment. Employee testified that his mental state suffered as a result of his work-related injury which required ongoing psychological treatment. Employee's treating psychologist, Dr. Peaco, was able to establish causation between employee's psychological manifestations and employee's work-related injury as he testified that employee's problems with concentration, anxiety, and depression did not exist prior to employee's work-related injury, but were prevalent thereafter. Having established causation, the discussion may now turn to employee's entitlement to temporary total disability, permanent total disability, and unpaid and future medical benefits.

The administrative law judge found that employee was not entitled to temporary total disability benefits beyond December 1997, when employer ceased paying employee benefits, as employee was found to be at maximum medical improvement in September 1997. Dr. Gornet opined that employee was temporarily and totally disabled prior to his surgeries on December 14 and 19, 1999. Dr. Gornet opined that employee was not at maximum medical improvement until July 27, 2000. In addition, employee is capable of forming an opinion as to whether he is able to work, and his testimony alone is sufficient evidence on which to base an award of temporary total disability. Patterson v. Engineering Evaluation Inspections, Inc., 913 S.W.2d 344, 347-48 (Mo. App. E.D. 1995). An award is further substantiated if employee's testimony is corroborated by medical evidence. Id.

Employee testified that he suffered from chronic pain following his work-related injury which prevented him from sustaining work. In this case, most significantly, employee's testimony was corroborated by the expert medical opinion offered by employee's treating surgeon. Therefore, employee is entitled to temporary total disability benefits from the time employer ceased paying benefits, until July 27, 2000, the date his treating physician placed him at maximum medical improvement.

Although the administrative law judge found that employee was not permanently and totally disabled, competent and substantial evidence establishes that employee is entitled to permanent total disability benefits. Under the Missouri Workers' Compensation Law employee is considered totally disabled if he is unable to return to any employment, not merely the employment in which he was engaged at the time of the accident. § 287.020.7, RSMo. The test for permanent-total disability is whether employee is able to competently compete in the open labor market given his condition and situation. Reiner v. Treasurer of State of Missouri, 837 S.W.2d 363, 367 (Mo. App. E.D. 1992). Therefore, the ultimate question is whether an employer can reasonably be expected to hire employee, given his present physical condition, and reasonably expect employee to successfully perform the work. Id.; Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 853 (Mo. App. S.D. 1995).

Multiple experts testified to the fact that employee was unemployable. Dr. Gornet stated that due to employee's pain limitations, it was doubtful that he would ever return to any employment. In addition, employee's treating psychologist, Dr. Peaco, opined that employee was not able to work due to the chronic pain that resulted from his work-related injury. He further testified that problems with concentration, anxiety and depression in addition to chronic pain prevented employee from working. Finally, Dr. Bernstein, a vocational expert and licensed psychologist concluded after considering employee's age, education, work history, and residual functional capacity that employee was unemployable in the open competitive labor market. Given employee's chronic pain and depression, he would not be able to successfully maintain employment and an employer would not be reasonably expected to hire him. The record clearly shows that employee meets the standard for permanent total disability.

The administrative law judge found that employee was not entitled to unpaid or future medical benefits. However, future medical benefits may be awarded if employee shows by "reasonable probability" that he is in need of additional medical treatment by reason of his work-related accident. Landers v. Chrysler Corp., 963 S.W.2d 275, 283 (Mo. App. E.D. 1997). The finding that employee has reached maximum medical improvement is not inconsistent with a need for future medical treatment. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240 (Mo. banc 2003).

Therefore, employer is not excused from continuing to provide medical treatment to employee to relieve his pain after employee reached maximum medical improvement. Consequently, employee is entitled to reimbursement for expenses associated with employee's ongoing treatment including back surgery, pain management and depression.

Dr. Gornet may have opined that employee was at maximum medical improvement; however, he stressed that employee's condition would require ongoing treatment. Employee's surgeon and psychologist are the most persuasive as to the issues of causation and the need for ongoing treatment for depression and pain management. Employee's physicians testified that employee would need both continuing psychological and pain management treatment. Testimony provided by employee's treating physicians constitutes competent and substantial evidence demonstrating the need for future medical care which justifies the award of future medical benefits.

Therefore, employee has met his burden by establishing that he suffered a work-related injury on March 28, 1997, that his back condition is medically causally related to the work-related injury, and that he is permanently totally disabled as a result. Employee has also established entitlement for temporary total disability benefits through

July 27, 2000, associated unpaid medical costs, as well as, the need for ongoing treatment justifying an award of future medical benefits. Accordingly, I would reverse the decision of the administrative law judge and award compensation.

Finally, I must express my concern about the state of the record presented to the Commission on review. The exhibits came to the Commission with numerous permanent highlighting marks throughout, including handwritten remarks. I reiterate my previously expressed opinion that the addition of any permanent markings or annotations to documents, records, or depositions after their entry in the official record is highly inappropriate. If this case is appealed to the Missouri Court of Appeals or the Missouri Supreme Court, I want the appellate judges to know that the markings were not made by any member of this Commission.

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

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: March 28, 1997
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
6. Was above Claimant in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper no