Merlyn Mabins-Griffin v. Federal Express Corporation

Compensation Law, I believe the decision of the administrative law judge should be modified. I agree with the majority's conclusion that employee's neck and lumbar conditions are compensable. I disagree with the nature and extent of permanent disability awarded, as well as, the denial of certain medical expenses, future medical care, and temporary total disability benefits for periods of recovery.

The administrative law judge erred in failing to find that employee's cervical and lumbar surgeries were necessitated by the October 1, 1998, work-related motor vehicle accident. The administrative law judge ignores the report of Dr. Eyerman dated September 15, 1999. As regards the cervical spine, Dr. Eyerman reviewed an MRI performed October 27, 1998 (27 days after the motor vehicle accident). Dr. Eyerman reports: "When I reviewed these films with the patient and their [sic] clearly at C6/7, the disc herniation does indent into the spinal cord, slightly...The patient also had on this film a bright spot in the annulus which represents an annular tear..." Dr. Eyerman believed E.M.G. testing revealed a C7 radiculopathy in the arm. Based upon his review of the results of a discogram and CT, Dr. Gornet also believed employee had an annular tear, as well as, disc herniations at C5/6 and C6/7. The accuracy of the radiological impressions of Dr. Eyerman and Gornet were confirmed by Dr. Gornet when he viewed the annular tear and herniations while performing a cervical fusion on September 7, 2004.

As regards the lumbar spine, Dr. Eyerman reviewed an MRI performed February 22, 1999 ( $41 / 2$ months after the motor vehicle accident). Dr. Eyerman reports: "The patient brought these films with her and these showed a definite disc herniation at L5/S1 with almost complete loss of water signal in that disc when all the other ones are bright on the T2 examination. This was a small disc herniation but it certainly also had an annular tear..." Dr. Eyerman believed E.M.G. testing revealed a L5-S1 radiculopathy in the left leg. Dr. Gornet also believed employee had an annular tear based upon his review of the results of a discogram and CT. The accuracy of the radiological impressions of Drs. Eyerman and Gornet were confirmed by Dr. Gornet when he viewed the annular tear while performing lumbar fusion on December 19, 2001.

Drs. Musich and Gornet are of the opinion that the October 1, 1998, motor vehicle accident was a substantial factor in causing employee's neck and lumbar disc conditions. They also believe the accident was a substantial factor in causing employee's need for the surgeries performed by Dr. Gornet. I find the testimony of these physicians persuasive.

The administrative law judge relied upon the opinion of Dr. Kennedy that the accident caused only lumbar and surgical sprains and was not a substantial factor in causing employee's disc conditions and need for the surgeries performed by Dr. Gornet. The administrative law judge erred in relying on Dr. Kennedy's medical causation opinion.

The linchpin of Dr. Kennedy's causation opinion is his erroneous belief that no diagnostic imaging show disc herniations until a discogram and CT scan were performed in October 2001 and November 2001, respectively. Dr. Kennedy's testimony undercuts the persuasiveness of his causation opinion because it reveals that his linchpin belief is unfounded.

Dr. Kennedy testified that he is qualified to interpret MRI films. Dr. Kennedy admitted that different individuals may interpret what an MRI shows differently. Dr. Kennedy admitted he had the report of Dr. Eyerman expressing Dr. Eyerman's opinion that the October 1998 cervical MRI and the February 1999 lumbar MRI showed disc herniations. Notwithstanding the above information, Dr. Kennedy did not review the October 1998 cervical MRI or the February 1999 lumbar MRI. Instead, he relied on the impressions of others as recorded in the MRI reports.

Dr. Kennedy's causation opinions are explicitly founded upon the absence of films showing disc herniations in the days, weeks, and months immediately after the motor vehicle accident. Dr. Kennedy's opinion is simply not persuasive because he failed to personally review the most important objective evidence underpinning his opinions, the MRIs performed shortly after the motor vehicle accident.

Employee has sustained her burden of proving her lumbar and cervical disc conditions were caused by the October 1998 motor vehicle accident.

AWARD

Employee: Merlyn Mabins-Griffin Injury No.: 98-119070

Dependents: N/A Before the Division of Workers’ Compensation

Employer: Federal Express Corporation Department of Labor and Industrial

Additional Party: Second Injury Fund (open) Relations of Missouri

Insurer: Self-insured Jefferson City, Missouri

Hearing Date: April 28, 2006 Checked by: LJW:tr

FINDINGS OF FACT AND RULINGS OF LAW

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: October 1, 1998
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: Employee was performing work duties, when her delivery van was struck from behind by an automobile.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Cervical and lumbar spine.
14. Nature and extent of any permanent disability: 12.5% BAW referable to the cervical spine, and 12.5% BAW referable to the lumbar spine.

1. Compensation paid to-date for temporary disability: $\ 5,656.55
2. Value necessary medical aid paid to date by employer/insurer? $\ 12,339.81

Employee: Merlyn Mabins-Griffin Injury No.: 98-119070

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 386.40
3. Weekly compensation rate: $\$ 257.60 / \ 267.40
4. Method wages computation: Stipulated

1. Amount of compensation payable:

100 weeks of permanent partial disability from Employer $\ 26,740.00

Credit for permanent partial disability advance

$(\ 10,696.00)

1. Second Injury Fund liability: Open

TOTAL:

$\ 16,044.00

1. Future requirements awarded: None

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 25 % of all payments in favor of the following attorney for necessary legal services rendered to the claimant: Randall S. Parker

Employee: Merlyn Mabins-Griffin

Injury No.: 98-119070

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Before the

Division of Workers'

A hearing was held regarding the above referenced Workers’ Compensation claim by the undersigned Administrative Law Judge on April 28, 2006. Attorney Randall S. Parker represented Merlyn Mabins-Griffin (Claimant). Federal Express Corporation (Employer) is self-insured, and was represented by Robert Amsler. Briefs were filed and the case was formally submitted on May 30, 2006.

Prior to the start of the hearing the parties identified the following issues for disposition in this case: medical causation; liability for past medical expenses; past temporary total disability (TTD); future medical care; and liability of Employer for permanent partial (PPD) or permanent total disability (PTD). Second Injury Fund (SIF) is to remain open for consideration of secondary wage loss. Claimant stipulated to Employer’s credit of $\ 10,696.00, for prior advancement of PPD.

Claimant offered Exhibits A-AA, and CC1-HH4. Employer offered Exhibits 1-6. Administrative Judicial Notice was taken of Exhibit KK. Objections to Exhibits S \& HH1-HH4 were sustained. The exhibits were admitted into the record. Any objections not expressly ruled on in this award are overruled.

Numerous exhibits were admitted. All evidence presented has been reviewed. Only testimony necessary to support this award will be summarized. Any highlighted sections contained within the exhibits were pres