William Bauman v. United Parcel Service

Steel Erection,, 121 S.W.3d 220, 226 (Mo. 2003), including "a causal connection between the injury and the job[.]" Williams v. DePaul Health Ctr., 996 S.W.2d 619, 631 (Mo. App. E.D. 1999), overruled on other grounds by Hampton, 121 S.W.3d at 226.

"An injury is compensable if it is clearly work related." Section 287.020.2, RSMo. 2000. "An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability." Id. An injury is not compensable merely because work was a triggering or precipitating factor. Id.

"Awards for injuries 'triggered' or 'precipitated' by work are nonetheless proper if the employee shows that the work is a 'substantial factor' in the cause of the injury." Kasl v. Bristol Care, Inc., 984 S.W.2d 852, 853 (Mo. banc 1999). Thus, in determining whether a given injury is compensable, a "work-related accident can be both a triggering event and a substantial factor." Bloss v. Plastic Enters., 32 S.W.3d 666, 671 (Mo. App. W.D. 2000), overruled on other grounds by Hampton, 121 S.W.3d at 225. "A preexisting but non-disabling condition does not bar recovery of compensation if a job-related injury causes the pre-existing condition to "escalate to the level of disability." Higgins v. Quaker Oats Co., 183 S.W.3d 264, 271 (Mo. App. W.D. 2005). Ordinary, gradual deterioration or progressive degeneration of the body caused by aging is not compensable, however, except where it follows as an incident of employment. Section 287.020.3(1) RSMo. 2000.

"Determinations with regard to causation and work-relatedness are questions of fact to be ruled upon by the Commission . . ." Bloss, 32 S.W.2d at 671. Furthermore, in making such determinations, the Commission is the judge of the credibility of witnesses and has discretion to determine the weight to be given opinions. Id. Medical causation not within common knowledge or experience must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. Selby v. Trans World Airlines, Inc., 831 S.W.2d 221 (Mo. App. 1992).

The ultimate determination of credibility of witnesses rests with the Commission; however, the Commission should take into consideration the credibility determinations made by the administrative law judge. When reviewing an award entered by an administrative law judge the Commission is not bound to yield to his or her findings including those relating to credibility, and is authorized to reach its own conclusions. An administrative law judge is no more qualified than the Commission to weigh expert credibility from a transcript or deposition. Kent v. Goodyear Tire \& Rubber Co., 147 S.W.3d 865 (Mo. App. 2004).

The instant case involves a complex medical condition clearly outside the realm of lay understanding. After reviewing the entire record, which necessarily includes, the testimony of the employee, review of the treating medical records, as well as review of the expert report of Dr. Volarich and expert testimony rendered by both Dr. Wagner and Dr. Lux, the Commission is not persuaded by the evidence presented that the accident occurring August 13, 2002, was a substantial factor in causing employee's left hip injury and need for hip replacement surgery.

The Commission notes that employer admits that a work-related accident occurred on August 13, 2002. The parties placed the following issues in dispute: medical causation as to employee's left hip injury; past medical expenses of employee's left hip replacement; temporary total disability benefits relating to employee's left hip; permanent partial disability benefits relating to employee's left hip; and future medical benefits relating to employee's left hip injury.

The Commission also notes that due to the fact that we find employee's left hip injury and need for left hip replacement not to be medically causally related to the work-related accident of August 13, 2002, the remaining issues are moot.

The only expert testimony that could conceivably establish medical causation between the work-related accident and the resultant medical condition was the testimony of Dr. Lux. The Commission is not persuaded by the explanation of Dr. Lux as to how the accident sustained by employee was a substantial factor in causing employee's resultant left hip condition. We do not believe this finding to be supported by the evidence. The more credible, believable and persuasive evidence shows that employee had degenerative arthritis in his left hip long

before his work-related accident and that the accident was not a substantial cause of employee's need for his left hip replacement.

The more credible and persuasive testimony of Dr. Wagner is that the work-related accident was merely a triggering event, and was not a substantial cause of employee's need to have his left hip replaced. Dr. Wagner believes that the accident may have caused employee's degenerative arthritis to become symptomatic, but that the accident did not aggravate the disease. Accordingly, the Commission concludes that the work-related accident occurring on August 13, 2002, was not a substantial factor in causing employee's left hip injury and need for left hip replacement surgery.

Dr. Wagner examined employee on May 10, 2004. He also took x-rays of employee's hips and reviewed medical records from Dr. Byler, Dr. Cantrell, Dr. Lux, surgery notes from employee's hernia operation and the medical report of Dr. Volarich. Dr. Wagner believed that employee had advanced degenerative disease in his left hip at the time of the injury on August 13, 2002, and that the degenerative disease had been present at that time for at least five to ten years.

Dr. Wagner believes that the work accident was merely a triggering event which caused symptoms to manifest, and that the accident was not a substantial cause of the degenerative disease and that it did not aggravate employee's disease. This is because he does not believe that the falling 70 pound box caused enough force to injure employee's left hip. He testified that each step a person takes places force on that person's hip equal to three times that person's body weight. Employee weighed approximately 180 pounds, which would equate to approximately 540 pounds of force for each step. Clearly, this is far greater a force than that of the falling box. He explained that the external rotation of employee's left leg when the box hit it could cause his arthritis to become symptomatic, but that it did not cause his arthritis. He also testified that the hernia in employee's left side had no relation to employee's hip condition.

Dr. Byler's records also show that employee had hypertrophic degenerative osteoarthritic changes in his left hip shortly after the accident. She referred employee to Dr. Cantrell for his left hip complaints and he determined that employee's hips showed evidence of bilateral degenerative osteoarthritis, the left greater than the right. Dr. Cantrell informed employee that employee's difficulty with internal rotation and flexion of his left hip were in part likely related to those underlying degenerative changes present in his left hip that they were not causally related to his work accident. Further, it was his opinion that, within a reasonable degree of medical certainty, employee's work accident did not cause or aggravate his underlying degenerative joint disease in the left hip.

Both of employer's experts also agreed that employee had degenerative arthritis in his left hip. Dr. Volarich examined claimant for the sole purpose of preparing an independent medical report. He determined that employee had degenerative arthritis in his left hip and referred employee to Dr. Lux for further evaluation and potential hip replacement surgery. Dr. Lux's records show that he diagnosed employee as having severe osteoarthritis in his left hip, bone-on-bone contact and loss of joint space. He agreed that employee's osteoarthritis was not caused by the work accident and that the hypertrophic degenerative spurring in employee's right and left hip were necessarily present prior to his work accident.

The Commission determines and concludes that based on the more credible, convincing and persuasive evidence, the work-related accident on August 13, 2002, was not a substantial factor in the cause of employee's left hip injury and need for left hip replacement surgery.

That portion of the administrative law judge's September 19, 2006, award of benefits to employee for his left hip injury and left hip replacement surgery is reversed; the employee is not entitled to any amoun