Leo Mitterholzer v. A Plus Express, Inc.

exist the appearance of impropriety because of my previous status with the law firm of Evans and Dixon, I had no involvement or participation in the decision in this case until a stalemate was reached between the other two members of the Commission. As a result, pursuant to the rule of necessity, I am compelled to participate in this case because there is no other mechanism in place to resolve the issues in the claim. Barker v. Secretary of State's Office, 752 S.W.2d 437 (Mo. App. 1988).

Having reviewed the evidence and considered the whole record, I join in and adopt the award and decision of the administrative law judge denying benefits.

William F. Ringer, Chairman

I join my fellow commissioners in awarding compensation in this claim. However, after a review of the entire record as a whole, I believe the decision of the administrative law judge should be modified.

I agree with the administrative law judge with regard to the award of permanent partial disability of 45 % to left elbow and 5\% permanent partial disability to his low back as a result of his motor vehicle accident in November 2003. I also agree that liability is imposed on the Second Injury Fund as employee is permanently and totally disabled as a result of all his injuries.

However, I disagree with the administrative law judge's finding that employee sustained a 25\% permanent partial disability measured at the level of the cervical spine for the re-fusion based on the pseudo arthrosis which was substantially caused by and was medically and causally related to the motor vehicle accident on November 18, 2003.

I believe the evidence supports that the motor vehicle accident on November 18, 2003 did not cause the nonunion or pseudo arthrosis at the site of the prior cervical fusion at C4-5. Employee had significant pre-existing problems related to his neck that support a conclusion that employee's prior fusion never properly fused.

Dr. Mirkin performed an anterior cervical fusion at the C4-5 level on employee in June of 2002. The medical records indicate a history of neck and shoulder pain following the cervical fusion but pre-dating the 2003 motor vehicle accident. In November of 2002, employee sought evaluation from Dr. Gornet for neck and shoulder pain. Dr. Gornet reviewed a CT myelogram which was performed on November 6, 2002. At that time, Dr. Gornet was unsure whether employee's cervical fusion was solid.

Furthermore, Dr. Raskas testified that the motor vehicle accident in November 2003 was not a substantial factor in causing employee's pseudo arthrosis. He opined that employee's pseudo arthrosis was the result of his prior fusion not solidly fusing.

At most, the motor vehicle accident could have been a triggering event, but was not a substantial cause of employee's condition. Instead, his condition was a result of the failure of his initial fusion to completely heal.

For the foregoing reasons, I respectfully dissent from the portion of the majority's decision awarding employee 25 \% permanent partial disability of the cervical spine.

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: November 18, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Driving truck when it jackknifed.
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: Left elbow, neck and back
14. Nature and extent of any permanent disability: 45 % elbow, 25 % neck, and 5 % back
15. Compensation paid to-date for temporary disability: $\ 11,712.42
16. Value necessary medical aid paid to date by employer/insurer? $\ 69,785.66

Employee: Leo Mitterholzer Injury No.: 03-115591

1. Value necessary medical aid not furnished by employer/insurer? $\ 20,157.00
2. Employee's average weekly wages: $\ 447.41
3. Weekly compensation rate: $\ 298.27
4. Method wages computation: Agreed

The challenge in this claim is to determine whether the instant accident caused any further damage to Claimant's already severely disabled body, and if so, what parts of his body sustained additional injury. There is ample evidence to support almost any conclusion or combination of conclusions.

Based on all the competent, substantial and credible evidence, and the reasonable inferences to be derived therefrom, I find the following facts:

1. Claimant is a 39-year-old truck driver with a wife and three children. Claimant graduated tenth grade in 1985 and got his GED in 1993. He has worked in the past in landscaping, painting, machine shops and in restaurants. Claimant went to truck driving school in 1994 and obtained his commercial license. He has worked in the past at Lowe's in the customer service department and the plumbing aisle and was fired from there in 1994. Claimant worked as a regional truck driver handling three states until 1998.
2. Regional trucking is more physically demanding than over-the-road trucking because regional truckers have to unload their own trucks. Over-the-road truck drivers get "lumpers" to unload their trucks.
3. On May 23, 1995, Claimant fell from a truck while working in Connecticut. He sustained a herniated nucleus pulposus and Dr. Becker performed a fusion at L4-5 on May 21, 1996 (first low back surgery). Dr. Becker performed another low back surgery on March 3, 1998. This procedure was an anterior interbody fusion at L4-5 with right iliac bone crest graft and threaded fusion cage (second low back surgery). Following the second surgery Claimant was better and returned to work but during the winter following the second surgery while bending over to pick up a newspaper he had an increase in symptoms and underwent a third low back surgery on July 13, 1999. This time Dr. Becker fused L5-S1 and placed a bone graft plug and again utilized ray threaded fusion cages (third low back surgery). From this accident on May 23, 1995 until maximum medical improvement involving the third surgery, Claimant was variously restricted from performing lifting of over ten pounds, no frequent bending or sitting for more than forty minutes, and only working four to six hours per day. Following each surgery the various times and weights with regard to these restrictions were increased or decreased.
4. Claimant also suffered from a neck sprain from the May 23, 1995 injury which Dr. Becker described as simply a muscle sprain.
5. Claimant settled this workers' compensation claim in Connecticut for $\ 125,000.00 based on a 25 % permanent partial disability of the spine and a $\ 20,