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 $\ 20,000.00 payment towards future medications.
6. Claimant was injured again on October 7, 1999 in a motor vehicle accident but this incident produced only a transient decreased range of motion and was described by Dr. Becker as a sprain.
7. From 1993 to 2003 Claimant returned to work driving a truck. He had difficulty performing his duties but he testified that he toughed it out and got into a groove where he was able to function in his duties. Dr. Becker's records indicate Claimant was disabled from December 1, 1993 to July 13, 1999 and continues to be disabled as of February 18, 2000. This conflicts with Claimant's testimony that he was working, but no elaboration was provided. He may have been working part time or transitioning into full-time employment.
8. On May 4, 2000 Claimant was hit in the head and sustained a concussion and a neck sprain.
9. On October 9, 2000 Claimant fell off a bumper onto his back and had a soft tissue back sprain. He was off work for two weeks.
10. On September 7, 2001 Claimant was driving a tractor-trailer in Des Moines, Iowa and was involved in a motor vehicle accident. His wife went to Des Moines and drove him to St. Louis and he was treated at St. Anthony's by Dr. Weiss who referred Claimant to Dr. Krettek who referred Claimant to Dr. Mirkin. Dr. Mirkin performed a discectomy and fusion at C4-5 with an allograft cage and plates.
11. Claimant settled this workers' compensation claim for 25 % permanent partial disability referable to the thoracic spine.
12. In the summer of 2002 Claimant fell and was seen in the emergency room. He followed up with Dr. Mirkin on July 8, 2002 and the fusion previously performed by Dr. Mirkin was okay and determined by Dr. Mirkin to be still consolidating at that point.
13. On November 7, 2002 Claimant was seen by Dr. Gornet for neck and shoulder pain and Dr. Gornet questioned whether the cervical fusion was solid.

to subside and healing had progressed as a result of this incident, the apportionment for continuing medical care becomes more difficult. The instant accident couldn't have tremendously upped the ante with respect to a need for ongoing pain management. As the video demonstrates, Claimant does have residual function and is certainly not inert. Much of the pain he complained of post-hearing he also complained of pre-hearing when he saw Dr. Gornet, Dr. Volarich, and Dr. Lange. Based on my review of the evidence I cannot find where any doctor is able to credibly and precisely separate out the future need for ongoing medical necessitated as a result of this injury from the injury on September 7, 2001 in Des Moines, Iowa requiring a cervical fusion and the 1995 injury in Connecticut requiring three lumbar fusions. Future medical care is denied. The medical care to date is awarded.

1. Claimant is permanently and totally disabled by reason of all of his injuries and liability therefore should be imposed upon the Second Injury Fund. Claimant reached maximum medical improvement on May 2, 2005.
2. Claimant has requested temporary total disability from January 24, 2005 until May 2, 2005 when released by Dr. MacKinnon. Claimant is entitled to temporary total disability from January 24, 2005 until May 2, 2005 (14 2/7 weeks or $\ 4,261.00 ). It is awarded.
3. Claimant was paid temporary total disability benefits in the amount of $\ 11,712.42 from November 19, 2003 to October 5, 2004 with benefits paid at the rate of $\ 291.78. The parties agreed to a rate of $\ 298.27 and so there is an adjustment of $\ 6.49 for $472 / 7 weeks or \ 274.43 in Claimant's favor. The Second Injury Fund benefits shall begin 214.5 weeks after May 2, 2005.

There is no absolutely clear-cut path for deciding what new injuries Claimant sustained in the November 18, 2003 accident. The experts' opinions go in a variety of different directions. He had prior major surgeries including three lumbar fusions and one cervical fusion which had been producing ongoing symptoms when the last accident occurred. While I acknowledge some symptoms existing to the neck, back and elbow prior to the accident, I do believe the last accident substantially hastened the need for the additional surgical and pain treatments and caused the additional disabilities. Nevertheless, I also believe the need for future ongoing medical care and pain management is caused in large part by the prior injuries.

Following this last injury and the period of healing, Claimant has additional functional disability. Nevertheless, I also believe he has returned to his pre-2003 accident baseline status with regard to his pain level and his need for ongoing future medical care. In any event, there is not substantial credible evidence to separate the future need for medical caused by prior accidents from this one.

Likewise, I believe it is very clear that Claimant is permanently and totally disabled as a result of the three lumbar fusions, two cervical fusions and three left elbow surgeries. The video suggests an ability to coach Little League and push mulch off a truck with a rake, but Claimant credibly testified these activities cause him pain, a need for prescription pain medication and bed rest. I don't think they provide evidence of or an inference of an ability to engage in sustained remunerative employment.

The liability of the Second Injury Fund is set out in Section 287.220 RSMo (1994). See Leutzinger v. Treasurer, 895 S.W.2d 591 (Mo. App. 1995). A previous disability need only be a "hindrance or obstacle to employment or obtaining employment." Id. Section 287.220.1 RSMo (1994). Claimant certainly has sustained preexisting disability with his prior three lumbar fusions and one neck fusion.

Section 287.020.7 RSMo (1986) defines total disability as the "inability to return to any employment and not merely....[the] inability to return to the employment in which the employee was engaged at the time of the accident." The words "inability to return to any employment" mean "that the employee is unable to perform the usual duties of employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment." Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo. App. 1983). The words "any employment" mean "any reasonable or normal employment or occupation; it is not necessary that the employee be completely inactive or inert in order to meet this statutory definition." Id. At 922; Brown v. Treasurer of Missouri, 795 S.W.2d 479, 483 (mo. App. 1990); Crum v. Sachs Elec., 769 S.W.2d 131, 133 (Mo. App. 1989).

Consistent with these cases, it is not reasonable to suggest any employer would employ Claimant in his present physical and mental condition. Claimant has only a GED and no training other than as a truck driver and clerk at Lowe's. He has worked in the past as a landscaper, painter and restaurant worker. I don't think he could

perform any of these jobs on a sustained basis. The Vocational expert, James Israel, concludes claimant's inability to perform sustained and repetitive bending, twisting, lifting, pushing, pulling, carrying, climbing and handling weights of over 25 pounds, the inability to perform prolonged sitting in a truck and the necessity he change positions frequently render him unable to compete in the open labor market. When these exertional and physical limitations are coupled with claimant's need to use narcotics and the medrol dose pack to control pain, Claimant cannot be reasonably expected to perform regular hours in any line of work on a full-time basis.

I don't think Claimant can realistically compete for employment in the open labor market. The injuries are simply too severe and pervasive. He might be able to coach Little League but he shouldn't be on the road behind a tractor-trailer again and I doubt he could stand all day on concrete floors at Lowe's, day in and day out.

Date: $\qquad Made by: \qquad$

Matthew D. Vacca

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation

Employee: Leo Mitterholzer

Injury No.: 03-115591