Jerald Wells v. Essex Contracting Incorporated

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. We have reviewed the evidence, read the briefs of the parties and considered the entire record. Pursuant to section 286.090 RSMo, the Commission affirms in part and reverses in part the award and decision of the administrative law judge dated January 4, 2007. The award and decision of Administrative Law Judge Gary L. Robbins, is attached and incorporated to the extent it is not inconsistent with the instant award.

The stipulations of the parties, issues in dispute and summary of the evidence were accurately recounted in the January 4, 2007, award issued by Administrative Law Judge Gary L. Robbins and will not be repeated by the Commission unless special emphasis necessitates.

The administrative law judge awarded employee additional and future medical care to cure and relieve him from the effects of his April 29, 2003, work accident. The administrative law judge noted that all of the doctors agreed that employee will need additional or future medical care, but differed as to the level of care employee would require. The administrative law judge found Dr. Volarich’s testimony to be the most credible and ordered employer/insurer to provide additional and future medical care in compliance with his recommendations, which included the need for future surgery.

Employer/insurer filed an Application for Review with the Commission. Employer/insurer alleges that the administrative law judge’s decision to award future medical benefits in the form of additional surgical and/or nonsurgical treatment was in error as employee failed to establish by competent and substantial evidence that it was reasonably probable that future surgery was needed by reason of his work related injury.

The Commission, as discussed below, reverses the administrative law judge’s award of future medical treatment in accordance with the recommendation of Dr. Volarich because the Commission does not believe Dr. Volarich’s testimony to be more credible than that of Drs. Coyle and Suthar. As such, employee did not establish by competent and substantial evidence that it was reasonably probable that he would need future surgical treatment. The Commission affirms the remainder of the administrative law judge’s January 4, 2007, award.

The need for future medical care need not be established as a certainty, but it must be established as being reasonably probable through competent, medical testimony. Bowers v. Highland Dairy Company, 132 S.W.3d 260 (Mo.App. 2004).

In summary fashion, employee testified that he continues to suffer from pain in his back, neck and left leg. Employee testified that he is taking medications for his pain, including Oxycontin and sleeping pills. The principal medical opinions concerning the issue of future medical care and treatment were rendered by Dr. Coyle, Dr. Suthar and Dr. Volarich. The Commission finds the testimony of Drs. Coyle and Suthar to be more credible.

On August 7, 2003, Dr. Coyle performed a cervical discectomy and fusion at C6-7 on employee. As of November 3, 2003, he felt that employee had reached maximum medical improvement. Dr. Coyle opined that employee had no need for future surgical medical treatment for the C6-7 fusion. However, Dr. Coyle did believe that employee would benefit from the use of anti-inflammatory medication in the future.

Dr. Suthar addressed employee's lumbar spine. He recommended that employee continue on his medications, including Ambien, Vicodin and Flexeril. Dr. Suthar further testified that employee would need future medical testing of his liver and kidneys as a result of taking such medications.

Dr. Volarich testified that it is appropriate for employee to take Oxycontin for his pain. Dr. Volarich also discussed employee's need for future surgical treatment in his medical report and during his testimony. His medical report clearly states that based on his examination, "additional surgery is not indicated at this time." It goes on to state that employee has an "additional C4-5 protrusion that will potentially cause him problems in the near future and require additional surgery." His testimony merely states that he thought employee would need a complete fusion of the neck from C4-7 if employee continued to have problems with his C4-5. Neither satisfies the reasonably probable standard required for an award of future surgical medical care in this matter.

The Commission concludes that the competent and substantial evidence supports a finding that employee is entitled to receive non-surgical future medical care and treatment reasonable and necessary to cure and relieve him from the effects of his April 29, 2003, work injury, and this benefit is awarded. As stated above, all remaining findings of fact and conclusions of law are affirmed.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\underline{24^{\text {th }}}$ day of August 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed.

Dr. Coyle testified that after a fusion, "there is some tendency to get wear and tear above it due to the increased stress from the fusion . . ." Dr. Suthar similarly testified that when someone has a fusion the spinal anatomy is altered and it is not uncommon for that person to have secondary pains from other structures of the spine.

These opinions are in synch with Dr. Volarich's opinion that employee will need future surgical medical care. Dr. Volarich also alluded to the "domino effect" that occurs once a level of the spine is fused which causes the levels above and below the fused level to take all the stresses because there is no movement at the fused level. This of course places more wear and tear on those other discs and results in bulges and herniations.

Furthermore, in his deposition, Dr. Volarich testified that it was likely that employee would need a complete fusion of the neck from C4-5. This, coupled with all of the above, clearly satisfies employee's burden to show by competent and substantial evidence that there was a reasonable probability he would need future surgical treatment for his injuries suffered in the April 29, 2003, work accident.

As such, I would affirm award of the administrative law judge. Therefore, I respectfully dissent from the decision of the majority of the Commission to modify the award to reduce benefits in this case.

John J. Hickey, Member

Employee: Jerald L. Wells

Injury No. 02-156518

03-036575

03-134632

Dependents: N/A

Additional Party: Second Injury Fund

Insurer: Missouri Employer's Mutual Insurance Company

1. Are any benefits awarded herein? None in 02-156518 and 03-134632. Yes in 03-036575.
2. Was the injury or occupational disease compensable under Chapter 287? No in 02-156518 and 03-134632. Yes in 03-036575.
3. Was there an accident or incident of occupational disease under the Law? No in 02-156518 and 03-134632. Yes in 03-036575.
4. Date of accident or onset of occupational disease? 02-156518-alleged December 27, 2002. 03-036575-April 29, 2003. 03-134632-alleged January 20, 2003.
5. State location where accident occurred or occupational disease contracted: Jefferson County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? No in 02-156518 and 03-134632. Yes in 03-036575.
8. Did accident or occupational disease arise out of and in the course of the employment? No in 02-156518 and 03-134632. Yes in 03-036575.
9. Was claim for compensation filed within time required by law? Yes in all three cases.
10. Was employer insured by above insurer? Yes in all three cases.
11. Describe work employee was doing and how accident happened or occupational disease contracted: 02-156518-the employee alleged that he fell on the ice. 03-036575-the employee was in a piece of equipment that fell and threw him into the dash area. 03-134632 the employee alleged that he fell off of a piece of equipment.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Back, neck and body as a whole.
14. Nature and extent of any permanent disability: 30\% permanent partial disability in 03-036575. Permanent total disability due to a combination of disabilities.
15. Compensation paid to date for temporary total disability: 02-156518-\$0. 03-036575-\$16,587.72. 03-134632-\$0.
16. Value necessary medical aid paid to date by employer-insurer: 02-156518-\$0. 03-134632-\0. 03-036575\ 50,436.70
17. Value necessary medical aid not furnished by employer-insurer: No claim made in any case.
18. Employee's average weekly wage: 02-156518-\$870.85. 03-036575-\$870.85. 03-134632-\$870.85

1. Weekly compensation rate: 02-156518 and 03-134632-\580.52 per week for TTD and PTD, and \ 340.12 for PPD. 03-036575-\580.57 per week for TTD and PTD, and \ 340.12 for PPD.
2. Method wages computation: By agreement.
3. Amount of compensation payable: See Award
4. Second Injury Fund liability: See Award
5. Future requirements awarded: See Award

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Daniel J. McMichael

On September 27, 2006, the employee, Jerald L. Wells, appeared in person and by his attorney, Daniel J. McMichael, for a hearing for a final award. Patrick M. McHugh represented the employer-insurer at the hearing. Assistant Attorney General Laura C. Wagener represented the Second Injury Fund. The trial was initially set to try Case No. 03-036575 by itself, however; on the trial date the Court granted the request of the parties and also heard Case No. 02-156518 and Case No. 03-134632. The employee dismissed Case No. 03-134634. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the statement of the findings of fact and rulings of law, are set forth below as follows:

02-156518

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and liability was fully insured by Missouri Employer's Mutual Insurance Company.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of Essex Contracting Incorporated and was working under the Workers' Compensation Act.
3. The employee's claim was filed within the time allowed