Jose Antunez v. Propipe Corporation

The administrative law judge correctly found that the employee met his burden of proof that he sustained a work injury to his back on February 8, 2003. I agree with the administrative law judge that the opinions of Drs. Mirkin and Cantrell are not credible with regard to the issue of causation and I find their opinions in total to be without merit. However, the administrative law judge found that employee was not permanently and totally disabled and awarded only 35 % permanent partial disability of the body as a whole referable to the low back. The administrative law judge erred in not finding that employee was permanently and totally disabled.

Permanent and total disability is defined by section 287.020.7 RSMo (2000) 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 phrase "inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment. The test for permanent total disability is whether, given the employee's situation and condition he or she is competent to compete in the open labor market. Total disability means the "inability to return to any reasonable or normal employment." An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. The pivotal question is whether any employer would reasonably be expected to employ the employee in that person's present condition, reasonably expecting the employee to perform the work for which he or she is hired.

Gordon v. Tri-State Motor Transit Company, 908 S.W.2d 849, 853 (Mo.App. S.D. 1995) (citations omitted).

The administrative law judge found that employee did not meet his burden of proof showing that he was permanently and totally disabled due to the fact that he was not credible regarding his level of complaints and inability to work after the February 8, 2003 work injury. I disagree as employee demonstrated that he is permanently and totally disabled as a result of his work injury and credibly testified as to the progression of his condition.

Employee testified that immediately following his work injury, he was forced to modify the way he performed his work duties and required assistance from his co-workers to compensate for his inability to perform his duties. Employee testified that prior to his work injury that he performed his duties without difficulty. Employee was able to work for a short time following his injury. The fact that employee made an effort to resume work after his injury reinforces employee's work ethic and does not cut against his credibility. Neither does the fact that employee reported 90 % improvement in his condition after his back surgery. The record shows that employee openly reported both improvement and deterioration in his back condition. Employee reported improvement in his condition following his surgery; however, his condition began to decline after he exacerbated his condition while lifting weights during a physical therapy session. Employee consistently reported an increase in his pain levels after the lifting incident during physical therapy. Employee's increased complaints were supported by a lumbar myelogram which showed evidence of mild, gross instability at L4-5 and poor filling of the L4 and L5 nerve root sheaths as well as mild grade I spondylolisthesis at L4-5. A CT post myelogram suggested mild, grade I degenerative spondylolisthesis with evidence of gross instability with flexion-extension; some evidence of a right foraminal or lateral disk herniation at L4-5; and a bulging disk at L3-4. This prompted Dr. Youkilis to consider fusion surgery; however, Dr. Youkilis ultimately agreed with Dr. Bernardi that fusion surgery would not benefit employee. He released employee from his care and restricted employee to lifting fifty pounds without repetitive bending or lifting. Employee continued to receive treatment for his condition through the VA. His treatment included a back brace, TENS unit, physical therapy as well as pain management.

Employee testified that he suffers from daily back pain which travels down his leg to his heels. He testified to control his pain that he has to lay down. Although it did not completely alleviate the pain, employee testified that this was the most comfortable position for him. Employee testified that he can sit and stand comfortably for thirty minutes without pain. Employee testified that he uses hot and cold packs when his condition flares. He testified that his sleep is disrupted by the pain. Employee testified that he is not able to perform any household chores. Employee testified that he does not believe he is able to work and does not believe any employer would hire him in his current condition.

Employee's testimony is corroborated by a surveillance video performed on behalf of employer and introduced by employee. The video accurately portrays employee's condition in the spring of 2004, depicting him laying down on short automobile rides in the back seat of the car. It also shows employee putting pillows behind his back for support as well as laying back in the passenger seat. Employee is filmed walking cautiously and appears to be very guarded in his movement. Employee is not shown lifting or performing any tasks that would indicate that he was capable of even sedentary work.

Furthermore, employee's vocational expert, Mr. Lalk, stated that he was unaware of any employer that would be willing to hire employee based upon his skill level, experience and restrictions along with his need for extended breaks and need to lie down several times during the day.

Employee has shown that all medical expenses were necessary and reasonable to treat his condition. Employer was aware of employee's work injury as well as ongoing difficulties related to his injury. Employer failed to direct or tender necessary medical treatment for employee. As a result employee sought medical treatment from the physician of his choice. Under these circumstances, employee was acting within his right as employer neglected to provide necessary medical treatment. Accordingly, I find that employer is responsible for these past medical expenses.

Employee has demonstrated a need for future medical care associated with his February 8, 2003 work injury. Dr. Lichtenfeld recommended conservative treatment including muscle relaxers, oral steroids, anti-inflammatory and narcotic medication as well as pain management. He also opined that employee may possibly need to undergo fusion surgery in the future. Employee continued to seek treatment including pain management and physical therapy through the VA. Competent and substantial evidence supports a finding that employee is entitled to receive future medical care and treatment reasonable and necessary to cure and relieve him from the effects of his back injury.

Based upon my review of all the evidence, I find employee has met his burden by showing that he is unable to compete in the open labor market and that no employer would reasonably be expected to hire employee in his present physical condition. I also find that employee is entitled to past medical expenses and has proven the need for future medical treatment. I conclude that employee is permanently and totally disabled as a result of his back condition. Accordingly, I would modify the decision of the administrative law judge and award permanent total disability benefits.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

Employee: Jose Antunez

Dependents: N/A

Employer: Propipe Corporation

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Second Injury Fund Relations of Missouri

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: February 8, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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: The Employee slipped and fell on a rooftop while working, and injured his back.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 35 % of the body as a whole referable to the low back
15. Compensation paid to-date for temporary disability: $\ 48,247.68
16. Value necessary medical aid paid to date by employer/insurer? \$53,271.25