Debra Adams v. DaimlerChrysler

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. Having reviewed the evidence, read the briefs, and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 21, 2006, as supplemented herein.

The administrative law judge concluded that employee failed to meet her burden of proof on her claim for either permanent partial disability or permanent total disability benefits against the Second Injury Fund as a result of her October 2, 1999, injury. Thus the administrative law judge denied that claim. We agree with this conclusion. We offer this supplemental opinion to address issues raised by employee in her brief.

The first day of the hearing was August 3, 2006. At that hearing, employee was given an additional thirty days to have certain medical records certified before the administrative law judge would rule on their admissibility. The medical records of Dr. Hanaway were among those records. On Monday, August 28, 2006, two days before the second setting and four days before the record was to be closed, employee's attorney deposed

Dr. Hanaway. At that deposition, Dr. Hanaway gave his opinion regarding employee's extent of disability. This was not in his medical records or reports. The Second Injury Fund made a proper seven-day rule objection to this evidence, but did not postpone the deposition or request a continuance of the hearing.

In his award, the administrative law judge sustained the Second Injury Fund's objection despite the lack of a request for relief. He reasoned that employee's counsel knew the record needed to close on August 30, 2006, yet still scheduled Dr. Hanaway's deposition for August 28, 2006, leaving no time for the Second Injury Fund to obtain a continuance to remedy the seven-day rule.

We believe that the seven-day rule objection should have been overruled and that Dr. Hanaway's testimony that employee was disabled should have been admitted into evidence. "When a party does not receive a medical report before a deposition, he has at least two options. First, he can cross-examine the doctor immediately after direct examination. He is free to schedule further cross-examination if he decides it's necessary. Second, he could postpone all cross-examination until he has had an opportunity to review the testimony and prepare." Goodwin v. Farmers Elevator and Exch., 933 S.W.2d 926, 929 (Mo.App. 1996) (internal citations omitted).

While the Second Injury Fund made a proper seven-day rule objection, it failed to request any relief based on that objection. Counsel for the Second Injury Fund cross-examined Dr. Hanaway without requesting a postponement or continuance. Since the Second Injury Fund cross-examined Dr. Hanaway, it will not be prejudiced by the

admittance of his opinions regarding employee's disability. Therefore, in reviewing this matter, the Commission has taken into consideration Dr. Hanaway's testimony in its entirety.

Dr. Hanaway first saw employee on May 6, 2003, over three-and-a-half years after her work accident. In that medical report, he incorrectly indicated that employee had worked in April of 2001. The report noted that employee had sleep apnea, chronic anxiety, chronic low back pain with radicular pain in her legs, "problems" with both shoulders, and impingement on both sides. Dr. Hanaway also wrote that employee has "multiple problems, and they may not have all been mentioned here. Some of them have to be picked up later on, but this is what I got from the patient this time."

Dr. Hanaway next saw employee on May 27, 2003, after an MRI had been performed on her neck. Dr. Hanaway diagnosed employee with two herniated discs at C4-5 and C5-6. He then opined that "it would seem that her working at Chrysler over the years is responsible for this."

Employee returned to Dr. Hanaway nearly two years later on May 3, 2005. Dr. Hanaway did not mention any herniated discs at C4-5 and C5-6 at that time, but merely states that those discs are protruding. He also indicated that employee had been living with her neck problem for more than two years and that she was getting along fairly well without any surgery.

Employee's final visit with Dr. Hanaway occurred on May 21, 2006. For the first time, Dr. Hanaway finds that employee has a herniated disc at L5-S1 and a protruding disc at L4-5.

As indicated in the administrative law judge's award, Dr. Hanaway's reports do not contain any opinions on disability or employee's need for permanent work restrictions. His testimony simply recites his reports and only reflects that he believes employee is disabled. That conclusory opinion was provided at his deposition on August 28, 2006, over three years after he saw employee for the first time and over six-and-a-half years after employee's work injury. He failed to explain or opine how employee's pre-existing disabilities synergistically combined with her primary work injury to create a greater overall disability than the simple sum. As such, Dr. Hanaway's reports and deposition testimony do not provide competent and substantial evidence that employee is entitled to either permanent partial disability or permanent total disability from the Second Injury Fund.

Therefore, the Commission still agrees with the ultimate conclusion reached by the administrative law judge that employee failed to meet her burden of proof to show that the Second Injury Fund is liable to her for permanent total disability benefits or permanent partial disability benefits based on a combination of her primary neck injury and pre-existing disabilities.

The award and decision of Administrative Law Judge John K. Ottenad, issued December 21, 2006, is affirmed, and is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 20th \qquad$ day of September 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Are any benefits awarded herein? No
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: October 2, 1999
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: Claimant was employed as an assembly line worker for Employer and was injured when she was knocked backwards and unconscious by the mirror on a van passing by on the assembly line.
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: Body as a whole referable to the neck
14. Nature and extent of any permanent disability: 17.5 % of the body as a whole referable to the neck
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 977.05

Employee: Debra Adams

Injury No.: 99-181902

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient to result in maximum rates of compensation
3. Weekly compensation rate: $\ 578.48 for TTD/ $\ 303.01 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

Injury No.: 99-181902

Before the

Division of Workers’ Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Checked by: JKO

On August 3, 2006, the employee, Debra Adams, appeared in person and by her attorney, Harry J. Nichols, for a hearing for a final award on her claim against the Second Injury Fund. The employer, DaimlerChrysler, which is Self-Insured C/O ESIS, was not represented at the hearing because their portion of the Claim had been previously resolved by an Award issued on September 15, 2005. The Second Injury Fund was represented at the time of the hearing by Assistant Attorney General Kareitha A. Osborne. The hearing was continued until August 30, 2006 to give Claimant the opportunity to call her vocational expert as a witness (since the vocational expert was unavailable on the first day of hearing) and to give Claimant a chance to obtain certified copies of medical records and reports which were uncertified and objected to by the Second Injury Fund on the first day of hearing. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of facts and rulings of law, are set forth below as follows:

1) On or about October 2, 1999, Debra Adams (Claimant), sustained an accidental injury arising out of and in the course of her employment that resulted in injury to Claimant. 2) Claimant was an employee of DaimlerChrysler (Employer). 3) Venue is proper in the City of St Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage sufficient to result in the maximum applicable rates of compensation of $\ 578.48 for total disability benefits and $\ 303.01 for permanent partial disability (PPD) benefits.

7) Employer paid no temporary total disability (TTD) benefits.

8) Em