Gary Purdy v. Borden, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-156233

Employee: Gary Purdy

Employer: Borden, Inc.

Insurer: Insurance Company of the State of Pennsylvania

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

Date of Accident: November 17, 1999

Place and County of Accident: St. Louis City, Missouri

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 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 July 18, 2007. The award and decision of Administrative Law Judge Joseph E. Denigan, issued July 18, 2007, is attached and incorporated by this reference.

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 $\underline{15^{\text {th }}}$ day of November 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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 17, 1999
5. State location where accident occurred or occupational disease was contracted: St. Louis City, 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: Employee was shoveling mud from a sidewalk at work.
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: Low back
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: No lost time (NLT)
16. Value necessary medical aid paid to date by Employer? $\ 1,083.53

Employee: Gary Purdy Injury No.: 99-156233 17. Value necessary medical aid not furnished by Employer? None 18. Employee's average weekly wages: $\ 588.16 19. Weekly compensation rate: $\$ 392.11 / \ 303.11 20. Method wages computation: Stipulation

1. Amount of compensation payable:

None 22. Second Injury Fund liability: No

1. Future requirements awarded: None

Said payments to begin N/A and to be payable and 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

$\mathrm{N} / \mathrm{A}$

This case involves two separate Claims for Compensation, each for reported low back injury, resulting to Claimant with the reported injury dates of November 17, 1999 ("first case") and November 3, 2000 ("second case"). Separate awards issue in each case.

1. Temporary total disability;
2. Permanent Partial disability; and

3 Credit of $\ 558.52 (second case).

1. The Findings of Fact and Rulings of Law contained in the prior Award, dated August 21, 2002, is adopted

1. Claimant offered the deposition of Dr. Hanaway as Exhibit K in which Claimant elucidated an impressive calendar of forensic examinations and reports (p. 10):

March 20, 2001

March 28, 2001

June 20, 2001

November 27, 2001

October 16, 2002

--- two year gap ---

May 17, 2004

May 18, 2004

--- two year gap ---

January 26, 2006

September 25, 2006

1. Claimant asserts an off-work period of July 16, 2001until May 20, 2003 which period is unaccompanied by either authorized or privately elected treatment records. Claimant has continued to work full-time since this claimed period of TTD. No contemporaneous off-work slips are in evidence for this period.
2. Claimant has not undergone any surgery as was suggested by Dr. Hanaway as necessary.
3. Claimant lost no time in the last two years for low back pain; he was pain free at trial.
4. In 2002, Dr. Hanaway assessed 65 percent PPD for low back (unoperated) without attribution between the two cases herein. Rather he made attribution between lumbar disc levels two of which he described as herniated despite less clear radiological opinions from treating physicians. Rejecting Claimant's choice of surgical consult, Dr. Hanaway, who is not a surgeon, insisted Claimant was a surgical candidate and would seek another evaluation by someone else.
5. Dr. Mirkin assigned a 2 percent PPD to the second accident based on his last examination which included negative straight leg raising and negative sensory exam (T. 154). Dr. Mirkin notes his discussion of surgery with Claimant and his recommendation that Claimant maintain the forty pound lifting restriction. Dr. Mirkin explained surgical risks but did not recommend surgery.
6. Claimant's only new evidence at this trial is Exhibit K. No additional treatment records are in evidence.

Claimant offered no proof of temporary total disability that relates back to the reported injuries. Claimant underwent no authorized treatment after 2001 and presents no medical records or bills or other evidence of private treatment for low back symptoms subsequent to his release by Dr. Mirkin which relate back to the reported injuries. Indeed, Employer's second opinion by Dr. Kennedy, a surgeon, who reiterated the 2000 myelogram as normal for active disc pathology, is evidence that cannot be reconciled with Claimant's excessive complaints at that time. At trial, Claimant was pain free.

Claimant's proffer of a forensic expert over the above calendar period as a basis to prove TTD is specious. The testimony is unsupported by any facts and reasons (perhaps memorialized in a conventional treatment record) that might give the TTD opinions probative value. Claimant's expert must adhere to methods of proof used by experts in the field. Claimant did not present independent evidence of entitlement to TTD benefits after TTD benefits suspended on October 28, 2001. His unaided testimony is not sufficient to prove the underlying complex medical questions which are necessary to determine work related total disability. It is noteworthy that even upon the second accident, Claimant was not temporarily and totally disabled until nine months post-accident. Claimant sought no additional relief from the Division since the prior Awards issued four years ago.

The treatment gap that commences subsequent to Dr. Mirkin's release in 2001 breaks the causal chain but provides a focal point to assess PPD caused by the two reported injuries. In addition, trial at this late date affords the fact finder hindsight that demonstrates the wisdom of the respective experts' opinions. It is evident that having avoided surgery per Employer's expert recommendation in late 2001 (T. 152), Claimant remains free of treatable symptoms, able to work and, again, pain free at trial.

The first two year gap in Claimant's forensic calendar marks the cessation of treatment for Claimant's low back symptoms that are referable to the two reported injuries herein. This gap represents a break in the medical causal chain between the reported events and subsequent years. Claimant's expert testified that the first accident was the "main one for him" and the second accident aggravated [the first injury]. This opinion is contrary to the symptomotology and absence of any lost time or notable treatment following the first accident. Claimant's expert's PPD ratings are completely unsubstantiated in the record, including Claimant's trial testimony. Claimant exhibited no symptoms at trial nor testified that he experienced serious periodic symptoms suggestive of an active disc pathology.

Of the two ratings offered in evidence, Dr. Mirkin's rating for permanent injury, as a basis for payment of PPD benefits, more closely approximates Claimant's ability to avoid surgery, lack of treatment and pain free appearance at trial than does Dr. Hanaway's rating of 65 percent PPD.

Accordingly, on the basis of the substantial competent evidence contained within the whole record, Claimant is found to have sustained no permanent injury in the first case (1999). No other benefits are awarded.

Date: $\qquad Made by: \qquad$

Joseph E. Denigan

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Jeffrey W. Buker

Acting Director

Division of Workers' Compensation

Injury No.: 00-138098

Employee: Gary Purdy

Employer: Borden, Inc.

Insurer: Insurance Company of the State of Pennsylvania

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

Date of Accident: November 3, 2000

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 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 July 18, 2007. The award and decision of Administrative Law Judge Joseph E. Denigan, issued July 18, 2007, is attached and incorporated by this reference.

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 15th day of November 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

Secretary

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.

The administrative law judge failed to award temporary total disability benefits for the period from June 19, 2001 to May 20, 2003. He also only awarded employee 71 / 2 % permanent partial disability to the body as a whole referable to the low back for his November 3, 2000 injury. I believe the award should be modified to increase the