After review of the entire record as a whole, and consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed. I believe the administrative law judge erred in concluding that employee failed to meet the burden of proof on the issue of medical causation.
Competent and substantial evidence supports a finding that employee suffered an injury on February 9, 2006 and that the accident was the prevailing factor in employee's resulting medical condition and disability. The administrative law judge erred in finding that
employee's back condition was not medically causally related to the accident on February 9, 2006.
Employee's injury occurred in February of 2006, after the 2005 amendments to the Workers' Compensation Law. Section 287.020.3(1) RSMo (2005), provides:
"An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability." The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."
The new standard requires that employee show that the accident was the prevailing factor in causing employee's resulting medical condition and disability. Aggravation of a preexisting condition is compensable under $\S 287.020$ if employee proves a direct causal link between the accident and the aggravated condition, i.e., that the accident was the prevailing factor in causing the aggravated condition. Employee has met this burden.
The administrative law judge conceded that there is no dispute that an incident occurred on February 9, 2006. Employee credibly testified that when he opened the door to his truck that he was jerked by a gust of wind and injured his low back. Employee reported his injury to employer and was sent by employer to a doctor who diagnosed him with a lumbosacral strain.
The issue is whether the incident was the prevailing factor in causing the aggravation of employee's medical condition and disability. Two medical experts offered opinions as to causation. Dr. Macmillan, orthopedic surgeon, testified on behalf of employer. Dr. Macmillan noted that employee had a prior injury to his back in August of 2004. On April 4, 2005, employee underwent a transcutaneous disk resection, neural and annular decompression, discogram at L4-L5 and L5-S1. Dr. Macmillan believed that employee's objective medical condition remained unchanged following his surgery and that there was no new injury. He concluded that there was no indication that employee fully recovered from his previous back injury as he continued to experience back pain following his surgery. Dr. Macmillan stated that he disagreed with the opinion of Dr. Stuckmeyer that employee's work injury on February 9, 2006 was the prevailing factor in causing employee's back condition.
At the request of employee's counsel, Dr. Stuckmeyer, orthopedic surgeon, performed an independent medical examination of employee on March 6, 2007. Dr. Stuckmeyer found that although employee had significant pre-existing problems with his back having undergone surgery, employee had a resolution of a majority of his complaints with regard to his lower extremities, but continued to have persistent back pain. Dr. Stuckmeyer opined that as a direct result of employee's February 2006 accident, employee exacerbated and aggravated his underlying pre-existing condition. Dr. Stuckmeyer opined that the February 2006 accident was a primary or prevailing factor in the aggravation injury and need for medical treatment.
I find Dr. Stuckmeyer's opinion on the issue of causation to be more credible as his opinion is supported by the record as a whole. I believe Dr. Macmillan to be less persuasive for the following reasons: Dr. Macmillan testified that there was no indication that there was a change in employee's condition; however the record supports that employee's condition did improve following his surgery and last visit with Dr. Marks. Dr. Macmillan testified that his opinion was based in large part upon the fact that there were no medical records with regard to employee's back from June 30, 2005, following employee's last visit with Dr. Marks, through February 2006. Dr. Macmillan focused on the fact that employee reported persistent back pain during his June 30th office visit and believed that not enough time elapsed for employee's condition to have significantly improved. However, more than six months passed between employee's last visit with Dr. Marks and his February 2006 injury. The fact that no medical records document employee's improvement does not mean that his condition did not improve. The fact that employee did not seek medical attention during that time would indicate that his condition was improving. Had employee's condition not improved or had he continued to suffer significant back pain, it would seem logical that employee would have sought medical care and treatment during that time.
Moreover, Dr. Macmillan testified that he believed employee was credible with regard to his complaints. Dr. Macmillan found employee to be credible and it was employee's testimony that his condition did in fact improve. In addition, employee returned to work without restrictions and worked until his February 2006 injury which also indicates that employee's condition had improved. Dr. Macmillan's assertion that there was no change in employee's condition from June 2005 to February 2006 is not supported by the record.
Furthermore, I find employee to be credible. Employee testified that he was self-employed at the time of his prior back injury in 2004. Employee testified that he injured his back August 30, 2004 and subsequently underwent surgery. He testified that the surgery relieved the symptoms in his legs for the most part. Employee experienced right gluteal pain, a little bit of leg pain and low back pain following his surgery; however, he continued to exercise on his own and got to the point where he felt quite a bit better. Employee testified by October his condition had improved. In late September, early October, employee felt he was physically capable of driving a truck. At the time employee applied for his job for employer, he was no longer taking prescription pain medication as indicated on his application for employment with employer. Employee informed the doctor performing the physical examination for employer of his prior back surgery. Employee testified that he drove 10 hours straight on a regular basis for employer and never missed any work due to back problems. Employee testified that he did not have any difficulties performing his duties as a truck driver prior to his February 9, 2006 injury. Employee did not seek medical attention for any back problem
| between June 30, 2005 and his injury on February 9, 2006.Employee’s return to work without restrictions clearly supports his contention that his condition improved. Employee began workingfor employer in November of 2005. Employee worked for employer from November of 2005 up and until his injury on February 9, 2006. In order to work for employer, employee was required to undergo a physical examination. Prior to beginning hisemployment, employee underwent a DOT physical which cleared him for work with employer. Clearly, employee’s condition was improved as he not only sought out employment as a truck driver but passed the physical examination which was a prerequisite to becoming employed with employer. There is no indication that employee was found to be disabled as a result of his 2004 back injury nor was he restricted from performing duties as a truck driver as a result. Contrarily, employee was found physically capable of performing the duties of a truck driver and was able to perform work as a truck driver for nearly three months.After his February 9, 2006 injury, employee testified that his condition worsened. Employee testified that he now has constant back pain and only sleeps 3-4 hours a night. Employee testified that he can stand/walk for 10-15 minutes and sit for about 30 minutes. Employee testified that he still takes Hydrocodone for the persistent pain.Employee was referred to Dr. Morris on February 9, 2006 and was diagnosed with a lumbosacral strain with lumbar disk degeneration and placed on work restrictions. Dr. Morris evaluated employee on February 27, 2006 and noted employee was not working as the provider had taken him off work. Dr. Morris recommended no repetitive lifting over 10 lbs; no prolonged standing or walking greater than 2 hours; and no bending, no pushing/pulling over 10 lbs; and that he should be sitting 75% of the time.Competent and substantial evidence shows that employee’s condition did change after his February 2006 accident, supporting a finding that the accident was the primary or prevailing factor in the aggravation of employee’s back condition.Therefore, employee has met his burden by establishing that he suffered a work-related injury on February 9, 2006 and that the accident was the prevailing factor in the aggravation of his back condition. Accordingly, I would reverse the decision of the administrative law judge and award compensation.For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission to deny compensation. |
| John J. Hickey, Member |
| AWARD |
| Employee: | Jack Johnson |