Richard Bays v. Dave Kolb Grading, Inc.

After a 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 with regard to the contraction of an occupational disease.

The employee must prove by substantial and competent evidence that he has contracted an occupational disease and not an ordinary disease of life. Kelley v. Banta \& Stude Const. Co., Inc., 1 S.W.3d 43, 48 (Mo.App. E.D. 1999); Hayes v. Hudson Foods, Inc., 818 S.W.2d 296, 299-300 (Mo.App. S.D. 1991). The employee must establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the work place. Dawson v. Associated Elec., 885 S.W.2d 712, 716 (Mo.App. W.D. 1994). A single expert medical opinion will support a finding of compensability even where the causes of the occupational disease are indeterminate. Id.; Kelley, 1 S.W.3d at 48. Work conditions need not be the sole cause of the occupational disease, so long as they are a major contributing factor to the disease. Id.

Employee has shown that his daily work environment exposed him to the hazard of an occupational disease and that there was a direct causal connection between the work in which he performed, and the contraction of the occupational disease.

Employee sought treatment from his primary physician, Dr. Fusco, for what he believed to be carpal tunnel syndrome on April 1, 2004. Employee underwent an MRI on April 24, 2004 which indicated that employee's problems stemmed from problems with his neck. Dr. Fusco referred employee to Dr. Bailey who evaluated employee and opined that his condition was aggravated by work and recommended surgery. Employee notified employer in order to proceed under workers' compensation and filed his claim on April 24, 2004. Employee's claim was denied and employer did not provide employee with any treatment for his condition.

Employee testified that he worked as working foreman for employer. Employee worked in both a supervisory role as well as a laborer. Employee testified that he spent approximately half of his time working in a supervisory capacity and the other half of his time performing manual labor. Employee's manual labor included carrying and laying pipe, shoveling gravel, as well as lifting and carrying 80 lb bags of cement. Employee testified that he did a significant amount of heavy lifting. Employee believed that his condition was caused by the repetitive lifting during his employment with employer. Employee testified that his hands and arms constantly ached and both arms would go numb. Employee testified that he had problems with his lower back and neck as well. Employee found that his condition, along with the associated chronic pain, prevented him from working on a consistent basis.

Employee testified that he reported problems with his neck and back to employer prior to April of 2004. Employee was in a motor vehicle accident in 2001, and received treatment for his shoulders. Employee fell into a ditch in 2003 which caused pain in his shoulders and hands. However, employee did not incur a specific injury to his neck on either of those occasions. Employee, on the other hand, experienced a deterioration of his condition over the course of his employment due to the repetitive nature of his work, including heavy carrying and lifting.

Testifying on behalf of employee was his wife. Employee's wife testified that employee's condition deteriorated during his employment with employer, specifically after April of 2004. Employee's wife confirmed that employee experienced problems with his neck, including tingling and numbness down to his fingers. Employee's wife testified that employee experienced pain which required the taking of pain medication; and that after taking the medication he would go to bed. She testified that employee spent 8090 % of the day in bed.

In addition to the credible testimony provided by employee and his wife, there was persuasive expert testimony. Through expert testimony, employee was able to establish that his work conditions were a major contributing factor to the disease. Dr. Bailey diagnosed employee with degenerative disc disease, stenosis, and radiculopathy secondary to stenosis. Dr. Bailey testified that employee reported a two year history of neck pain radiating down both arms. Dr. Bailey noted that employee's job required manual labor including heavy lifting. Dr. Bailey testified that the type of work employee performed could cause degenerative conditions of the spine which could be exacerbated by such activities. Dr. Bailey opined that employee's work was a causative factor in the development of his symptoms. Dr. Bailey recommended decompression after he evaluated employee in April of 2004. Dr. Bailey testified that after he evaluated and examined employee that he believed surgery was necessary to treat employee's condition.

Dr. Lee diagnosed employee with cervical spondylosis with radiculopathy. Dr. Lee opined that employee's work was not a causative factor in his condition as the diffuse or widespread changes indicated a degenerative process. Dr. Lee opined that causative factors in making employee's condition become symptomatic included the motor vehicle accident in 2001 and employee's smoking. However, employee continued to work for employer for nearly four years after the motor vehicle accident. Dr. Lee admitted, as well, that the motor vehicle accident did not cause employee's degenerative condition, but that it pre-dated his accident. It also appears that Dr. Lee did not have complete medical records for employee from Dr. Fusco regarding the treatment for his neck condition.

In addition, Dr. Lee did not inquire about employee's specific work duties during his evaluation; he knew only that employee performed work for a construction company. Therefore, Dr. Lee did not appropriately consider employee's manual labor including heavy lifting and shoveling when rendering his opinion as to causation. During cross-examination, Dr. Lee testified that it is possible that hard labor could cause an exacerbation of a previously existing degenerative problem of the neck.

Furthermore, Dr. Lee mischaracterizes what is necessary to prove an occupational disease. Dr. Lee opined that to have a repetitive injury that employee needs to have injury; and employee did not provide a history of any specific or ongoing recurrent injuries that happened at his job. Dr. Lee is misguided as to what employee must show in order to prove an occupational disease. It is clearly established that it is not necessary to prove a specific accident/injury when an employee is alleging an occupational disease. Employee's condition was due to the repetitive nature of his work not due to any specific accidents/injuries at work. Therefore, employer's expert is holding employee to the wrong standard and placing a burden upon employee which is not required under workers' compensation law. As such, I find Dr. Lee's opinion on the issue of causation to be incredible and not worthy of belief.

Additionally, employee is entitled to future medical benefits. Employer never authorized treatment for employee's condition as it was thought to be not work-related; however it is clear that surgery is necessary to treat employee's condition. Both Drs. Bailey and Lee testified that surgery would be reasonable and necessary to treat employee's condition.

I find the opinion of Dr. Bailey to be most persuasive, credible and worthy of belief. Based on the medical evidence and testimony, it is reasonable to conclude that employee's work duties exposed him to an occupational disease; and that the conditions were a substantial factor in the cause of his condition.

Employee satisfied his burden through expert testimony provided by Dr. Bailey establishing work place exposure as well as a link between employee's condition and his employment. I find that there was exposure in the workplace sufficient to conclude that employee's work duties were capable of producing his resultant medical condition. There was sufficient evidence to establish that his employment was a substantial factor in the development of his 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.

John J. Hickey, Member

Employee: Richard Bays

Injury No. 04-143003

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

Dependents: None

Employer: Dave Kolb Grading, Inc.

Additional Party: None

Insurer: Amerisure Comapnies

Hearing Date: December 10, 2007

Checked by: GCG/ch

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: Alleged date of occupational disease is April 24, 2004.
5. State location where accident occurred or occupational disease was contracted: St. Charles 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? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? No
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: Alleged repetitive trauma from manual labor.

1. Did accident or occupational disease cause death? No Date of death? Not Applicable
2. Part(s) of body injured by accident or occupational disease: Neck, shoulders, back and arms

- Nature and extent of any permanent disability: None

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? None
3. Value necessary medical aid not furnished by employer/insurer? Alleged $\ 7,804.46
4. Employee's average weekly wages: $\ 1,092.80
5. Weekly compensation r