Leonard Adams v. Ameren UE

disabilities combined to result in a greater disability than that which would have resulted from the last injury by itself. Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo.App. W.D. 2004) citing Karoutzos v. Treasurer of State, 55 S.W.3d 493, 498 (Mo.App. W.D. 2001).

The Commission is the judge of the credibility of witnesses and has discretion to determine the weight to be given opinions. Bloss v. Plastic Enter., 32 S.W.3d 666, 671 (Mo.App. W.D. 2000), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo.banc 2003). Medical causation not within common knowledge or experience must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. Selby v. Trans World Airlines, Inc., 831 S.W.2d 221, 222 (Mo.App. W.D. 1992). The Commission may accept or reject medical evidence and is free to disbelieve uncontradicted or unimpeached testimony. Copeland v. Thurman Stout, Inc., 204 S.W.3d 737, 743 (Mo.App S.D. 2006), citing Alexander v. D.L Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo.banc 1993).

Employee has failed to establish Second Injury Fund liability. There is not sufficient competent and substantial evidence in the record to support a finding of permanent total disability against the Second Injury Fund, nor does employee's 5\% permanent partial disability reach the threshold necessary to trigger Second Injury Fund liability. Employee provided expert testimony by Dr. Volarich and Mr. England to support his claim of permanent total disability. However, the expert testimony provided on behalf of employee by Dr. Volarich and Mr. England is not credible.

Dr. Volarich testified on behalf of employee at trial. Dr. Volarich was not employee's treating physician but performed an independent medical examination (IME) at the request of employee for the purpose of determining disability for his workers' compensation claim. Dr. Volarich evaluated employee only once, on May 9, 2005 and prepared a report that same day. Dr. Volarich stated in his report that his opinions and conclusions were based on a combination of his physical examination of employee, a review of employee's medical records, as well as employee's subjective complaints and limitations.

Dr. Volarich was informed by employee that he suffered various injuries to his back and neck since he began work for employer in 1978. Dr. Volarich was aware of the fact that employee sought treatment for his spine during the 1980s; however, Dr. Volarich did not review any records for treatment dated prior to the year 2000. Dr. Volarich did not review the actual films for the diagnostic tests for employee's neck and low back, but relied only upon the reports provided in rendering his opinion. Dr. Volarich agreed that the diagnosis, degenerative disc disease of the cervical and lumbar spine, was essentially unchanged from the diagnostic testing in 2000 and 2004.

In addition, Dr. Volarich admitted that degenerative disc disease was common in individuals over the age of 40 and that it is a progressive disease that gets worse over time and may become symptomatic regardless of the presence of an acute trauma. Moreover, Dr. Volarich noted that employee experienced exacerbation of his condition while on vacation in May of 2000; when he fell off a stage in February of 2001; and when he was playing golf in June of 2001.

Furthermore, Dr. Volarich acknowledged that surgery had never been recommended for employee's neck or low back by any of his treating physicians; and subsequent to October 20, 2004, no treating physicians imposed any permanent restrictions for employee's low back or neck.

With regard to employee's upper extremities, employee underwent bilateral carpal tunnel surgeries by Dr. Brown in June 2003. Dr. Volarich testified that employee was released by his treating doctor, Dr. Brown, without restrictions for his wrists or elbows in August of 2003 and that employee returned to work full-time after his release.

Dr. Volarich stated that employee was not taking any medications at the time of his evaluation and at no time had any of employee's treating physicians imposed permanent restrictions on employee with regard to his upper extremities or spine. In spite of this, Dr. Volarich placed a number of restrictions on employee for both his upper extremities and spine.

In addition to the restrictions, Dr. Volarich's ratings were not consistent with the record. As noted, employee was not given any restrictions for his spine and was released to full duty without restrictions for his upper extremities. Dr. Volarich's ratings of 35 % permanent partial disability of each hand; 171 / 2 % of the left elbow; 30 % permanent partial disability of the body as a whole referable to the cervical spine; and 30 % permanent partial disability to the lumbosacral spine is not an accurate assessment of his disability. Employee settled his claim with employer for 5\% permanent partial disability to the body as a whole with regard to his neck, back and thoracic spine.

Although Dr. Volarich was the only medical expert to testify, we find that his conclusions are not substantiated by the record and therefore are not worthy of belief. Dr. Volarich stated that his assessment was based upon both a review of employee's medical records as well as employee's subjective complaints. As such, we find his opinion to be not credible.

Dr. Volarich deferred to a vocational expert on the issue of whether employee was permanently and totally disabled. Mr. James England, vocational expert, evaluated employee for the purpose of determining his employability. Mr. England did not believe that employee would be able to sustain work in the long run considering the combination of employee's impairments and the limitations he experiences as well as the negative effect his impairments cause on his ability to rest properly.

However, in coming to his conclusion, Mr. England relied upon Dr. Volarich's IME, including the restrictions Dr. Volarich imposed on employee's upper extremities and spine. Mr. England also relied upon employee's subjective complaints and limitations, including employee's difficulty with concentration as a result of his pain level along with employee's need to recline periodically. Mr. England testified that employee informed him at the time of his evaluation that he was not taking any medications, and that there were not any permanent restrictions placed on him by his treating physicians.

We find Mr. England's opinion that employee is permanently and totally disabled from a vocational standpoint is not credible. Mr. England based his opinion on employee's subjective complaints as well as the restrictions imposed by Dr. Volarich.

The Commission does not find the opinions of Dr. Volarich or Mr. England to be credible; therefore disbelieves the testimony of employee's experts. The record does not support a finding that employee is permanently and totally disabled, but that the substantial weight of the evidence supports a finding that employee suffered a 5 % permanent partial disability to the body as a whole.

The Commission agrees with the ultimate conclusion reached by the administrative law judge that employee failed to establish Second Injury Fund liability.

The award and decision of Administrative Law Judge Margaret D. Landolt, issued February 20, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 17th day of September 2008.

John J. Hickey, Member

Employee: Leonard Adams

Injury No.: 04-120304

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

Dependents: N/A

Employer: Ameren UE (Settled)

Additional Party: Second Injury Fund (Open)

Insurer: Union Electric Co. C/O CCMSI

Hearing Date: December 5, 2007

Checked by: MDL

1. Are any benefits awarded herein? No

- Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: October 20, 2004

- State location where accident occurred or occupational disease was contracted: St. Louis, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? N/A
3. Did accident or occupational disease arise out of and in the course of the employment? Yes

- Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee performed repetitive physical labor which caused degenerative disc disease

1. Did accident or occupational disease cause death? No
2. Part(s) of body injured by accident or occupational disease: Cervical and lumbar spine

- Nature and extent of any permanent disability: 5\% PPD of the body as a whole previously settled with Employer

1. Compensation paid to-date for temporary disability: N/A
2. Value necessary medical aid paid to date by employer/insurer? N/A

Employee: Leonard Adams

Injury No.: 04-120304

1. Value necessary medical aid not furnished by employer/insurer? N/A

- Employe