Carol Landers v. New Prime, Inc.

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed and permanent total disability benefits should be awarded.

First, there is no question that employee's September 15, 2002 accident is compensable under Missouri Workers' Compensation law. However, it is my opinion, based on the expert medical and vocational opinions that employee should be awarded permanent total disability benefits instead of the mere permanent partial disability benefits awarded by the administrative law judge.

Permanent and total disability is defined by $\S 287.020 .6$ RSMo. 2007, as the "inability to return to any employment ...."

The test for permanent total disability is whether, given the employee's situation and condition he or she is competent to compete in the open labor market. The pivotal question is whether any employer would reasonably be expected to employ the employee in that person's present condition, reasonably expecting the employee to perform the work for which he or she is hired.

Gordon v. Tri-State Motor Transit Company, 908 S.W.2d 849, 853 (Mo.App. 1995) (citations omitted).

Dr. Samuel Bernstein, the only vocational expert that saw employee regarding this work-related accident, determined that employee was unemployable in the open labor market. Dr. Bernstein based his determination upon the following information acquired in conjunction with his July 2006 visit with employee: employee's general background information; psychological information, a review of employee's medical records/medical history; a listing of employee's daily activities; and employee's education and work history. Dr. Bernstein gave particularly great weight to Dr. Stanley Barnes' (employee's family physician) medical opinion that employee was 100 % disabled.

Dr. Bernstein testified that "because of employee's degree of pain and that she couldn't carry out any exertional activities that met any of the sedentary standards of sedentary light, medium or heavy work, ... [employee] can't carry out any training or work activities." Dr. Bernstein stated that the reason she is unable to do sedentary work is because she is unable to sit for long periods of times. He testified, "[s]edentary work presupposes an ability to be able to sit at least two-thirds of the time in a workday, and she couldn't do it." Dr. Bernstein concluded in his report that employee "does not have the functional capacity to perform any work on a regular and continuing basis." I believe Dr. Bernstein's records and testimony are credible.

Dr. Barnes saw employee on multiple occasions relating to this work-related accident and ultimately concluded in his medical opinion that she was 100 % disabled. Dr. Barnes testified that employee "doesn't have any marketable skills" and for that reason there is not any occupation in the physical labor market that she could do. Dr. Barnes based his opinion upon an MRI scan, a physical examination of employee and objective data that was made by the American Medical Association. During crossexamination Dr. Barnes speculated that if employee received additional education, he believed she could probably do sedentary work. The administrative law judge incorrectly gave great weight to this testimony. Dr. Barnes is a medical doctor and not a vocational expert. Therefore, Dr. Barnes' vocational opinions should be disregarded as irrelevant. I believe Dr. Barnes' medical records and medical opinions are credible, but I do not find his vocational opinions credible. The vocational opinions given by the vocational expert, Dr. Bernstein, should be given more weight than Dr. Barnes' speculative vocational opinions.

Dr. Shawn Berkin saw employee for the purpose of performing an independent medical evaluation. Dr. Berkin's IME report included the following ratings: 35 % permanently partially disabled of the body as a whole at the level of the cervical spine, 30 % permanently partially disabled of the body as a whole at the level of the thoracic spine, and 25 % permanently partially disabled of the body as a whole at the level of the lumbosacral spine. Dr. Berkin concluded that "[d]ue to the nature and extent of employee's disabilities coupled with her age and limited job experience, having worked her entire life as a truck driver, [he] does not feel [employee] is capable of competing for or maintaining gainful employment in the open labor market." Dr. Berkin stated he feels employee is permanently and totally disabled to work.

Dr. John Hackman, employee's treating neurologist, is the only physician that provided a rating for employee that did not state employee was totally disabled. Dr. Hackman initially saw employee on October 16, 2002 and performed an anterior cervical discectomy and interbody fusion at the C6-7 level on employee in November of 2002. Dr. Hackman saw employee for two follow-up visits and in a letter dated April 8, 2003 he provided a rating of 7 % impairment to the body as a whole. Dr. Hackman testified that he did not remember if employee had any pain complaints at her follow-up visits and his records did not say whether she did or did not.

Dr. Hackman's rating is severely disproportionate to the other doctors' ratings. It is my opinion that his rating is so disproportionate because he merely evaluated the objective results of the surgery he performed on employee and failed to account for her subjective pain complaints. Dr. Hackman's medical records only refer to the results of x-rays taken of employee's cervical spine. As a result, Dr. Hackman's rating of 7\% impairment to the body as a whole is dramatically lower than the other total disability ratings given by the other physicians. In addition, Dr. Hackman completely disregarded employee's problems associated with her thoracic and lumbar spine compression fractures.

It is my opinion that Dr. Berkin's records and testimony are more credible than Dr. Hackman's. For one thing, Dr. Hackman assigned a 7\% physical "impairment" rating to employee which is different from the industrial "disability" rating that is used in Missouri Workers' Compensation law cases. The "disability" rating relates to an individual's ability to work and their earning capacity. Hettenhausen v. Gene Jantzen Chevrolet, 499 S.W.2d 785, 786 (Mo. 1973). Dr. Hackman's rating relates to something different and is not an appropriate rating when determining whether permanent total disability benefits should be awarded. Dr. Berkin used the appropriate disability ratings and addressed all of Employee's back problems. For these reasons, I find him more credible than Dr. Hackman.

Another issue with regard to this claim concerns employee's preexisting back problems. The administrative law judge did not award any permanent partial disability benefits for employee's lumbar spine due to minor treatments employee received on her back in the 1990s. It appears the last treatment employee received on her back prior to the work-related accident was in 1999, more than three years prior to the 2002 accident. It would seem that employee would have had treatment with regard to her lumbar spine at some point during this three year interval if whatever problems she had with her lumbar spine had not yet resolved. In addition, Dr. Berkin's report specifically stated that the September 2002 motor vehicle accident was the "prevailing factor in causing strains to the cervical and lumbar spines, associated with bulging discs at C6-C7 and L4L5, and compression fractures of T11 and T12." This coupled with the fact that an MRI of her lumbar spine was ordered by Dr. Hackman just two months after the accident, convinces me that the work-related accident was the substantial factor in causing employee's current lumbar spine condition.

Employee testified that due to her current neck condition she has to sleep on really low surfaces and if she does not, she will have stiffness in her neck when she wakes up and is barely able to turn her head. If she does anything strenuous during the day, she experiences neck pain. Employee stated that due to her problems in the thoracic and lumbar areas of her back, she is unable to do a lot of standing, sitting, laying, lifting or walking. She also complained of a limited range of motion in her mid-back and neck. Employee

stated that she cannot deal with the pain she experiences in her back and neck without medication. Employee appeared to be an accurate historian and her testimony was credible.

The vocational expert, Dr. Bernstein, performed a full evaluation of employee and thoroughly reviewed her medical records. He testified that employee had no transferable skills and was unable to perform her old job based on her current work restrictions. Based on the results of his evaluation, it is his opinion that employee is not employable in the open labor market, and as such, is permanently and totally disabled. In addition, Dr. Berkin's report and testimony also reveal that employee is permanently and totally disabled.

Based on the above, I believe that employee has carried her burden of establishing that she is permanently and totally disabled solely as a result of the September 15, 2002, work accident and injury. Dr. Bernstein provided expert medical and vocational evidence that employee does not have the functional capacity to perform any work on a regular and continuing basis. Drs. Barnes and Berkin provided further competent and substantial evidence that due to employee's physical impairment, restrictions, age, education and training, employee is unemployable in the open labor market. Therefore, employee is permanently and totally disabled. As such, I would reverse the award of the administrative law judge merely awarding employee permanent partial disability benefits and award employee permanent total disability benefits.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

FINAL AWARD

Employee: Carol Landers Injury No. 02-097507

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations o