Johnny Wyatt v. Blair Packaging

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-012678

Employee: Johnny Wyatt

Employer: Blair Packaging

Insurer: American Home Assurance Company

c/o AIG Claim Services

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund

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 March 10, 2008. The award and decision of Administrative Law Judge Lawrence C. Kasten, issued March 10, 2008, 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 12th day of March 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

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 to award employee permanent total disability benefits.

The administrative law judge correctly found that the employee met his burden of proof that he sustained a work injury to his back (and/or aggravated a pre-existing condition at L5-S1 which caused low back to become more symptomatic and disabling) on February 2, 2004. The administrative law judge also correctly found that employee's recurrent herniated disc at L5-S1 and need for medical treatment, including surgery by Dr. Cheung, through November 30, 2004 was medically causally related to the February 2, 2004 work accident.

However, the administrative law judge found that employee did not meet his burden of proof on the issue of medical causation for the treatment and surgery performed on September 15, 2005. The administrative law judge erred in finding that stenosis at L4-5 and the recurrent L5-S1 herniated disc diagnosed in 2005 was not related to his February 2, 2004 work accident and that the September 15, 2005 surgery was not medically causally related to the February 2, 2004 work accident. The administrative law judge further found that employee failed to meet his burden of proof as to what percentage of permanent partial disability he sustained as a result of the February 2, 2004 accident and that employee was not permanently and totally disabled. The administrative law judge erred in not finding that employee was permanently and totally disabled.

Employee has the burden of proving all the essential elements of a claim for workers' compensation benefits by reasonable probability, not absolute certainty. McDermott v. City of Northwoods Police Dep't, 103 S.W.3d 134, 138 (Mo.App. E.D. 2002). The Commission may accept or reject medical evidence; and is free to accept one of two conflicting medical opinions. Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 233-234 (Mo.App. S.D. 2003).

Employee had two prior back surgeries in 2002; however was able to return to work after he recovered from his second surgery. Employee testified that he was careful with lifting but overall did not have problems with back pain following the 2002 surgeries. Employee sustained another injury to his back at work on February 2, 2004 and was sent to Dr. Ryan by employer. In April of 2004, employee learned that employer was denying his workers' compensation claim and sought treatment on his own from Dr. Chueng. Dr. Chueng diagnosed employee with a disc protrusion at L5-S1 and noted a previous laminectomy defect at L5S1 on the right. Employee underwent bilateral laminectomy and right sided discectomy at L5-S1 in August of 2004. Employee was released to return to work on September 20, 2004. Employee testified that he would have attempted to return to his position with employer following his surgery, but was notified by employer that his position was no longer available. Employee testified that he was denied job opportunities as a result of his back condition and attempted to work as a truck driver for a short period of time. After completing the training course and obtaining his commercial driver's license, employee was only able to work as a truck driver for approximately 30 days. Employee was forced to stop driving because he began having increased leg pain as well as leg numbness to the point where he could not feel the pedals.

An MRI in July 2005 showed a recurrent disc herniation at L5-S1 on the right and persistent spinal stenosis at L4-5 which appeared to be more significant than before. Employee underwent a fourth surgery for his

back in September 2005. The evidence, including employee's testimony, shows that employee never fully recovered from his 2004 injury, remaining symptomatic up and until his 2005 surgery. The 2005 surgery was clearly due to employee's February 2, 2004 injury. Employee was unable to sustain work after his 2004 injury, only briefly working as a truck driver in the Spring of 2005. Employee was forced to quit that position because of his physical condition and inability to perform his duties safely.

The evidence supports a finding that employee's February 2, 2004, work-related accident was the substantial factor in causing the herniations that required surgery in 2004 and 2005. The medical experts that gave opinions as to causation were Dr. Zoffuto on behalf of employee, and Dr. Lange on behalf of employer. I find the opinion of Dr. Zoffuto more credible than that of Dr. Lange. Dr. Zoffuto performed an independent medical examination on employee in May 2006. Dr. Zoffuto opined that employee's February 2, 2004, injury was the prevailing factor which required him to undergo the August 10, 2004 and September 15, 2005 surgeries. He believed the treatment sought by employee was reasonable and that the February 2, 2004 injury was the prevailing cause for him to seek those remedies. Dr. Zoffuto suspected that the accident in 2004 was not only responsible for the recurrent injury at L5-S1, but for the injury at L4-S1; and that employee's condition deteriorated causing employee to become increasingly symptomatic over time. Dr. Zoffuto believed that employee's activities, including his brief time as a truck driver, may have caused the L45 disc to become symptomatic, but that the injury related back to his 2004 accident.

When a partially disabled employee incurs a new injury and is rendered permanently and totally disabled, the first step in ascertaining liability is to determine the amount of disability caused by the new accident alone. Vaught v. Vaughts, Inc./Southern Mo. Constr., 938 S.W.2d 931, 939 (Mo.App. S.D. 1997), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). If the new accident, by itself, renders employee permanently and totally disabled, then the employer at the time of the new accident is liable for that disability. Id.

Under the Missouri Workers' Compensation Law employee is considered totally disabled if he is unable to return to any employment, not merely the employment in which he was engaged at the time of the accident. $\S 287.020 .7$ RSMo. The test for permanent-total disability is whether employee is able to competently compete in the open labor market given his condition and situation. Reiner v. Treasurer of State of Missouri, 837 S.W.2d 363, 367 (Mo.App. E.D. 1992). Therefore, the ultimate question is whether an employer can reasonably be expected to hire employee, given his present physical condition, and reasonably expect employee to successfully perform the work. Id.; Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 853 (Mo.App. S.D. 1995).

Having established the two surgeries (February 10, 2004 and September 15, 2005) were causally related to employees February 2, 2004 injury, the analysis begins with whether employee was permanently and totally disabled as a result of that injury and subsequent treatment. I believe the evidence shows that employee is permanently and totally disabled as a result of the February 2, 2004 injury alone.

Following employee's surgery in 2005, claimant testified that he once again attempted to find work, but due to his physical condition was not hired by any employer. Employee stated that he was willing to try to return to work for employer, but did not believe he would have been physically capable of performing the work. Employee had worked for employer for 24 years at the time of his injury in 2004. It is clear from the record that employee made effort to return to work and was unable to do so, given his back condition and residual symptoms. As a result, employee applied for and obtained Social Security disability benefits.

Employee testified that he continues to have problems related to his 2004 injury and surgeries. Employee testified that his back bothers him occasionally, but that his right leg aches all the time. Employee testified

that his leg twitches at night causing disruption in his sleep. Employee reported discomfort sitting requiring him to shift positions often. He also had difficulty standing for long periods and driving; requiring him to stop and take breaks to walk around when he drives. Employee further testified that his injury and subsequent unemployment affected his mood causing him to be depressed and irritable.

Employee's testimony was supported by his wife who testified that employee could not do any heavy lifting and watched what he did following his 2004 injury. Employee's wife testified that there was a change in what employee was capable of doing and the way that he moved. Employee was no longer able to pick up his grandchildren, had to change positions often while seated, and was forced to get up at night due to his leg twitching. Employee's wife also noticed that employee got frustrated and was more irritable because of his physical condition and limitations.

Ms. Susan Shea, vocational expert, opined that employee was disabled from any substantial work as performed in the national economy. Ms. Shea noted that employee was limited in his ability to sit, stand, and walk which would eliminate sedentary or light work. Ms. Shea found that employee did not have transferable skills and given employee's age, that it would be difficult for him to adjust to new types of work. Ms. Shea concluded that it would be highly doubtful that an employer would consider hiring employee; and that if employee did attempt to return to work, it would be highly unlikely that employee would be able to maintain work on a regular basis.

Additionally, Dr. Zoffuto opined given employee's education and that his non-labor skills were substantially limited, he had minimal functional residual capacity and was limited to less than sedentary work. Dr. Zoffuto did not apportion ratings for employee's 2004 injury, but opined that the surgery in August 2004 and September 2005, each caused additional permanent partial disability. Dr. Zoffuto found employee to be permanently and totally disabled as a result of the combination of the two surgeries stemming from the 2004 injury. Dr. Zoffuto concluded that the 2004 injury was the prevailing cause for his current situation of 100\% permanent total disability.

I believe employee has shown that due to his back injury on February 2, 2004, he is unable to compete in the open labor market and that no employ