David Frost v. Bridgestone Firestone, Inc.

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 January 9, 2009. The award and decision of Administrative Law Judge Grant C. Gorman, issued January 9, 2009, 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 24th day of June 2009. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member Attest:

Secretary

Employee: David Frost

Injury No. 06-007484

Dependents: None

Employer: Bridgestone Firestone, Inc. (Settled)

Additional Party: State Treasurer, as Custodian of the Second Injury Fund

Insurer: Old Republic Insurance Company (Settled)

Hearing Date: October 8, 2008

Checked by: GCG/In

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: February 4, 2006
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? Yes
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: Claimant was test driving a vehicle in the course and scope of his employment when it was struck by another vehicle.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Body as a Whole referable to low back

- Nature and extent of any permanent disability: Primary injury settled for 12.5 % BAW - low back and 2.5 % BAW - psychiatric injury.

1. Compensation paid to-date for temporary disability: $\ 25,252.72
2. Value necessary medical aid paid to date by employer/insurer? Not at issue
3. Value necessary medical aid not furnished by employer/insurer? 0
4. Employee's average weekly wages: Maximum Rate
5. Weekly compensation rate: $\ 660.90 TTD/\$365.08 PPD

- Method wages computation: Stipulation

1. Amount of compensation payable: Employer previously settled.
2. Second Injury Fund liability: Yes

61.34 weeks of permanent partial disability from Second Injury Fund

Total:

$\ 22,394.00

1. Future requirements awarded: None

Said payments to begin as of the date of this Award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Cynthia Hennessey

Employee: David Frost

Injury No: 06-007484

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Hearing on the above-referenced case was held before the undersigned Administrative Law Judge on October 8, 2008 at the Division of Workers’ Compensation in St. Charles, Missouri. David Frost (Claimant) was present and represented by Cynthia Hennessey. Assistant Attorney General Laura Wagener represented the Second Injury Fund (SIF). The claim against the Employer and Insurer were previously settled.

The parties made the following stipulations: Claimant sustained accidental injury arising out of and in the course of his employment on or about February 4, 2006; Claimant was an employee of Employer; venue is proper in St. Charles County, Missouri; Employer received proper notice of injury; the claim was filed in a timely manner; applicable rates of compensation are $\ 660.90 for total disability and $\ 365.08 for permanent partial disability (PPD). Employer paid $\ 25,252.72 in temporary total disability (TTD) benefits (38 1/7 weeks).

The following issues are presented for determination: Whether Claimant sustained psychiatric injury as a result of the primary injury, and liability of the Second Injury Fund.

Only evidence necessary to support this award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. All exhibits offered by the parties have been received into evidence without objection. Certain exhibits offered into evidence may contain handwritten markings, underlining and/or highlighting on portions of the documents. Any such markings on the exhibits were present at the time they were offered by the parties. Further, any such notes, markings and/or highlights had no impact on any ruling in this case.

Claimant testified in person at hearing. Dr. David Volarich testified by deposition (Exhibit S). Dr. Wayne Stillings testified by deposition (Exhibit T). Mr. James England, Jr. testified by deposition (Exhibit U).

The following exhibits were offered by Claimant and received into evidence without objection:

The Second Injury Fund did not offer any exhibits into evidence. Regarding the primary injury, Claimant testified on February 4, 2006, he was test driving a vehicle that had been repaired by a mechanic at Bridgestone Firestone, which was one of his duties as the service manager of that particular store. He was involved in an accident when the car was struck by another vehicle. As a result of the accident, he sought medical treatment and underwent a bilateral laminotomy and fusion at L 4-5 performed by Dr. David Kennedy and Dr. David Robson on September 13, 2006. (Exhibit Q).

Based on the competent and substantial evidence presented, including the testimony of Claimant, my personal observations, expert medical and vocational testimony, and all other exhibits received into evidence, I find:

Under Missouri law, it is well-settled that the claimant bears the burden of proving all the essential elements of a workers' compensation claim, including the causal connection between the accident and the injury. Grime v. Altec Indus., 83 S.W.3d 581, 583 (Mo.App. W.D.2002); see also Davies v. Carter Carburetor, 429 S.W.2d 738, 749 (Mo.1968); McCoy v. Simpson, 346 Mo. 72, 139 S.W.2d 950, 952 (1940). While the claimant is not required to prove the elements of his claim on the basis of "absolute certainty," he must at least establish the existence of those elements by "reasonable probability." Sanderson v. Porta-Fab Corp., 989 S.W.2d 599, 603 (Mo.App. E.D.1999) (citing Cook v. Sunnen Prods. Corp., 937 S.W.2d 221, 223 (Mo.App. E.D.1996)). However, the employee must prove the nature and extent of any disability by a reasonable degree of certainty. Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. 1995); Griggs v. A. B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974).

Claimant settled the primary injury claim against Bridgestone Firestone for 12.5 % of the body as a whole referable to the low back, and 2.5 % of the body as a whole for psychiatric injury. Based on the stipulations of the parties, the stipulation for compromise settlement received into evidence as Exhibit A, Claimant sustained 12.5\% PPD to his body as a whole referable to his low back as a result of the February 4, 2006 work injury.

Dr. Stillings' opinion regarding pre-existing psychiatric disability is not credible. Claimant, by his own testimony, routinely worked 40-50 hours per week. Claimant also testified that the only times he missed work due to a psychiatric condition was a long time ago when he had the substance abuse issues. His testimony regarding substance abuse was that he has been clean and sober for 15 years. He also testified the Bridgestone Firestone store in which he worked was number one in service, and he was named service manager of the year three years in a row. He did not receive psychiatric treatment, other than for substance abuse, prior to the primary work injury. The only reference to his psychiatric condition was in his pain management records of Dr. Page (Exhibit L), which overwhelmingly indicated he did not exhibit any signs of depression or undue anxiety.

Claimant was being prescribed certain medications that are used anti-depressants by Dr. Page, but there is no evidence in the record as to why he was being prescribed these medicines. There is one reference in Dr. Page's records, dated August 15, 2003, which indicates anti-depressants had been prescribed for chronic pain. Claimant's own expert, Dr. Stillings, indicated he was not sure why pain management doctors use anti-depressants, and that he is not sure they know why they are using them. (Exhibit T pp. 36-37). Even reviewing this fact in a light most favorable to Claimant, merely being prescribed anti-depressants without any other manifestation of symptoms, does not support the assertion that Claimant had a 40 % permanent partial disability due to psychiatric conditions, or that the alleged psychiatric conditions were a hindrance or obstacle to employment as Dr. Stillings opined. Claimant has failed to prove it is reasonably probable that he had a pre-existing psychiatric condition that was a hindrance or obstacle to employment on February 4, 2006.

There is no credible evidence Claimant sustained a psychiatric injury as a result of the work injury. There are no contemporaneous records of complaints or treatment, whether authorized or not, of psychiatric symptoms or injury. Claimant's testimony primarily focuses on his physical injury. The discussion of a psychiatric injury as a result of the work injury is purely academic in any event. Dr. Stillings' opinion regarding pre-existing psychiatric condition as a hindrance or obstacle to employment has been found not to be credible.

In Addition, Dr. Stillings' opinions regarding permanent and total disability based on psychological factors, and Mr. England's opinion that is predicated upon them, presume a disability of 30 % from the primary work injury relating to psychiatric injury. The principles of Conley v. Treasurer of Missouri, 999 S.W.2d 267, (Mo. App. E.D. 1999) preclude Claimant from advancing the position he received a psychological injury greater than 2.5 % as a result of the primary work injury. While there is no threshold required in a permanent total disability case, 30 % disability is a significant injury, far more so than a 2.5 % disability. This difference, along with the fact that there is no evidence in the record that a 2.5 % permanent partial disability relating to psychiatric injury from the work injury would result in permanent total disability, further erodes the credibility of permanent total disability opinions based on psychiatric factors. Claimant has failed to prove it is reasonably probable he sustained a psychiatric injury as a result of the primary work injury.

Dr. Kennedy, as part of his treatment, ultimately released Claimant from care at maximum medical improvement (MMI) on April 5, 2007. Dr. Kennedy recommended the following work restrictions "I think he should be in a job capacity where he is not lifting more than 10 pounds and only doing occasional bending, twisting or stooping. He will need to be able to sit and stand at intervals depending on his symptoms." Dr. Volarich, as part of his independent medical exam, also recommended certain work restrictions. To the extent the restrictions recommended by Dr. Kennedy are different than the restrictions recommended by Dr. Volarich, Dr. Kennedy is more credible. Dr. Kennedy is more familiar with Claimant's condition as he provided medical care and treatment, and is a surgeon who practices in this area of medicine.

James England, a vocational expert, opined Claimant is permanently and totally disabled and unable to compete for employment in the open labor market. According to his testimony, Mr. England's opinion is based, at least in part on the psychiatric exam and opinions of Dr. Stillings. Further, it is also based in part on the physical restrictions imposed by Dr. Volarich. As each of these opinions has been found to not be credible, Mr. England's opinions, to the extent which they are based on them, are also not credible. During cross-examination of both Employer and SIF, Mr. England stated there would be employment available to Claimant under the restrictions imposed by Dr. Kennedy, the treating physician. Section 287.020.7 RSMo. (2000) defines total disability as the "inability to return to any employment and not merely... [the] inability to return to the employment in which the employee was engaged at the time of the accident." The words "inability to return to any employment" mean "that the employee is unable to perform the usual duties of the

A true copy: Attest:

/s/ Nasreen Esmail

Nasreen Esmail