| FINAL AWARD DENYING COMPENSATION (Affirming Award and Decision of Administrative Law Judge) | Injury No.: 08-021371 |
| Employee: | David Wallace |
| Employer: | Chrysler, LLC |
| Insurer: | Self-Insured c/o Sedgwick Claims Management |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund (Open) |
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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 28, 2008, and awards no compensation in the above-captioned case.
The award and decision of Administrative Law Judge Kathleen M. Hart, issued October 28, 2008, is attached and incorporated by this reference.
Given at Jefferson City, State of Missouri, this 31st day of July 2009.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
Alice A. Bartlett, Member
DISSENTING OPINION FILED John J. Hickey, Member
Attest:
Secretary
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 temporary total disability benefits and future medical benefits should be awarded.
First, there is no question that employee has a herniated disc at L3-L4 as well as degenerative changes in his lower back. However, I disagree with the administrative law judge's conclusion that said condition was not in any way caused by employee's work-related activities.
Employee alleges that his back condition is an occupational disease that was caused by his duties of employment. Section 287.067.2 RSMo. provides:
An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The 'prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
Section 287.067.3 RSMo goes on to list the requirements for an occupational disease caused by repetitive motion. Specifically, Section 287.067.3 states:
An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The 'prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
Employee began experiencing low back pain problems as early as July of 1999. In fact, employee visited the Chrysler Medical Center complaining of back pain thirteen times during the time period of 1999-2003. The medical records from eleven of those thirteen visits show that employee was being seen for either a new work-related back problem or in follow-up to a previous work-related back problem. Most of employee's complaints involved repetitive bending and strain on his back.
On October 30, 2000, Dr. Malak, of the Chrysler Medical Center, determined that employee's work activities did not aggravate, contribute, or cause his chronic mild on/off back pain. After this visit, employee continued to visit the Chrysler Medical Center for his ongoing back pain complaints, but also began seeing his family doctor, Dr. Schuerman.
In arguing that employee's current back pain is not work-related and is merely the result of an acute injury that occurred while employee was off work, employer points to the fact that employee did not visit the Chrysler Medical Center regarding his back pain from the time period of 2004-2007. However, employee did visit Dr. Schuerman in 2004, 2005, 2006, and 2008 regarding his back pain. Employee's treatment for his back pain has been ongoing and continuous since 1999.
Dr. Taylor, employee's expert, took a "very long and complex history of [employee's] problems that culminated in a severe exacerbation and change in symptomatology resulting in severe back and leg pain."
In addition, Dr. Taylor performed a physical examination of employee and reviewed the MRI of employee's low back. Dr. Taylor also noted that the types of movements employee was performing as part of his job as an assembly line worker, were consistent with the type of disc herniations he currently has. Dr. Taylor ultimately concluded that employee's job duties as an assembly line worker at Chrysler were the prevailing factor which caused his current back problems.
On the other hand, Dr. Chabot, employer's expert, opined that employee "may have experienced temporary exacerbations of his condition with mild strain injuries in the course of his employment," but that it was [his] "opinion that the prevailing issue responsible for [employee's] complaints is progressive degeneration involved in the lumbar spine, his age, his genetics, obesity, and general decondition...." However, on crossexamination, Dr. Chabot acknowledged that, on numerous occasions, work-related duties at Chrysler had exacerbated employee's back pain. Specifically, Dr. Chabot conceded that employee had experienced back pain from work duties on February 17, 2000, April 7, 2000, and April 28, 2000.
It is my opinion that Dr. Taylor's records and testimony are more credible than Dr. Chabot's. First, Dr. Chabot acknowledges the fact that employee's job requires lots of bending, twisting, and lifting of heavy vehicle parts. Second, Dr. Chabot further acknowledges that employee had at least three specific workrelated injuries/exacerbations resulting in his back pain and eventual visit to the Chrysler Medical Center. Lastly, Dr. Chabot is of the opinion that employee currently suffers from multiple disc herniations that will require future medical treatment. However, after acknowledging all of these facts, Dr. Chabot still came to the illogical conclusion that employee's job duties were not the prevailing factor in causing his current back condition.
Dr. Taylor properly weighed the decade's worth of medical history regarding employee's work-related back problems, and came to the proper conclusion that employee's job duties were the prevailing factor in causing his current back condition.
In my opinion, Dr. Chabot failed to give the proper weight to employee's extensive work-related back pain complaints. For this reason, I find Dr. Taylor to be more credible than Dr. Chabot.
Based on the above, I believe that employee has carried his burden of establishing that his job duties at Chrysler are the prevailing factor in causing his current back condition and, as a result, employee should be entitled to temporary total disability benefits and future medical treatment to relieve his back pain. As such, I would reverse the award of the administrative law judge denying employee benefits regarding this matter.
For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.
John J. Hickey, Member