Terry Hornbeck v. Spectra Painting Inc.

Injury No.: 06-124920

Employee: Terry Hornbeck

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average weekly wage; (6) in finding employee is not entitled to additional temporary total disability benefits and interest on past due amounts; (7) in finding employee not entitled to attorney fees and costs; (8) in finding employee is not entitled to a fifteen percent increase under § 287.120.4 RSMo for employer's violation of the Scaffolding Act; (9) in finding, alternatively, that employee is not permanently and totally disabled; and (10) in failing to find employee's spouse and dependent daughter entitled to conditional survivor benefits under § 287.230.2 RSMo.

For the reasons set forth below, the Commission reverses the conclusion of the administrative law judge that employee is not entitled to a fifteen percent enhancement under the Scaffolding Act. All other conclusions of the administrative law judge are affirmed as supplemented and modified below.

Discussion

Standard of proof in a section 203 hearing

Employee urges that the administrative law judge erred as a matter of law in applying an inappropriate standard of proof for a hardship hearing brought pursuant to § 287.203 RSMo. Upon careful reading of the award, it does appear to this Commission that the administrative law judge would require employee to provide evidence of "poor medical treatment" or "misconduct" on the part of the employer in order to prevail in a hardship hearing under § 287.203. We agree that such a burden of proof is inappropriate and is not contemplated within the law. Section 287.203 provides as follows:

Whenever the employer has provided compensation under section 287.170, 287.180 or 287.200, and terminates such compensation, the employer shall notify the employee of such termination and shall advise the employee of the reason for such termination. If the employee disputes the termination of such benefits, the employee may request a hearing before the division and the division shall set the matter for hearing within sixty days of such request and the division shall hear the matter on the date of hearing and no continuances or delays may be granted except upon a showing of good cause or by consent of the parties. The division shall render a decision within thirty days of the date of hearing. If the division or the commission determines that any proceedings have been brought, prosecuted, or defended without reasonable grounds, the division may assess the whole cost of the proceedings upon the party who brought, prosecuted, or defended them.

The purpose of the foregoing section is to provide parties a procedural device for obtaining a fast-track hearing when there are disputes regarding the cessation of medical treatment. Nowhere does the section impose upon employee the additional burden of showing "poor treatment" or "misconduct" by employer.

Employee identifies additional problems with the administrative law judge's analysis. Employee points out that the award includes considerable discussion of perceived "treatment gaps," and the procedural posture of the case (the hearing did not take place until seventeen months after the motion for hardship setting was filed). We agree with

the employee that these factors, in the absence of any expert medical testimony relating them to the issues in dispute, are not strictly relevant to the issue of medical causation. We also note that the administrative law judge makes a medical conclusion that is not supported by any expert testimony when he suggests that the slip and fall in January 2007 caused encroachment of the L4 nerves. Finally, we note that the administrative law judge never cited the appropriate standard of proof for medical causation. Because employee's injuries occurred on November 9, 2006, this case falls under the purview of the 2005 amendments to the Missouri Workers' Compensation Law, and thus the appropriate standard of proof for medical causation is found at § 287.020.3(1) RSMo (2005) ${ }^{1}$ : "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability." We agree that the failure to identify or cite the appropriate standard of proof raises the question of whether the appropriate standard was applied.

Our supplemental opinion on the issue of medical causation, set forth immediately below, is intended to clarify the issue and to make clear that the appropriate standard of proof has been applied to employee's claim. We affirm the award of the administrative law judge because we conclude that employee failed to demonstrate that the work injury was the prevailing factor resulting in a medical condition that warranted treatment after April 2007.

Employer's termination of treatment and temporary total disability benefits are vigorously disputed in this case. The parties agree that employee sustained compensable injuries when he fell from a scaffold in the course of his duties for employer on November 9, 2006. The key issue is the nature and extent of the medical condition and disability resulting from that accident. "Injury" and "accident" are defined in § 287.020 RSMo. Section 287.020.3(1) RSMo defines "injury" as an injury that arises out of and in the course of employment:

In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident 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.

If an injury by accident is compensable under the Workers' Compensation Law, we look to $\S 287.140 .1$ RSMo to determine employer's liability to provide treatment for the injury:

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

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[^0]: ${ }^{1}$ All references are to the 2005 Revised Statutes of Missouri, unless otherwise indicated.

From the language of the foregoing sections, employee's burden is to show that the accident of November 9, 2006, was the prevailing factor causing a resulting medical condition and disability for which treatment was reasonably required after April 24, 2007 (the date on which employer's treating doctors found employee to have reached maximum medical improvement). In support of his claim, employee offers the testimony of Dr. David Volarich, who performed an independent medical examination. Employer presents the testimony of treating Drs. George Paletta, Michael Chabot, and Craig Aubuchon. In addition, the parties have provided extensive treatment records relating to each of employee's claimed conditions of ill.

The administrative law judge agreed with employer's experts that employee reached maximum medical improvement as of April 24, 2007, on a finding that Dr. Volarich lacked credibility. Although we disagree with the comments and rationale of the administrative law judge for discounting the opinion of Dr. Volarich, we do agree that the opinion of Dr. Volarich does not provide a convincing basis for the award sought by employee.

With regard to the spine, Dr. Volarich's theory is that the work injury caused employee to develop lumbar syndrome (a non-specific diagnosis) secondary to aggravation of degenerative disc disease and degenerative joint disease at L3-4, L4-5, and L5-S1. Dr. Volarich also testified that employee sustained an axial compression injury when he fell, pointing to the x-rays showing a narrowing at the L5-S1 disc space. Dr. Volarich is the only doctor in this case to opine that the narrowing at L5-S1 was traumatic in origin, and we find his reasoning less than compelling. When asked whether the lumbar surgery notes provide any evidence that employee suffered an acute injury, Dr. Volarich admits that "it's too late to make an identification of an acute injury ... two and a half years down the road." Dr. Volarich also agrees that Dr. Graven, the surgeon who performed the fusion, found nothing beyond a degenerated disc at L5-S1. Dr. Volarich's ultimate causation opinion appears to be circular: "I have to go back and say that the work accident was the cause of the L5-S1 disc and his symptoms because that was the one that was identified [via discogram] as being concordant with causing his problem."

With respect to the left shoulder injury and tear of the biceps tendon, although Dr. Volarich offers his opinion as to the reasonableness of the charges for surgery, he does not explain why the surgery was reasonably required to cure the effect