David Taylor v. Contract Freighters, Inc.

(After remand from the Court of Appeals for the Southern District of Missouri)

Injury No.: 06-104584

Employee: David Taylor

Employer: Contract Freighters, Inc.

Insurer: Con-way Truckload, Inc.

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

On July 25, 2008, this matter was called for hearing upon employee's request for a hardship hearing. Employee sought a temporary award of medical treatment and temporary total disability compensation. On October 1, 2008, the administrative law judge issued an award denying compensation. Employee filed an Application for Review with the Labor and Industrial Relations Commission (Commission).

On June 16, 2009, the Commission issued its final award denying compensation. ${ }^{1}$ Employee appealed to the Missouri Court of Appeals for the Southern District.

On April 8, 2010, the Court of Appeals issued an opinion reversing the June 16, 2009, award and decision of the Commission. Taylor v. Contract Freighters, Inc., 315 S.W.3d 379 (Mo. App. 2010) (SD29945). By mandate dated September 2, 2010, the Court reversed the Commission's June 16, 2009, award and remanded this matter to the Commission for a hearing not inconsistent with the opinion of the Court.

Pursuant to the Court's mandate, we issue this award. Having reviewed the evidence and considered the whole record in light of the opinion of the Court, we reverse the October 1, 2008, award of the administrative law judge and we award benefits.

Arising Out of and In the Course of Employment

Employee, who is now sixty-eight years old, worked a total of over thirteen years in the employ of employer as an over-the-road truck driver. On November 4, 2006, while working for employer driving an 18-wheeler in Texas, employee claimed he felt a dip down as his truck veered to the right and started off the road. As he attempted to correct the truck and veer back to the left, the truck ran off the road. Employee received injuries from the accident. Employer denied coverage for the injuries on the basis that the accident involved an "idiopathic condition," which was not covered by Chapter 287; Employer claimed that employee coughed just prior to the accident and that his coughing was an idiopathic condition pursuant to $\S 287.020 .3(3) .^{2}$

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[^0]: ${ }^{1} Commissioner Hickey dissented from the majority decision.

{ }^{2}$ Statutory references are to the Revised Statutes of Missouri 2005, unless otherwise indicated.

The Court began its analysis of this matter by pointing out that employee's injury arose out of and in the course of employment.

Clearly, there is no question that Claimant would have sustained an injury arising out of and in the course of his employment absent the finding regarding his idiopathic condition. The injury, as defined by section 287.020.3(5), was the "violence to the physical structure of the body." The cough did not cause the physical violence to the body structure.

Furthermore, an accident is defined as an "unexpected traumatic event or unusual strain identifiable by time and place of occurrence . . . caused by a specific event during a single work shift." Section 287.020.2. The cough was not an unexpected traumatic event or unusual strain identifiable by time and place of occurrence. The truck accident was the unexpected traumatic event. The truck accident caused the violence to the body structure. There is no claim that the injury came from a hazard or risk unrelated to the employment to which Claimant was equally exposed outside of and unrelated to the employment in normal non-employment life. Therefore, because Claimant met his burden in establishing that he sustained an injury arising out of and in the course of his employment, we now address section 287.020.3(3).

ld. at 381 .

The court then ruled that there was no evidence in the record to support a conclusion that an idiopathic condition caused the cough preceding the accident because there was no evidence that the particular cough preceding the accident was caused by some coughing condition unique to employee.

After the injury, employee was transported by ambulance to the emergency room where he complained of back pain and thumb pain. An x-ray of employee's low back revealed no significant fracture.

After returning to Missouri, employee was treated on November 8, 2006, by employer's doctor, Dr. Estep. Employee reported his thumb was doing better. He complained mainly of back pain beginning in the thoracic area and extending down to the sacral area. Dr. Estep diagnosed employee with a lumbar strain, sacroiliac strain and right thumb strain. Dr. Estep recommended physical therapy. Dr. Estep released employee to work with restrictions of no over-the-road driving and minimal climbing. Dr. Estep checked the box marked "Prevailing Factor" on the Workers Compensation Treatment Form of Freeman OccuMed.

Employee saw Dr. Estep again on November 10, 2006. He complained of continuing back pain as well as pain in his right rib cage. Dr. Estep diagnosed employee with a lumbar strain, sacroiliac strain, right thumb strain, and abdominal wall contusion. Dr. Estep recommended continuing physical therapy. Dr. Estep released employee to work with

Restrictions of no over-the-road driving. Dr. Estep checked the box marked "Prevailing Factor" on the Workers Compensation Treatment Form of Freeman OccuMed.

Employee attended physical therapy on November 9, 10, 13, and 14. Freeman Health System records record that a representative of employer contacted Freeman Health on the afternoon of November 14 to inform Freeman Health that employer authorized no further therapy sessions.

On November 21, 2006, employee sought treatment in Pennsylvania for his back pain from his family physician, Dr. Shetty. Dr. Shetty requested diagnostic imaging of employee's lumbar spine. The resulting MRI and x-ray revealed employee had compression fractures at L3 and L4. Dr. Shetty recommended physical therapy.

Employee saw Dr. Shetty again on December 13, 2006, at which time Dr. Shetty requested pelvis x-rays and referred employee to Dr. Flannagan, a neurosurgeon. The pelvis x-rays revealed some degenerative changes.

On January 9, 2007, Dr. Flannagan recommended TLSO bracing and x-rays. Follow up x-rays showed loss of height inferiorly in the L3 and L4 vertebral bodies secondary to the compression fractures. The brace has not been provided.

On March 7, 2007, Dr. Shetty recommended that employee be seen at a pain clinic and prescribed Percocet for pain.

Dr. Shetty's June 6, 2007, office visit record reflects that employee was still taking Percocet for pain and that employee did not want to attend a pain clinic because of the cost.

Employee testified that regarding his current symptoms. He experiences numbness in his right hand of such severity that he cannot use the hand. Employee has severe back pain. He testified that activity makes the pain unbearable. Walking, lifting, and lying in one position are all activities that increase employee's back pain. By limiting his activities and using oxycodone, employee can maintain his back pain at level 5 on average (on a scale of 1 to 10). Employee testified that he did not believe he could work a regular job from the time of the November 4, 2006, injury, through the hearing date. We find credible employee's testimony.

Employee was evaluated by his expert, Dr. Swaim, on September 10, 2007. Dr. Swaim reports that employee has constant back pain. The pain is usually an aching/throbbing pain but occasionally it is a severe sharp pain. Sometimes the pain is accompanied by spasms and/or leg cramping. Prolonged sitting increases employee's back pain.

Dr. Swaim provided his opinion that employee's injury of November 4, 2006, was the prevailing factor causing employee's disc bulging and chronic lumbar pain/strain with associated muscle spasms. Dr. Swaim opined that employee is at maximum medical

Improvement with regard to his lumbar strain. Dr. Swaim provided a permanent partial disability opinion as to the lumbar injury.

Dr. Swaim opined that employee's injury of November 4, 2006, was the prevailing factor causing employee to contuse/strain the right thumb and develop a right ulnar neuropathy. Dr. Swaim opined that employee is at maximum medical improvement with regard to the right hand injury. However, Dr. Swaim was unable to provide a permanent partial disability opinion as to the right hand because employee needs an EMG/nerve conduction study to assess his ulnar neuropathy.

In addition to the EMG for employee's hand, Dr. Swaim believed employee should undergo an EMG of both legs and a Doppler study of both legs. Dr. Swaim also opined that employee should follow-up with a spine surgeon and undergo repeat lumbar spine x-rays. In employee's December 17, 2008, brief filed with the Commission, employee argued that these tests still need to be performed. But employee testified during his November 29, 2007, deposition, that he had Doppler studies performed on his right upper extremity and both legs on October 24, 2007.

Employee was evaluated by Dr. Lennard, employer/insurer's expert, in March 2008. Dr. Lennard opined that the truck accident was the prevailing factor in causing employee's L3 and L4 compression fractures as well as employee's right hand symptoms. Dr. Lennard believed employee was at maximum medical improvement. Dr. Lennard was of the opinion that employee needed no additional treatment or testing. Dr. Lennard recommends that employee avoid lifting over 25 pounds and avoid prolonged lifting. Dr. Lennard offered permanent partial disability ratings.

Employee was injured by reason of an accident arising out of and in the course of his employment on November 4, 2006. Employee did not work a regular job from the date of the accident through the hearing date and employee believes he was incapable of doing so. Employee credibly testified about the severity of his pain and the steps he takes to relieve the pain, including the daily use of narcotic pain medication.

Dr. Swaim found employee to be at maximum medical improvement on September 10, 2007. Dr. Lennard also found employee to be at maximum medical improvement when he evaluated employee in March 2008.

The purpose of temporary, total disability benefits is to cover the cost for a worker's healing period. The test is whether an employee is able to compete in the open labor market given the employee's present physical condition.

Lane v. G \& M Statuary, Inc., 156 S.W.3d 498, 506 (Mo. App. 2005) (internal citations omitted).

After reaching the point where no further progress is expected, it can be determined whether there is either permanent partial or permanent total disability and benefits may be awarded based on that determination. One

cannot determine the level of permanent disability associated with an injury until it reaches a point where it will no longer improve with medical treatment. Furthermore, an employers' liability for permanent partial or permanent total disability does not run concurrently with their liability for temporary total disability.

Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent and thus, when payments for permanent partial or permanent total disability should be calculated.

Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008).

Based upon the foregoing, particularly employee's testimony that he was incapable of working in the months following the accident, we conclude that employee was temporarily and totally disabled from November 5, 2006, through September 10, 2007, the date on which Dr. Swaim found employee to be at maximum medical improvement. Employee is entitled to temporary total disability benefits for 44-2/7 weeks at the stipulated weekly rate of $\ 5