Lindell Moll v. Martin Marietta Materials Incorporated

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 06-057515

Employee: Lindell L. Moll

Employer: Martin Marietta Materials Incorporated

Insurer: Ace American Insurance Company

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have heard the oral arguments of the parties, reviewed the evidence, and considered the whole record. We find 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, except as modified herein.

Pursuant to $\S 286.090$ RSMo, we issue this final award and decision modifying the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The administrative law judge found that employee sustained an injury to his low back as a result of the April 13, 2006, accident but he denied employee's claim for permanent partial disability referable to his lumbar condition. The administrative law judge reasoned:

The Court had previously ruled in favor of the employee on the issue of medical causation regarding his back. Dr. Chabot's opinion was that any problems with the employee's back were pre-existing and, therefore, were not medically causally related to his accident. He provided a 0 % rating. Dr. Volarich's opinion was that the employee's injury to his back was medically causally related to the accident of April 13, 2006. He rated the employee's permanent partial disability to his back as 221 / 2 % of the body as a whole. However, he testified that he could not say what portion of his 221 / 2 % rating was due to the pre-existing condition. Dr. Volarich gave a rating of 45 % permanent disability to the employee's neck.

The Court believes that the employee injured his back in the April 13, 2006 accident and believes that he incurred some permanent disability to his back as a result of that accident. However, the Court is unable to order that the employer-insurer pay any permanent disability compensation for the employee's back as the employee was not able to provide any expert

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

enidence separating the disability from the employee's preexisting back conditions from the disability that resulted from the April 13, 2006 accident.

The employee has the burden to prove the nature and extent of disability attributable to each injury. The Court finds that the medical opinion of Dr. Volarich is not sufficient for the employee to meet his burden of proof on his claim for permanent partial disability for the low back. Based on a review of the evidence and case law, the Court finds that the employee has failed to meet his burden of proof as to what percentage of permanent partial disability he sustained for the injury to his low back as a result of the compensable work related accident of April 13, 2006. The employee is not awarded any permanent partial disability benefits for any disability sustained to his back.

We disagree with the administrative law judge's analysis and conclusions regarding employee's lumbar conditions.

Dr. Volarich testified that employee's April 13, 2006, accident was the prevailing factor in causing employee's disc bulges at L4-5 and L5-S1 and employee's resulting lumbar syndrome. Dr. Volarich considered the following factors when reaching this conclusion: employee had no low back symptoms before the April 2006 work accident; the October 2, 2006, MRI of employee's lumbar spine revealed well-maintained disc spaces and minimal degenerative disc disease; the healthy presentation of the discs suggested no degenerative indication for lumbar disc bulging.

Contrary to the administrative law judge's finding, Dr. Volarich apportioned permanent partial disability between employee's preexisting lumbar conditions and his work-related lumbar condition. Dr. Volarich testified that he would assign no permanent disability to employee's preexisting lumbar conditions because employee had no symptoms before the work injury. In other words, Dr. Volarich assigned 0\% disability to employee's preexisting lumbar conditions and 22.5 % permanent partial disability of the body as a whole to employee's work-related lumbar condition. We find credible Dr. Volarich's opinions regarding employee's lumbar conditions. We find employee sustained a 22.5 % permanent partial disability of the body as a whole referable to his lumbar spine as a result of the April 13, 2006, work accident.

We also disagree with the administrative law judge's conclusion that employee is not entitled to an award of future medical care. In order to prove he is entitled to an award of future medical care, employee had the burden of proving there exists a reasonable probability future medical treatment is needed. ${ }^{2}$ Dr. Volarich testified that there was a reasonable probability that employee will need future medical treatment, particularly as relates to his cervical fusion. We find credible this opinion of Dr. Volarich. Employee is entitled to an award of such future medical care as is reasonably necessary to cure and relieve employee of the effects of his injury.

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[^0]: ${ }^{2}$ Concepcion v. Lear Corp., 173 S.W.3d 368, 372 (Mo. App. 2005).

We modify the award of the administrative law judge. In addition to the amounts awarded by the administrative law judge, we award additional compensation as follows:

We direct employer/insurer to pay to employee $\ 32,857.20 for permanent partial disability benefits ( $\$ 365.08 \times 90=\ 32,857.20 ) on account of employee's compensable lumbar condition.

We direct employer/insurer to provide to employee such future medical care as may be reasonably required to cure and relieve employee of the effects of his injuries or disabilities.

In all other respects, we affirm the award of the administrative law judge.

We further approve and affirm 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.

The award and decision of Administrative Law Judge Gary L. Robbins, issued April 20, 2010, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $17^{\text {th }}$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Lindell L. Moll

Injury No. 06-057515

Dependents: N/A

Employer: Martin Marietta Materials Incorporated

Additional Party: Second Injury Fund

Insurer: Ace American Insurance Company

Hearing Date: February 8, 2010

Checked by: GLR/rf

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? April 13, 2006.
5. State location where accident occurred or occupational disease contracted: Perry 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 happened or occupational disease contracted: The employee was driving a truck when he hit a culvert/ditch and injured his neck and back.

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease: Neck, back and body as a whole.
3. Nature and extent of any permanent disability: See Award.
4. Compensation paid to date for temporary total disability: $\ 6,939.89.
5. Value necessary medical aid paid to date by employer-insurer: $\ 56,138.99.
6. Value necessary medical aid not furnished by employer-insurer: $\ 0.
7. Employee's average weekly wage: $\ 783.53.
8. Weekly compensation rate: $\ 522.35 per week for temporary total disability and $\ 365.08 per week for permanent partial disability.
9. Method wages computation: By agreement.
10. Amount of compensation payable: See Award.
11. Second Injury Fund liability: See Award.
12. Future requirements awarded: None.

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: Joseph P. Rice.

On, February 8, 2010, Lindell L. Moll, the employee, appeared in person and by his attorney, Joseph P. Rice, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, John D. Dietrick. Assistant Attorney General Clifford Verhines represented the Second Injury Fund. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the statement of the findings of fact and rulings of law, are set forth below as follows:

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by Ace American Insurance Company.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of Martin Marietta Materials Incorporated and was working under the Workers' Compensation Act.
3. On or about April 13, 2006 the employee sustained an accident or occupational disease arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 783.53. The parties stipulated that the employee's rate for temporary total disability is $\ 522.35 per week and his rate for permanent partial disability is $\ 365.08 per week.
7. The employer-insurer paid $\ 56,138.99 in medical aid.
8. The employer-insurer paid $\ 6,939.89 in temporary disability benefits.
9. The employee has no claim for any past medical bills.
10. The employee has no additional claim for temporary disability benefits.

1. Medical Causation.
2. Mileage.
3. Future Medical Care.
4. Permanent Partial Disability.
5. Liability of the Second Injury Fund for Permanent Partial Disability.

The following exhibits were offered and admitted into evidence without objection:

Employee's Exhibits

A. Medical records from Heartland Plastics (David M. Deisher, M.D.).

B. Medical records from Convenient Healthcare.

C. Records from Mid America Rehab.

D. Medical records from Brain \& Neurospine Clinic (Scott R. Gibbs, M.D.).

E. Medical records from Southeast Missouri Hospital.

F. Medical records from Orthopedic Specialists (Michael C. Chabot, D.O.).

G. No Exhibit.

H. Deposition of David T. Volarich, D.O.

H1. Report of David T. Volarich, D.O.

H2. Letter of David T. Volarich, D.O.

H3. Curriculum Vitae of David T. Volarich, D.O.

I. No exhibit.

J. Mileage expenses.

K. No exhibit.

L. Demand letter.

Employer-Insurer's Exhibits

1. Deposition of Michael C. Chabot, D.O.

Second Injury Fund Exhibits

None.

Mr. Moll, the employee was the only person to