Robert Smyth v. Oscar Wilson Engine & Parts, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-083644

Employee: Robert Smyth

Employer: Oscar Wilson Engine \& Parts, Inc. (Settled)

Insurer: American Home Assurance Co. (Settled)

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

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 September 1, 2010. The award and decision of Administrative Law Judge Edwin J. Kohner, issued September 1, 2010, 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 $\qquad$ 17th day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

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 (ALJ) should be reversed and permanent total disability benefits should be awarded.

First, there is no dispute that employee suffered an accident that arose out of and in the course of his employment on March 29, 2005, and that he is now permanently and totally disabled. The issue is whether employee's permanent and total disability is the result of his primary injury standing alone, or whether it is the result of his primary injury combining with his preexisting disabilities. It is my opinion, based on the evidence as a whole that employee's permanent and total disability is the result of his primary injury combining with his preexisting disabilities.

As correctly stated in the ALJ's award, § 287.220.1 RSMo, contains four distinct steps in calculating the compensation due an employee, and from what source, in cases involving permanent disability: (1) The employer's liability is considered in isolation - "the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability;" (2) Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered; (3) The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and (4) The balance becomes the responsibility of the Second Injury Fund. Nance v. Treasurer of Missouri, 85 S.W.3d 767, 772 (Mo. App. 2002).

In evaluating the last injury alone, the ALJ pulled various opinions from different experts to arrive at the conclusion that employee's permanent and total disability is solely the result of the last injury. I disagree with the ALJ's analysis and conclusion with regard to this issue.

While there is significant evidence in the record that employee suffered substantial permanent disability from the last injury alone, none of the experts opined that employee was permanently and totally disabled solely as a result of the last injury. The last injury involved a serious low back injury and significant subsequent psychiatric problems. It is clear from the record that prior to the last injury employee had preexisting back problems and psychiatric problems as well. The credible evidence establishes that employee was permanently and totally disabled following the last injury, but it was because of the last injury combining with his preexisting disabilities.

For the foregoing reasons, I disagree with the administrative law judge's conclusion that employee is permanently and totally disabled as a result of the last injury alone. I find that the great weight of the evidence establishes that employee is permanently and totally disabled as a result of the injuries from the March 29, 2005, accident combining with his preexisting disabilities. As such, I would reverse the award of the administrative law judge denying Second Injury Fund liability.

I respectfully dissent from the decision of the majority of the Commission.

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: March 29, 2005
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: The employee fell off a ladder while conducting an inventory.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Low Back, Psychological
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: $\ 6,126.16
16. Value necessary medical aid paid to date by employer/insurer: $\ 43,927.25

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Smyth

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 541.77
3. Weekly compensation rate: $\$ 361.18 / \ 354.05
4. Method wages computation: By agreement

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: No

TOTAL:

None

1. Future requirements awarded: None

Said payments to begin immediately 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: Nicholas B. Carter, Esq.

Employee: Robert Smyth

Injury No.: 05-083644

Dependents: N/A

Employer: Oscar Wilson Engine \& Parts, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: American Home Assurance Co. (Settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/ch

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant, a telephone parts technician, suffered low back injury when he fell off a ladder during a parts inventory. The issues for determination are (1) Medical causation, and (2) Second Injury Fund liability. The evidence compels an award for the claimant for medical expenses, future medical care, temporary total disability benefits, and costs.

At the hearing, the claimant testified in person and offered deposition of Thomas F. Musich, D.O., Dean L. Rosen, Ph.D., and Timothy G. Lalk, and voluminous medical records. The defense offered depositions of Russell C. Cantrell, M.D., and Wayne A. Stillings, M.D., medical records from Daniel L. Kitchens, M.D., and a copy of the claimant's workers compensation settlement with the employer in this case.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident occurred in Missouri.

On March 29, 2005, the claimant fell off the second rung of a ladder he was climbing to perform an inventory for his employer. He landed on his back side and sustained injuries to his back, hips, and thigh. He went to the St. Joseph West Emergency Room with severe pain, sharp, aching, and throbbing, pain when walking. He was diagnosed with contusion of the right hip and a concussion without loss of consciousness. On March 31, 2005, the claimant followed up with Dr. Chad Smith, his regular treating physician, but continued to work.

On April 26, 2005, he saw Dr. Graven, with mid and low back pain, leg numbness, and tingling along with pain. In his medical report Dr. Graven described a fall one month prior to his evaluation. Dr. Graven also noted a subjective medical history of mid and low back pain that is getting worse as time passes status post work trauma. At that time Dr. Graven also noted complaints of left leg numbness, tingling, and pain. He noted a positive straight leg raise on the left and tenderness to palpation at the level of L1. Dr. Graven recommended a lumbar MRI and prescribed a Medrol Dosepak and Ultracet for pain.

On June 3, 2005, a lumbar MRI revealed a likely acute or subacute superior end plate compression fractures at levels T-12 and L1 with disc bulging at L4-5 to a greater extent than L34. The test also revealed disc bulging with central protrusion at L5-S1. On August 29, 2005, a lumbar myelogram and post myelogram CT scan revealed a mild diffuse annular disc bulging at L4-5 with soft tissue interface between the extraforaminal left L4 nerve root and adjacent intervertebral disc which is slightly more prominent than the right side. The report suggested the presence of a left foraminal and extraforaminal disc protrusion, or possibly a small disc herniation. The report also revealed a spinal canal that was mildly narrowed with central canal stenosis and a posterior central disc protrusion at L5-S1.

On October 10, 2005, a lumbar discogram identified pain with injection at L3-4 at pressures greater than 100 psi. Morphology of the disc during discography was normal. At L4-5 the patient reported pain with injection of that disc at 65 psi . The pain was similar in location and quality of the pain experienced at home on a daily basis. The morphology of the disc during discography was degenerated with extravasation of dye into the epidural space. That study identifies persistent post traumatic L4-5 disc pathology which is consistent with low back pain and left lower extremity radiculopathy. On April 13, 2006, Dr. Graven reported, "Mr. Smyth's work related injury is causally related to his need for surgery". See Exhibit A-8. Following the abnormal lumbar discogram, Dr. James Coyle, Dr. Daniel Kitchens, and Dr. Russell Cantrell examined the claimant. These three physicians opined that the claimant suffered from preexisting degenerative disc disease, that the primary injury was in the nature of a sprain/strain, and recommended conservative treatment.

Before the March 29, 2005, accident, the claimant had a myriad of preexisting conditions. In 1992, he underwent