Danny Whiteley v. City of Poplar Bluff

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 06-103269

Employee: Danny Whiteley

Employer: City of Poplar Bluff

Insurer: Missouri Rural Services Workers' Compensation Trust c/o CCMSI

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

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs, and we have considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge (ALJ) dated July 1, 2010.

The ALJ heard this matter to consider: 1) whether employee sustained an injury by accident arising out of and in the course of his employment; 2) whether employee's cervical spine condition was medically caused by the alleged accident; 3) employer/insurer (employer) liability for past medical expenses; and 4) nature and extent of any permanent disability.

The ALJ found that employee's alleged work accident on October 29, 2006, is not the prevailing factor in causing employee's medical condition. Based on the denial of medical causation, the ALJ deemed all other issues moot. Employee timely filed an Application for Review with the Commission.

The primary issue currently before the Commission concerns whether employee's alleged October 29, 2006, work accident was the prevailing factor in causing his cervical spine condition.

The findings of fact and stipulations of the parties were accurately recounted in the award of the administrative law judge and are hereby adopted and incorporated in this award by the Commission.

First of all, it is important to note that employee is alleging that his accidental injury occurred on October 29, 2006. Therefore, this case falls under the purview of the 2005 amendments to Missouri Workers' Compensation Law.

Section 287.120 RSMo "requires employers to furnish compensation according to the provisions of the Workers' Compensation Law for personal injuries of employees

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2006 unless otherwise indicated.

Enployee: Danny Whiteley

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caused by accidents arising out of and in the course of the employee's employment." Gordon v. City of Ellisville, 268 S.W.3d 454, 458-59 (Mo. App. 2008).

Pursuant to § 287.020.3 RSMo, an "injury" is defined to be "an injury which has arisen out of and in the course of employment." Section 287.020.3 RSMo further states that:

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.

In this case, employee injured his neck on October 29, 2006, while attempting to wash the inside of the windshield of his patrol car. The ALJ found that this alleged work accident is not the prevailing factor in causing employee's medical condition. We disagree.

The ALJ heavily relied on employee's previous workers' compensation claim settlement and his chiropractic records in denying employee's current claim for benefits. After reviewing employee's previous workers' compensation settlement, his chiropractic records, and the ALJ's findings of fact regarding the same, the Commission reaches a different determination.

Employee's previous workers' compensation settlement stemmed from a motor vehicle accident that occurred on or about July 15, 2002. This accident involved a suspect who intentionally drove his car into the back of employee's patrol car. It is important to note that the ALJ included in her "Findings of Fact" that although employee's compromise settlement agreement for this claim listed "back, neck and shoulders" as the parts of the body that were injured in the accident, there was never an MRI taken nor any injury or permanent disability diagnosed to employee's cervical spine or neck with regard to this accident. There was an MRI scan taken of employee's thoracic spine down to L3 and employee was given a 20% permanent partial disability rating of the body as a whole at the level of the thoracic spine, but no medical evidence suggested that employee suffered a cervical spine injury. Employee testified that his neck may have been a little sore after that accident, but his injury and all of his treatment was to the thoracic spine. In fact, employee denied any preexisting injuries, of any kind, to his neck or cervical spine before his October 29, 2006, accident.

The ALJ also included in her "Findings of Fact" that the extensive medical records of Dr. Tinsley go all the way back to 1979, but noted that none of the medical records prior to October 29, 2006, reference employee's neck or cervical spine. This corroborates employee's aforementioned testimony.

With regard to employee's chiropractic records, which span from May 25, 2001 to February 11, 2008, and include 51 recorded visits, there are only two references to either stiffness or discomfort in employee's neck. These complaints occurred in 2001 and 2003. The first noted "stiffness" in his neck and lumbar spine, and the second noted "discomfort in his right mid-back" and "discomfort in his right neck." There are no subsequent entries in Dr. Rushin's (employee's chiropractor) records in the remaining

Improve: Danny Whiteley

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three years before his accident that make any reference to problems employee was having with his neck or cervical spine.

Dr. Cantrell, employer's medical expert, even agreed that employee's neck was basically asymptomatic and that employee was not having any neck pain before his October 29, 2006, accident. Dr. Cantrell also agreed that both he and Dr. Tinsley diagnosed employee with an acute cervical strain superimposed on cervical degenerative disc disease, and that there is no medical evidence of employee receiving any kind of treatment for neck pain prior to this accident. Finally, Dr. Cantrell conceded that the cervical sprain/strain was a "new injury," and had the October 29, 2006, accident not occurred, employee would not have needed medical treatment at that time.

Despite the aforementioned, Dr. Cantrell still concluded that the events of October 29, 2006, are not the prevailing factor in the cause of employee's medical condition. Dr. Cantrell opined that employee has a 5% permanent partial disability of the body as a whole referable to his cervical spine complaints, 4% of which he attributes to preexisting pathology, and 1% of which he attributes to a diagnosis of a cervical strain referable to the October 29, 2006, accident.

Dr. Musich, on the other hand, found that the work trauma of October 29, 2006, is the prevailing factor in the development of acute and severe right neck pain which required extensive evaluation and aggressive conservative treatment. Dr. Musich opined that as a result of the October 29, 2006, accident, employee has suffered 20% permanent partial disability of the body as a whole rated at the cervical spine.

It is worth noting that although Dr. Cantrell does not believe that October 29, 2006, accident is the prevailing factor in causing employee's medical condition, he still attributes 1% of employee's permanent partial disability to said accident.

We find that the overwhelming weight of the evidence suggests that the October 29, 2006, accident was the prevailing factor in causing employee's cervical condition. Any finding to the contrary is not supported by competent and substantial evidence.

With regard to the nature and extent of employee's permanent partial disability, however, we find that despite Drs. Musich and Cantrell's ratings, a more accurate assessment of employee's permanent partial disability resulting from the October 29, 2006, accident is 7.5% of the body as a whole rated at the cervical spine. We base this finding on a thorough review of employee's testimony, all of the medical evidence and opinions, and the record as a whole.

For the foregoing reasons, we find that the October 29, 2006, accident was the prevailing factor in causing employee's cervical spine condition. As a result, we find that employee shall be awarded past medical expenses and permanent partial disability benefits.

**Award**

The parties stipulated that employee's temporary total disability rate is 656.10 and his permanent partial disability rate is 376.55.

Injury No.: 06-103269

Employee did not miss any work as a result of the injuries suffered from the October 29, 2006, accident. For this reason, we do not award any temporary total disability benefits.

We award from employer to employee $\ 5,740.67 for his past medical expenses.

As stated above, we find that employee sustained 7.5 % permanent partial disability to his body as a whole rated at the cervical spine as a result of the October 29, 2006, accident. Therefore, we award from employer to employee permanent partial disability benefits of $\$ 11,296.50 .^{2}$

The parties stipulated that employer overpaid employee's mileage for his trip to the medical examination by Dr. Cantrell by inadvertently sending two mileage checks for the same trip. Therefore, in accordance with the parties' stipulation, we find that employer is entitled to a credit in the amount of $\ 123.26.

Jack H. Knowlan, Attorney at Law, is allowed a fee of 25 % of the benefits awarded for necessary legal services rendered to employee, which shall constitute a lien on said compensation.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Maureen Tilley, issued July 1, 2010, is attached and incorporated to the extent it is not inconsistent with this final award.

Given at Jefferson City, State of Missouri, this $22^{\text {nd }}$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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[^0]: ${ }^{2} 30 \times \$ 376.55=\ 11,296.50.

Employee: Danny Whiteley

Injury No. 06-103269

Dependents: N/A

Employer: City of Poplar Bluff

Additional Party: Second Injury Fund

Insurer: Missouri Rural Services Workers’ Compensation Insurance Trust c/o CCMSI

Hearing Date: March 30, 2010

Checked by: MT/rf

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease? N/A
5. State location where accident occurred or occupational disease contracted: N/A
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? N/A
8. Did accident or occupational disease arise out of and in the course of the employment? N/A
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: N/A

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease: N/A
3. Nature and extent of any permanent disability: N/A
4. Compensation paid to date for temporary total disability: None.
5. Value necessary medical aid paid to date by employer-insurer: None.
6. Value necessary medical aid not furnished by employer-insurer: N/A
7. Employee's average weekly wage: $\ 984.15
8. Weekly compensation rate: $\ 376.55
9. Method wages computation: By agreement.
10. Amount of compensation payable: None.
11. Second Injury Fund liability: None.
12. Future requirements awarded: None.

On March 30, 2010 the employee, Danny Whiteley, appeared in person and