David Duly v. Morton Buildings

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-063411

Employee: David Duly

Employer: Morton Buildings

Insurer: Zurich American Insurance

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

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 August 13, 2010. The award and decision of Administrative Law Judge Kenneth J. Cain, issued August 13, 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 $\qquad 24th \qquad$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

I join my fellow commissioners in awarding compensation in this claim. However, I must respectfully dissent from the portions of the award and decision of the majority of the Commission denying past medical expenses and setting a lower-than-proved permanent partial disability rating. Based on my review of the entire record, I believe the decision of the administrative law judge should be modified to increase the award of permanent partial disability and grant past medical expenses.

It is undisputed in this case that employee sustained a permanent partial disability due to back injuries he suffered on June 6, 2005. The administrative law judge awarded claimant permanent partial disability of 7.75 % relative to his body as a whole (BAW). This figure represents a split between the initial 12.5 % rating of Dr. Truett Swaim and the 3 % rating of Dr. James S. Zarr, a specialist in physical medicine and rehabilitation.

I am persuaded that between these two doctors, Dr. Swaim was the most qualified and persuasive expert. Dr. Swaim is a board certified orthopedic surgeon and medical examiner. He initially opined that employee's BAW disability was 12.5 %, and the administrative law judge apparently found him credible (as evidenced by the split rating). This opinion, however, was generated without benefit of an MRI. Consequently, after an MRI was done on November 25, 2008, Dr. Swaim increased his rating to 25 % based on the significant multiple abnormalities revealed. Since Dr. Swaim (but not Dr. Zarr) based his later rating on this more objective test, I would rely on his opinion.

The administrative law judge, however, discounted Dr. Swaim's revised, higher rating (even though it enjoyed the benefit of the additional information provided by the MRI) because he believed that Dr. Swaim "was not aware of Claimant's intervening accident" that allegedly occurred on September 18, 2005. But the evidence shows that Dr. Swaim was aware of this incident, as revealed in the comments of his previous evaluation and the medical records of Dr. Wayne L. Morton (specifically, the entry dated September 22, 2005) that Dr. Swaim had reviewed before issuing his addendum report.

Furthermore, a careful review of the evidence shows that no new or intervening accident took place in September 2005. Employee credibly testified that, after June 6, 2005, he was missing work and having incidences where he would experience a sharp pain like a knife in his mid-to-low back. This pain did not seem to coincide with particular events; it struck randomly. The pain was so intense that it would drop employee to his knees. It would "lock" up his back. He had suffered four or five such incidences between June 6 and September 18, 2005. On that latter date, employee was again brought to his knees after getting out of a car to walk into a restaurant. But his experience on September 18 was "like what [he] had felt before." It was the "same incidence [sic] that [employee] had on these other occasions . . . ."

Immediately prior to this September 18 occasion, employee was not having any different symptoms or pain. Employee testified forthrightly that he had been helping some friends move several days prior to that event, but had not felt any different or

suffered any repercussions from that exercise. The only reason this event translated into a trip to the hospital was because employee was out-of-town when it occurred, and his wife wanted to be careful.

We have no evidence that the help he provided friends in moving caused any change in pathology whatsoever. Employee simply mentioned this moving activity at the hospital and to his doctor in response to the questions of whether he had lifted anything heavy or exerted heavily in the last few days. In fact, it was error for the administrative law judge to repeatedly assert that an intervening accident took place in September 2005. The administrative law judge lacked the medical expertise necessary to conclude that a change in the pathology of employee's back took place. See Kuykendall v. Gates Rubber Co., 207 S.W.3d 694, 711-712 (Mo. App. S.D. 2006).

The extent and percentage of a disability is a finding of fact within the special province of this Commission. Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo.App. W.D. 2000) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo.banc 2003)). The Commission may consider all of the evidence, including the employee's testimony, and draw reasonable inferences in arriving at the percentage of disability. Id. Thus, based on the best evidence, I would find that employee sustained a permanent partial disability of 25 % BAW.

Lastly, employer should be liable for the medical expenses in the amount of $\ 4,981.93 owing to Matthews-Richards Healthcare Management. It bears saying again that all are in agreement that employee suffered an injury arising out of and in the course of his duties for employer on June 6, 2005. Since there is no medical opinion to support the finding that an intervening accident occurred in September 2005, all of the medical expenses for which employee supplied documentation (Tr. 141 et. seq.) should have been included in the award. Employee had properly requested that employer authorize these services and expenses. When employer refused, employee sought treatment on his own. These services from Matthews-Richards, including the MRI, confirmed employee's work-related injury and the extent of those injuries.

Based upon the foregoing, I conclude that the award should be modified to grant employee permanent partial disability of 25 % BAW, as well as past medical expenses owed to Matthews-Richards Healthcare Management in the amount of $\ 4,981.93. I respectfully dissent from the portions of the award and decision of the majority of the Commission to the contrary.

Employee: David Duly

Injury No. 05-063411

Dependents: N/A

Employer: Morton Buildings

Insurer: Zurich American Insurance

Additional Party: N/A

Hearing Date: July 7, 2010, final brief filed August 9, 2010

Checked by: KJC/lh

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: June 6, 2005.
5. State location where accident occurred or occupational disease was contracted: Lee's Summit, Jackson 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: Employee, while in the course and scope of his employment as a laborer for Morton Building, Inc, was required to lift and carry heavy posts. While doing so, Claimant felt a pop in his back and developed back pain.
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: Back and body as a whole.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: David Duly

Injury No. 05-063411

1. Nature and extent of any permanent disability: 7.75 percent to body as a whole.
2. Compensation paid to-date for temporary disability: None and none requested.
3. Value necessary medical aid paid to date by employer/insurer? $\ 600.
4. Value necessary medical aid not furnished by employer/insurer? None.
5. Employee's average weekly wages: $\ 604.68.
6. Weekly compensation rate: $\$ 403.12 / \ 354.05.
7. Method wages computation: By agreement.

1. Amount of compensation payable:

Unpaid medical expenses: None

31 weeks for permanent partial disability @ $\ 354.05 per week $=\ 10,975.55

None for temporary total disability benefits.

N/A for disfigurement

1. Second Injury Fund liability: The parties agreed to hold in abeyance any issues regarding any possible Second Injury Fund liability until the case was heard as to the employer's possible liability.
2. Future requirements awarded: None

Total: $\ 10,975.55

Said payments to begin as of the date of the award 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. Jeffrey Dull.

Employee: David Duly

Injury No. 05-063411

Dependents: N/A

Employer: Morton Buildings

Insurer: Zurich American Insurance

Additional Party: N/A

Hearing Date: July 7, 2010; final brief filed August 9, 2010

Checked by: KJC/lh

Prior to the hearing, the parties entered into various admissions and stipulations. The remaining issues were as follows:

1) Whether the Employee sustained an accident arising out of and in the course and scope of his employment;

2) The nature and extent of the disability sustained by the Employee; and

3) Liability of the Employer for additional medical benefits, past and future, including $\ 5166.93 in past medical aid.

At the hearing, Mr. David Duly (hereinafter referred to as Claimant) testified that he was born on December 5, 1960 and that he was 49 years old. He stated that he had a GED. He stated that he had worked primarily in residential construction.

Claimant testified that he did roofing and siding work for about 18 years. He stated that afterwards he did primarily rough-in construction work for home builders. He stated that he was also self employed in the construction field.

Claimant testified that he began work for Morton Buildings on July 14, 2004 as a general carpenter or laborer. He stated that his job consisted primarily of building wood frames for metal buildings. He stated that his job required frequent lifting and the use of hammers.

Claimant testified that his job at Morton required him to lift wood posts which were 8 to 14 -feet in length and weighed between 100 and 125 pounds. He stated that the average length was about 10 feet. He stated that his crew at Morton only had three workers while the others had four. He stated that despite the discrepancy his crew performed better than most and ranked $17^{\text {th }}$ out of 300 crews nationwide in bonus money.

Claimant testified that in late 2004 he experienced back spasms and that his hands went numb. He stated that he was diagnosed with bilateral carpal tunnel syndrome and had releases on both hands. He stated that he remained off work until May 19, 2005.

Claimant testified that when he returned to work his hands were "really sore". He stated that he was experiencing problems in using his hands to climb, carry and use a hammer and that he asked his supervisor, Marty Snyder, to take it easy until he had fully recovered. He stated that the request did not go over very well with his supervisor.

Claimant testified that on June 6, 2005, he sustained another injury at work. He stated that the injury occurred after he lifted a wooden post and was attempting to carry it the 60 feet to the garage they were building. He stated that while walking with the post he felt a pop and snap in his back and a "real" sharp pain and fell to his knees. He stated that initially he could not straighten up

Claimant testified that he had never previously experienced any back pain of that nature. He stated that he feared that he had blown a disk. He stated that eventually he was able to get up and go to his truck and to lie down. He stated that he told his foreman, Mr. Snyder, about the injury on that day.

Claimant testified that on the following morning he called Stan Hall, the regional supervisor for Morton, and told him about his back injury. He stated that he was directed to call Pat, the secretary, and that she advised him to make a doctor's appointment and to come in and fill out an incident report. He stated that she told him to go to his primary doctor.

Claimant testified that he went to Dr. VanZanten, his family doctor. He stated that Dr. VanZanten was from a different country and had a "real" thick accent. He stated that it was difficult to understand the doctor. He stated that he had no idea as to why Dr. VanZanten had indicated in his report that Claimant had denied any recent injuries. He stated that he told Dr. VanZanten about his injury on the job and that he told the doctor that he had not experienced any prior injuries. The record did, however, show that Claimant had experienced a prior injury. He previously sustained a back injury in a motor vehicle accident.

Claimant testified that Dr. VanZanten ordered x-rays and prescribed medication. He stated that he believed that he was off work for about a week due to his back injury. He stated that he felt pressure from the company to get back to work as soon as possible. He stated that when he returned to work he had no choice but to resume his regular duties. He stated that he requested patience from his supervisor who was not willing to accommodate his request and that he then asked Stan Hall for a transfer to another crew.

Claimant testified that Mr. Hall told him that he would consult with Mr. Snyder and that Mr. Hall then informed him that the company did not have a crew available for him to transfer to. He stated that Mr. Hall told him that he might want to quit if he could not do the job Mr. Snyder's way. Claimant testified that he then quit the job.

Claimant testified that prior to June 6, 2005 he had never been unable to straighten up due to his back. He stated that subsequent to June 2005 there were times where his back locked up and he experienced real sharp pain. He stated that he quit his job at Morton on September 12, 2005. He stated that about four or five times between June 6, 2005 and September 12, 2005 he experienced pain of such intensity that he dropped to his knees. He admitted that he did not seek any treatment for his back during the period June to September 2005 other than on the day after the alleged accident. He did allege, however, that he missed a lot of work.

Claimant testified that on September 18, 2005, he and his wife and some friends went to dinner in Lee's Summit, Missouri, to celebrate his wife's birthday. He stated that while walking across the parking lot he experienced a sharp back pain and fell to his knees. He stated that his wife took him to the emergency room at Lee's Summit Hospital. He acknowledged that the emergency room records showed that he had provided a history of recently lifting 400 pounds of mesh with a friend. He acknowledged

itself that he told the doctor that he was helping some friends move some "stuff". He stated that he did not experience any pain while lifting and moving the mesh.

Claimant testified that after returning home he went to his family doctor and saw Dr. Morton who recommended an MRI and prescribed medications. He stated that due to a lack of funds to pay for the MRI he contacted an agency for assistance and that he was referred to Dr. Lennard in Springfield, Missouri. He stated that Dr. Lennard ordered an EMG and an MRI and that the bills for the treatment amounted to $\ 4,891.93.

Claimant testified that after his quitting his job in September 2005 he was hired by Stuart Construction Company to pour cement. He stated that he lasted about three or four days before he told his boss that he could not do the work due to his back problems.

Claimant testified that he had constant back pain. He stated that walking, standing and lifting increased his back pain. He stated that he could no longer do construction work. He stated that since September 2005 he only worked three to four days at the concrete company as listed above and that he had done some small handyman jobs. He stated that he received unemployment compensation benefits for a short period.

Claimant testified that he received financial assistance from his mother, his wife from whom he was separated and his step-brother whose house he lived in. He stated that he was now on medication for his back and depression, which he attributed to pain, bankruptcy, not being able to work and his need to depend on others for assistance. He stated that he wanted pain management and treatment for his back. He stated that his back was now worse than ever.

On cross-examination by his Employer, Claimant admitted that he still smoked one pack of cigarettes per day. He stated that he had smoked about 30 years. He stated that his mother usually purchased his cigarettes for him.

Claimant admitted that he could still perform activities of daily living. He stated that he still mowed his yard. He stated that he fished several times per month. He stated that he now did very little, if any, handyman work. He stated that he recently trimmed some bushes for a lady. He admitted that in December 2004, prior to the alleged June 2005 accident at work he had experienced back spasms.

Claimant did not dispute that the medical record from Lee's Summit Hospital's emergency room on September 18, 2005 stated that he had provided a history of straining his low back on Monday and that it had continued to get worse until he reported to the emergency room. He acknowledged that the report stated that he was lifting 400 pounds of mesh with two other people when he strained his low back.

Claimant acknowledged that the Lee's Summit Hospital record stated that he had provided a history of being involved in a motor vehicle accident several years ago and that he had experienced problems since that date. He admitted that he had experienced some muscle spasms after the 1994 motor vehicle accident. Claimant admitted that he told Dr. Morton that he felt something give way when he was lifting the 400 pound roll of mesh.

On redirect examination Claimant testified that he used a riding mower on his lawn. He stated that he took frequent breaks while mowing his lawn. He stated that he fished a lot less now due to the walking required and the jarring while riding in the boat. He stated that his pain from lifting the 400 pounds of mesh was no different than the back pain he experienced in June 2005.

Claimant's medical evidence consisted of the reports of Dr. Truett L. Swaim, M.D., an orthopedic surgeon, and various other reports and records. Dr. Swaim indicated that he had examined Claimant on June 11, 2007. He noted Claimant's history of experiencing back pain at work while carrying a 150

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: David Duly

Injury No. 05-063411

pound post. He stated that June 7, 2005 x-rays revealed disk space narrowing and spurring in the lumbar region. He also noted that Claimant's history involved a1995 motor vehicle accident in which Claimant's vehicle rolled onto its side and struck a tree. He stated that Claimant missed approximately three weeks from work after the accident.

Dr. Swaim indicated that Clamant provided a history of being self-employed as a handyman since September 2005. He also stated that Claimant provided a history of being self-employed as a handyman from 1994 to 2003.

Dr. Swaim noted that on examination Claimant had muscle spasms and guarding of his lumbar spine. His diagnoses were chronic lumbar strain with degenerative disk disease, chronic thoracic strain, and status post bilateral carpal tunnel releases. He stated that Claimant's alleged injury of June 6, 2005, while working for Morton Buildings caused or was the prevailing factor in causing Claimant to sustain a thoracic and lumbar strain and to develop chronic thoracic and lumbar discomfort.

Dr. Swaim concluded that the alleged accident of June 6, 2005 had aggravated Claimant's degenerative disk disease in his lumbar spine. He stated that the alleged accident was the "prevailing factor" in causing the need for the treatment Clamant had received for his back since June 2005. He concluded that Claimant had sustained a permanent partial disability of 12.5 percent to his body as a whole due to the thoracic and lumbar impairments. He stated that Claimant did not need any additional treatment and that Claimant should limit his activities as needed and that he should take over-the-counter analgesics and anti-inflammatory medication. He stated that Claimant's preexisting low back injury had resulted in a permanent partial disability of 5 percent to the body as a whole.

Claimant's Exhibit B was a May 19, 2008 report in which Dr. Swaim noted that Claimant was continuing to complain of persistent significant low back pain and that Claimant had developed a lumbar radiculopathy. He recommended an MRI. He stated that "if there has been no intervening (emphasis added) lumbar injury, the occupational injury of June 6, 2005, would be the prevailing factor to cause the necessity for this evaluation".

Claimant's Exhibit C was a September 25, 2009 report from Dr. Swaim in which the doctor discussed the findings from Claimant's November 2008 MRI. He noted that the results showed mild to moderate spondylitic changes throughout Claimant's lumbar spine. He noted that Claimant had mild to moderate disk space narrowing at some levels and disk dessication at others. He noted that Claimant had a mild disk bulge. He stated that Claimant did not have any significant spinal stenosis.

Dr. Swaim indicated that after reviewing the MRI scan he had concluded that Claimant had a permanent partial disability of 30 percent to the body as a whole due to his lumbar and thoracic spine condition and that if there was no significant back injury between June 11, 2007, the date of his Independent Medical Examination of Claimant and the MRI scan on November 25, 2008, I would "assess that the occupational injury of June 6, 2005, caused or was the prevailing factor to cause him to develop a 25 percent permanent partial disability to the body as a whole."

Dr. Swim acknowledged that the MRI did not show the need for any surgery. He stated that Claimant was a candidate for pain management, injections, a brace and a spinal cord stimulator along with medication.

Claimant's Exhibit D contained bills from the Morton-VanZanten Clinic. The records showed that Claimant was billed $\ 100 for treatment on June 7, 2005. Exhibit E contained bills from Matthews Richards Healthcare Management, LLC. The bills were $\ 4,981.93 as of May 7, 2010. Also contained in Exhibit E were records from the Springfield Neurologic and Spine Institute which showed that Claimant's MRI from November 25, 2008 showed degenerative disk disease. There was no significant disk protrusion or neural impingement. There was also no significant vertebral canal or foraminal stenosis.

Claimant's Employer offered into evidence the August 1, 2008 report of James S. Zarr, M.D., a specialist in physical medicine and rehabilitation. Dr. Zarr noted Claimant's history. He stated that Claimant's sitting straight leg raising test results were negative bilaterally. He noted that Claimant had a non-antalgic gait with equal weight-bearing on both lower extremities. He stated that on examination Claimant had tenderness to palpation in the lower thoracic and lumbosacral paraspinal muscles bilaterally. His impression was persistent low back pain.

Dr. Zarr further noted that Claimant told him that his work injury of June 6, 2005 was witnessed by his foreman. Dr. Zarr stated, "Assuming that all the information related to me is true and accurate, then I do feel he suffered a work-related injury, which has contributed to his current back condition, in addition to the pre-existing back pain, which was a result of a previous car accident in August 1994".

Dr. Zarr concluded that Claimant had reached maximum medical improvement. He noted that it was three years since the alleged accident at work. He stated that Claimant could remain on over-thecounter analgesics and anti-inflammatory agents. He concluded that Claimant had sustained a permanent partial impairment of 8 percent of the whole body. He stated that 5 percent of the 8 percent was attributable to the pre-existing low back pain condition and the remaining 3 percent to the alleged work injury of June 6, 2005.

Dr. Zarr also stated that it was worth noting that all of the findings on the examination were subjective. He stated that there were no objective findings on the examination. He stated that there were no objective findings to warrant any permanent work restrictions. He stated that Claimant could return to full-time regular work without restrictions.

Attached to Dr. Zarr's report were medical records from Drs. Morton and VanZanten. On September 22, 2005, it was noted that Claimant had complained of back problems for years and that he was injured while lifting in June and while trying to lift a 400 pound roll when he felt something give in his back. The record stated that Claimant's back hurt the rest of the day during which he had attempted to lift the 400 pounds. The record stated that the next day Claimant worked on a loader because his back hurt. It stated that Claimant finally went to Kansas City and went to the emergency room.

On September 29, 2005, Claimant was diagnosed with some sciatica and a low back strain form the lifting incident. On December 19, 2005, Claimant failed to keep his appointment. On December 30, 2005, it was noted that Claimant was doing remodeling work on a small scale.

Records from July 24, 2000 showed that Clamant complained of low back pain and muscle spasms. On December 28, 2004 he complained of back spasms. On June 7, 2005, Claimant complained of low back pain. The record stated, "No recent injury". That was the day after the alleged June 6, 2005 accident at work.

Claimant's medical records from December 1, 1999, showed that he complained of depression. It was noted that he had a life-long history of depression. Claimant complained that he was withdrawn and paranoid around people. The diagnoses were depression with paranoia and alcoholism.

Claimant's wife testified at the hearing and provided corroborating testimony. The remainder of the evidence was cumulative.

After considering all the evidence, including the testimony at the hearing, Drs. Swain and Zarr's reports, the other medical reports and records, the other exhibits and observing the appearances and demeanor of the witnesses at the hearing, I find and believe that Claimant met his burden of proving that he sustained an accident as defined by Missouri law. He proved that he sustained a permanent partial disability of 7.75 percent to his body as a whole as a result of the injuries he sustained in the accident. At a rate of $\ 354.05 per week for 31 weeks, his employer is liable for $\ 10,975.55 in permanent partial disability benefits. His employer is ordered to pay that amount to him. Claimant did not prove his employer's liability for any additional medical benefits, past or future.

Claimant had the burden of proving all material elements of his claim. Fischer v. Arch Diocese of St. Louis - Cardinal Richter Inst., 703 SW $2^{\text {nd }} 196$ (Mo .App. E.D. 1990); overruled on other grounds by Hampton vs. Big Boy Steel Erections, 121 SW $3^{\text {rd }} 220$ (Mo. Banc 2003); Griggs v. A.B. Chance Company, 503 S.W. 2d 697 (Mo. App. W.D. 1973); Hall v. Country Kitchen Restaurant, 935 S.W. 2d 917 (Mo. App. S.D. 1997); overruled on other grounds by Hampton. Claimant met his burden of proof as set out above.

The applicable statute in effect in June 2005 pertaining to accident provided as follows:

1. The word "accident" as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor.

§ 287.020 RSMo. 1994.

The statute also provided that:

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of an unrelated to the employment in normal nonemployment life.

Id.

Thus, under the statute as referenced above, Claimant only needed to prove that his work was "a substantial factor" in causing his resulting medical condition or disability. He did not need to prove that his work was the prevailing or most important factor in causing the resulting medical condition and

disability. ${ }^{1}$ Claimant clearly proved that he sustained an accident as defined by Missouri law in June 2005 .

The uncontroverted evidence showed that Claimant's job in June 2005 required him to do heavy lifting. Claimant testified that on June 6, 2005 he was required to lift and to carry 100 to 150 pound support posts to do his job. He alleged without contradiction that while carrying such a post he felt a pop in his back and that he developed sudden back pain which caused him to drop the post and to fall to his knees with back pain. Claimant was credible in that aspect of his testimony.

The evidence further showed that Claimant sought medical treatment on the day after the alleged accident with complaints of back pain. He remained off work for approximately one week after the alleged accident. Dr. Swaim, who wrote a report on Claimant's behalf, concluded that Claimant's work on June 6, 2005 was the "prevailing factor" in causing Claimant to "sustain a thoracic and lumbar strain, and to develop chronic thoracic and lumbar discomfort." Dr. Zarr, who wrote a report on Claimant's employer's behalf, stated that Claimant "further relates that the work injury of 6/6/05, was witnessed by his foreman. Assuming that all the information relates $\{ sic \}$ to me is true and accurate, then I do feel he suffered a work related injury, which has contributed to his current back condition. . ."

Thus, based on the most credible evidence Claimant proved that his work was a substantial factor in causing his resulting medical condition and disability. ${ }^{2}$ As noted above, Claimant was credible in his testimony as to how the alleged accident occurred. Dr. Swaim's opinion supported Claimant's allegation. Claimant met his burden of proving that he sustained an accident at work as defined by Missouri law in June 2005 when his alleged injury occurred.

Claimant proved that due to the injury he sustained in the alleged June 2005 accident at work that he developed a thoracic and lumbar strain and aggravated his preexisting degenerative problems. Dr. Swaim initially concluded that Claimant had sustained a permanent partial disability of 12.5 percent to the body as a whole due to the injuries Claimant sustained in the June 2005 accident at work. He later changed his rating to a permanent partial disability of 25 percent to the body as a whole as a result of Claimant's alleged June 2005 accident at work.

Dr. Swaim's rating was not credible. He admitted that Claimant did not herniate a disk in the alleged accident. He admitted that Claimant did not need any surgery. He admitted that Claimant had numerous degenerative problems in his back. He was not aware of Claimant's intervening accident in

[^0]

[^0]: ${ }^{1}$ The statute was amended in August 2005 to require that work be the prevailing factor in causing both the resulting medical condition and disability. See § 287.020 RSMo. 2005. Prevailing factor is defined in the statute as the primary or most important factor. Id. The statute in effect in June 2005 when Claimant sustained his injury only required that work be a substantial factor in causing the resulting medical condition or disability. Thus, under the pre August 2005 version of the statute work did not have to be the most important factor in causing the resulting condition and disability.

${ }^{2}$ Dr. Swaim in rendering his opinion used the more stringent standard as set out by the legislature in the August 2005 amendment to the statute in concluding that Claimant's work was the prevailing factor in causing the resulting medical condition. Dr. Swaim did not base his opinion on the more lenient, a substantial factor, standard which was in effect in June 2005 when Claimant sustained the alleged accident at work. The Courts have made it clear that the 2005 statutory change in the definition of accident and occupational disease constituted a substantive change in the law rather than a procedural change and that the August 2005 change in the law could not be applied retroactively to cases where the injury occurred prior to August 28, 2005 when the new law went into effect. Lawson v. Ford Motor Co., 217 S.W.3d 345 (Mo. App. E.D. 2007).

September 2005 in which Claimant felt something "give" in his back while lifting a 400 pound roll of mesh. He did not reexamine Claimant prior to changing his rating nearly two years later. He also did not address the significance of Claimant's medical history subsequent to the alleged June 2005 accident at work. Claimant sought medical treatment on the day after the alleged June 2005 accident and did not seek any other treatment until he reinjured his back in the lifting incident in September 2005. He sought treatment on several occasions after the reinjury or intervening accident in September 2005.

Dr. Zarr concluded that Claimant had sustained a permanent impairment of 3 percent to the body as a whole due to the June 2005 injury. Dr. Zarr stated that there was no objective evidence to support Claimant's complaints. Dr. Zarr rendered his "impairment" rating prior to Claimant's November 2008 MRI. The MRI results did contain some objective findings, albeit the question was whether the positive findings were entirely from degenerative problems or the alleged June 2005 accident or the subsequent September 2005 intervening accident.

Thus, based on the most credible competent evidence, Claimant proved that he sustained a permanent partial disability of 7.75 percent to his body as a whole due to the injuries he sustained in the June 2005 accident at work. At a rate of $\ 354.05 per week for 31 weeks, Claimant's employer is liable for $\ 10,975.55. Claimant's employer is ordered to pay that amount to him.

Claimant did not prove his employer's liability for any additional medical bills, past or future. Claimant submitted one bill into evidence which was for authorized treatment. The bill was in the amount of $\ 100 for treatment rendered by Dr. Van Zanten on June 7, 2005. That bill, however, was paid by Claimant's employer by check number FC36439288 on October 17, 2005.

The remaining medical bills offered into evidence by Claimant were for treatment rendered subsequent to September 2005 when Claimant sustained the intervening accident while lifting a 400 pound roll of mesh and his back gave out. None of the bills were for authorized treatment. Also, there was no credible evidence that any treatment Claimant received subsequent to September 2005 was for treatment for the injuries he allegedly sustained in the June 2005 accident at work as opposed to the injuries he sustained in the intervening accident in September 2005.

Claimant sought treatment at the emergency room on September 18, 2005 and provided a history of back pain of 6 or 7 days duration. He explained that his back pain began when he was helping a friend lift 400 pounds of mesh. He had consumed six beers on the night of his emergency room admission.

On September 22, 2005 Claimant saw his family physician. His family physician's records stated , "was trying to lift a 400 \# roll with another person and felt something give. Back hurt rest of day. The next day worked on a loader because his back hurt. Family went to Kansas City and went to emergency room."

Thus, the most credible evidence clearly showed that Claimant sustained an intervening accident in September 2005 when he developed back pain while lifting a 400 pound roll of mesh and felt something "give" in his back. There was no evidence that the back pain he experienced in September 2005 was in anyway related to the alleged back pain he experienced in the alleged June 2005 accident at work. No doctor so testified. He did not receive any treatment for his alleged back pain from the day after the alleged June 2005 accident until after the intervening accident in September 2005. He offered no employment records or any objective evidence showing that he missed time from work during the period June to September 2005 due to back pain.

There was no credible evidence that Claimant's alleged June 2005 accident was a substantial factor in causing the need for any treatment he received after September 2005. Dr. Swaim, who wrote a

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: David Duly

Injury No. 05-063411

report on Claimant's behalf, was not aware of the September 2005 intervening accident. Dr. Swaim did not explain how it could be determined that any treatment Claimant received after September 2005 was caused by the alleged accident in June 2005 as opposed to the intervening accident in September 2005 when Claimant injured his back while lifting a 400 pound roll of mesh. Claimant had the burden of proof. Claimant failed in his burden.

Date: $\qquad Made by: \qquad$

Kenneth J. Cain

Administrative Law Judge

Division of Workers' Compensation

This award is dated, attested to and transmitted to the parties this $\qquad day of \qquad$ , 2010, by:

Naomi Pearson

Division of Workers' Compensation