Larry Daly v. Powell Distributing, Inc.

On September 28, 2010, the Missouri Court of Appeals for the Western District issued an opinion reversing the award and decision of the Labor and Industrial Relations Commission (Commission). Daly v. Powell Distrib., Inc., 328 S.W.3d 254 (Mo. App. 2010). By mandate dated January 27, 2011, the Court remanded this matter to the Commission for further proceedings in accordance with the opinion of the Court. Pursuant to the Court's mandate, we issue this award.

With respect to the 1999 claim, the administrative law judge heard this matter to consider the nature and extent of employee's claimed occupational diseases or injuries to the low back, hips, lower extremities, abdomen, right shoulder, neck, head, and body as a whole through September 12, 1999. With respect to the 2000 claim, the administrative law judge heard this matter to consider the following issues: (1) whether employee, within the course and scope of his employment for employer, sustained injuries or occupational diseases of the neck, upper back, head, right shoulder and upper extremity through May 12, 2000; (2) whether employee provided proper notice to employer of his claimed injuries or occupational diseases; (3) liability for unpaid medical expenses and future medical care; (4) the nature and extent of injury and permanent disability, if any, referable to the claimed injuries or occupational diseases; and (5) liability of the Second Injury Fund, if any.

As to the 1999 claim, the administrative law judge found employee sustained a 40\% permanent partial disability of the body as a whole referable to the lumbar spine and awarded permanent partial disability benefits to employee. As to the 2000 claim, the administrative law judge concluded: (1) employee failed to meet his burden of proving his hernia injury was causally related to work; (2) employer/insurer were properly notified of a possible compensable cervical spine injury claim; (3) the cervical spine injury is not causally connected to employee's work; and (4) employer is not liable for permanent total disability benefits, past temporary total disability payments, or medical treatment for the hernia or cervical spine injuries.

Employee appealed both awards to the Commission. Employee's Application for Review in the 1999 claim alleged the administrative law judge erred: (1) in not issuing any findings or rulings on the issue of whether work was a substantial factor in causing the hernia, right shoulder, and cervical spine injuries; (2) in finding Dr. Heim more credible than Dr. Cohen; (3) in finding employee not permanently and totally disabled; (4) in denying employee's

claim for temporary total disability benefits; (5) in not finding employee's vocational expert credible; and (6) in denying employee's claim against the Second Injury Fund.

Employee's Application for Review in the 2000 claim alleged the administrative law judge erred and entered findings contrary to the overwhelming weight of the evidence on the issues of: (1) medical causation; (2) medical treatment; (3) temporary total disability benefits; (4) nature and extent of disability; and (5) Second Injury Fund liability. On review, we affirmed and adopted the administrative law judge's awards in both the 1999 and 2000 claims as our own.

Employee filed an appeal with the Missouri Court of Appeals for the Western District, alleging that the Commission erred: (1) in denying medical causation for the cervical spine, right shoulder, and abdomen; (2) in denying permanent disability for the cervical spine, right shoulder, and abdomen; (3) in denying medical expenses for treatment to the cervical spine, right shoulder, and abdomen; and (4) in finding employee is not permanently and totally disabled.

The Court granted each of employee's points of appeal. The Court affirmed certain of our findings and reversed others. The Court reasoned that the Commission's findings as to medical causation on the cervical spine, right shoulder, and abdomen claims were not supported by competent and substantial evidence. The Court determined that employee's cervical spine, right shoulder, and abdomen injuries were compensable. The Court remanded the matter to the Commission for a determination on the issues of: (1) nature and extent of permanent disability resulting from the cervical spine, right shoulder, and abdomen claims; (2) employer's liability for past medical expenses; and (3) liability of the Second Injury Fund, if any.

We note that the Court of Appeals did not reverse, modify, or otherwise disturb any of our findings in our award issued for Injury No. 99-138008, in which we found that employee had a preexisting 10 % permanent partial disability of the body as a whole referable to the lumbar spine and that he sustained an additional 40 % permanent partial disability for which employer is liable. That award has thus become final and accordingly our decision herein does not reach any of the issues that were resolved by that award, but only those which were remanded by the Court to this Commission for determination.

On December 5, 2001, Dr. Vogt found an umbilical hernia during an examination of employee, and on January 8, 2002, Dr. Breeding performed a surgical repair of the hernia. Dr. Cohen opined that employee sustained a 15\% permanent partial disability of the body as a whole referable to the hernia, but provided no explanation for this rating. In his notes from his physical examination of employee, Dr. Cohen found that employee was "asymptomatic" after surgery for hernia repair. In his testimony, employee did not identify any current complaints related to the hernia. Given these factors, we find that employee sustained a 2.5 % permanent partial disability of the body as a whole referable to the abdomen for the hernia injury.

Employee received only minimal and conservative treatment specific to his right shoulder. On January 24, 2002, Dr. Tarbox diagnosed right shoulder impingement, and on February 21, 2002, Dr. Tarbox diagnosed resolving right shoulder impingement and noted employee had developed a tremor in the right upper extremity. Dr. Tarbox opined: "I feel this is all related to his neck and this tremor and not pathology within his shoulder." Dr. Tarbox referred employee to follow-up with Dr. Miles and released employee without restrictions. Employee received no further treatment specific to the right shoulder. Dr. Cohen opined employee sustained a 25% permanent partial disability of the shoulder, but provided no explanation for his rating, other than that employee complained of some pain in his right shoulder when reaching or performing overhead work. In light of his limited treatment specific to the right shoulder and the fact he was released without restrictions, we find employee sustained a 5% permanent partial disability of the right upper extremity at the 232-week level.

Employee's treatment for the cervical spine injury culminated in surgery, when Dr. Miles performed a bi-level fusion at C5-6 and C6-7 on June 25, 2003. On September 16, 2003, Dr. Miles released employee from post-operative care without restrictions. Dr. Miles' note from that visit includes his findings that employee had a great result from surgery and that employee was essentially symptom free. Employee had no other treatment for the cervical spine following that date. We find that employee reached maximum medical improvement for the cervical spine condition on that date. Dr. Cohen opined employee sustained a 50% permanent partial disability of the body as a whole referable to the cervical spine, but provided no explanation for this rating other than some reduced range of motion noted on physical examination. Employee complains of daily pain in his neck for which he takes Advil. In light of the treatment record, the evidence that employee had a good result following the bi-level fusion, and the fact employee has had no further treatment and manages his pain using over-the-counter medications, we find employee sustained a 25% permanent partial disability of the body as a whole referable to the cervical spine.

Employee had left eye surgery, possibly in 1981, for a condition that may have been diplopia. Employee testified that he wears glasses as a result of his condition. We found no records from the surgery or any other treatment for an eye problem. Employee's work for employer involved daily driving for which he maintained a commercial drivers' license. Employee was an umpire in high school baseball games after the 1981 surgery. Dr. Cohen opined that the condition was a hindrance or obstacle to employment and rated it at 25% permanent partial disability of the body as a whole, but we find his opinion lacking in credibility. Dr. Cohen admitted he didn't know whether employee had any medical restrictions or accommodations from any employers for the right eye and admitted he didn't see any medical records in connection with the surgery or claimed condition. Given these factors, we are not convinced that employee suffered any preexisting permanent partial disability of his left eye or body as a whole due to the ocular condition, nor are we convinced that the condition constituted a hindrance or obstacle to his employment at the time of the primary injuries.

In accordance with the result in the 1999 claim, we find that employee suffered from a 50 % permanent partial disability of the lumbar spine as of February 22, 2002, the date employee first discussed the need for surgery for the cervical spine condition. Given the evidence that the lumbar condition interfered with employee's ability to return working for employer, we find that the condition constituted a hindrance or obstacle to employment as of that date.

Dr. Cohen opined that employee is permanently and totally disabled due to a combination of the work injuries, but noted he would defer to a vocational expert if there were jobs available for employee within his doctor's restrictions. Mr. England opined that, from what he saw in the medical record and restrictions from employee's treating doctors, there is no contraindication to employee returning to his prior work as a route salesman, and even assuming Dr. Cohen's restrictions, there are a number of light duty positions that employee could perform, especially considering employee's age, work history, and educational achievements. We find Dr. Cohen's opinion that employee is permanently and totally disabled lacking credibility. We find Mr. England's opinion that employee is able to work more credible.

The restrictions from employee's treating doctors are minimal-the only permanent restriction from a treating doctor on record comes from Dr. Trecha, who issued 40 pounds frequent and 50 pounds occasional lifting restrictions in connection with the lumbar spine treatment and surgery. Dr. Cohen assigned numerous significant restrictions, but provided nothing in the way of credible explanation for them, and we note that many of Dr. Cohen's restrictions actually run contrary to employee's testimony as to his abilities. For example, Dr. Cohen opined that employee should not do any walking, but employee testified he walks at least a mile per day for recreation.

There is other evidence supporting a finding that employee is not permanently and totally disabled. At the time of hearing, employee had been engaged in regular employment for several years during which he worked at least twenty hours per week as a bank courier. Employee had to interview for the job and there is no evidence of employee missing work or his limitations otherwise interfering with his ability to satisfy his employer's requirements and demands. The job consists of light duty work according to M