Marion Lamberson v. BASF Corp.

[^0] [^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2004 unless otherwise indicated.

The findings of fact and stipulations of the parties were accurately recounted in the award of the ALJ and, to the extent they are not inconsistent with the facts and stipulations listed below, they are incorporated and adopted by the Commission herein.

On December 27, 2006, Dr. Miles performed surgery on employee's lower back. Employee's low back surgery consisted of an anterior lumbar fusion with instrumentation at the L5-S1 level. Dr. Volarich opined that employee reached MMI on August 28, 2007, the last date Dr. Miles treated employee in follow-up from this surgery.

While we agree with the ALJ's ultimate conclusion that employee is PTD as a result of his primary injury combining with his preexisting disabilities, we disagree with several aspects of the ALJ's analysis and other findings the ALJ relied on in reaching his conclusions. For this reason, we provide the following modifications below.

The ALJ found that the July 18, 2005, accident was the prevailing factor in causing employee's need for low back surgery and found employer liable for all unpaid medical bills relating to the same. Employee's anterior lumbar fusion with instrumentation at the L5-S1 level was performed on December 27, 2006, by Dr. Miles and employee continued treating in follow-up with Dr. Miles until August 28, 2007. Dr. Volarich opined that this last visit with Dr. Miles is the date employee reached MMI.

Despite Dr. Volarich's opinion regarding MMI and Dr. Miles' extensive treatment records following the surgery, the ALJ found that employee reached MMI on December 27, 2006, the date Dr. Miles performed surgery on employee's lower back. Based on the foregoing, we find that it is illogical to conclude that employee reached MMI on the same date he had a very invasive surgery performed on his lower back. We find Dr. Volarich's opinion to be credible that employee did not reach MMI until he was released from treatment by Dr. Miles on August 28, 2007.

For the foregoing reasons, we find that employee reached MMI on August 28, 2007.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." In order to trigger liability of the Second Injury Fund, employee must show the presence of an actual and measurable disability at the time the work injury is sustained and that work-related injury is of such seriousness as to constitute a hindrance or obstacle to employment or reemployment. E. W. v. Kansas City, Missouri, School District, 89 S.W.3d 527, 537 (Mo.App. W.D. 2002), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

In this case, it is clear based upon prior medical records, medical reports, medical expert testimony, and employee's own testimony that at the time of his July 18, 2005,

Improve: Marion Lamberson

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accident, he had multiple preexisting disabilities that were hindrances and obstacles to his continued employment or reemployment.

In evaluating cases involving preexisting disabilities, the employer's liability must first be considered in isolation before determining Second Injury Fund liability. *Kizior v. Trans World Airlines*, 5 S.W.3d 195 (Mo. App. W.D. 1999), overruled on other grounds, *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003). In *Kizior*, the Court set out a step-by-step test for determining Second Injury Fund liability:

Section 287.220.1 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.

*Kizior*, 5 S.W.3d at 200.

1. Primary Injury

Based upon the steps provided in *Kizior*, to determine employer's liability we must first establish the degree or percentage of disability that resulted from the July 18, 2005, injury had there been no preexisting disabilities.

Dr. Volarich saw employee for an independent medical evaluation on January 7, 2009. With respect to causation, Dr. Volarich opined that the July 18, 2005, work accident was the substantial, as well as the prevailing or primary factor causing employee's right knee chondral injury, the right ankle strain/sprain, as well as the progression of the L5-S1 disc bulge to a herniation causing bilateral lower extremity radicular symptoms that required anterior lumbar fusion with instrumentation at the L5-S1 level.

With respect to employee's permanent disabilities resulting from the July 18, 2005, injury, Dr. Volarich opined that employee sustained 50% PPD of the body as a whole rated at the lumbosacral spine, 25% PPD of the right lower extremity rated at the knee, and 10% PPD of the right lower extremity rated at the ankle.

Dr. Wayne opined that the July 18, 2005, injury resulted in 2% PPD of the body as a whole. Dr. Wayne believes that employee suffered more from degenerative damage to his back than from any traumatic damage from the July 18, 2005, injury. Dr. Wayne does not believe that the primary injury was a substantial factor in employee's need for the December 27, 2006, low back surgery.

Dr. Stillings saw employee for a psychiatric independent medical evaluation on March 24, 2009. Dr. Stillings opined that employee's July 18, 2005, work injury is a substantial factor in causing employee 30\% PPD of the body as a whole referable to his psychiatric disability. Dr. Stillings attributed one-half (15\%) of employee's psychiatric disability to a mood disorder and the other half (15\%) to a pain disorder.

The ALJ found that the July 18, 2005, injury necessitated employee's December 27, 2006, anterior lumbar fusion with instrumentation at the L5-S1 level and, therefore, found employer liable for employee's unpaid medical bills associated with the same. We agree with this finding.

The great weight of the evidence establishes that the accident resulted in a serious injury to employee's lumbar spine. Employee was initially treated conservatively for this injury, but such treatments were unable to relieve his pain. Based upon Dr. Volarich's opinion and the record as a whole, we find that the December 27, 2006, surgery was reasonable and necessary to cure and relieve employee from the effects of the July 18, 2005, injury. As it relates to medical causation, we do not find Dr. Wayne's opinion is supported by the record. Therefore, we agree with the ALJ's finding that employer is liable for the unpaid medical bills associated with employee's December 27, 2006, surgery.

We also agree with the ALJ's findings that as a direct result of the primary injury employee sustained 15\% PPD of the right lower extremity rated at the knee and 10\% PPD of the right lower extremity rated at the ankle. These findings are supported by competent and substantial evidence.

With respect to employee's lower back, the ALJ found that employee has 35\% PPD of the body as a whole referable to his lumbosacral spine. However, without explanation, the ALJ found employer liable for only 25\% PPD of the body as a whole rated at the lumbosacral spine. We find that this was in error. After reviewing the entire record, we find that the ALJ's assessment of 35\% PPD of the body as a whole rated at the lumbosacral spine is supported by competent and substantial evidence. However, we find that because the weight of the evidence suggests that all of employee's lower back problems arose as a result of the primary injury, employer is liable for the entire 35\% PPD of the body as a whole referable to employee's lumbosacral spine.

The ALJ also found employer liable for employee's future medical treatment. We agree with this finding as well.

While the ALJ addressed all of employee's physical disabilities resulting from the primary injury, he neglected to address employee's permanent psychiatric disability resulting from the primary injury. As stated above, Dr. Stillings opined that as a result of the July 18, 2005, work injury, employee sustained 30\% PPD of the body as a whole referable to his psychiatric disability. After reviewing employee's testimony and the record as a whole, we find that a more accurate assessment of employee's permanent psychiatric disability attributable to the primary injury is 15 % PPD of the body as a whole.

In sum, we find that the primary injury considered in isolation caused the following permanent partial disabilities: 35\% PPD of the body as a whole referable to the lumbosacral spine, 15 % PPD of the right lower extremity rated at the knee, 10 % PPD of the right lower extremity rated at the ankle, and 15 % PPD of the body as a whole referable to employee's psychiatric disability. We further find that employee's need for an anterior lumbar fusion with instrumentation at the L5-S1 level was caused by the primary injury.

We find employer liable for employee's PPD benefits attributable to employee's primary injuries, which amount to 239.5 weeks of compensation ( =35 % PPD of body as a whole referable to lumbosacral spine =140 \mathrm{wks}+15 % PPD of right knee =24 \mathrm{wks}+10 % PPD of right ankle =15.5 \mathrm{wks}+15 % PPD of body as a whole referable to psychiatric disability $=60 \mathrm{wks} ), or \ 87,436.66. We also find employer liable for employee's unpaid medical bills associated with the primary injuries, which amount to $\ 81,449.05. Lastly, we find employer liable for employee's future medical treatment that is reasonable and necessary to cure and relieve him from the effects of the primary injury.

Dr. Volarich opined that prior to the July 18, 2005, work injury, employee suffered from the following preexisting disabilities that were a hindrance and obstacle to his employment or reemployment: 15 % PPD of the body as a whole rated at the lumbosacral spine, due to a disc bulge at L5-S1; and 30\% PPD of the right upper extremity rated at the shoulder, due to internal derangement that required open rotator cuff repair.

Dr. Wayne opined that employee has a preexisting permanent partial impairment of 5\% of the body as a whole referable to employee's spondylosis in the lower back.

Dr. Stillings opined that prior to the July 18, 2005, work injury, employee suffered from 20\% preexisting permanent psychiatric disabilities. Dr. Stillings opined that of employee's 20 % preexisting PPD, 5 % is attributable to a dysfunctional family of origin, 5 % is attributable to abusive foster parents, 5 % is attributable to abusive adoptive parents, and 5 % is attributable to a personality disorder.

We find that the record clearly shows that employee suffered from preexisting disabilities that were a hindrance and obstacle to his employment or reemployment. After reviewing the evidence and considering the entire record as a whole, we find that an accurate assessment of employee's preexisting disabilities is as follows: 15\% PPD of the body as a whole referable to employee's lumbosacral spine, 30 % PPD of the right upper extremity rated at the shoulder, and 15 % PPD of the body as a whole referable to employee's psychiatric disabilities.

Dr. Volarich opined that employee is permanently and totally disabled as a direct result of the work related injuries of July 18, 2005, in combination with his preexisting medical conditions.

Dr. Stillings opined that employee's psychiatric conditions due to his primary injury combine synergistically with his preexisting conditions which are hindrances and obstacles to his employment or reemployment, creating a total disability greater than the

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simple sum rendering him permanently and totally disabled from gainful employment on a psychiatric basis.

Dr. Wayne opined that employee can return to limited duty with permanent restrictions of no climbing ladders and no lifting over 25 pounds.

Mr. England, a vocational rehabilitation specialist, opined that in considering the combination of employee's physical and psychological problems, employee is not capable of competing for employment or being able to hold a job on a consistent, full-time basis.

Section 287.020.7 RSMo defines "total disability" as the "inability to return to any employment ...."

The test for permanent total disability is whether, given the employee's situation and condition he or she is competent to compete in the open labor market. The pivotal question is whether any employer would reasonably be expected to employ the employee in that person's present condition, reasonably expecting the employee to perform the work for which he or she is hired.

Gordon v. Tri-State Motor Transit Company, 908 S.W.2d 849, 853 (Mo.App. 1995) (citations omitted).

The testimony of employee, Dr. Volarich, Dr. Stillings, and Mr. England, along with the supporting medical records and reports, are all consistent in showing that employee suffered from numerous preexisting disabilities that posed a hindrance and obstacle to his employment or reemployment, and when combined with his primary injuries, result in his permanent and total disability.

We find Dr. Volarich, Dr. Stillings, and Mr. England's opinions to be more credible than Dr. Wayne's. Therefore, we find, as did the ALJ, that employee is permanently and totally disabled as a result of employee's primary injuries combining with his preexisting disabilities.

As previously stated, we find employer liable for PPD benefits associated with the primary injuries, which amount to 239.5 weeks compensation, or $\ 87,436.66 ( $=\ 365.08 PPD rate $\times 239.5$ weeks). We also find employer liable for employee's unpaid medical bills associated with the primary injuries, which amount to $\ 81,449.05. Lastly, we find employer liable for employee's future medical treatment that is reasonable and necessary to cure and relieve him from the effects of the primary injury.

We find that employee reached maximum medical improvement on August 28, 2007 (the date employee was released from treatment by Dr. Miles). Therefore, going forward from August 29, 2007, the Second Injury Fund is liable for the difference between the PTD benefits and the PPD benefits ( $\ 696.97 PTD rate - $\ 365.08 PPD rate)

for 239.5 weeks. Thereafter, the Second Injury Fund shall be liable for employee's PTD benefit of $\ 696.97 for the remainder of employee's life, or until modified by law.

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.

The award and decision of Administrative Law Judge Henry T. Herschel, issued September 9, 2010, is attached and incorporated to the extent it is not inconsistent with this final award.

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Marion Lamberson

Injury No. 05-069283

Dependents: N/A

Employer: BASF Corp.

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

Insurer: Zurich American Insurance Company

Hearing Date: June 3, 2010

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: $\mathrm{HTH} / \mathrm{sb}$

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: July 18, 2005.
5. State location where accident occurred or occupational disease was contracted: Marion 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? No.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was walking on a gravel dike, stumbled, slid, and hurt his right ankle and the lower back.
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: Right ankle.
14. Nature and extent of any permanent disability: Permanent total disability.
15. Compensation paid to-date for temporary disability: $\ 796.54.

1. Value necessary medical aid paid to date by employer/insurer: $\-0-
2. Value necessary medical aid not furnished by employer/insurer: $\ 24,963.84.
3. Employee's average weekly wages: $\ 1,050.52
4. Weekly compensation rate: PPD $\ 365.08 and TTD $\ 696.97.
5. Method wages computation: By stipulation.

1. Amount of compensation payable: Employer/Insurer medical bills for lower back surgery and associated medical care: $\ 81,449.05.
2. Second Injury Fund liability: PTD benefits of $\ 696.97 per week minus a credit of 98 weeks at $\ 495.14
3. Future requirements awarded: Medication and associated treatment.

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: Steven Thumer.

Employee: Marion Lamberson

Injury No. 05-069283

Dependents: N/A

Employer: BASF Corp.

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

Insurer: Zurich American Insurance Co.

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: $\mathrm{HTH} / \mathrm{sb}$

The parties appeared before the undersigned Administrative Law Judge on June 3, 2010. The Division has jurisdiction to hear this case pursuant to $\S 287.110$ RSMo 2000. The parties provided briefs on the relevant issues on approximately June 17, 2010. The record was closed on June 17, 2010.

1. The employee and the employer were operating under the provisions of the Workers' Compensation Law on or about July 18, 2005;
2. The employer's liability was insured by Zurich American Insurance Co.;
3. The employee's average weekly wage was $\ 1,050.52;
4. The rate of compensation for temporary total disability was $\ 696.97 and $\ 365.08 for permanent partial disability; and
5. The employer/insurer has paid $\ 796.54 in TTD and $\ 24,963.84 in medical benefits to date.

1. Whether there was sufficient medical evidence to determine that claimant's injury symptoms were caused by the work-place injury.
2. Whether claimant is entitled to permanent total disability (PTD) or permanent partial disability (PPD) for his work-place injury.

1. Whether Second Injury Fund (SIF) or the employer/insurer is liable for the payment of benefits, if any.
2. Whether future medical care should be awarded.

A Workers' Compensation File

B St. Louis Orthopedic Institute Records

C The Work Center Records

D Midwest Orthopedic Specialists Records

E Priority Physical Therapy Records

F Northeast and Missouri Ambulatory Surgery Center Records

G Northeast and Missouri Radiology Records

H Hannibal Regional Hospital Records, 31 pages

I Orthopedic and Sports Medicine, Inc. Records

J Quincy Medical Group Records

K Naseem Shekhani, M.D. Records

L Columbia Orthopedic Group Records

M Robert Hevel, D.O. Records

N Hannibal Clinic Records

O Hannibal Clinic Operations Records

P Columbia Regional Hospital Records

Q Hannibal Regional Hospital Records, 38 pages

R Mid-County Orthopedics Records

S Letter to Lamberson from Byrd, dated 5/10/06

T Letter to Thurmer from Byrd, dated 5/24/10

U Letter to Byrd from Thurmer, dated 10/3/06

V Letter to Griffin from Thurmer, dated 12/20/06

W Deposition of David Volarich, D.O., with exhibits

X Deposition of Wayne Stillings, M.D., with exhibits

Y Deposition of James England, CRC, with exhibits

1 Deposition of Andrew Wayne, M.D., dated 8/31/09

I Deposition of Marion Lamberson, dated 10/8/09

Marion Lamberson (Claimant) is a 55-year-old male who has spent most of his working career at the BASF plant in Hannibal, Missouri. In his 30-year tenure at BASF, he worked at a number of semi-skilled jobs. He cleaned the floors, did light maintenance, was a control utility operator, and a batch operator during his years at BASF. Claimant graduated from high school but did not attend college.

On July 18, 2005, a pipeline on the BASF facility had just been repaired and Claimant and his co-worker were asked to go up onto the dike, surrounding the pipeline. (SIF Exh. I, p48.) While he and his co-worker were cleaning up and inspecting the dike, claimant slipped and fell off. (Id. at p49.) He fell, twisting his back, legs, and right ankle. (Id. at p49.) Claimant immediately felt pain in his right foot, knee, and back. (Id. at pp45-10.) Claimant went to the emergency room and was ordered to have x-rays. Claimant was diagnosed with a broken right foot, twisted right knee, and a back sprain and strain. (Id. at p50.)

A few days later, Claimant went to Dr. R. Bauman who ordered an MRI for Claimant's knee. (Id. at p52.) The MRI revealed a patellar tenclinopathy with a Grade IV chondromalacia femoral notch in Claimant's right knee. (Cl. Exh. G, p3.) In September 2005, Claimant had another MRI of his back, which revealed a large right paracentral L5-S1 disc and L4-5 annular disc with bilateral recess stenosis. (Id. at p4.)

For his July 2005 injuries to his knee and back, Claimant was treated conservatively but he was referred to a number of doctors when his symptoms did not get better. Dr. Bauman ordered a lumbar steroid shots. Even after the shots, Claimant still had pain in his lower back. (Cl. Exh. F.)

Claimant was then referred to Dr. D. Lange for an evaluation concerning the possibility of surgery on his back. Dr. Lange did not believe Claimant's back injury and symptoms required surgery. (Cl. Exh. B, pp3-5.)

Later Claimant was referred to Dr. D. Hammond for right knee injection. Claimant had the injection on December 15, 2005. Although Claimant still has some pain and swelling in his knee, he has not had further treatment, conservative or otherwise, since this injection. (SIF Exh. I, pp50-63.)

In June 2006, Claimant saw Dr. A. Wayne and the doctor ordered a nerve conduction evaluation for his lower back. The results of this test was normal. Later that year, Claimant saw Dr. Wayne again and had yet another MRI on his lumbar spine. The results of this MRI were again normal in the opinion of Dr. Wayne. (Emp./Ins. Exh. 1, pp12-15; Cl. Exh. I, p6.)

Dr. D. Lange finds that Claimant is at MMI in April 2006. (Cl. Exh. 8.) The Employer/Insurer decided that surgery for his back was not a remedy that was merited by Claimant's injury, so Claimant was found to be at maximum medical improvement.

In 2006, Claimant went on his own to Dr. J. Miles in Columbia. Dr. Miles recommended a discogram that addressed the L5-S1 symptoms. Surgery was performed in December 2006 in which Claimant had interbody fusion at L5-S1 and COUGAR ${ }^{\mathrm{TM}}$ carbon fiber cage, demineralized bone matrix and Aegis instrumentation. (Cl. Exh. L.) Claimant's symptoms in his back improved for a time, but as time passed, the pain in his back re-appeared. (Cl. Exh. L note 12/27/2006.) Claimant incurred medical bills of $\ 81,449.05 for surgery and treatment of his back. (Cl. Exh. W.)

Claimant's disabilities had left him without many options for work or everyday life. He has trouble walking, climbing stairs, and even standing. His time in an automobile is strictly limited to less than an hour. He needs assistance when showering.

Dr. D. Volarich testified via deposition and determined that Claimant had lumbar disc herniation at L5-S1. (Cl. Exh. W, p13.) Dr. Volarich rated this injury as 50\% PPD of BAW (lumbar spine). Dr. Volarich also determined that Claimant had a chondral injury to the trochlea, which required conservative care but was rated at 25 % PPD. (Cl. Exh. W, depo. exh. 2, p10.) Dr. Volarich also found a 10 % PPD for Claimant's healed ankle injury. (Id. at p10.)

As to the pre-existing injuries prior to the July 18, 2005, Dr. Volarich found a 15\% PPD of BAW at the lumbar spine for disc bulge at L5-S1. (Id. at p10.) Dr. Volarich also found a 30\% PPD at the right shoulder for rotator cuff repair. (Id. at p11.) The rotator cuff repair was a result of a fall on the ice in 2002. Claimant filed a claim for this work-related injury and settled the claim for 25 % PPD of the right shoulder and 10 % PPD of BAW. (Cl. Exh. A, pp2-8.)

Dr. W. Stillings testified via deposition that Claimant had a 15\% PPD for the BAW associated with psychiatric disability and a 15 % PPD of BAW associated with Claimant's pain syndrome. (Cl. Exh. X, p11.) Claimant also had a 20\% PPD pre-existing for his emotional state, which seemed to be related to childhood abuse. (Id. at pp11-12.)

Mr. James England, CRC, testified via deposition that in light of his physical, psychological, and educational limitations, Claimant is not employable in the open market. (Cl. Exh. Y, p7.) He based this opinion on his review of the reports and records of Dr. Volarich, Dr. Wayne, and Dr. Stillings. He also noted that Claimant had a 25-pound permanent lifting restriction, had no more than a high school education, and suffered from depression and pain symptoms. (Cl. Exh. Y, depo. exh. 2, p20.)

Dr. A. Wayne testified via deposition that in light of the negative EMG test he performed on Claimant and his review of the various MRIs of Claimant's back, that Claimant suffered more from degenerative damage to his back than from any traumatic damage from the injury of July 18, 2005. (Emp./Ins. Exh. 1, pp21-23.)

It is the claimant's burden of proof to prove all the issues that are alleged in the hearing under Chapter 287. As noted by the Court in Cook:

Claimant has the burden of proving all the essential elements of the claim and must establish a causal connection between the accident and injury. Cook v. Sunnen Products Corp., 937 S.W.2d 221, 223 (Mo.App.E.D. 1996) citing: Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195 (Mo.App.E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. Banc 2003).

The initial inquiry before me is to determine whether the injury of July 18, 2005, has, in any way, caused the pain and disability that Claimant now suffers. The Employer/Insurer believes that the medical experts in the case contradict each other. (Emp./Ins. brief, pp2-3.) The Missouri Court of Appeals gives the Commission some discretion when assessing the weight to be give to testimony, expert or otherwise. In Cochran v. Ind. Fuels \& Recsources, Inc., 995 S.W.2d 489 (Mo.App. S.D. 1999) the Eastern District Court of Appeals addressed this question.

"Decisions concerning the weight to be given expert opinions lie within the Commission's sole discretion and cannot be reviewed by this court." Avery, 966 S.W.2d at 320; Cahall v. Cahall, 963 S.W.2d 368, 371 (Mo.App. 1998). The Commission, as fact finder, has discretion to determine an expert's qualifications to testify on specific matters. Landers v. Chrysler Corporation, 963 S.W.2d 275, 281 (Mo.App. 1997). It is within the province of the Commission to determine what weight it will accord expert testimony on medical causation. Id. at 282. The issue is peculiarly for the Commission's determination where the right to compensation depends upon which two conflicting medical theories should be accepted. Id.; Cahall, 963 S.W.2d at 371; Dawson, 885 S.W.2d at 714-15.

Id. at p 494 .

Expert opinion on causation cannot be ignored, but the Commission may give any conflicting testimony varying degrees of weight in its determination. Van Winkle v. Lewellens Prof. Cleaning, Inc., 258 S.W.3d 889, 897 (Mo.App. W.D.2008).

After the injury of July 18, 2005, Claimant immediately went to various treating doctors complaining of the pain and symptoms in his knee and lower back. The MRI ordered by Dr. Bauman in September 2005 showed a herniated disc, large paracentral, affecting the right and left S-I roots. (Cl. Exh. D, p4; Cl. Exh. G, p4.) All the subsequent MRIs show a bulge at this level. Medical opinions may vary as to whether the proper remedy to Claimant's injury is surgery, but it is clear that Claimant suffered severe enough pain that he did not believe he was healed. The pain of this injury seemed to be more than Claimant could bear until he sought out Dr. Miles. Dr. Wayne grudgingly rates the Claimant as a 2\% PPD for the July 18, 2005 injury. (Cl. Exh. I, p17.) The testimony of Dr. Wayne and Dr. Lange that Claimant's injury is not serious is contradicted by the sheer months of treatment of the symptoms and pain of Claimant's back. From July 2005 through to his surgery by Dr. Miles, Claimant is constantly receiving treatment. (Cl. Exh. E, pp50-70 phys. therapy; Cl. Exh. D, pp4-15 phys. Therapy; Cl. Exh. H note therapy "weight loss;" Cl. Exh. J phys. Therapy; Cl. Exh. K home exercise.) Dr. Wayne believes that Claimant suffered a minor injury, but Claimant's pain and his relentless search for relief indicates, in this case, that surgery was the final and appropriate remedy.

Although Dr. Wayne does not believe that Claimant needed surgery for the injuries of July 2005, Dr. Wayne does believe that Claimant did suffer some damage to his lumbar spine on July 18, 2005. (See also Emp./Ins. Exh. 1, depo. exh. 3.) Dr. Wayne can find no other cause of Claimant's pain except for his July 2005 injury.

Q. Okay. Do you know of any incident involving Mr. Lamberson, between March $10^{\text {th }} of 2004, up until the second MRI of September 9^{\text {th }}, 2005$, in which Mr. Lamberson injured his back, other than the incident he described on July $18^{\text {th }}, 2005$ ?

A. No.

Id. at p 31 .

Neither Dr. Volarich nor Dr. Wayne are specialists in surgery to the spine, but Dr. Miles is and he favored surgery. After a review of the medical files, the deposition, and Claimant's testimony, I find that Claimant's accident of July 18, 2005, was a prevailing cause in his lower back injury.

The issue is now whether Claimant was entitled to obtain further medical treatment after he was declared at maximum medical improvement on April 21, 2006. (Cl. Exh. S.) Claimant eventually underwent an anterior lumbar interbody fusion, carbon fiber cage and Aegis instrumentation at L3-S1 by Dr. Miles. (Cl. Exh. V; Cl. Exh. P, p4-10; Cl. Exh. L.) Claimant incurred medical bills from Dr. Miles for $\ 10,973.00 and from Columbia Regional Hospital for $\ 70,476.05.

Before his surgery by Dr. Miles, Claimant was treated conservatively for the injuries to his back. Medical care is a key benefit for Chapter 287, as the Court noted in Town \& Country Supermarket:

In pertinent part, $\S 287.140 .1$ states that "the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." This includes treatment which gives comfort or relief from pain, even though a cure is not possible. Sullivan, 35 S.W.3d at 888; Ford v. Wal-Mart Associates, Inc., 155 S.W.3d 824, 828-29 (Mo.App. 2005). An employer's duty to provide statutorily-required medical aid to an employee is absolute and unqualified. Jennings v. Station Casino St. Charles, 196 S.W.3d 552, 557 (Mo.App. 2006); Wilson v. Emery Bird Thayer Co., 403 S.W.2d 953957 (Mo.App. 1966). As a general rule, the employer is given control over the selection of the employee's medical providers. Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85 (Mo.App. 1995). This principle, however, is subject to an important caveat. If the employer is on notice that the employee needs treatment and fails or refuses to provide it, the employee may select his or her own medical provider and hold the employer liable for the costs thereof. Jones v. Dan D. Services, L.L.C., 91 S.W.3d 214, 220-21 (Mo.App. 2002); Sheehan v. Springfield Seed and Floral, Inc., 733 S.W.2d 795, 798 (Mo.App. 1987); Hawkins v. Emerson Electric Co., 676 S.W. 2d 872, 880 (Mo.App. 1984). Martin v. Town \& Country Supermarket, 220 S.W.3d 836, 845 (Mo. banc 2007).

The Employer/Insurer vigorously argues that most of the treating physicians do not feel that back surgery was warranted for Claimant. I am not of that opinion. I agree that there is a portion of Claimant's disability that is degenerative, but the July 18, 2005, injury was the prevailing cause of the injury to Claimant's back and the subsequent surgery was necessary in my opinion. That conclusion is assessed by Dr. Miles when he determines that Claimant is a candidate for surgery.

History of Present Illness: Marion Lamberson has had issues with his back dating back to July 2005. He continues to have pain 7 or 8 on a 0 to 10 scale. The pain starts in the low back, extends into both buttocks left side to about the knee, right side over the ankle. He has some numbness and tingling along the lateral aspect of his right leg. He complains of bilateral lower extremity weakness.

Impression and Plan: Mr. Lamberson has lumbar spondylosis at L5-S1. He has had a discogram which revealed a concordant pain generation at that

level. He has failed conservative management in the form of epidural steroid injections, anti-inflammatories and activity modulation. He desires to proceed with surgical intervention at this time....

(Cl. Exh. P, p16; 18.)

It is true that in most cases spondylosis has an element of degeneration for age and overuse, but there is little, if any, evidence that Claimant had any pain before July 2005. The debate whether Claimant's injury is work related or degeneration is engaged as early as two weeks after the injury. (Cl. Exh. N, p5.) But what is very apparent to me is that on July 18, 2005, suddenly Claimant has severe back pain that radiates down his right leg. (Id. at p5.) The records demonstrate that Claimant had intense pain after the injury but not before. (Cl. Exh. M, pp3-10.) Claimant is credible when he testified to the lengths he went to treat and heal his injuries. At the recommendation of Dr. Hevel, Claimant even lost a substantial amount of weight to ease his pain. (Cl. Exh. H, p8.)

Further, Dr. Volarich and Dr. N. Shekhani both find evidence of bulging disc in Claimant's lower back. (Cl. Exh. W, p12; Cl. Exh, K, pp1-5.) ${ }^{1}$

I find that the injury of July 18, 2005, was the prevailing cause for Claimant's back injury that required surgery in December 2007 by Dr. Miles. Claimant has borne his burden of proof that the surgery and medical bills he incurred were justified under Chapter 287.

Claimant has requested that he be determined to be permanently totally disabled to work again. He has offered the testimony of Mr. England, who declared Claimant unable to find work at his age, disability, skill, and educational level. (Cl. Exh. y, pp7-8.)

To reach permanent total disability (PTD), a claimant must not be able to find any work. Claimant asserts that his lower back injury of 2006 and his pre-existing injuries result in PTD. The Second Injury Fund (SIF) asserts that if Claimant is PTD, it is from his last injury alone. The test for PTD is:

To determine if a person is PTD, there must be a finding that the person is unable to find any job in the open labor market. The test of PTD is the worker's ability to compete in the open labor market. Sutton v. Vee Jay Cement Contracting Co., 37 S.W.3d 803, 811 (Mo.App. 2000) (overruled in part by Hampton, 121 S.W.3d at 225.) The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. Id.; Gassen,

[^0]

[^0]: ${ }^{1}$ In the notes provided to the Court from Dr. Shekhani, he did not recommend surgery.

134 S.W.3d at 80. ABB Power T\&D Co. v. Kempker, 236 S.W.3d 43, 49 (Mo.App. E.D. 2007).

Claimant's trial testimony was credible. He worked for thirty years with the Employer/Insurer and obviously had a good work record. It is not only the testimony of Dr. Volarich and Dr. W. Stillings, but also the testimony of Claimant, that he is unable to work due to no inclination of his own. (SIF Exh. I, pp31-37.) Claimant was hard working and is honest, and if it were possible, he would still be working.

Claimant's disabilities have substantially affected his everyday life. He can no longer work, help with household chores, or ride in cars for more than $3 / 4$ of an hour. He must ask his wife to help him in and out of the shower and must have her dry him since he is unable to bend or twist. Since Claimant's disabilities are to his shoulder, knee, and back, he is unable to adequately compensate for any of the injuries by using another part of his body. It is difficult to compensate for his back stiffness because he cannot put the extra pressure on his knee or shoulder. The combination of injuries are greater in their effect than the sum of their disabilities.

Dr. Volarich believes that the injuries and pre-existing conditions amounted to more than the mere addition of the various disabilities together. (Cl. Exh. W, pp14-16.)

Claimant's last injury was serious but in and of itself was not the primary factor of Claimant's disability. As noted above, the injury of July 18, 2005, and the pre-existing and stady progression of Claimant' degenerative spondylosis, renders Claimant severely disabled. The surgery by Dr. Miles treated the injury of July 2005, but I believe that Claimant's spine is more damaged than the surgery could fix. The progressive disability of Claimant's back in addition to Claimant's diminished shoulder and knee leaves the Claimant without the physical tools to continue to work. A telling factor in this case is Claimant's pain syndrome, which provides little or no relief for Claimant. This condition in turn caused his depression. The synergy of all the injuries amount to a greater disability than their simple sum. This is in addition to the lack of work skills that would permit Claimant to shift employment. I find that Claimant is PTD from the accumulation of his disability. The combination of these disabilities creates a synergy that is greater than the sum of the disability. Claimant's PTD is not the result of the last injury alone. The wages of PTD is to be paid by the SIF.

After a review of the medical records and testimony, I find it is likely that Claimant will need pain and other medication consistent with his disability. (Exh. W, depo. exh. 2, p11.) I order such medications and follow-up medical care to be made available as needed to Claimant.

I find that the medical bills that Claimant incurred for his back surgery should be paid by the Employer/Insurer (\$81,449.05). I find Claimant is PTD without hope for further employment

in light of his depression, back, shoulder, and knees against the SIF. I find that Claimant should be paid $\ 696.79 per week since the date of his surgery for his back injury on December 27, 2006, for the rest of his life. The SIF should get a credit for the payment made to Claimant in the primary settlement. The settlement was 25 % of right shoulder ( 58 weeks) and 10 % BAW (lower back) ( 40 weeks) for a total of 98 weeks at a PPD rate of $\ 495.14. (See Cl. Exh. A, pp7-8.) I also find that Claimant needs future medical treatment in the form of medications and diagnostic tests as is ordered by a treating physician.

Date: $\qquad$

A true copy: Attest:

Naomi Pearson

Division of Workers' Compensation

Made by: $\qquad$

Henry T. Herschel

Administrative Law Judge

Division of Workers' Compensation