Robert Dwyer v. Federal Express Corp.

Dr. Yingling, a board-certified neurosurgeon, was employee's treating doctor after the work injury on February 5, 2001, and thus had the benefit of appraising employee's medical condition and low back complaints from the beginning. In addition to examining employee and providing treatment for low back complaints from April 2001 through August 2008, Dr. Yingling performed the May 2002 bilateral L3-L4 decompression and discectomy. Dr. Yingling was able to evaluate employee's medical condition approximately once a month during employee's course of treatment and observed the progression of employee's low back condition on a firsthand basis. Dr. Yingling found the work injury to be a substantial factor in causing employee's worsening low back symptoms in May 2002 and need for subsequent treatment, including surgery. Dr. Yingling acknowledged that the MRI from May 11, 2002, revealed a disc rupture at L3-L4, which constituted a change in pathology from the disc protrusion shown on the May 3, 2001, MRI—but explained that the rupture was a continuation of the work injury of February 5, 2001, rather than the result of any new injury, and that employee's medical condition and all of his symptoms stem from the work injury, rather than any new injury. Dr. Yingling's opinion was corroborated by Dr. Volarich. Drs. Tate and Kennedy gave conflicting opinions, but we find their testimony less persuasive than that of Dr. Yingling.

Dr. Yingling testified that the additional treatment employee received for his low back complaints after he was initially released in July 2001 was reasonable and necessary to cure and relieve from the effects of the work injury, and we credit this opinion and so find. We also credit Dr. Yingling's opinion that employee may require additional medical care in the future.

Employer attempts to inject the issue of employee's credibility or lack thereof into the issue of medical causation, citing evidence that employee continued his hobby of growing giant watermelons after the work injury, and inviting us to speculate that employee's need for treatment after his initial release by Dr. Yingling might have been related to lifting heavy watermelons. We are not persuaded. Whether employee continues to participate in his hobbies is immaterial given the absence of any credible expert testimony that employee sustained a new low back injury. To the limited extent employee's credibility is relevant to the issue of medical causation, we specifically find credible employee's testimony that he experienced continued back pain after he was initially released by Dr. Yingling in July 2001 and that he took a number of days off work without pay in order to rest his back.

Because we are convinced Dr. Yingling provides the more convincing expert medical testimony in this matter, we conclude that the work injury is a substantial factor in employee's medical condition and disability after July 27, 2001, and that his need for medical treatment after that date, including the May 2002 surgery and his ongoing need for future medical care, flows from the work injury.

The administrative law judge did not take into account employee's medical condition after July 27, 2001, when he found that employee suffered a 17.5\% permanent partial disability of the body as a whole as a result of the work injury. Dr. Volarich took into account employee's medical condition and treatment subsequent to that date and opined that employee sustained a 50\% permanent partial disability of the body as a whole. We have carefully weighed Dr. Volarich's testimony in this regard, in addition to employee's testimony regarding his ongoing complaints and limitations. We find that employee suffered a 30\% permanent partial disability of the body as a whole referable to the low back as a result of the work injury of February 5, 2001.

We have found that employee's medical condition, disability, and need for treatment after July 27, 2001, flows from the work injury of February 5, 2001. Section 287.140.1 RSMo provides, as follows:

In addition to all other compensation, 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.

Given our findings, we conclude that employee met his burden of demonstrating he is entitled to the past medical expenses he incurred seeking relief from the effects of the work injury of February 5, 2001. We conclude that employer is liable for these disputed past medical expenses. We have also credited Dr. Yingling's opinion that employee may need future medical care as a result of the work injury.

In order to receive future medical benefits under the Act, a claimant is not required to present conclusive evidence that future medical treatment is needed. Rather, he only needs to demonstrate a reasonable probability that future medical treatment is necessary by reason of his work-related injury. Probable in this context means founded on reason and experience which inclines the mind to believe but leaves room for doubt. The claimant is not required to present evidence of the specific medical care that will be needed but he is required to establish through competent medical evidence that the care requested flows from the accident. An employer is required to compensate for future medical care only if the evidence establishes a reasonable probability that additional medical treatment is needed and, to a reasonable degree of medical certainty, that the need arose from the work injury.

ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007) (citations omitted).

We conclude that employee has met his burden of establishing a reasonable probability that additional medical treatment is needed and that the need arose from the work injury. Accordingly, we conclude that employer is liable for any future medical treatment that may reasonably be required to cure and relieve from the effects of the work injury.

The question is the nature and extent of permanent disability resulting from the work injury of February 5, 2001.

The Commission may consider all the evidence, including the testimony of the employee, and draw all reasonable inferences in arriving at the percentage of disability. This is a determination within the special province of the Commission. The Commission is also not bound by the percentage estimates of the medical experts and is free to find a disability rating higher or lower than that expressed in medical testimony. This is due to the fact that determination of the degree of disability is not solely a medical question. The nature and permanence of the injury is a medical question, however, the impact of that injury upon the employee's ability to work involves considerations which are not exclusively medical in nature.

Elliott v. Kan. City School Dist., 71 S.W.3d 652, 657 (Mo. App. 2002) (citations omitted).

We have found that employee sustained a 30\% permanent partial disability of the body as a whole referable to the low back as a result of the work injury of February 5, 2001. Employee is entitled to permanent partial disability benefits consistent with this finding, and employer is liable for same.

We modify the award of the administrative law judge. We find employer liable for employee's disputed past medical expenses and for any future medical treatment that is reasonably required as a result of the work injury. Additionally, we find that employee sustained a 30\% permanent partial disability of the body as a whole referable to the low back as a result of the work injury. Employer is liable for permanent partial disability benefits in the amount of $\ 37,711.20 ( 120 weeks $X \ 314.26 ).

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 Matthew W. Murphy, issued July 7, 2010, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $26^{\text {th }}$ day of May 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Robert K. Dwyer

Injury No.: 01-014444

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: FedEx

Additional Party: N/A

Insurer: Self

Appearances: Mr. Lawrence Ros