Danny Venable v. St. Louis Bridge Construction

(Modifying Award and Decision of Administrative Law Judge by Separate Opinion)

Injury No.: 03-067308

Employee: Danny Venable

Employer: St. Louis Bridge Construction

Insurer: St. Paul Marine and Fire Insurance Co.

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs, heard the parties' oral arguments and considered the whole record. Pursuant to $\S 286.090$ RSMo, we issue this final award and decision modifying and supplementing the October 4, 2010, award and decision of the administrative law judge (ALJ). We adopt the findings, conclusions, decision and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision and modifications set forth below.

On September 19, 2005, ALJ Kevin Dinwiddie issued a Temporary or Partial Award, in which he found that the psychiatric disability opinions of Dr. Wolfgram were more credible than Dr. Liss' opinions. ALJ Dinwiddie discredited Dr. Liss' medical causation opinions because Dr. Liss had not reviewed Dr. Mirkin's treatment records or employee's subsequent physical therapy records. ALJ Dinwiddie further found that Dr. Liss' opinions were largely based on medical reports that were not in evidence.

ALJ Dinwiddie found that Dr. Wolfgram's psychiatric disability opinions were supported by the medical records and were more persuasive than those of Dr. Liss. Therefore, based on Dr. Wolfgram's opinions, ALJ Dinwiddie found that employee suffered from an adjustment disorder with depressed mood that is work-related, and that employee's clinical state was temporary and amenable to treatment. ALJ Dinwiddie further ordered employer and insurer to provide treatment consistent with the recommendations of Dr. Wolfgram.

On October 4, 2010, ALJ Grant Gorman issued a Final Award, in which he found that employee is permanently and totally disabled as a result of the primary work injury of July 21, 2003, alone. As his basis for making findings contrary to those of ALJ Dinwiddie, ALJ Gorman specifically found, in accordance with Dilallo v. City of Maryland Heights, 996 S.W.2d 675, 676 (Mo. App. 1999) and Jennings v. Station Casino St. Charles, 196 S.W.3d 552 (Mo. App. 2006), that "additional significant evidence" had been adduced and received into evidence in the final hearing which was not part of the hardship hearing. ALJ Gorman listed said additional significant evidence as Dr. Slusarski's additional treatment records, Dr. Liss' second deposition testimony he provided after reviewing all of

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2002 unless otherwise indicated.

the medical records (which were admitted into the record), and the new and contradictory opinions of Dr. Wolfgram.

While we agree with ALJ Gorman's conclusions that the aforementioned represents additional significant evidence, we find that ALJ Gorman's award should be supplemented with additional facts concerning the depositions of Drs. Liss and Wolfgram and how their second depositions amounted to additional significant evidence.

In Dr. Wolfgram's 2005 deposition, he opined that employee suffered from a depressive reaction to his work injury and that he needed treatment. Dr. Wolfgram concluded that employee's psychiatric condition was temporary and amenable to treatment. However, nearly five years later, Dr. Wolfgram opined in his 2010 deposition that employee's condition was still merely temporary. Dr. Wolfgram went on to state in his 2010 deposition that employee has "multiple mental and physical problems that preexisted the work injury...[and] from a psychiatric standpoint, the work injury does not contribute to work restrictions or the need for psychiatric treatment." Despite this testimony, Dr. Wolfgram actually quoted ALJ Dinwiddie's first award with approval where it said that employee had treatable psychiatric disability due to the work injury. Dr. Wolfgram ultimately opined that employee is not currently capable of working due to his psychiatric condition.

Dr. Liss first saw employee in 2005 and diagnosed him with major depression as a result of the work injury and its sequelae. When Dr. Liss testified in 2005 he had not reviewed all of employee's treatment records.

Dr. Liss saw employee four years later. After reviewing all of employee's medical records, Dr. Liss testified in his second deposition that employee did not suffer from preexisting psychiatric illness, but that following his injury in 2003 he suffered from post-traumatic stress and from major depression. Dr. Liss opined that employee needs psychiatric care and is totally disabled from working due to his work-related psychiatric conditions.

We find Dr. Wolfgram's opinions to be contradictory and incredible. Dr. Wolfgram's testimony in his 2010 deposition is significantly different from his testimony in his 2005 deposition. On the other hand, Dr. Liss' testimony was consistent in both of his depositions. In addition, Dr. Liss' second deposition testimony was given after he had reviewed all of employee's medical records; thereby nullifying ALJ Dinwiddie's basis for finding that Dr. Liss' opinions lacked the proper foundation to be credible.

We find, as did ALJ Gorman, that Dr. Wolfgram and Dr. Liss' second depositions represent additional significant evidence sufficient to refute ALJ Dinwiddie's finding that Dr. Wolfgram's opinions are more credible than Dr. Liss'.

In addition to the aforementioned supplementation, we also find that ALJ Gorman's award needs to be modified with respect to the MO HealthNet lien he ordered employer to reimburse the Missouri Department of Social Services. We find that ALJ Gorman erred in finding employer liable for this lien.

Section 287.140 RSMo provides, in pertinent part, as follows:

[E]mployer shall provide such medical, surgical, chiropractic, and hospital treatment, ... as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

No medical evidence was submitted at either the Temporary Hearing on May 20, 2005, or at the Final Hearing on May 11, 2010, indicating that the treatment employee obtained from November 19, 2004, through November 26, 2004, was medically causally related to the work injury of July 21, 2003. Accordingly, as there is no medical evidence to support a finding that the treatment was reasonably necessary to cure and relieve employee from the effects of the injury, employer should not be ordered to reimburse the Missouri Department of Social Services for the same. Therefore, we find that employer is not liable for the MO HealthNet lien.

We affirm, as modified and supplemented herein, ALJ Gorman's award of permanent total disability benefits and future medical treatment.

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

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

The award and decision of Administrative Law Judge Grant C. Gorman, issued October 4, 2010, is attached and incorporated to the extent it is not inconsistent with this final award.

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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 21, 2003
5. State location where accident occurred or occupational disease was contracted: St. Charles 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: Claimant was performing bridge construction when an expansion joint rolled onto him.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Lumbar Spine, Psychiatric Injury
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: $\ 20,976.12
16. Value necessary medical aid paid to date by employer/insurer? $\ 103,760.39

Employee: Danny Venable Injury No. 03-067308

1. Value necessary medical aid not furnished by employer/insurer? $\ 1,071.24
2. Employee's average weekly wages: $\ 953.46
3. Weekly compensation rate: $\ 635.64 TTD/\$347.05 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

$\ 1,071.24 to MO HealthNet

Permanent total disability benefits from Employer beginning March 9, 2004, for Claimant's lifetime.

1. Second Injury Fund liability:

No

TOTAL:

UNDETERMINED

1. Future requirements awarded: See Award

Said payments to begin as of the date of this 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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Bob Keefe

Employee: Danny Venable

Hearing on the above-referenced case was held before the undersigned Administrative Law Judge on May 11, 2010 and June 30, 2010 at the Division of Workers' Compensation in St. Charles, Missouri. Danny Venable (Claimant) was present, and represented by Bob Keefe. Juan Arias represented St. Louis Bridge Construction Co. (Employer) and St. Paul Fire and Marine Insurance Co. (Insurer). Assistant Attorney General Caroline Bean represented the Second Injury Fund. Mr. Keefe requested a fee in the amount of 25 %. The parties submitted post-trial briefs.

Claimant was previously represented by other counsel. Two of those attorneys, Celestine Dotson and Bradley M. Herrin, filed liens with the Division upon withdrawing as counsel of record. Division records indicated each of them was sent notice of the hearing set on May 11, 2010, neither attorney appeared at the hearing to introduce evidence regarding their representation and lien. Sometime after the hearing, Ms. Dotson filed some motions and exhibits requesting the opportunity to present evidence regarding her lien. On June 30, 2010 counsel for the respective parties and Ms. Dotson appeared to address the issue of attorney fees, which had