Steven Reichardt v. Industrial Sheet Metal Erectors, Inc.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying the April 7, 2011, award and decision of Administrative Law Judge Edwin J. Kohner. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties stipulated the following issues in dispute: (1) future medical care; (2) permanent disability; (3) Second Injury Fund liability; and (4) dependency.

The administrative law judge made the following findings: (1) employee is entitled to pain management relative to his low back condition; (2) employee suffered a 32.5% permanent partial disability of the low back as a result of the work injury; (3) the Second Injury Fund is liable for 13% permanent partial disability enhancement of the body as a whole owing to the combination of employee’s preexisting disabilities with the effects of the primary injury; and (4) employee’s daughter is not a dependent, but employee’s wife is a dependent.

Employee submitted a timely Application for Review alleging the administrative law judge erred: (1) in finding employee is not entitled to permanent total disability benefits; and (2) in limiting the type of future medical care to which employee is entitled.

For the reasons set forth below, the Commission modifies the award and decision of the administrative law judge.

The administrative law judge’s award sets forth the stipulations of the parties and the administrative law judge’s findings of fact on the disputed issues. We incorporate those findings to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact pertinent to our modification herein.

We adopt the administrative law judge’s permanent partial disability ratings as to employee’s preexisting permanent partial disabilities as to the right shoulder, neck, and body as a whole (referable to pancreatitis). We note, however, that the administrative law judge did not rate or

appear to take into account employee's history of preexisting low back problems (which prompted a 1999 lumbar fusion surgery and additional treatments in 2006) in his analysis. Employee testified that he had an initial good result from the 1999 surgery, but in the years leading up to the primary injury, he experienced an intermittent return of low back problems, and these problems interfered with his work in that he had trouble bending over or doing heavy lifting. Employee indicated that the problems subsided after he received an injection in his low back in 2006. Dr. Lichtenfeld opined that employee suffered a 27.5% permanent partial disability of the body as a whole referable to his preexisting low back surgery and complaints. Dr. Lichtenfeld opined that, even though employee experienced relief of his pain and radicular symptoms from the injection in 2006, employee's spinal fusion is still a serious condition that cannot be discounted.

We find employee's evidence as to his preexisting low back condition credible. We find that at the time of the primary injury, employee suffered preexisting permanent partial disability of the body as a whole referable to his low back.

We further credit Dr. Lichtenfeld (and so find) that employee's preexisting right shoulder, neck, and body as a whole disabilities constituted hindrances or obstacles to his employment.

We adopt the administrative law judge's findings as to the nature and extent of permanent disability resulting from the primary injury.

Employee testified that, following the work injury, he still sometimes engages in various activities, such as mowing his lawn with a riding lawn mower and occasionally hunting or fishing, but that he "pay[s] for it" with debilitating pain after exerting himself. Employee testified he reclines at least two or more hours per day in order to relieve his back pain. We find employee credible.

Dr. Lichtenfeld believes employee is permanently and totally disabled, and that this is "definitely" due to a combination of his preexisting disabilities and the effects of the work injury. Timothy Lalk, the vocational expert, agrees that employee is permanently and totally disabled based on the restrictions Dr. Lichtenfeld assigned to employee. Mr. Lalk also pointed out that Dr. Lichtenfeld's restrictions are more in line with what employee actually reports as to his capabilities and limitations, while Dr. Kennedy's restrictions do not appear to take employee's pain and actual symptoms into account.

In fact, all three vocational experts agreed that employee is permanently and totally disabled under the restrictions assigned by Dr. Lichtenfeld. Gary Weimholt, however, expressed his opinion that employee is not really permanently and totally disabled, and that he believed Dr. Kennedy's restrictions were more reliable or credible than those provided by Dr. Lichtenfeld. Delores Gonzalez did not indicate whether she thought Dr. Kennedy's or Dr. Lichtenfeld's restrictions were more reliable, but registered her opinion that none of employee's preexisting conditions constituted a hindrance or obstacle to his employment, because he wasn't accommodated in his job with employer.

The administrative law judge, despite finding that employee is not permanently and totally disabled, determined that employee's overall disability is "100% of the body as a whole." (We note that this calculation apparently did not take into account employee's preexisting low back problems). How did the administrative law judge determine that an employee who is 100% disabled is, nevertheless, employable in the open labor market? The answer appears to lie in the language of § 287.190.6(2) RSMo, which the administrative law judge interpreted to mean

We must disregard Dr. Lichtenfeld's expert opinions and restrictions. That section provides, in relevant part, as follows:

In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.

The administrative law judge appears to have read the foregoing section as requiring that we discount an employee's pain complaints in any case where there is a functional capacity evaluation (FCE) or a doctor who provides work restrictions that do not take into account employee's symptoms and complaints. But this analysis is improper because the results of an FCE or the imposition of more liberal restrictions do not amount to objective medical findings as to pain. Rather, they simply demonstrate what a particular practitioner believes is an appropriate level of work activity for the employee. In fact, a review of the record in this matter reveals no objective medical findings whatsoever as to the extent and severity of employee's pain. For this reason, we do not believe that $\S 287.190 .6(2)$ is implicated in the question whether we are to accept Dr. Lichtenfeld's restrictions, because we have not been presented with conflicting objective versus subjective medical findings as to employee's pain. To the contrary, we believe that the resolution of the conflicting medical and vocational opinions in this matter remains within our special province to determine what evidence is more credible.

The test for permanent total disability is whether employee is able to compete in the open labor market. To answer that question we ask whether an employer, in the ordinary course of business, would be reasonably expected to hire employee, given his present physical condition. Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011). Here we have an employee with preexisting fusions to both his cervical and his lumbar spine, who was significantly limited in his ability to use his arms, work overhead, and turn his neck before the work injury, and who now experiences daily severe low back pain that requires him to spend several hours each day reclining. We acknowledge the evidence that employee continues to occasionally mow his lawn, hunt and fish, or perform other activities, but employee explained that he pays a price (in the form of debilitating pain) when he does so. We are not persuaded that employee's continuing to engage in activities he enjoys-even though they are painful to him-says anything about whether an average employer is likely to hire a 60-year-old employee with previous back surgeries at multiple levels, right shoulder disability, a serious back injury requiring surgery in 2008, and disabling pain levels.

After carefully considering the opinions of each of the medical and vocational experts, as well as employee's own testimony, we are convinced that employee is permanently and totally disabled. Specifically, we find the opinion of Dr. Lichtenfeld as to permanent total disability more credible than the other experts, and based on that opinion we find that employee is permanently and totally disabled as a result of a combination of his preexisting conditions of ill and the effects of the primary injury.

We agree with the administrative law judge that employee met his burden on the issue of future medical treatment. We disagree, however, with the administrative law judge's decision to limit employee's future medical award to "pain management relative to his low back condition." Section 287.140.1 RSMo provides, as follows:

In addition to all other compensation paid to the employee under this section, 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.

Where the employee's burden of proof is met, the foregoing language makes clear that employee is entitled to that treatment which "may reasonably be required" to "cure and relieve from the effects of the injury." Generally, in the context of a future medical award, we are not called upon to determine (or set limitations upon) the specific treatment or procedures that will reasonably be required, as such an award would make no account for the ongoing or transitory nature of various medical conditions, and would involve the impossible task of predicting what will "reasonably be required" in an unknown future. (Of course, the parties may place in issue the question whether a certain treatment flows from the injury, but this is not the case here). For these reasons, we consider it inappropriate to bind employee's award of future medical expenses to a specific course of treatment or specific medical provider.

Accordingly, we modify the administrative law judge's award of future medical treatment. We conclude that employee is entitled to receive (and employer is obligated to provide) that medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required to cure and relieve from the effects of the January 28, 2008, injury.

Section 287.220 RSMo creates the Second Injury Fund