Gary Craig v. General Motors Corporation

We find that Dr. Stillings' opinions are more credible than Dr. Sky's. Dr. Sky opined that employee's psychiatric disabilities related to his physical health. However, it is difficult to give this much credence when it appears from Dr. Sky's report that he did not review a complete medical history of employee. In addition, Dr. Sky had no opinion as to employee's physical health prior to the primary injury. His explanation for this during his deposition was that "as a psychiatrist the physical diagnoses would be outside the scope of my practice." If that is the case, it is inappropriate for him to base his psychiatric disability ratings on physical diagnoses if they are outside the scope of his practice.

In addition to the aforementioned, Dr. Sky testified that he was not aware of any physical limitations employee suffered from prior to the primary injury, when in fact employee had been working light duty at General Motors for nine to ten years prior to the primary injury due to his ongoing low back problems.

It is clear that Dr. Sky formed his opinions without a thorough understanding of employee's preexisting disabilities. For this reason, we do not find that his 30\% permanent partial psychiatric disability rating is supported by the record. We find that Dr. Stillings provided a much more accurate assessment of employee's psychiatric disability attributable to the primary injury.

Dr. Stillings took a thorough history of employee's condition before and after the work injury. Dr. Stillings reviewed records of psychiatric treatment before the work injury, including all of the records that Dr. Sky admitted he did not review. In addition, Dr. Stillings completed a mental status examination and performed numerous psychiatric tests on employee before setting out his diagnoses and opining that the primary injury accounted for only an additional 2 \%-3 % permanent partial disability of the body as a whole.

We find that Dr. Stillings' rating of 2 \%-3 % is far more accurate than Dr. Sky's rating of 30 %; however, after a review of employee's testimony, the medical experts' testimony, and the record as a whole, we find that the competent and substantial evidence supports a rating slightly greater than Dr. Stillings' maximum rating of 3\%. We find, after considering all of the evidence that the primary injury resulted in employee sustaining an additional 5\% permanent partial psychiatric disability.

We agree with the ALJ's determination that employee suffered some permanent partial disability to his lumbar spine as a result of the work injury that occurred on July 27, 2005. However, we find that the weight of the evidence establishes that the nature and extent of employee's lumbar spine disability attributable to the primary injury is far less than the 20 % awarded by the ALJ.

Employee's preexisting lumbar spine condition was well documented. Employee testified that he began suffering from low back pain as early as 1991. In 1995, employee had to go to an emergency room due to twisting his back, and in 1996, he injured his back again when he fell on ice. Employee testified that he missed an entire year of employment in 1996 due to low back pain. In 2001, Dr. Albanna diagnosed severe disc degeneration at L5-S1, a herniated nucleus pulposus on the left at L5-S1, and spinal stenosis at L4-L5. Employee

Injury No.: 05-078571

Employee: Gary Craig

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testified that he was again out of work from March 20, 2001, to August 30, 2001, due to back complaints and treatment. Employee continued receiving treatment for his back pain leading all the way up to the July 27, 2005, work injury. In fact, prior to the work injury, employee was seen for his back pain by Dr. Golding as recently as June 8, 2005.

Following the primary injury, employee was initially prescribed medication and physical therapy. Employee completed therapy on October 19, 2005, and from that point on, never sought or requested additional medical care from a surgeon or specialist of any kind. Employee did not receive any additional epidural steroid injections or recommendations for any additional medical care.

Dr. Poetz examined employee and concluded that he sustained an exacerbation of a herniated L5-S1 disc and rated his permanent partial disability of the low back at 20%. The ALJ adopted Dr. Poetz' rating despite the fact that Dr. Poetz testified that employee was under no restrictions prior to the primary injury and was performing moderately heavy work. Dr. Poetz' testimony on this issue was entirely refuted by employee's testimony that he was working light duty for the last nine or ten years of his employment due to his low back pain. In addition, Dr. Poetz admitted that the only diagnostic test he reviewed relating to the work injury was a lumbar x-ray. He did not review the March 23, 2001, lumbar CT scan or the March 31, 2001, lumbar MRI. Dr. Poetz also did not review the post-injury lumbar MRI done on October 28, 2005. Lastly, despite diagnosing employee with an exacerbation of a herniated L5-S1 disc, he testified that he did not know that employee had been diagnosed with a herniated disc at L5-S1 prior to the work injury. His testimony is inconsistent with his report and cuts to his credibility.

In addition, without reviewing the aforementioned pre-injury and post-injury diagnostic tests, Dr. Poetz could not have had a very informed opinion regarding employee's lumbar spine condition, either before or after the primary injury. For the foregoing reasons, we do not find Dr. Poetz credible.

The other physician who testified in this case was Dr. Raskas. Unlike Dr. Poetz, Dr. Raskas was aware of the MRI that showed employee had an L5-S1 herniated disc in 2001 and reviewed the 2005 post-injury MRI scan. Dr. Raskas rated employee's preexisting back disability at 35% permanent partial disability of the body as a whole. Dr. Raskas opined that the primary injury did not cause any additional permanent partial disability.

While we find that Dr. Raskas' opinion is more accurate than Dr. Poetz's, in considering the record as a whole, we find that the weight of the evidence establishes that employee did sustain some additional permanent partial disability as a result of the primary injury. Based upon employee's testimony, the medical experts' testimony, and the record as a whole, we find that as a result of the primary injury employee sustained 5% permanent partial disability of the body as a whole referable to the lumbar spine.

We find, as did the ALJ, that employee suffered his condition of permanent and total disability as of the date of his work injury. Therefore, we find a maximum medical improvement date of July 27, 2005.

In accordance with the modifications herein, we find that employee is liable for permanent partial disability benefits amounting to 10 % of the body as a whole ( 5 % PPD of the body as a whole referable to employee's psyche +5 % PPD of the body as a whole referable to employee's lumbar spine), which amounts to 40 weeks of compensation, or $\ 14,603.20 ( $=\ 365.08 PPD rate $\times 40$ weeks).

The Second Injury Fund is liable for the difference between the permanent total disability benefits and the permanent partial disability benefits ( $\ 696.97 PTD rate $\ 365.08 PPD rate) for 40 weeks beginning on July 28, 2005. Thereafter the Second Injury Fund shall be liable for employee's weekly permanent total disability benefit of $\ 696.97 for the remainder of employee's life, or until modified by law.

The award and decision of Administrative Law Judge Kevin Dinwiddie, as modified, is attached and incorporated by reference.

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.

Given at Jefferson City, State of Missouri, this $7^{\text {th }}$ day of December 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

I did not participate in the September 14, 2011, oral argument in this matter. However, I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed without modification. Therefore, I adopt the decision of the administrative law judge, in its entirety, as my decision in this matter.

Because the Commission majority has decided otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Employee: Gary Craig

Injury No.: 05-078571

Dependents: N/A

Employer: General Motors Corporation

Address: 000-000-0000-0000-0000

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

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jeff