Patrick Fitzgerald v. A & M Printing

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-069506

Employee: Patrick P. Fitzgerald

Employer: A \& M Printing (Settled)

Insurer: American Family Insurance (Settled)

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 section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 7, 2011, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Robert B. Miner, issued February 7, 2011, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 7^{\text {th }} \qquad$ 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:

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 reversed to award benefits to employee.

Employee suffered compensable work injuries resulting in significant permanent partial disability on July 31, 2007, when he tripped and fell onto a plate burner machine, injuring his left elbow, left shoulder, and neck. At the time he sustained these injuries, employee suffered from a preexisting permanent partial disability of the low back. Employee seeks permanent partial disability benefits from the Second Injury Fund for the increased disability resulting from the combination of the disability resulting from his work injuries of July 31, 2007, and the preexisting low back disability.

Employee injured his low back in 1989. Employee's back started hurting while he was at work. Employee was unable to stand straight up and the pain was so severe that he went to the emergency room. An MRI revealed retrolisthesis at L5 with disc degeneration and a central disc bulge at L5-S1. The doctors discussed surgery with employee but told him there was only a 50 % chance of his back improving, so employee chose not to have the surgery. Plus, employee didn't have the money to pay for the surgery or to afford what might have been as much as a six month healing period. (Even though it appears employee might have had a workers' compensation claim for the low back, he did not pursue it, and thus was unable to get treatment via his employer's workers' compensation doctors). Employee's low back problems persisted over the years leading up to the work injury and prompted employee to seek periodic treatment for debilitating low back pain, including 8 or 9 visits to the emergency room. Each visit was the same. The doctors took an x-ray, told him he had a bulging disc, and gave him pain medication. Employee never sought more aggressive treatment for his low back problem because he didn't have insurance and couldn't afford it. But employee's low back pain was so bad that he sometimes could not walk or even stand up straight. Employee's back caused him trouble when driving and doing work at home. Employee had to change his plans whenever he had a flare-up of back pain, because the pain was so intense he was unable to do anything but lie down, sometimes for as long as two entire days. Employee missed work more than 20 times due to this condition.

Dr. Poppa evaluated employee and provided his expert medical opinion in this matter. Dr. Poppa believes employee's low back condition amounts to a 12.5 % permanent partial disability of the body as a whole, and that it constituted a hindrance or obstacle to employment. Dr. Poppa opined that a 20\% load factor best represents the synergistic interaction of the preexisting low back disability with the left elbow, left shoulder, and neck disability resulting from the July 2007 work injury. Dr. Poppa's expert medical opinion stands unopposed on the record. The Second Injury Fund did not provide a competing doctor's opinion in this matter. In fact, the only evidence offered by the Second Injury Fund was an exhibit consisting of medical records, and this was excluded from the record because it constituted inadmissible hearsay evidence.

Section 287.220.1 RSMo creates the Second Injury Fund and provides for the payment of permanent partial disability benefits where an employee with preexisting disabilities suffers enhanced disability following a work injury, so long as the preexisting disability and disability from the work injury are sufficiently serious to meet the statutory thresholds. Here, the administrative law judge denied employee's claim because he believed employee's preexisting low back disability wasn't serious enough to meet the threshold of 50 weeks for a body as a whole injury, even though this conflicts with Dr. Poppa's unopposed expert opinion. Remarkably, the administrative law judge denied employee's claim for compensation even though he specifically found credible employee's testimony about his back problems, including employee's testimony about visiting the emergency room numerous times, missing 20 or more days from work, having to change his plans due to flare-ups, and having problems performing his work due to his low back. A close look at the award reveals why the administrative law judge made this choice:

Claimant has not had back surgery. While Claimant has continued to have back pain every week or every two and has needed to occasionally change plans, he was not taking pain medication on a consistent basis prior to his July 31, 2007, accident. He has not had follow-up pain management treatment for his back pain. He has not had epidural shots for his back. He has not had chiropractic treatment or physical therapy for his back.

Award, page 20.

These and other comments in the award make clear that the administrative law judge denied employee's claim because employee didn't get a lot of medical treatment for his low back. Why didn't employee seek more treatment?

Q. With regard to your back, sir, have you ever had medical insurance that would cover treatment on your back?

A. No.

Q. Could you afford treatment on your back on your own?

A. No.

Transcript, page 37.

The foregoing exchange between employee and his attorney stands unopposed on the record. Employee didn't get more treatment for one reason. He couldn't afford it. So, here we have an employee who credibly testified that he has a seriously disabling preexisting low back problem but that he didn't seek a lot of treatment for it because he didn't have insurance and couldn't afford that treatment. We also have an administrative law judge who credited employee's testimony but nevertheless denied his claim because employee didn't provide an extensive treatment record in connection with the low back. Stated another way, the administrative law judge denied compensation for a condition

that he believes employee has solely because employee could not afford to get the treatment that would have provided a more extensive treatment record.

Setting aside for a moment the glaring injustice inherent in this result, I wish first to point out that nothing in the Missouri Workers' Compensation Law or Missouri case law requires that an employee bring copious medical treatment records-or even a medical expert's evaluation-to a workers' compensation hearing where (as here) a complex question of medical causation is not an issue. To the contrary, the courts have long held that an employee's testimony alone is sufficient to support an award of benefits. See Riggs v. Daniel International, 771 S.W.2d 850, 852 (Mo. App. 1989); Ford v. BiState Dev. Agency, 677 S.W.2d 899, 904 (Mo. App. 1984); Fogelsong v. Banquet Foods Corp., 526 S.W.2d 886, 892 (Mo. App. 1975); and Smith v. Terminal Transfer Co., 372 S.W.2d 659, 665 (Mo. App. 1963). Especially where the administrative law judge specifically stated that he believed employee's testimony as to the nature and extent of his low back disability, it runs directly contrary to Missouri law to deny his claim solely because he did not provide medical records establishing numerous medical visits and procedures referable to the low back. But what is all the more troubling here is that employee did not even have those records to provide because he could not afford to seek such treatment.

The administrative law judge lists surgery, epidural steroid shots, physical therapy, chiropractic treatment, medications, and other treatments, as if employee were totally free to pick and choose among these options and simply elected not to because his back problem wasn't that bad. The administrative law judge ignores that for someone without medical insurance, these treatments are effectively unavailable due to their astronomical and wholly prohibitive cost. The administrative law judge turns a blind eye to the reality of the situation. It wasn't that employee decided his bulging disc at L5-S1 didn't really bother him. It was that he could not afford to have it treated. The administrative law judge's and majority's choice to deny benefits here works the effect of punishing someone for being unable to afford treatment that they needed. This was never the intent of the Missouri Workers' Compensation Law.

I find employee sustained a 12.5 % permanent partial disability of the body as a whole referable to his low back condition including the bulging disc at L5-S1. This meets the applicable 50-week threshold for triggering Second Injury Fund liability under § 287.220.1. Because employee's primary injuries clearly resulted in permanent partial disability that exceeds the threshold, I would reverse the decision of the administrative law judge and award employee the permanent partial disability enhancement benefits to which he is entitled.

Because the majority has determined otherwise, I respectfully dissent from the decision of the Commission.

Employee: Patrick P. Fitzgerald Injury No.: 07-069506

Employer: A \& M Printing (settled)

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

Department of Labor and Industrial Relations of Missouri

Insurer: American Family Insurance (settled) Hearing Date: December 16, 2010 Checked by: RBM

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No as to the Second Injury Fund.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: July 31, 2007.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Platte 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: Employee tripped over a loose carpet and fell.

1. Did accident or occupational disease cause death? No.
2. Part(s) of body injured by accid