Vernon Jordan v. USF Holland Motor Freight, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-035445

Employee: Vernon Jordon

Employer: USF Holland Motor Freight, Inc.

Insurer: Self-Insured c/o Gallagher Bassett

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 10, 2011. The award and decision of Administrative Law Judge Maureen Tilley, issued February 10, 2011, is attached and incorporated by this 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 $13^{\text {th }}$ day of December 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

CONCURRING OPINION FILED

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

I submit this concurring opinion to disclose the fact that I was previously employed as a partner in the law firm of Evans and Dixon. While I was a partner, the instant case was assigned to the law firm for defense purposes. I had no actual knowledge of this case as a partner with Evans and Dixon. However, recognizing that there may exist the appearance of impropriety because of my previous status with the law firm of Evans and Dixon, I had no involvement or participation in the decision in this case until a stalemate was reached between the other two members of the Commission. As a result, pursuant to the rule of necessity, I am compelled to participate in this case because there is no other mechanism in place to resolve the issues in the claim. Barker v. Secretary of State's Office, 752 S.W.2d 437 (Mo. App. 1988).

Having reviewed the evidence and considered the whole record, I join in and adopt the award and decision of the administrative law judge denying benefits.

William F. Ringer, Chairman

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 (ALJ) should be modified and employee should be awarded past medical expenses and future medical care, additional temporary total disability benefits, and permanent total disability benefits.

The ALJ denied employee's claims for past medical expenses and future medical care, additional temporary total disability benefits, and permanent total disability benefits primarily because she found that employee failed to prove medical causation between his work accident of April 2, 2002, and his herniated disc at L4-5. I disagree with the ALJ and find that employee did prove medical causation.

Doctors Gardner, Vaught, Cohen, Coyle, and Bernardi all agree that in October 2004 employee had an L4-5 herniated disc with a large extruded fragment, a left foot-drop, and that surgery was necessary. The doctors do not agree, however, on what caused employee's October 2004 condition. In my opinion, the medical records make clear that employee's condition and need for surgery in October 2004 flowed directly from his April 2, 2002, work accident.

On April 2, 2002, employee fell from his truck, injuring his shoulder and low back. He was seen for this injury on April 4, 2002, and was diagnosed with a sprain/strain of the left shoulder and a contusion to the spine. Employee eventually had surgery on his left shoulder and was subsequently prescribed physical therapy.

On July 18, 2002, Dr. Ritter noted that employee had "low back pain at the lumbosacral junction" and that "[employee] ... had this since the time of his injury." Employee's physical therapy records show that he had immediate onset of low back pain after the April 2, 2002, accident and that the pain continued throughout these initial physical therapy sessions.

Employee was referred to Mid-America Rehab for a functional capacity evaluation (FCE). The August 29, 2002, FCE report indicated that employee complained of low back pain during the evaluation. Dr. Ritter then noted on August 22, 2002, that employee complained of "new worsening of his back and leg pain, right flank to right hip and now after the FCE, radiation to the left buttock and into the right calf with strain."

In light of employee's new complaints, Dr. Ritter ordered a lumbar spine MRI that was done on August 30, 2002. The radiologist reported a disc bulge at L4-5 and "evidence of disc intrusion into the inferior foramen and lateral recess on the right at L5-S1, which may be sufficient to provoke symptoms."

Dr. Gornet read employee's August 2002 MRI and diagnosed an L4-5 annular tear and some moderate foraminal lateral recess stenosis. At L5-S1, Dr. Gornet diagnosed a

Disc herniation on the right with a free fragment lining the lateral recess. Dr. Gornet stated that employee's symptoms are causally connected to his work injury.

Dr. Gornet ordered lumbar epidural steroid injections, which significantly helped employee's back pain. Dr. Gornet released him from his care on April 14, 2003.

Employee continued to treat for his left shoulder injury and on July 18, 2003, Dr. Ritter concurred in Dr. Hulsey's recommendation for an arthroscopic evaluation and a probable repeat open rotator cuff repair. After the surgery Dr. Hulsey ordered physical therapy. A physical therapy note of August 28, 2003, documented employee's continued back complaints by listing "back at 5/10 today."

The physical therapy notes from November 6, 2003, indicate that his therapy regimen included "simulated driving of semi-truck." The next day, November 7, 2003, Dr. Hulsey's note indicates that employee was still having a great deal of difficulty in his back. Employee was scheduled to see Dr. Gornet again for his back.

Employee saw Dr. Gornet on November 24, 2003, and reported to Dr. Gornet that he was working in therapy after shoulder surgery and developed increasing left buttock and left leg pain. Dr. Gornet ordered additional lumbar epidural steroid injections, this time on the left at L4-5. Employee again reported positive results from the epidural steroid injections.

Employer sent employee to see Dr. Reinsel on January 8, 2004. Dr. Reinsel ordered lumbar spine x-rays and reported that the x-rays showed only minor degenerative changes. Dr. Reinsel's assessment was low back pain and left leg pain "with injury nearly two years old." Dr. Reinsel ordered physical therapy for employee's back.

On January 12, 2004, employee's physical therapist noted that employee's left lower extremity began to hurt when he was doing physical therapy for his shoulder. Employee stated that the pain is constant and runs from the hip down the side of his leg to the knee. The therapist stated that employee had signs and symptoms of lumbar pain and radiculopathy.

Employee continued to report to his physical therapist that he had low back pain and bilateral leg pain and numbness during his January 2004 sessions. Employee was seen by Dr. Reinsel on January 29, 2004. Dr. Reinsel diagnosed employee with low back pain and left lower extremity pain due to his two year old injury. Dr. Reinsel ordered an EMG and more physical therapy. On February 6, 2004, the EMG was reported as normal. On February 16, 2004, employee was seen by Dr. Reinsel again. Employee's left side pain had improved, but he was still having significant pain on the right side. Dr. Reinsel released employee from his treatment.

From March 23, 2004, through October 5, 2004, employee received lumbar epidural steroid injections and pain medication for his low back and lower extremity pain. On September 21, 2004, an MRI of employee's lumbar spine was ordered. The MRI was completed on September 27, 2004. The radiologist read the films and noted a central

protrusion at L5 and an asymmetric protrusion of the L4 disc into the left lateral recess and origin of the left neural foramen.

Dr. Gardner examined employee and noted that employee had foot drop on the left. Dr. Gardner also noticed that the September 27, 2004, MRI films showed a large disc herniation on the left at L4-5, which was impinging on the nerve root on the left side, totally occluding the neural foramen on the left. A CT myelogram was completed and emergency L4-5 surgery was performed on October 14, 2004.

Employee testified that his low back and lower extremity pain abated after the March or April 2003 lumbar epidural steroid injection, but returned after turning a steering wheel during physical therapy for his shoulder in November 2003. Following this re-injury, employee began experiencing radiating pain into the left lower extremity. I find employee's testimony credible with regard to this re-injury.

In my opinion, the medical records clearly document employee's original work injury to his low back and how the L4-5 disc injury progressed over time to the point of requiring emergency surgery. Dr. Cohen evaluated employee and concluded that the work injury of April 2002 and employee's re-injury in physical therapy in 2003 were both substantial factors causing employee's disability and need for treatment and subsequent surgeries. In addition, although Dr. Coyle ultimately concluded that neither employee's April 2002 work injury nor his subsequent physical therapy caused his disability, he did testify as to how an initial subtle disc injury can progress to a herniation. I find that Dr. Coyle's description of how a subtle disc injury can progress to a herniation is exactly what happened with employee and is consistent with Dr. Cohen's causation opinion.

I also find that the medical records show that employee's April 2002 work injury caused his right L5-S1 disc protrusion that impinged the right L5-S1 nerve root and caused back pain and radicular pain in his right leg. Employee's right-sided back pain temporarily subsided following the March or April 2003 epidural steroid injection, but eventually returned.

The evidence as a whole establishes a medical causal relationship between the work accident of April 2, 2002, and employee's injuries to his low back, which resulted in left foot drop and ultimately required surgical intervention in October 2004. Employee's low back pain complaints were nearly constant from the time of the injury until the surgical intervention and the only intervening event that was reported occurred while employee was treating for the April 2, 2002, injury.

With respect to the nature and extent of employee's permanent disability, I find the opinions of Dr. Cohen, Dr. Stillings, Mr. Eldred, and Mr. Magrowski are most credible and conclude that employee is permanently and totally disabled and unable to compete in the open labor market. Employee never returned to work following the April 2, 2002, injury. Employee testified that his low back pain is constant and severe and often requires him to lie down. His pain complaints are supported by the medical records of Dr. Newell. No employer would reasonably be expected to employ employee in his present condition, reasonably expecting him to perform the work for which he was hired.

In light of the foregoing, I find that employee should be awarded past medical expenses and future medical care, additional temporary total disability benefits, and permanent total disability benefits. As such, I would modify the award of the admini