(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 05-030154
Employee: Roger Patton
Employer: Cedar Creek Wholesale Corp.
Insurer: Hartford Underwriters 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 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 15, 2011. The award and decision of Administrative Law Judge Victorine R. Mahon, issued February 15, 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 $19^{\text {th }}$ 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:
I did not participate in the September 28, 2011, oral arguments in this matter. However, I have reviewed the evidence, read the briefs of the parties, and considered 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 modified to reflect a more appropriate award to employee.
It is obvious employee's work injury is compensable, and I agree employee met his burden of proving he sustained permanent disability. I disagree, however, with the administrative law judge's decision to award benefits based on a finding of only 30\% permanent partial disability of the left arm at the level of the elbow. I believe the administrative law judge's award is inadequate and fails to properly account for the seriousness of this injury and the impact it has had on employee's life. I am convinced employee met his burden of proving that this work injury has rendered him permanently and totally disabled.
Employee worked for employer driving trucks. On April 4, 2005, employer sent him on a delivery to Drury College with a flatbed trailer full of long timbers. Employee understood that there would be people at the college to unload the timbers. But when employee got there, he discovered that the college had sent only some teenagers and a teacher to unload the truck. Because he was afraid someone would get hurt, employee helped unload the truck. When he was lifting the last timber, employee felt a pop in his left arm. Employer sent him for treatment where doctors diagnosed a bicep tendon rupture. Employee had two surgeries with an initial good result. But employee's left arm condition began to deteriorate a few months after his second surgery in early 2007. Employee saw multiple specialists and orthopedic surgeons in Kansas City, Columbia, St. Louis, and Springfield, tried different medications, had injections performed, and underwent physical therapy, but none of this treatment had any lasting success in alleviating his complaints of ongoing debilitating pain in his left arm.
Employee describes a pain sensation similar to a charley horse in his arm lasting fifteen minutes to three hours. Employee has this pain every day and cannot predict when it will happen. Employee's pain renders him functionally unable to use his left arm for any task requiring exertion. Increased activity involves an increase in pain. Because of this condition, employee takes a 50 milligram dose of Tramadol (an opioid drug similar to morphine) six times a day and wears a TENS unit. This is a serious pain management regimen and reveals the extent and severity of pain that employee experiences due to the April 2005 left arm injury. Employee also takes Ambien to get to sleep at night and wears a Lidoderm patch in place of the TENS unit to help with night-time pain relief. Employee's sleep is interrupted every night due to pain. Employee has to get up and stand around waiting for his pain to subside. These sleep interruptions last from one to four hours. Due to this sporadic sleep schedule, employee takes a daily nap.
Dr. Shane Bennoch evaluated employee and provided his expert medical opinions in this matter. Dr. Bennoch believes employee is experiencing nerve pain as a result of
the work injury. Dr. Bennoch believes this pain (and more particularly the regimen of medications employee has to take to control it) renders employee permanently and totally disabled.
The vocational expert, Terry Cordray, ultimately agreed with Dr. Bennoch that employee is permanently and totally disabled. Mr. Cordray opined that if we look just at employee's physical restrictions, there may be some sedentary job employee could perform, such as a cashier position. But Mr. Cordray further opined that employee's need to take Tramadol on a daily basis to control his pain takes him out of the open labor market. Mr. Cordray explained that employee's age, lack of skills, work background, and limited education (employee has only a GED) are all factors that make it even less likely that a potential employer would hire employee.
The test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.
Treasurer of the State - Custodian of the Second Injury Fund v. Cook, 323 S.W.3d 105, 110 (Mo. App. 2010) (citations omitted).
The administrative law judge found that employee is not permanently and totally disabled, in part, because she perceived an inconsistency in the record as to employee's use of Tramadol and its affect on his ability to work. The administrative law judge refers to the testimony of Dr. Kathryn Hedges, who provided some treatment to employee in October 2006. At that time, Dr. Hedges recorded employee as saying he did not take the Tramadol during the day because he did not want to feel "drugged up." The administrative law judge thought this conflicted with employee's testimony that he takes Tramadol daily. The administrative law judge appears to have overlooked another statement that Dr. Hedges attributes to employee in that same treatment note: "[Employee] says if he doesn't use the Tramadol [his pain] is a 10/10 in severity." Transcript, page 655.
Employee gave his testimony at the hearing in December 2010. Clearly, employee decided somewhere in the four-plus years since he saw Dr. Hedges that experiencing relief from the severest possible pain was worth feeling "drugged up" during the day. Rather than contradict employee's testimony, Dr. Hedges' treatment note actually supports the proposition that (1) employee's pain is very severe without Tramadol; and (2) taking Tramadol during the day causes side effects that hinder employee's focus and ability to perform tasks. Stated another way, the very treatment note the administrative law judge mistakenly believes is contradictory to employee's testimony actually provides persuasive support for the proposition that employee is, in fact, permanently and totally disabled.
In sum, while I agree that employee's injury is compensable, I am convinced that the administrative law judge (and the majority) improperly overlooked the evidence of
Employee's daily debilitating pain and his need to take Tramadol to control it. I dissent because I believe the award is plainly inadequate given these factors.
Based upon the entire record, I find that employee is permanently and totally disabled as a result of the work injury on April 4, 2005.
I would modify the award of the administrative law judge to award permanent total disability benefits. Because the majority has determined otherwise, I respectfully dissent from the decision of the Commission.
Curtis E. Chick, Jr., Member