Connie Johnson v. Associated Electric Cooperative, Inc.

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 05-107570

Employee: Connie Johnson

Employer: Associated Electric Cooperative, Inc.

Insurer: Self-Insured (Cannon Cochran Management Services, Inc.)

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs, heard oral argument, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission modifies the award and decision of the administrative law judge (ALJ).

On October 9, 2005, employee injured her lower back while lifting a table at work. Employee filed a claim for compensation alleging she is permanently and totally disabled as a result of the work injury.

The ALJ awarded employee past medical expenses, future medical care, and PTD benefits.

The findings of fact and stipulations of the parties were accurately recounted in the award of the ALJ and, to the extent they are not inconsistent with the findings listed below, they are incorporated and adopted by the Commission herein.

Dr. Mattson noted that the October 24, 2005, MRI was "unremarkable," but recommended a second opinion for employee. Dr. Mattson noted that he had his "concerns of possible secondary gain but ... [wanted] to give her the benefit of doubt that there is something real going on...." Dr. Mattson released employee from his care at that point.

Employee treated with Dr. Woods from November 1, 2005, through May 2, 2006. On January 23, 2006, employee reported to Dr. Woods improvement in her back and leg pain. Dr. Woods released employee to work regular duty for four hours per day. On March 27, 2006, employee reported her back and/or leg pain as a 3 on a scale of 0 to 10. Dr. Woods noted that employee indicated during this March $27^{\text {th }}$ visit that "she feels as if she can dance on the walls...." Dr. Woods indicated that employee could perform 10 hour days of unrestricted work and was instructed to return for a visit in four weeks.

On April 18, 2006, employee reported to Dr. Woods that she aggravated her back when she bent over to pick up a piece of paper. Employee rated her pain at 7 on a scale of 0 to 10 .

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2005 unless otherwise indicated.

On May 2, 2006, employee returned to Dr. Woods for her final visit. Employee indicated to Dr. Woods that she was doing really well. Employee reported that she painted all weekend and did not have any pain from it. Employee had continued working full-time and tolerating that well. Employee reported that she was no longer taking any medications. Employee rated her pain a 0-1 on a scale of 0 to 10. Dr. Woods indicated that employee had reached maximum medical improvement (MMI) and gave employee a rating of 0\%. Dr. Woods' assessment/diagnosis was mechanical low back pain due to a lumbar strain. Employee was allowed to return to work with no restrictions. This was the last authorized treatment for employee's work-related injury.

Following her release from Dr. Woods' care, employee treated with her primary care physician, Dr. Deline. Dr. Deline saw employee on June 19, 2006, June 26, 2006, and August 2, 2006, with no complaints of low back pain. During those visits, Dr. Deline primarily treated employee's degenerative joint disease in her neck. Dr. Deline's records do not indicate any complaints of low back pain until January 31, 2007 - nearly 9 months after employee was released at MMI by Dr. Woods - during a "well woman exam."

On March 27, 2007, employee's attorney at the time sent employee to Dr. Carr for the purpose of an independent medical evaluation. Dr. Carr opined that as a result of employee's October 9, 2005, work injury she sustained 15\% PPD of the body as a whole rated at the lumbar spine due to chronic low back pain. Dr. Carr further opined that based on the treatment rendered she had reached MMI.

Employee returned to Dr. Deline on May 25, 2007, with no mention of low back pain. On June 8, 2007, employee saw Dr. Deline and complained of low back and cervical pain. Employee indicated during that visit that she was cleaning houses and that she could hardly move after cleaning a house the day before. Dr. Deline's assessment was degenerative joint disease of the low back.

On June 22, 2007, employee returned to see Dr. Deline and indicated that she was cleaning houses and that her back pain was a 10 on a scale of 0 to 10. Dr. Deline ordered a repeat MRI. The June 28, 2007, MRI revealed degenerative changes at L-2 and L-3 with degenerative discs at the L2-L3 and L4-L5 levels. The records reveal that at the L4-L5 level there was a concentric disc bulge with a possible small lateral herniation but no significant stenosis. Another MRI scan was performed on September 25, 2007, which also indicated a disc bulge at L4-L5. That MRI also showed degenerative disc disease at T-11 through L3-L4 and L4-L5. The disc bulge was not present in the MRI taken in October 2005.

With regard to the disc bulge revealed in the 2007 MRIs, Dr. Deline testified that "[n]obody can tell as far as I know when these disc bulges (sic) happened."

Dr. Meyer began treating employee on August 17, 2007. Dr. Meyer testified, based on the last time he saw employee, that she is not permanently and totally disabled.

Neither Dr. Volarich nor Mr. England's reports indicate that at the time of their evaluations employee was working part-time cleaning houses. Employee was in fact

cleaning houses at the time of those evaluations, but testified that she did not recall if she informed Dr. Volarich or Mr. England of the same.

Ms. Blaine was aware that employee was cleaning houses at the time of her evaluation.

Following employee's release from Dr. Woods' care on May 2, 2006, there is only a brief mention of low back pain in a well woman exam by Dr. Deline (on January 31, 2007) before employee reported extreme low back pain in June 2007. We find that employee's low back pain complaints in June 2007 are unrelated to the October 9, 2005, work injury.

The competent and substantial evidence supports a finding that employee sustained a lumbar strain injury on October 9, 2005, as a result of a work accident. Employee was subsequently treated for this injury by Dr. Mattson and Dr. Woods and released at MMI on May 2, 2006. At the time of this release, the only MRI scan on file was "unremarkable," employee had reported to Dr. Woods that she was no longer taking medication, and employee had returned to work and tolerated it well. Employee's own attorney even sent her to Dr. Carr for an independent medical evaluation on March 27, 2007. Dr. Carr concluded, as Dr. Woods previously had, that employee had reached MMI.

We find Dr. Deline's treatment records more probative than his and employee's testimony that she continually complained about low back pain between June 2006 and June 2007. Dr. Deline's notes indicate that he questioned employee about all bodily complaints during this period and that she did not have any serious complaints of low back pain until over 13 months after Dr. Woods released employee at MMI. Employee was cleaning houses part-time when she began complaining of this extreme low back pain. Following these pain complaints, Dr. Deline ordered an MRI and it revealed a concentric disc bulge at L4-L5, which was not present in the October 2005 MRI.

Section 287.190.6(2) RSMo provides, in relevant part:

In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings.

We find that the objective medical findings from the 2005 and 2007 MRIs prevail over the subjective medical findings attributing all of employee's low back problems to the October 9, 2005, work injury. The objective medical findings from the October 2005 MRI were unremarkable. The June 2007 MRI revealed a concentric disc bulge after employee had admittedly been working part-time cleaning houses. The objective medical findings suggest that a subsequent intervening injury occurred to employee's lumbar spine between October 2005 and June 2007. Based on the objective medical findings and the record as a whole, we find that employee reached MMI from the October 9, 2005, work injury on May 2, 2006, and that her complaints of extreme low back pain in June 2007 are unrelated to that injury.

With regard to the nature and extent of employee's permanent disability, the ALJ found that employee is permanently totally disabled as a result of the October 9, 2005, work injury. Contrary to our above findings, the ALJ arrived at this conclusion of PTD by finding that all of employee's low back pain complaints and treatment following May 2, 2006, were attributable to the October 9, 2005, work injury. Obviously, we disagree with the ALJ's inclusion of employee's subsequent complaints and treatment in arriving at her permanent disability determination, but even if we included them in our determination, we still would not find employee permanently totally disabled.

Section 287.020.6 RSMo defines "total disability" as the "inability to return to any employment...."

The test for permanent total disability is whether, given the employee's situation and condition he or she is competent to compete in the open labor market. The pivotal question is whether any employer would reasonably be expected to employ the employee in that person's present condition, reasonably expecting the employee to perform the work for which he or she is hired.

Gordon v. Tri-State Motor Transit Company, 908 S.W.2d 849, 853 (Mo.App. 1995) (citations omitted).

None of the medical experts that treated or evaluated employee concluded that she is permanently and totally disabled. In fact, the highest disability rating employee received was Dr. Volarich's rating of 40 % PPD of the body as a whole, and even he concluded that she could return to work with restrictions. The only expert who concluded that employee is totally disabled is Mr. England; however, the record indicates that Mr. England was not even informed at the time of his evaluation that employee was then currently employed part-time cleaning houses. The other vocational expert, Ms. Blaine, was aware that employee was cleaning houses and she concluded that employee is employable. We find Ms. Blaine's vocational expert opinion more credible than Mr. England's.

Based on our findings above and the record as a whole, we find Dr. Carr's assessment of employee's permanent disability most credible. However, based on our review of the record, we find Dr. Carr's rating of 15 % PPD of the body as a whole slightly insufficient. We find that as a result of the October 9, 2005, work injury employee suffered 20\% PPD of the body as a whole rated at the lumbar spine.

We further find that employee's claims for past medical expenses and future medical care are denied. Employee failed to prove that the unpaid medical expenses and need for future medical care was caused by the October 9, 2005, work injury.

The award and decision of Administrative Law Judge Hannelore Fischer is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $24^{\text {th }}$ day of February 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer

James Avery, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the eviden