Virgil Russom v. Lewis Carriers, Inc.

Injury No.: 10-016251

Employee: Virgil Russom

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none of the testifying doctors so opined. See *Transcript*, page 224-5, 249. Mr. Lalk also identified employee's headaches (another condition that preexists the work injury) as a reason employee needs to lie down during the day. Mr. Lalk explained that he relied on what employee told him about his need to lie down; he indicated that employee was unable to identify any single factor or condition that limited him completely.

Employee, in his own testimony, identified his neck as the biggest problem preventing him from working 40 hours a week. Employee testified that, depending on his activity level, he lies down two to three times per day to relax his neck. On cross-examination, however, employee agreed that he continues to suffer from shooting pains in his back caused by prolonged sitting or standing, and that he lies down to relieve low back pain, which can reach an 8 out of 10 in intensity. We note also employee's testimony that on March 6, 2010, before the occurrence of the motor vehicle accident that resulted in his work injuries, he had to stop and lie down at a Flying J because he had a headache.

Given this evidence, we find that employee's need to lie down is a product of both the effects of the cervical spine work injury and employee's preexisting low back pain and headache conditions. It follows that employee's need to lie down does not result from the work injury alone, and in turn, that employee is not permanently and totally disabled as a result of the work injury considered in isolation.

We conclude, instead, that employee is permanently and totally disabled owing to a combination of his preexisting disabling conditions and the effects of the work injury. For the foregoing reasons, we affirm the administrative law judge's conclusion that the Second Injury Fund is liable for permanent total disability benefits.

**Conclusion**

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Hannelore D. Fischer, issued October 30, 2012, is attached and incorporated by this reference.

We approve and affirm 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 **18th** day of July 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

SEPARATE OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I agree with the majority's finding that employee suffered some permanent partial disability of the body as a whole referable to the cervical spine as a result of the primary injury, although I disagree that employee has provided the more persuasive expert medical evidence. I write separately to discuss my assessment of the medical evidence proffered by the parties.

To make his case for a compensable primary injury, employee presents a medical report from Dr. Carr, who rates employee's cervical spine injury at 15\% permanent partial disability of the body as a whole. But Dr. Carr did not review any medical records predating the March 2010 primary injury, and took only a cursory history from employee as to a prior left knee problem, which the doctor condensed into two sentences in his report. Dr. Carr fails to mention a 1994 motor vehicle accident resulting in low back pain, right wrist, elbow, shoulder, and neck injuries; a 1999 motor vehicle accident resulting in injury to the left wrist; a 2002 MRI of employee's brain for purposes of diagnosing employee's intractable headaches; and a 2004 left shoulder and back injury. It is unclear from Dr. Carr's report whether the doctor was even aware of these incidents and injuries.

I fail to see how Dr. Carr, or any doctor for that matter, can reach a competent medical opinion as to the effects of a work injury without reviewing records of the employee's prior medical history. Especially in a case such as this one, where the employee has an extensive background of injuries and surgeries affecting the very body parts he claims were injured in the March 2010 accident, it would seem an impossible task to evaluate the nature and extent of any new injury without first reviewing employee's prior medical records. Because Dr. Carr failed to perform this most basic and fundamental aspect of a medical evaluation, I find his opinions in this matter to lack any persuasive force.

Employer, on the other hand, presents the testimony of Dr. Cantrell, who did review employee's prior medical records, and who opined that, as a result of the primary injury, employee suffered a cervical strain resulting in a 4 % permanent partial disability of the body as a whole. I find Dr. Cantrell's opinions in this matter to be credible. I am convinced that employee suffered a new and compensable injury affecting the cervical spine that resulted in permanent partial disability. I find that the nature and extent of employee's cervical spine injury amounted to only a 4 % permanent partial disability of the body as a whole, rather than the 10 % found by the majority.

In sum, I wish to make clear that I do not find the opinions from Dr. Carr believable where the doctor failed to review any of employee's prior medical records. I concur in the majority's decision awarding permanent partial disability benefits referable to employee's cervical spine injury; I dissent, however, from that portion of the majority's award finding that employee sustained a 10 % permanent partial disability of the body as a whole. I would instead award permanent partial disability benefits commensurate with a finding that employee suffered a cervical spine injury amounting to only a 4 % permanent partial disability of the body as a whole.

Employee: Virgil Russom

Injury No.: 10-016251

Dependents: N/A

Employer: Lewis Carriers, Inc.

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

Insurer: Great West Casualty Company

Hearing Date: September 12, 2012

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: $\mathrm{HDF} / \mathrm{scb}$

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: March 6, 2010
5. State location where accident occurred or occupational disease was contracted: Cole 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: See award
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Neck, right shoulder, left wrist
14. Nature and extent of any permanent disability: 10 % body regarding neck, 25 % right shoulder, 15 % left wrist
15. Compensation paid to-date for temporary disability: $\ 33,703.79
16. Value necessary medical aid paid to date by employer/insurer? $\ 164,864.01

Employee: Virgil Russom Injury No. 10-016251

1. Value necessary medical aid not furnished by employer/insurer? - 0 -
2. Employee's average weekly wages: ---
3. Weekly compensation rate: $\ 553.96 per week for temporary and permanent total disability $\ 422.97 per week for permanent partial disability
4. Method wages computation: By agreement

1. Amount of compensation payable: $124.25 \times 422.97=\ 52,554.02

Less $\ 3,000 advance $=\ 49,554.02

1. Second Injury Fund liability: $\quad \ 130.99 weekly from June 14, 2011 through October 29, 2013, Thereafter, $\ 553.96 per week
2. Future Requirements Awarded: - 0 -

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Russell C. Still.

Employee: Virgil Russom

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on September 12, 2012. All memoranda were submitted by October 9, 2012.

The parties stipulated that on or about March 6, 2010, the claimant, Virgil Russom, was in the employment of Lewis Carriers, Inc. Mr. Russom sustained an injury by accident; the accident arose out of and in the course of employment. The employer was operating under the provisions of Missouri's workers' compensation law; workers' compensation liability was insured by Great West Casualty Company. The employer had timely notice of the injury. A claim for compensation was filed within the time prescribed by law. The appropriate compensation rate is $\ 553.96 per week for temporary and permanent total disability benefits and $\ 422.97 per week for permanent partial disability benefits.

Temporary disability benefits have been paid in the amount of $\ 33,703.79, reflecting 60 and $6 / 7$ weeks of benefits paid through June 1, 2011. Medical aid has been provided in the amount of $\ 164,864.01.

The issues to be resolved by hearing include 1) the causation of Mr. Russom's neck complaints, 2) the nature and extent of permanent disability, and 3) the liability of the Second Injury Fund. Permanent total disability is alleged.

The claimant, Virgil Russom, was born in 1942. Mr. Russom has an $8^{\text {th }}$ grade education and has earned a GED. Mr. Russom served as a mechanic in the army for 9 years and then became a truck driver. Mr. Russom was a long-haul truck driver for 37 to 38 years.

On March 6, 2010, Mr. Russom was driving a tractor trailer for his employer, Lewis Carriers, Inc., near Jefferson City, Missouri, when another vehicle, travelling at about 55 to 60 miles per hour collided with his vehicle. Mr. Russom's cab and the tractor trailer were turned over to the side and Mr. Russom was suspended in the vehicle by his seat belt. When Mr. Russom was able to extricate himself from his seatbelt, he fell to the other side of the truck where he landed on his

refrigerator and microwave. Mr. Russom also injured his left wrist while he was trying to control his tractor trailer before it was knocked over but after the "tandems" went out.

Mr. Russom received medical treatment for the effects of the accident, including three cortisone injections into the neck, surgery on the left wrist, and two surgeries on the right shoulder. Mr. Russom currently complains of lack of grip strength in the left wrist, an inability to use the right arm at a higher level and away from his body (Mr. Russom said that he could not put a 12 can package of soda into the back of his pick-up truck, for example) and an inability to turn his neck. Mr. Russom testified that he lies down several times for one to two hours at a time to rest his neck.

Mr. Russom does not believe he could actively engage in activity 40 hours per week, primarily as the result of the neck injury. Mr. Russom does still fish but does not cast; rather he fishes via a "tight line" dropping the line over the side of the boat.

Prior to the March 6, 2010 accident, Mr. Russom was injured in 1993 when he had a ganglion cyst on his right wrist operated on; the resulting workers' compensation claim settled based on ten percent of the wrist. Mr. Russom had a left shoulder injury in 2004 which settled based on a 24.5 percent disability of the left shoulder. Mr. Russom settled a workers' compensation claim arising out of a 2009 injury based on a 12 percent permanent disability to the left knee. Mr. Russom was involved in a head on collision in a motor vehicle accident in 1994, causing low back pain and injuries to the right wrist, elbow shoulder, and neck. Mr. Russom was involved in another motor vehicle accident in 1999, which injured his left wrist. In 2002, Mr. Russom had an MRI of his brain taken due to recurring headaches. Prior to the 2010 accident, Mr. Russom saw a chiropractor occasionally for low back pain. Mr. Russom said that as the result of his left shoulder and low back injuries he had difficulty with activities such as bowling prior to the 2010 accident.

Mr. Russom testified that his preexisting left knee injury resolved prior to the 2010 accident as did the right wrist injury and the low back injury. Mr. Russom said that any problems he currently has with the left wrist are as a result of the 2010 accident and injury. Mr. Russom said that he was unable to pass his DOT physical after the March 6, 2010 accident and injury as the result of lack of full movement in his right shoulder and neck.

The employer/insurer advanced \$3,000.00 in benefits against permanent disability to Mr. Russom on April 3, 2010, with the understanding that the advance would be a credit against permanent disability benefits awarded against the employer/insurer.

Dr. Carr, practitioner of family medicine, evaluated Mr. Russom and prepared a report dated August 23, 2011. Dr. Carr found Mr. Russom to have permanent disability as the result of the March 6, 2010 accident as follows: 50 percent of the right shoulder, 20 percent of the left wrist and 15 percent of the body referable to the neck. Dr. Carr opined that these injuries combine to cause a substantially greater impairment than the simple total of the disability assigned to each injury and that Mr. Russom is permanently and totally disabled. Dr. Carr's restrictions for Mr. Russom included avoidance of 1) repetitive bending, twisting, or lifting, 2) lifting more than

20 pounds, 3) overhead work, 4) recurrent use of the right arm, and 5) recurrent use of the left hand.

Timothy Lalk, vocational rehabilitation counselor, evaluated Mr. Russom on December 2, 2011, and authored a report of the same date pertaining to the evaluation. Mr. Lalk opined that Mr. Russom is not in a position to work or even compete for a position in the open labor market. Mr. Lalk cited Dr. Carr's restrictions as limiting Mr. Russom to sedentary work as well as Dr. Runde's opinion that Mr. Russom cannot work as a professional driver. Mr. Lalk said that any jobs Mr. Russom might be able to perform from a physical standpoint he would not be able to handle from an academic standpoint. Mr. Lalk also noted Mr. Russom's difficulty hearing and his headaches and neck pain as factors affecting his employability. Mr. Lalk stated that additional factors in determining Mr. Lalk's lack of employability were his low back pain and right hip pain, both of which Mr. Lalk believed to have occurred subsequent to the March 6, 2010 accident. Mr. Lalk described Mr. Russom's symptoms from the neck as limiting Mr. Russom's level of activity and that the neck combined with Mr. Russom's restrictions to use of his upper extremities as well as the limitations imposed by his low back and right hip as causing Mr. Russom's limitations in activity. The only preexisting disability which Mr. Lalk considered in determining Mr. Russom's employability was his preexisting injury to the left knee. Mr. Lalk testified that it was his understanding that Mr. Russom recovered from his left knee injury after surgery and had no complaints regarding his left knee until after the March 6, 2010 accident. In describing Mr. Russom's limitations in pursuing activities such as bowling, fishing, hunting, throwing darts, riding a motorcycle, horseback riding, and playing badminton as well as in pursuing work activities, Mr. Lalk said that the condition of Mr. Russom's left knee was not a factor. Mr. Lalk stated that absent Mr. Russom's left knee injury, his hearing problem and his diabetes, he would still be permanently and totally disabled.

Dr. Cantrell, a physician specializing in sports medicine and rehabilitation, testified by deposition that he evaluated Mr. Russom on July 17, 2012, and authored a report of the same date pertaining to the evaluation. Dr. Cantrell opined that as the result of the March 6, 2010 accident Mr. Russom injured his left wrist and right shoulder and suffered a cervical strain. Dr. Cantrell assigned a four percent disability as the result of the work injury for the cervical strain and assigned another six percent disability referable to the cervical strain for "preexisting multilevel degenerative disc and joint disease", a ten percent disability to the left wrist as the result of the work injury, and an eight percent disability referable to the work injury for the right shoulder with another four percent disability for the right shoulder due to "the presence of preexisting degenerative changes in the AC joint and glenohumeral joint." (Cantrell depo p13) Dr. Cantrell opined that Mr. Russom had no injury attributable to the March 6, 2010 accident and injury to the right hip, the left knee, and the low back. Dr. Cantrell felt that Mr. Russom had preexisting disability to the March 6, 2010 accident in addition to the preexisting disability to the cervical spine and the right shoulder as follows: low back, five percent of the person; right leg, seven percent at the level of the hip; left knee, eight percent of the knee; right wrist, ten percent of the wrist; left shoulder, 24.5 percent of the shoulder. Dr. Cantrell opined that the injuries he diagnosed as related to the March 6, 2010 work accident would not cause Mr. Russom to be permanently and totally disabled nor would they cause him to be unable to return to work in the

Open labor market. Dr. Cantrell went on to state that Mr. Russom's only permanent restrictions would be to the right shoulder as the result of the March 6, 2010 accident.

Gary Weimholt, vocational rehabilitation consultant, testified by deposition that he evaluated Mr. Russom on July 5, 2012, and prepared a report pertaining to that evaluation dated August 1, 2012. Mr. Weimholt relied on the opinions of Mr. Russom's treating doctors, Dr. Taylor for the cervical spine, Dr. Brown for the left wrist, and Dr. Milne for the right shoulder, none of whom imposed permanent restrictions on Mr. Russom's ability to work at the conclusion of their treatment, in finding that Mr. Russom is no more limited in his ability to work than he was prior to the March 6, 2010 work accident. Even given Dr. Carr's restrictions, which Mr. Weimholt described as the most limiting, Mr. Weimholt opined that Mr. Russom could engage in work such as a parking lot attendant, store greeter, or cashiering. Mr. Weimholt opined that Mr. Russom's preexisting disabilities would combine with his most recent work injury to affect overall employability but still maintained that Mr. Russom is employable in the open labor market.

Michael Milne, MD, issued a letter dated July 17, 2011, to Kelly Winter, the case manager on Mr. Russom's claim, stating that he operated on Mr. Russom's shoulder on September 15, 2010, performing "arthroscopic subacromial decompression, distal clavicle resection, rotator cuff debridement, and labral debridement" and operated again on the shoulder on January 26, 2011, performing "biceps tenotomy and glenohumeral debridement." (Milne letter 7.17.11) Dr. Milne found Mr. Russom to be at maximum medical improvement on June 14, 2011. Dr. Milne rated Mr. Russom's disability at eight percent and opined that Mr. Russom is on need of no additional treatment.

David Brown, MD, issued a letter dated September 20, 2010, to Ms. Winter stating that he believed Mr. Russom had a permanent disability of seven percent of the left wrist.

Dr. Brett Taylor treated Mr. Russom for his cervical complaints. On May 19, 2010, Dr. Taylor opined that despite Mr. Russom's preexisting degenerative changes in the cervical spine, it was the work accident of March 6, 2010, which caused the condition of the cervical spine and the cervical pain Mr. Russom was experiencing. On August 23, 2010 and May 30, 2011, Dr. Taylor opined that Mr. Russom had preexisting degenerative disc disease in the cervical spine which was aggravated by the work accident.

RSMo Section 287.020.3 3. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

(3) An injury resulting directly or indirectly from idiopathic causes is not compensable.

(4) A cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition.

(5) The terms "injury" and "personal injuries" shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease or infection as naturally results therefrom. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the worker is at work.

RSMo Section 287.220.1. The word "employee" as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election, including executive officers of corporations. Except as otherwise provided in section 287.200, any reference to any employee who has been injured shall, when the employee is dead, also include his dependents, and other persons to whom compensation may be payable. The word "employee" shall also include all minors who work for an employer, whether or not such minors are employed in violation of law, and all such minors are hereby made of full age for all purposes under, in connection with, or arising out of this chapter. The word "employee" shall not include an individual who is the owner, as defined in subsection 43 of section 301.010, and operator of a motor vehicle which is leased or contracted with a driver to a for-hire motor carrier operating within a commercial zone as defined in section 390.020 or 390.041 , or operating under a certificate issued by the Missouri department of transportation or by the United States Department of Transportation, or any of its subagencies.

The claimant, Virgil Russom, has sustained his burden of proof that he injured his cervical spine in the accident of March 6, 2010. Dr. Taylor who initially treated Mr. Russom was aware of his preexisting degenerative condition of the cervical spine when he opined that it was Mr. Russom's work accident that caused his cervical condition and cervical pain. Dr. Taylor's later opinion to the contrary is confusing, at best. Dr. Cantrell, who evaluated Mr. Russom for the employer/insurer, also found permanent disability attributable to the cervical spine as the result

Employee: Virgil Russom Injury No. 10-016251

of the work accident. Dr. Carr opined to chronic neck pain syndrome as the result of the March 6, 2010 accident.

Mr. Russom has sustained his burden of proof that he sustained a permanent disability of 10 percent of the body referable to the cervical condition, 15 percent of the left wrist and 25 percent of the right shoulder as the result of the March 6, 2010 work injury. These findings are supported by the testimony of Mr. Russom as well as the opinions of treating and evaluating physicians.

Mr. Russom has sustained his burden of proof that he is permanently and totally disabled as the result of his preexisting disabilities to his low back and left shoulder combined with the disabilities to the neck, left wrist, and right shoulder suffered in the March 6, 2010 accident. Mr. Russom testified as to the difficulties he had as the result of the low back and left shoulder injuries prior to 2010. Mr. Lalk testified extensively that Mr. Russom's low back injuries were an integral part of the equation in finding Mr. Russom to be permanently and totally disabled. Dr. Lalk also testified that Mr. Russom's injuries to his upper extremities were a factor in his inability to work. There is no evidence that Mr. Russom injured his low back in the March 6, 2010 accident or thereafter, while there is ample evidence of Mr. Russom's low back and left shoulder injuries preexisting the March 6, 2010 work injury. Therefore, the Second Injury Fund is liable for permanent total disability benefits for the combination of the preexisting low back and left shoulder injuries with the neck, right shoulder, and left wrist injuries incurred in the March 6, 2010 accident.

Made by:

HANNELORE D. FISCHER

Administrative Law Judge

Division of Workers' Compensation