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 ne