Phillip Connor v. Missouri House of Representatives

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 07-117843

Employee: Phillip Connor

Employer: Missouri House of Representatives

Insurer: C A R O

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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 and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award of the administrative law judge (ALJ) dated January 18, 2013.

The ALJ heard this matter to consider: 1) whether appropriate notice was provided, 2) the causation of the injuries alleged, 3) the liability of the employer/insurer for past medical bills in the amount of $\ 71,507.05,4 ) the liability of the employer/insurer for past temporary total disability benefits from November 7, 2007, through December 28, 2007, 5) the nature and extent of permanent disability, and 6) the liability of the Second Injury Fund.

The ALJ found that employee failed to meet his burden of proof that he sustained a work-related injury. The ALJ deemed all other issues moot and issued a final award denying employee's claim for benefits.

Employee appealed to the Commission, alleging: 1) employee sustained his burden of proof that he suffered a work injury on May 22, 2007, 2) employee sustained his burden of proof that the work injury was the prevailing factor in causing/aggravating his cervical spine condition and disability, and 3) employee is entitled to benefits for permanent partial disability, total temporary disability, and past medical expenses.

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

The parties stipulated to the fact that on May 22, 2007, employee sustained an injury by accident while employed by employer.

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[^0]: ${ }^{1}$ All statutory references are to the Revised Statutes of Missouri (2006) unless otherwise indicated.

On March 30, 2007, two months prior to the work injury, employee had a routine physical exam with his physician, Dr. Byam. Dr. Byam's notes state that on that date employee felt well with no complaints, he exhibited no symptoms of neck pain, and he had full range of motion of his head and neck.

Employee testified that after his May 22, 2007, accident he initially was going to "tough it out" but after three months he sought medical treatment because the pain had gotten so bad. Employee first sought treatment with Dr. Byam for his injury on August 31, 2007. According to Dr. Byam's notes, employee presented with complaints of numbness in his upper left and right extremities, hands, and fingers as well as occasional dizziness. Employee also presented with back pain, decreased range of motion, joint pain, muscle pain, muscle spasm, and neck pain. Accordingly, Dr. Byam ordered x-rays and MRI of the cervical and thoracic spine.

The MRIs were completed on September 10, 2007. The reading radiologist, Dr. Bonnie Smith, found that there are compression deformities at C5 and C6 with loss of vertebral height. Dr. Smith found that an "[a]bnormal signal within the C6 vertebral body suggests that this may be a recent injury. Additional abnormal signal within the superior end plate of C7 also suggests microtrabecular injury."

Dr. Byam then referred employee to Dr. Rodgers. On September 18, 2007, Dr. Rodgers notes show that employee has a three month history of pain in his neck radiating down his right arm with some numbness and tingling. Dr. Rodgers notes that the MRI read as showing compression fractures, although he opined that instead it showed degenerative changes. Dr. Rodgers also noted that employee had pressure on his spinal cord. On November 7, 2007, Dr. Rodgers performed a surgery to fuse C5-7.

Employee testified that the surgery helped initially, but the pain has since returned. Dr. Rodger's notes from February 7, 2008, show that employee stated his neck pain had resolved. On July 29, 2008, Dr. Rodger's notes show that employee complained of a trigger point in his neck. On November 7, 2008, Dr. Rodger's notes show that employee was continuing to experience pain in his neck.

On April 21, 2011, Dr. Reinsel evaluated employee and issued a report at the request of employer. Dr. Reinsel stated that employee complains of pain and his cervical fusion never successfully healed. In response to a question regarding whether the May 2007 work injury was the prevailing factor in employee's medical condition and disability, Dr. Reinsel stated "No. There is insufficient evidence pointing to any possible work injury. Clearly the patient did have lower back problems prior to May 2007 document [sic] by the primary care physician's notes from January. No specific injury or event his [sic] described by his family physician, nor is any injury described by his surgeon, Dr. Rodgers." He also stated that "the need for any additional treatment is not related to any possible work injury." Finally, Dr. Reinsel stated he would give a 0\% disability rating "simply because it's not clear that there was any particular injury as described."

On July 13, 2011, Dr. Meyers evaluated employee and issued a report at the request of employee. Dr. Meyers stated that employee continues to have significant symptoms

which affect his neck on a daily basis, and he has occasional numbness in his upper extremities. The severity of the pain is related to the intensity and duration of his activities at both home and work. His symptoms are aggravated at work with lifting, pulling, pushing, and carrying heavy items. The symptoms interfere with his sleep. Dr. Meyers observed a decreased range of motion in Employee's neck which causes pain.

Dr. Meyers diagnosed employee with acute exacerbation of neck pain with aggravation of pre-existing degenerative disc disease of the cervical spine producing spondylosis with radiculopathy and stenosis requiring fusion with continuing post-operative symptoms of pain radiculopathy involving the upper extremities. Dr. Meyers opined with a reasonable degree of medical certainty that the work injury from May 2007 was the prevailing and substantial factor in causing him to develop acute aggravation of his pre-existing cervical disc disease with persisting symptoms. Dr. Meyers provided a 40% disability rating for the body as a whole, with 5% due to pre-existing degenerative disc disease in the neck. He also found pre-existing disability ratings of 25% right knee and 30% left knee, with a 10% load factor. Dr. Meyers noted that his findings were based on his examination of employee as well as his past medical records.

With respect to the differing opinions regarding the results of the September 2007 MRI, we find that it is more persuasive that it showed a recent injury. Dr. Rodger's opinion that it merely showed degenerative changes is less persuasive because he fails to account for why employee had a sudden onset of symptoms relating to his cervical spine in conjunction with the May 2007 work injury.

With respect to the vastly different opinions of Dr. Reinsel and Dr. Meyers, we find that Dr. Meyers's opinions and disability ratings are more credible. We note that Dr. Reinsel's findings are based on an incorrect assumption that there was no injury in May 2007, when in fact the parties in this case stipulated that there was a work related injury at that time. Further, we note that Dr. Reinsel's opinions are based on an analysis of employee's lower back symptoms, which are not at issue in this workers' compensation claim.

Employee testified that he injured his right knee in 1996 when he fell out of a tree. As a result, he had a surgery to put in a steel plate and screws. Employee testified that after recovery he continued to experience tingling symptoms in his right knee when lifting and going up and down stairs. Employee also testified that his right knee sometimes locks up.

Employee also testified that in 1998 he had arthroscopic surgery on his left knee to alleviate pain he was experiencing when squatting, lifting, and walking stairs. Employee suffered no specific injury to his left knee. Employee testified that the surgery did not alleviate the pain. Employee testified that his left knee strength is diminished, the left knee sometimes locks up, and the left knee sometimes gives out.

Employee testified that he cannot bend his knees fully without pain. If he goes down to a squat, he cannot get back up. Employee testified that after the injury, lifting caused him to have pain in his neck and his knees, and it brought on headaches and tingling in

his hands. He also experiences trouble cutting the grass and walking up and down steps in that both activities cause pain in his knees, neck, and headaches.

Based on Employee's testimony, which is undisputed in the record, we find Dr. Meyer's pre-existing disability ratings of 25 % in the right knee and 30 % in the left knee to be credible.

The parties stipulated in this case that medical aid has been provided in the amount of $\ 1,525.29 and that an issue to be resolved is the liability of employer for past medical bills in the amount of $\ 71,507.05. In its brief to the Commission, employee argues that the $\ 71,507.05 does not include the $\ 1,525.29 that was paid by employer. Employee, through its brief, speculates that the $\ 1,525.29 was paid by employer to its medical expert, Dr. Reinsel. The record does not show any payments made by employer, nor does it include any fees owed or paid to Dr. Reinsel. Therefore, we find that $\ 71,507.05 represents the total amount of unpaid past medical expenses.

Employee testified that on the day he injured himself at work, he reported the injury to three people in Human Resources - Patty, Judy, and Megan. Employee told them that he hurt his neck while lifting a desk at work. None of the three HR personnel offered to send him for medical treatment or direct him to any type of professional treatment. Employee also notified his supervisor, Brad Werner, that he had injured his neck on the day of the accident. Mr. Werner also failed to direct him to follow any procedures for workers' compensation. Finally, prior to seeing Dr. Byam for the first time three months later, employee notified Keith Sappington, a supervisor above Mr. Werner. Employee told Mr. Sappington that he had hurt himself lifting and needed to go to a doctor. Mr. Sappington did not indicate to employee that he should see some other type of doctor or health care professional. Employee's testimony is not rebutted anywhere in the record, thus we find it credible.

Notice

Section 287.420 RSMo provides, as follows (emphasis added):

No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice. ...

The appellate court has analyzed the 2005 legislative changes to the above statute in Sell v. Ozarks Medical Center, 333 S.W.3d 498 , 510-511 (Mo. App. S.D. 2011) (internal citations omitted):

Strict statutory construction demonstrates that section 287.420 contains an exception to the written notice requirement - when the employer is not prejudiced by the failure to receive written notice - and the application of

Case law related to the evidentiary basis for supporting the factual existence of that exception provides that actual notice to a supervisory employee is imputed to the employer. ...

The purpose of section 287.420 is to give the employer timely opportunity to investigate the facts surrounding the accident and, if an