Sandra Johnson v. Southwestern Bell Telephone Company

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

Given at Jefferson City, State of Missouri, this $28^{\text {th }}$ day of March 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING 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 believe the Commission should modify the award of the administrative law judge to award permanent partial rather than permanent total disability benefits to this employee.

I wholly disagree with the administrative law judge's finding that employee is credible regarding her pain complaints and purported need to lie down throughout the day. Employee was only 42 years of age when she suffered her accident on July 14, 1999. That accident resulted in a mere low back strain injury for which employee received conservative treatment. After a series of specialists determined that there was no medical or objective basis for employee's continued complaints of debilitating low back pain, attending physicians released her to return to work with minimal permanent partial disability ratings. Since then, employee has done little to improve her situation.

In fact, employee has not sought out any additional medical treatment for her allegedly totally disabling low back pain for over ten years. Instead, employee relies on Advil and meditation to manage a condition for which she asks us to hold her employer liable for permanent total disability benefits for the rest of her lifetime. I find it difficult to accept that employee would fail to seek additional medical treatment if she really were suffering from a pain condition of the degree and magnitude that she described in her testimony. Especially as one who has suffered from chronic pain conditions of my own, I do not believe that employee would decide in 2003 that she would no longer look for medical assistance to manage her condition, and instead simply live with her pain.

But this is not the only problem with employee's testimony regarding her condition. Employee asks us to believe that she can only sit for about an hour owing to low back pain, and that she has trouble concentrating for prolonged periods of time. But the record reveals that employee sat for almost the entire duration of the hearing before the administrative law judge in this matter, during which she was able to answer, with clarity and specificity, what must have seemed to her a near-endless stream of questions posed to her by multiple attorneys.

Employee presented some expert testimony to bolster her case for an award of permanent total disability benefits, but this expert testimony suffers from a crucial and (in my view) fatal flaw: both Dr. Koprivica and employee's vocational expert Mr. Santner relied on employee's subjective complaints to reach their determinations that employee is permanently and totally disabled as a result of her low back pain resulting from the work injury. Where employee's complaints are not credible, the testimony from these experts lacks foundation, and their opinions provide no support whatsoever for an award of lifetime benefits from the employer.

In sum, although I acknowledge that employee suffered a compensable low back strain injury, I have serious doubts as to the credibility of employee's testimony with regard to the nature and extent of permanent disability resulting from that injury. I would enter an order modifying the award of the administrative law judge and entering an award of

permanent partial rather than permanent total disability benefits against the employer. Because the majority has determined otherwise, I respectfully dissent.

James G. Avery, Jr., Member

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? Accident
4. Date of accident or onset of occupational disease: July 14, 1999
5. State location where accident occurred or occupational disease was contracted: 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? Employer was self-insured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was moving furniture in order to install a phone jack.
12. Did accident or occupational disease cause death? No Date of death? N/A

Issued by DIVISION OF WORKERS’ COMPENSATION

Employee: Sandra F. Johnson

1. Part(s) of body injured by accident or occupational disease: Low back
2. Nature and extent of any permanent disability: Permanent total disability as to the employer
3. Compensation paid to-date for temporary disability: $\ 36,278.96
4. Value necessary medical aid paid to date by employer/insurer? $\ 13,302.60
5. Value necessary medical aid not furnished by employer/insurer? None
6. Employee's average weekly wages: $\ 1,106.13
7. Weekly compensation rate: $\$ 578.48 / \ 303.01
8. Method wages computation: Stipulation of the parties
9. Amount of compensation payable: permanent total disability from the employer beginning July 21, 1999, in the amount of $\ 578.48 per week for as long as Employee remains permanently and totally disabled
10. Second Injury Fund liability: N/A
11. Future requirements awarded: Employer shall provide Claimant with any and all future medical care and treatment necessary to care and relieve the effects of both her medical and psychological conditions arising from her July 14, 1999 injury.

Said payments to begin as of date of this award and to be payable and be subject to modification and review as provided by law.

Attorney's lien is granted in favor of Mr. William Spooner in the amount of 25 % of the compensation payable.

EMPLOYEE: Sandra F. Johnson<br>EMPLOYER: Southwestern Bell Telephone Company<br>INSURER: Self-insured c/o Sedgwick CMS<br>INJURY NO.: 99-089905<br>DATE OF INJURY: July 14, 1999<br>ADDITIONAL PARTY: Treasurer of the State of Missouri;<br>Custodian of the Second Injury Fund<br>HEARING DATE: May 13, 2013 Checked by: ESF/cy

On May 13, 2013, the employee, the self-insured employer and the Second Injury Fund appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The employee, Ms. Sandra Johnson (hereinafter "Ms. Johnson" or "employee"), appeared in person and with counsel, Mr. William Spooner. The employer appeared through counsel, Mr. Thomas Munsell. The Treasurer of the State of Missouri as Custodian of the Missouri Second Injury Fund appeared through counsel, Ms. Kimberly Fournier.

Prior to the hearing, the parties stipulated to the following issues:

1. At all times relevant herein, Southwestern Bell Telephone Company was an employer operating subject to Missouri's Workers' Compensation Law and was fully self-insured as required by Missouri law;
2. Ms. Johnson was Employer's employee working subject to the law in Clay County, Missouri;
3. Ms. Johnson timely notified SWBT of her July 14, 1999 accident;
4. SWBT provided Ms. Johnson with medical care costing $\ 13,302.60;
5. SWBT paid TTD in the amount of $\ 36,278.96 at the temporary total disability rate of $\$ 578.48 / week. This is a total of 625 / 7$ weeks of compensation;
6. Ms. Johnson provided SWBT with timely notice of this claim and a written claim against SWBT was filed within the time allowed by law.

The parties requested the Division to determine the following issues:

1. Whether Ms. Johnson suffered an injury by accident as a result of her employment with SWBT;
2. The nature and extent of Ms. Johnson's alleged permanent partial and/or permanent total disability, if any;
3. Whether Ms. Johnson is entitled to receive, and whether SWBT is required to provide additional medical care in the future as is necessary to cure and relieve the effects of the July 14, 1999 accident;
4. Whether Ms. Johnson filed a written claim against the Missouri Second Injury Fund with the Division of Workers' Compensation within the time allowed by law; and,
5. The obligation of the Missouri Second Injury Fund for Ms. Johnson's alleged permanent partial and/or permanent total disability, if any.

The employee is not seeking further compensation for any alleged unpaid temporary total disability benefits or unpaid past medical expenses.

The parties submitted an extensive record in this matter. Employee testified on her own behalf. In addition, the employee presented the following exhibits, each of which were admitted into evidence without objection, or if deposition transcripts, subject to the objections contai