Lowery Gray v. Jack Cooper Transport Co.

preexisting depression and anxiety constituted a 10\% permanent partial disability of the body as a whole. We find that employee's preexisting depression and anxiety constituted preexisting permanent partially disabling conditions.

In 1992 or 1993 employee suffered a hyperextension injury to his left elbow. Treating physicians diagnosed tendonitis, and employee underwent a course of treatment including steroid injections, after which his symptoms improved, but he continued to experience some residual pain with certain movements or if he overused the left arm. Employee sometimes had to take a break at work to rest his left elbow, especially after performing tasks such as pushing on a winch bar. Dr. Poetz opined that employee's left elbow condition constitutes a 10 % preexisting permanent partial disability of the left elbow. We find that employee's left elbow injury resulted in a permanent partially disabling condition.

On June 26, 2003, employee suffered an injury to his low back while loading skids in the course of his work for employer. Employee's injury necessitated surgery, and on January 12, 2004, Drs. Robson and Kennedy performed a bilateral lumbar laminectomy, posterior spinal fusion with left iliac crest bone graft and Steffee instrumentation, and posterior lumbar interbody fusion with Brantigan cage at L5-S1. On September 28, 2004, Dr. Robson released employee to return to work without any permanent restrictions, and rated a 20 % permanent partial disability of the body as a whole referable to the June 2003 low back injury. Employee experienced some intermittent low back pain, but mostly suffered from left leg radicular complaints. Employee worked slower than he did before, and ultimately had to switch to a different and less remunerative job with employer. Employee settled a claim against employer arising from the June 2003 injury for a lump sum consistent with a 44 % permanent partial disability of the body as a whole. We find that employee suffered a preexisting permanent partial disability referable to the June 2003 low back injury and surgery.

Employee suffers from longstanding issues with hypertension, for which he has taken prescribed medications. Employee's high blood pressure caused him to experience symptoms such as headaches, blurred vision, and dizziness. On February 2, 2004, employee was admitted to Missouri Baptist Medical Center with complaints of chest discomfort. Treating physicians diagnosed a heart attack, and performed a cardiac catheterization and placed a stent in employee's artery. Dr. Poetz opined that employee's cardiovascular condition constituted a 20 % permanent partial disability of the body as a whole. We find that employee's cardiovascular issues constituted a preexisting permanent partially disabling condition.

On January 31, 2005, employee was tasked with hauling a load of vans. In order to make sure the load did not exceed maximum height requirements, employee used a ratchet and chain assembly to compress the suspension on the vans. Employee was in the process of exerting pressure on this ratchet and chain assembly to secure the final van of the load when he experienced sudden and severe pain in his low back. Employee credibly testified (and we so find) that he felt pain that was much worse than he experienced in the prior June 2003 low back injury.

On February 10, 2005, employee saw Dr. Robson, who noted employee was suffering from increased complaints of low back pain after the event of January 31, 2005. Dr. Robson

took employee off work and prescribed pain medications. On March 9, 2005, Dr. Robson again noted employee's increased low back symptoms, and also noted a new complaint of right leg pain. Employee asked Dr. Robson to release him to return to work, because he was anxious that his time off would affect his income. Dr. Robson was reluctant as he felt employee's duties were at the limit of what he could tolerate given the condition of his low back, but he ultimately did release employee to return to work. Employee worked for employer until approximately the end of November 2005, when he suffered another heart attack.

On January 3, 2006, Dr. Robson opined that employee had reached the point of maximum medical improvement from a surgical standpoint with respect to his low back, and opined that employee would not be able to return to his work for employer. Dr. Robson assigned permanent restrictions of no lifting over 30 pounds occasionally and 20 pounds repetitively.

Dr. Poetz opined that the event of January 31, 2005, is the substantial and prevailing factor causing employee to suffer a lumbar strain with exacerbation of lumbar discogenic disease and bilateral L5 pars defect, as well as a 10% permanent partial disability of the body as a whole referable to the low back. Dr. Poetz explained that the acute injury was a soft tissue strain/sprain, and that the presence of that strain in the area of prior lumbar pathology caused an exacerbation of employee's radiculopathy and low back pain.

The Second Injury Fund does not advance a contrary medical opinion, but instead points to the deposition of Dr. Robson as supportive of its argument that employee did not suffer any permanent disability as a result of the January 2005 event. We have carefully reviewed Dr. Robson's deposition. We note that Dr. Robson was never asked to offer any opinion regarding the January 2005 event during the entire course of that deposition. It follows that Dr. Robson has not provided any opinion that would contradict that of Dr. Poetz on the issue of causation.

We have also carefully reviewed the contemporaneous medical treatment records from Dr. Robson. As noted above, Dr. Robson documented employee's complaint of having suffered a significant traumatic event on January 31, 2005, that dramatically increased employee's low back pain, and that left him with a new symptom of right leg radicular pain. Dr. Robson's records reveal that employee continued to suffer from increased low back and right leg pain after the January 2005 event. These records are wholly supportive of a finding that employee suffered a new injury resulting in additional permanent partial disability on January 31, 2005. Especially in light of these records, we find Dr. Poetz's causation opinion to be persuasive. We find that employee reached maximum medical improvement on January 3, 2006, when Dr. Robson opined that employee had reached maximum medical improvement.

Dr. Poetz opined that employee should observe the following physical restrictions: avoid prolonged sitting, standing, walking, stooping, bending, squatting, twisting, or climbing; avoid pushing and pulling; avoid excessive and repetitive use of the upper extremities; avoid use of equipment that creates torque, vibration, or impact to the upper extremities; avoid stressful situations; avoid extremes of heat and cold; and avoid activities that required increased cardiac output. Dr. Poetz opined that employee is permanently and totally disabled as a result of the primary injury in combination with employee's preexisting

conditions of ill-being. Dr. Poetz explained that he does not believe there is any work that would be safe for employee to perform within his physical limitations. Dr. Poetz made clear that he does not believe the primary injury is totally disabling considered in isolation.

The Second Injury Fund provided the expert vocational testimony of James England, who opined that, if one considers just the 20 to 30 pound lifting restriction from Dr. Robson for the low back, employee is capable of working as an auto parts clerk, a service writer in an auto repair facility, an office cleaner, security guard, cashier, or general retail clerk. Notably, Mr. England did not consider the effect of employee's preexisting conditions of illbeing in reaching his opinion that employee could successfully perform those jobs. Mr. England conceded that employee is permanently and totally disabled if one accepts the restrictions identified by Dr. Poetz.

Employee provided the expert vocational testimony of Delores Gonzalez, who opined that, as a result of a combination of the primary injury with employee's preexisting conditions of ill-being, employee is not capable of any competitive work for which there is a reasonably stable job market. Ms. Gonzalez explained that given employee's advanced age, his poor academic skills, and severely reduced physical functional capacity, it is not realistic to expect any employer to hire employee over an individual who was more suited for competitive work. Ms. Gonzalez noted that employee's long career as a car hauler does not leave him with any transferable skills that he will be able to perform in light of the permanent restrictions from Dr. Poetz. Ms. Gonzalez disagreed with Mr. England's opinion that employee could find work as a security guard or cashier; she explained that employee is unable to tolerate the prolonged standing, walking, or sitting that would be expected of those workers. Ms. Gonzalez also opined that employee could not perform light cleaning work, as this would exceed the restrictions identified by Dr. Poetz.

In his testimony at the hearing before the administrative law judge, employee thoroughly described the effects of each of