Ronald Lawrence v. Southwestern Bell Telephone LP

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

We note that throughout the administrative law judge's award, he finds that a witness is credible as to a particular fact question, but lacking credibility as to other fact questions. It appears that the administrative law judge simply meant that he found certain statements by the witnesses more persuasive than other statements. But in our view, the concept of credibility carries more weight, and a statement finding a witness "lacks credibility" implies that the witness is not worthy of belief. We note this simply to clarify our own reasoning, rather than to criticize the administrative law judge's choice of words.

We find that none of the witnesses in this matter lack credibility. We further accept that the evidence suggests that employee is permanently and totally disabled. The question remains, however, whether employee has presented persuasive evidence to meet his burden of proving his entitlement to permanent total disability benefits from the Second Injury Fund. We are convinced that he failed to do so, for the reasons explained below.

The administrative law judge thoroughly and exhaustively summarized all of the evidence at trial, so there is no need to do so here. It will suffice to say that the issue of Second Injury Fund liability for permanent total disability benefits in this matter turns on several important fact questions. Because we deem the record insufficient to resolve those fact questions, we agree with the administrative law judge that employee failed to meet his burden of proving the Second Injury Fund is liable for permanent total disability benefits.

First, we note that employee takes the anti-anxiety medication Xanax for a preexisting diagnosis of anxiety and depression. Employee's credible testimony suggests (and we so find) that employee's use of this medication provides relief from his low back spasms. This would suggest to us that there may be a psychiatric component to employee's perception of his low back pain. But employee did not procure any expert psychiatric opinion evidence to establish this, or to demonstrate how his preexisting psychiatric diagnoses may factor into his permanent total disability. As a result, we feel unable to render findings resolving what

appears to be a critical question regarding employee's low back pain and his perception thereof, and ultimately, the cause of his permanent total disability.

Second, employee's credible testimony suggests (and we so find) that he lies down during the day to relieve sharp pains in his low back. But, as employee's counsel conceded at oral argument, the record does not include an opinion from a medical expert that employee has a need to lie down during the day, or that such a need is referable to a combination of the primary injury and his preexisting conditions. We acknowledge Dr. Koprivica's testimony, in response to a hypothetical question asking him to assume that employee would identify a need to lie down after the primary injury, that such a need would be referable to employee's overall lumbar condition. But Dr. Koprivica did not identify any such restriction in his report or at his deposition, and his answer to the hypothetical does not constitute an opinion from the doctor that employee does have a need to lie down during the day, or that such a need is a result of a combination of the primary injury and his preexisting conditions. We believe such evidence is necessary where employee's low back condition is medically complex and involves multiple injuries and disabling conditions.

Finally, we note that Dr. Koprivica specifically found employee did not suffer from any preexisting permanent partial disability to his right knee or right upper extremity. Mr. Dreiling appeared to include disability referable to both the right knee and right upper extremity in reaching his opinion regarding permanent total disability. Needless to say, Mr. Dreiling's expert vocational opinions cannot substitute for necessary expert medical opinion. Second Injury Fund liability cannot be proven by expert vocational opinion which includes, as a necessary element, reference to conditions of ill-being not identified in the record as a preexisting disability or disability related to the last accident.

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

The award and decision of Administrative Law Judge Robert B. Miner, issued November 20, 2013, 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 $26^{\text {th }}$ day of August 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that the decision of the administrative law judge should be modified to award permanent total disability benefits from the Second Injury Fund.

This employee worked for more than 30 years for employer, first as a lineman and then as a cable-splicer, despite a seriously disabling prior low back injury and injuries to both shoulders. After he suffered the last injury in May 2005, employee was physically incapable of continuing in his work as a cable-splicer. Employer provided employee with some light duty work, but employee was unable to handle the prolonged sitting required, and ultimately had to retire. He hasn't worked since.

Employee presented expert medical testimony from Dr. Brent Koprivica that if a vocational expert determines employee is unable to work, it would be Dr. Koprivica's medical opinion that employee's permanent total disability is the product of the primary injury in combination with his preexisting conditions of ill-being. Employee also provided testimony from Michael Dreiling, a vocational expert, who opined that employee is unemployable based on a combination of the primary injury and employee's preexisting conditions. The Second Injury Fund did not present any contrary evidence. Yet, the administrative law judge and now the majority of the Commission have rejected this evidence in favor of their own lay theories that there are other reasons employee may be permanently and totally disabled.

This is similar to the situation presented in Abt v. Miss. Lime Co., 388 S.W.3d 571 (Mo. App. 2012), where the Commission threw out expert opinion evidence regarding the cause of employee's permanent total disability in favor of theories that found no support on the record. In reversing the Commission, the Abt court noted that "[r]ather than choosing one of the medical opinions, the Commission made a finding that is not consistent with any medical opinion in the record." Id. at 581. Here, the majority takes pains to find all of employee's evidence "credible," and specifically finds that employee is permanently and totally disabled, but then proceeds to deny the claim for permanent total disability benefits, relying upon the perceived existence of various alternative theories as to why employee is permanently and totally disabled.

Regarding employee's need to lie down during the day, I disagree with the majority's determination that the record lacks sufficient medical evidence verifying this need or linking it to a combination of the primary injury and his preexisting low back injury. Despite counsel's (apparently mistaken) concession at oral arguments, the record does contain the following testimony from Dr. Koprivica:

Q. Now, if he is to testify at trial that he has to lie down during the day due to low-back pain subsequent to the May 2005 injury, that he didn't have to do that before that date, would you say that the need to lie down during the day would be due to the May '05 injury, and would that be totally disabling in and of itself?

Mr. Tierney [counsel for employer/insurer]: I'll just object to the hypothetical in that it's incomplete. It contains no indication as to when that behavior would have initiated, how frequently it's initiated, if it happened within a month of either date of accident or a year or five years.

Ms. Shine [counsel for the Second Injury Fund]: Well, I'm talking about after the May 2005 injury, anytime after that.

A. The limitation of lying down in my opinion would be the result of the overall lumbar impairment and resultant disability. So I don't know that that would change my opinion that that injury alone is totally disabling. And I clearly believe that the need to unpredictably recline is going to be totally disabling. But my opinion would be that that incorporates the contribution of his prior disabilities with the additional disability of May 2005.

Transcript, page 387.

I fail to see why the foregoing does not resolve the majority's concern (which I do not agree with in the first place) that it needs a medical opinion to make any findings regarding employee's need to lie down, especially where they go so far as to specifically credit employee's hearing testimony on the topic.

It appears to me that despite the majority's remarkable eagerness to declare all witnesses to be credible, it has applied an unusually high level of scrutiny to employee's evidence. Indeed, why is the majority so reticent to make permissible inferences from the evidence presented? Has the majority forgotten that the nature and extent of permanent disability is a fact question within the "unique province" of this Commission to decide? ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007). One possibility is that the majority has mistakenly applied the 2005 amendments, which did not become effective until August 28, 2005, to this claim for an injury sustained on May 10, 2005. This would explain the perceived need for a doctor opinion certifying a need to lie down, as the 2005 amendments added § 287.190.6(2) RSMo, which requires that "permanent total disability shall be demonstrated and certified by a physician." But under the pre-2005 version of Chapter 287 applicable here, there is no § 287.190.6(2), or any "certification" requirement regarding permanent total disability findings, and more importantly, "the law shall be liberally construed with a view to the public welfare" and "[a]ny doubt as to the right of an employee to compensation should be resolved in favor of the injured employee." Angus v. Second Injury Fund, 328 S.W.3d 294, 298 (Mo. App. 2010). If there are doubts in this case as to employee's right to permanent total disability benefits from the Second Injury Fund, we must