Ricky Haskins v. Board of Police Commissioners of Kansas City, Missouri

to make a left turn in front of employee, causing employee's motorcycle to collide with the front passenger side of the other automobile. Employee flew free of the motorcycle, turned two summersaults in the air, and landed on his left side. Employee suffered injuries to his left shoulder and cervical spine as a result of this event, which produced ongoing chronic pain and discomfort.

In our award in the companion case designated as Injury No. 06-077052, we rendered findings that, as a result of the August 21, 2006, motor vehicle accident, employee sustained a 15\% permanent partial disability of the left shoulder at the 232-week level, and a 15 % permanent partial disability of the body as a whole referable to the cervical spine. We hereby incorporate those findings herein.

On September 27, 2007, employee was working for employer in his role as a traffic police officer, when he responded to a report of an accident on the highway. It was rush hour, so employee parked his police cruiser in the right hand lane about a quarter mile ahead of the accident and activated his lights in order to divert traffic and provide protection for the officers and other personnel working at the accident site. A motorist driving an SUV approached employee's car from the rear and failed to slow down in time; the SUV tipped onto two wheels, hit the embankment or guardrail, then collided with employee's car.

Employee experienced immediate pain in his neck, back, and left shoulder, and received emergency treatment at the North Kansas City Hospital emergency room, where treating physicians diagnosed thoracic and cervical strains. On October 5, 2007, a cervical MRI revealed no changes from an earlier September 2006 MRI. (The September 2006 MRI had included findings of bulging discs at C4-5, C5-6, and C6-7, as well as an annular tear at C6-7.) On October 12, 2007, a left shoulder MRI revealed a change in the appearance of the AC joint with increased fluid and widening. The study also revealed a partial thickness tear of the distal supraspinatus tendon; the radiologist deemed this finding to be unchanged from a prior MRI study of September 2006.

On November 1, 2007, an orthopedic surgeon, Dr. Roger Hood, recommended left shoulder surgery. On November 21, 2007, Dr. Hood performed an open left Mumford procedure and acromioplasty. Dr. Hood found a .5" tear of the rotator cuff, which he repaired. Following the surgery, employee underwent physical therapy for the left shoulder.

Employee continued seeking treatment for ongoing severe neck and left shoulder pain. Treatment included diagnostic studies, physical therapy, prescription pain medications including narcotics, the use of a home traction unit for the neck, and epidural steroid injections. Employee did not experience significant improvement from any of these modalities.

On March 31, 2009, employer sent employee to Dr. Gill Wright for a return to duty exam. Dr. Wright formed a belief that employee's problems were related solely to degenerative disc disease and self limitations, and opined that there was no objective indication that employee could not return to full duty work as a police officer. Employer also sent employee to Dr. Jeffrey MacMillan on April 14, 2009. Dr. MacMillan rated employee's left

shoulder injury at 10 % impairment of the left upper extremity, and opined that employee could return to work at the medium physical demand level. Dr. MacMillan expressly declined (apparently at employer's request) to evaluate or rate any injury or disability referable to employee's cervical spine.

Despite these opinions from employer's evaluating doctors, employee did not feel capable of returning to work, and instead continued seeking treatment with his personal physicians. Employee provided extensive testimony regarding his physical capabilities and limitations following the September 2007 work injury; we deem employee's testimony on the subject to be persuasive. Employee continues to experience constant pain in his neck, for which employee takes Lyrica and Flexeril on a daily basis. Employee also takes Percocet a few times per week to address more severe pain. Employee's left arm is considerably weakened, and employee can only lift about 20 pounds with it. Following the September 2007 work injury, employee becomes fatigued easily, and experiences a need to lie down and rest one or more times during the day. Employee has trouble sleeping at night after the September 2007 work injury.

After November 21, 2007, the date of his left shoulder surgery, employee never returned to work for employer, although employee did attempt to work for his stepson's company for about 4 or 5 months. Employee's tasks were limited to answering the phones, and he could take his medications, come and go as he pleased, and take naps whenever necessary. Employee estimates he worked 30 to 40 hours per week and made $\ 10 per hour during this time period. Employee left this job when the company moved and employee couldn't tolerate the commute. Employee also saw that the company was growing and he felt he could no longer keep up with the demands of his position. Employee credibly testified (and we so find) that the only reason he obtained this job in the first place was because of the charity of his stepson.

On February 23, 2010, employer awarded employee duty-related disability retirement benefits, based on a medical evaluation ordered by the Kansas City Police Employees' Retirement System indicating employee could no longer perform the full and unrestricted duties of a police officer.

On October 15, 2010, the treating pain management physician Dr. Daniel Bruning opined that employee had reached maximum medical improvement from the standpoint of interventional treatment, after employee experienced minimal relief following a series of cervical epidural steroid injections. We deem persuasive this opinion from Dr. Bruning, and find that employee reached maximum medical improvement on October 15, 2010.

Employee presented expert medical opinion testimony from Dr. James Stuckmeyer, who opined that the primary injury caused employee to sustain a 20 % permanent partial disability of the left shoulder, as well as a 20 % permanent partial disability of the body as a whole referable to the cervical spine. Dr. Stuckmeyer believes employee remains in need of lifelong pharmacological management for his ongoing chronic pain condition referable to the cervical spine, as well as additional diagnostic procedures to assess this condition. Dr. Stuckmeyer further opined that employee is permanently and totally disabled based on

A combination of the primary injury and employee's preexisting injuries referable to the August 2006 motorcycle accident. Dr. Stuckmeyer explained that it is unlikely employee would be able to participate in any sedentary-type work involving use of a computer, because of his problems with forward flexion of the neck, and that employee's medication regimen clouds his cognitive function.

Employee also presented expert vocational opinion testimony from Terry Cordray, who believes it is unrealistic to expect any employer in the normal course of business to hire employee given the combination of his injuries resulting from the 2006 and 2007 motor vehicle accidents. Mr. Cordray explained that employee has only a high school education and can no longer perform the only job he has held since 1979, has no vocational or academic skills for sedentary or light occupations, and has a daily need to take narcotic medications and muscle relaxants.

Employer, on the other hand, presented expert medical opinion testimony from Dr. Eden Wheeler, who opined that employee can return to his normal duties as a police officer, and that employee does not have any physical restrictions from either the 2006 or 2007 motor vehicle accidents. Dr. Wheeler was one of employer's authorized treating physicians. It appears to us from a careful review of Dr. Wheeler's treatment notes that she experienced some interpersonal conflicts during her interactions with employee, and that these issues may have colored her subsequent findings and recommendations. We note also that Dr. Wheeler admitted that she was unaware of employee's actual work duties beyond her personal impression of what police officers do, deferred to findings from non-physician physical therapists in reaching her opinions, relied on her own personal policy to release employees to return to work full duties whenever a functional capacity evaluation is deemed invalid, and admitted that she assigned preexisting permanent partial disability of the cervical spine predating employee's 2006 injury, despite her awareness that employee did not have any disabling cervical spine symptoms before that injury. In light of these concerns, we do not deem Dr. Wheeler's ultimate findings or opinions in this matter to be particularly persuasive.

Employer also presented expert vocational testimony from Michelle Sprecker, who opined that, based on the restrictions imposed by Drs. Wheeler and MacMillan, employee could perform 15 different jobs. We note that Ms. Sprecker did not consider the restrictions identified by Dr. Stuckmeyer (and did not even see his report) and was unaware that employer awarded duty-based disability retirement benefits to employee based on a determination that he was unable to perform the full and unrestricted duties of a police officer. We note also that, in identifying the jobs she believed employee could perform, Ms. Sprecker relied upon the restrictions from a physician (Dr. Wheeler) whose opinions in this matter we have fou