Eric Chambers v. Missouri Department of Highways and Transportation

L3-4 level which in turn "could have" caused employee's persistent and ongoing low back symptoms. Transcript, page 159.

Employer, meanwhile, provided expert medical testimony from Dr. James Coyle, who opined that the December 2007 accident was the prevailing factor causing employee to suffer cervical spine injuries in the form of herniated discs at C6-7 and C5-6, which condition required cervical discectomy and fusion from C5 through C7 and resulted in permanent partial disability; as well as a lumbar strain resulting in permanent partial disability. Dr. Coyle did not provide any opinion whether the accident caused any injury to employee's right elbow.

Like the administrative law judge, we find Dr. Musich's speculation that the accident "could have" had some effect on employee's preexisting tethered spinal cord condition to be lacking persuasive force. And, in light of Dr. Musich's failure to identify the particular medical conditions (as opposed to symptomatologies) he believes resulted from the accident, Dr. Coyle's more specific opinions with respect to the lumbar and cervical spine injuries in this matter strike us as essentially uncontested. On the other hand, given Dr. Coyle's failure to address the right elbow, Dr. Musich's causation opinion with respect to the right elbow is uncontested.

Given these circumstances, we credit Dr. Coyle's opinions as to medical causation with respect to the cervical and lumbar spines, and Dr. Musich's causation opinion with respect to the right elbow. We find that the accident of December 16, 2007, was the prevailing factor causing employee to suffer the following medical conditions: cervical spine injuries in the form of herniated discs at C6-7 and C5-6, which condition required cervical discectomy and fusion from C5 through C7; a lumbar strain resulting in permanent partial disability; and severe pain over the lateral epicondylar region of the right elbow. We defer to and adopt the administrative law judge's finding that employee's permanent partial disability referable to these conditions amounts to an overall 50 % permanent partial disability of the body as a whole. We additionally find that employee reached maximum medical improvement from the effects of the work injury on February 23, 2009, when Dr. Cantrell released employee from treatment.

It is well-settled in Missouri that the appropriate time to evaluate the nature and extent of an injured employee's permanent disability is the point at which the employee reaches maximum medical improvement following treatment for the work injury. See Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008). As is often the case, there is some evidence in this matter that employee's overall physical condition has deteriorated since the conclusion of treatment for the work injury. These circumstances highlight the need for evidence specifically pinpointing the date of maximum medical improvement, as well as the need for opinions from the evaluating experts relevant to employee's condition as of that date, rather than some indeterminate later time period.

We have found that employee reached maximum medical improvement on February 23, 2009. Dr. Musich and employee's vocational expert, Delores Gonzalez, both provided testimony suggesting employee is permanently and totally disabled. But, as noted by the administrative law judge, these experts did not specifically assess employee's condition as of any identified date of maximum medical improvement. Rather, in both his July 2009 and September 2011 reports, Dr. Musich opined that employee is permanently

and totally disabled based on his "present and past disabilities." Transcript, pages 184, 190. And at his deposition, Dr. Musich made clear that his opinion regarding permanent total disability took into account employee's 2010 low back surgery and increased symptomatology, and that he was not rendering any opinion regarding employee's ability to work as of February 2009.

Likewise, Ms. Gonzalez framed her opinions in terms of employee's "current" inability to compete for work in the open labor market in her report of December 27, 2011. In that report, Ms. Gonzalez referenced employee's 2010 lumbar spine complaints and surgery, prompting the question whether her opinions took into account changes in employee's condition after reaching maximum medical improvement. At her deposition, Ms. Gonzalez did not indicate whether her opinions pertained to employee's specific vocational prospects as of February 2009 or any other identifiable date of maximum medical improvement.

After careful consideration, we agree with the administrative law judge that employee's experts do not provide opinions sufficient to support any finding that employee was permanently and totally disabled as of February 23, 2009, the date he reached maximum medical improvement. Absent such expert opinions, and where employee's subsequent medical history and overall condition is complicated by worsening conditions not shown to be related to the work injury, we find insufficient evidence on this record to persuade us to make a finding that employee was permanently and totally disabled as of February 23, 2009. For this reason, we affirm the administrative law judge's award concluding that the Second Injury Fund is liable for permanent partial rather than permanent total disability benefits.

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

The award and decision of Administrative Law Judge Edwin J. Kohner, issued July 24, 2014, 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 $6^{\text {th }}$ day of February 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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? Yes
4. Date of accident or onset of occupational disease: December 16, 2007
5. State location where accident occurred or occupational disease was contracted: Franklin County, 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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The employee, a highway bridge maintenance worker, suffered a cervical spine disc injury and low back sprain when his snow plow tipped over while he was avoiding oncoming traffic.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Neck, right elbow, and low back
14. Nature and extent of any permanent disability: 50 % permanent partial disability to the body as a whole referable to the neck, low back, and right elbow.
15. Compensation paid to-date for temporary disability: $\ 4,784.62
16. Value necessary medical aid paid to date by employer/insurer: $\ 101,880.50

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Eric Chambers

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 688.16
3. Weekly compensation rate: $\$ 458.77 / \ 389.04
4. Method wages computation: By agreement

1. Amount of compensation payable:

200 weeks of permanent partial disability from Employer $\ 77,808.00

1. Second Injury Fund liability: Yes

80.345 weeks of permanent partial disability from Second Injury Fund $\ 31,257.42

TOTAL: $\quad \ 109.065 .42

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Christopher A. Wagner, Esq.