Scott Noblin v. McBride and Son Contractors, LLC

**Improvement**

Second, Dr. Poetz failed to persuasively rule out an intervening injurious event occurring on or about October 19, 2009. According to the August 2009 treatment records from Dr. Klinginsmith, employee was improving with chiropractic care after the claimed July 2009 work injury, to the extent that on August 17, 2009, he told Dr. Klinginsmith that he was "50% better," even after having worked that day. *Transcript*, page 317. Thereafter, employee did not seek any further chiropractic treatment for his low back until October 22, 2009, when he reported to Dr. Klinginsmith that he had low back pain at a level of an 8 or 9 out of 10. Employee told Dr. Klinginsmith that he had been doing well since the last treatment, and denied any intervening injury or activity.

On the other hand, the October 20, 2009, records from the St. Clare Health Center emergency room suggest employee had "twisted wrong yesterday while carrying some siding and has had pains since then." *Transcript*, page 254. The records further suggest the "last episode was about 3 months ago that lasted about 1 month." *Id.* It appears to us from a careful review of the St. Clare records that employee endorsed a *new* onset of low back pain as of October 19, 2009, which was distinguishable from the earlier bout of low back pain lasting about a month from mid-July to mid-August. In his testimony, employee denied that he ever carried siding, but also suggested that he told the St. Clare personnel that he had been in pain for the "past two days." *Transcript*, page 42. The records from the treating surgeon Dr. Paul Matz confirm that employee endorsed a worsening of low back symptoms in October 2009.

Given the strong indication that employee suffered (at the very least) a substantial worsening in his low back symptoms in mid-to-late October 2009, we would expect his evaluating expert to either distinguish this medical condition from that referable to the claimed work injury, or demonstrate how the October 2009 symptoms and treatment flowed from that injury. Again, though, Dr. Poetz provided only conclusory opinions that fail to acknowledge or explain the October 2009 exacerbation in employee's symptoms as memorialized in the records from Dr. Klinginsmith and St. Clare Health Center.

Third, Dr. Poetz failed to persuasively distinguish between employee's recurrent symptoms following his March 2010 slip on ice from the symptoms referable to the alleged accident. According to employee, he was doing better following surgery until this event, after which he felt as if he had returned to his pre-surgical symptomatology. Dr. Poetz opined that the slip on ice was a mere soft tissue injury, but on cross-examination, he acknowledged that even a soft tissue injury can result in the development of new pain complaints. We do not find Dr. Poetz's testimony to persuasively rule out the occurrence of a new and permanent low back injury when employee slipped on ice in March 2010.

Finally, Dr. Poetz assigned causation of a right lateral extraforaminal disc protrusion at L3-4 to the alleged July 2009 accident, but the pre-surgical MRI of October 29, 2009, did not suggest any disc protrusion then existed at L3-4, and Dr. Matz did not identify any pathology at L3-4 in either his operative report or his discharge summary. See *Transcript*, pages 250, 268-71. Instead, it appears that the L3-4 disc protrusion was first seen on the MRI study of March 9, 2010, which suggested employee then had "a right lateral extraforaminal disc protrusion" at L3-4; this mirrors the language used by Dr. Poetz in his

causation opinion. See Transcript, pages 289, 175. We note that it appears that the March 9, 2010, MRI study followed employee's slip on ice in March 2010.

In other words, Dr. Poetz assigns causation of a new, subsequent pathology with respect to the L3-4 disc to the alleged accident, where the treating orthopedic surgeon did not diagnose this pathology or address it in the surgery he performed. As above, Dr. Poetz fails to provide any explanation whatsoever for this aspect of his opinions. We find that this circumstance weakens the persuasive value of all of Dr. Poetz's testimony and opinions in this case.

For all of the foregoing reasons, we are not persuaded by the testimony from Dr. Poetz to render a finding that the alleged accident of July 17, 2009, was the prevailing factor causing any resulting medical condition or disability. We find, rather, that the alleged accident on that date was not the prevailing factor causing any identifiable medical condition or disability. Because employee has failed to meet his burden of proof with respect to the dispositive issue of medical causation, we must deny the claim.

All other issues are moot.

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 April 2, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 1st \qquad$ day of December 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

BISSENTING OPINION

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe employee suffered a compensable work injury.

The Commission majority painstakingly dissects the opinions from Dr. Poetz to justify their decision to deny benefits to this employee. Yet, noticeably absent from the majority's decision is any mention of the competing testimony from employer's expert, Dr. Frank Petkovich. As noted by employee in his brief, Dr. Petkovich conceded that the L4-5 disc herniation seen on the October 2009 MRI could have occurred as a product of employee's July 2009 accident, and crucially, he stated that he could not opine otherwise. As a result, the essentially uncontested expert medical opinion evidence on this record compels a finding that (at the very least) the accident of July 17, 2009, was the prevailing factor causing employee to suffer a herniated L4-5 disc, the pathology that prompted Dr. Matz to perform surgery. I strongly disagree with the majority's choice to disregard this uncontested expert medical opinion evidence.

With regard to employee's preexisting low back pain, the majority fails to mention that employee has been a roofer for 20 years. Of course employee had preexisting back problems; his daily job duties for two decades involved prolonged bending at the waist combined with frequent and awkward heavy lifting. But preexisting problems alone are not sufficient to defeat a workers' compensation claim, as it is well-settled in Missouri that where a work accident is the prevailing factor causing aggravation or exacerbation of a preexisting disabling condition, the resulting aggravation is compensable; this is true even following the 2005 amendments to Chapter 287. Maness v. City of De Soto, 421 S.W.3d 532 (Mo. App. 2014). The majority says they expected more discussion of this issue from Dr. Poetz, but I deem Dr. Poetz's opinions sufficient to meet employee's burden in the absence of any relevant contrary opinion from Dr. Petkovich.

The same is true regarding the majority's concerns as to employee's recurrent symptoms in October 2009 and his March 2010 slip on ice. Implicit in the majority's analysis is the suggestion that they are inclined to believe employee suffered an intervening injury in October 2009 and a subsequent injury in March 2010, unless Dr. Poetz is able to persuade them otherwise. The critical flaw in the majority's reasoning is that this record contains no expert medical testimony in the first place that would support affirmative findings that employee suffered an intervening injury in October 2009 or a subsequent injury in March 2010, because Dr. Petkovich did not so opine.

It seems to me especially unjust to fault employee's expert for these perceived deficiencies where employer did not even procure relevant competing testimony. It seems to me that the Commission majority has effectively appointed itself the de facto medical expert in this case, dictating what the experts should have deemed important and what they should have addressed in their reports and depositions. This is clear error, because the fact-finder in a workers' compensation case is not permitted to substitute their own opinions on medical causation for those of an uncontradicted expert. Wright v. Sports Associated, Inc., 887 S.W.2d 596, 600 (Mo. banc 1994).

Again, Dr. Petkovich does not contradict Dr. Poetz's opinion with regard to causation of the L4-5 herniation.

With regard to employer's notice defense, I am convinced employer had actual notice of this work injury, and was not prejudiced by employee's failure to provide the written noti