Tammy Gonzalez v. Con-Way Truckload, Inc.

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partial disability, because (in his opinion) there is no objective evidence of any pathology directly related to the accident.

On page 10 of her award, the administrative law judge expressly stated that she credited the testimony and opinions of Dr. Graham over those of Dr. Volarich. We note, however, that she appears to have ultimately rejected Dr. Graham's medical causation opinion, because she found that employee's accident caused her to suffer permanent partial disability as follows: 2.5 % of the body as a whole referable to the cervical spine; 5 % of the body as a whole referable to the lumbar spine; 15 % of the right shoulder; and 10 % of the hip. We write to make clear that, after careful consideration of the conflicting expert medical opinions, we agree with the administrative law judge's (implied) rejection of the actual medical causation opinions from Dr. Graham.

For this reason, we must disclaim the suggestion in the administrative law judge's award that the opinions of Dr. Graham are more persuasive than those of Dr. Volarich. Instead, we find Dr. Volarich more persuasive with respect to the question whether employee suffered permanent partial disability as a result of the accident.

Despite her finding that employee did not make a persuasive witness, the administrative law judge awarded to employee permanent partial disability benefits from both the employer and the Second Injury Fund. Employee appeals, seeking an award of permanent total disability benefits from the Second Injury Fund. While we agree with employee that the minor contradictions the administrative law judge identified as between employee's deposition and hearing testimony are not necessarily indicative of any intent on employee's part to deceive or mislead the finder of fact, we do share the administrative law judge's concern over employee's changing her testimony with regard to whether she thought she could perform a telemarketer or telephone customer service job or not.

While we are not convinced that employee was affirmatively attempting to be untruthful in her testimony, we also are not persuaded that we can completely rely upon her testimony with respect to the issue whether she is permanently and totally disabled, and if so, why. Notably, although he identified a number of physical restrictions under the section of his report labeled "Ability to Work," Dr. Volarich did not render a finding that employee is permanently and totally disabled.

Ultimately, after careful consideration, we are not persuaded to disturb the administrative law judge's determination with respect to the question whether employee suffered permanent total disability as a result of a combination of the effects of the primary injury and her preexisting conditions of ill-being. For this reason, we will affirm and adopt the award to the extent it is not inconsistent with our findings and analysis herein.

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

The award and decision of Administrative Law Judge Karen Wells Fisher, issued May 20, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

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 $18^{\text {th }}$ day of February 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are 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: $12 / 7 / 2010$.
5. State location where the accident occurred or occupational disease was contracted: OHIO
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 was contracted: EMPLOYEE WAS RIDING AS A PASSENGER IN A SEMI TRUCK WHEN THE TRUCK LEFT THE ROADWAY CAUSING INJURY TO EMPLOYEE'S BACK, BILATERAL HIPS, BILATERAL SHOULDERS, BILATERAL LEGS AND BODY AS A WHOLE.
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: BACK, BILATERAL HIPS, BILATERAL SHOULDERS, BILATERAL LEGS AND BODY AS A WHOLE.
14. Nature and extent of any permanent disability: PERMANENT PARTIAL DISABILITY.
15. Compensation paid to date for temporary disability: $\ 15,068.24
16. Value necessary medical aid paid to date by employer/insurer? $\ 14,641.58
17. Value necessary medical aid not furnished by employer/insurer? N/A

Employee: Tammy Normand Gonzalez Injury No 10-101736

1. Employee's average weekly wages: $\ 1,257.48
2. Weekly compensation rate: $\$ 799.11 / \ 418.58
3. Method wages computation: STIPULATION

1. Amount of compensation payable:

Unpaid medical expenses: N/A

0 weeks of temporary total disability (or temporary partial disability)

85.5 weeks of permanent partial disability from employer.

0 weeks of disfigurement from Employer.

Permanent partial disability benefits from Employer \$35,788.59.

1. Second Injury Fund liability: YES

48.83 weeks of permanent partial disability from the Second Injury Fund: \$20,439.27

Uninsured medical/death benefits: N/A

TOTAL: SEE AWARD

1. Future requirements awarded:

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: RYAN E. MURPHY.

Employee: Tammy Normand Gonzalez

Dependents: N/A

Employer: Con-Way Truckload, Inc.

Additional Party: Second Injury Fund

Insurer: Con-Way Truckload, Inc.

Hearing Date: December 10, 2014

Injury No.

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

The parties appeared before the undersigned Administrative Law Judge on December 10, 2014, for a final hearing. The Claimant appeared in person represented by Ryan E. Murphy. Employer and insurer appeared through their legal counsel Ron Sparlin. The Second Injury Fund appeared represented by Catherine Goodnight.

1. The nature and extent of permanent disabilities; and,
2. The liability of the Second Injury Fund for permanent total disability or enhanced permanent partial disability.

1. On or about December 7, 2010, Con-Way Truckload, Inc. was an employer operating subject to Missouri Workers' Compensation Law. The employer's liability was fully insured by Con-Way Truckload, Inc.
2. On the injury date of December 7, 2010, Tammy Gonzalez was an employee of the employer and was working under and subject to the Missouri Workers' Compensation Law.
3. On the injury date of December 7, 2010, Tammy Gonzalez sustained an accidental injury which arose out of and in the course and scope of employment.
4. The above referenced accident occurred in the state of Ohio.
5. The Claimant notified the employer of her injury as required by $\S 287.420 RSMo.
6. The claim for compensation was filed within the time prescribed by \S 287.430$ RSMo.
7. At the time of the accident, the Claimant's average weekly wage was sufficient to allow a compensation rate of $\ 799.11 for temporary total disability and permanent total disability compensation and $\ 418.58 for permanent partial disability compensation.
8. The employer and insurer have paid $\ 15,068.24 in temporary disability benefits to the Claimant.
9. The employer and insurer have paid medical benefits in the amount of $\ 14,641.58.

1. The attorney fee being sought is 25 %.

Employee offered the following exhibits, which were admitted:

Exhibit A.................................................................... IME Report - Dr. David Volarich; 10/15/12

Exhibit B ..........................................Deposition Transcript with Exhibits - Phil Eldred; 12/18/13

Exhibit C ...............