Richard Courtois v. Employee Screening Services, Inc.

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Second Injury Fund has no liability in this claim; and (7) the rulings set out in *Schoemehl v. Treasurer of State*, 217 S.W.3d 900 (Mo. 2007) apply to the facts of this claim.

Employer filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in finding that the June 15, 2005, accident was a substantial factor in causing employee's ongoing complaints and need for additional treatment; (2) in awarding past medical expenses; (3) in awarding future medical expenses; (4) in awarding temporary total disability benefits through January 4, 2012; (5) in finding employee was permanently and totally disabled; and (6) in finding employee was permanently and totally disabled as a result of the June 15, 2005, motor vehicle accident alone.

Employee filed a timely application for review requesting that the Commission consider whether the Second Injury Fund is liable for permanent total disability benefits, in the event the Commission finds that employee was not rendered permanently and totally disabled as a result of the primary injury considered alone.

For the reasons stated below, we modify the award of the administrative law judge referable to the issues of: (1) the nature and extent of permanent disability; and (2) the liability of the Second Injury Fund. We also supplement the administrative law judge's award with respect to the issue of medical causation.

**Discussion**

**Medical causation**

The parties asked the administrative law judge to determine whether the accident caused "the injuries and disabilities for which benefits are claimed." *Transcript*, page 4. In other words, the parties disputed the issue of medical causation. Section 287.020.2 RSMo sets forth the standard for medical causation applicable to this claim and provides, in relevant part, as follows:

> An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor.

The administrative law judge determined the accident of June 15, 2005, was a substantial factor "in causing the need for treatment for [employee] from the date of accident up to the date of his death on November 28, 2014." *Award*, page 19. The administrative law judge, however, did not identify the particular medical condition(s) he believed to have resulted from the accident. This is a medically complex case involving extensive preexisting cervical, thoracic, and lumbar spine disability; consequently, identification of the "resulting medical condition" per § 287.020.2 is, in our view, a threshold inquiry before we proceed to the question of the benefits to which employee may be entitled under the Missouri Workers' Compensation Law. As a result, we discern a need to supplement the award to provide the requisite statutory analysis.

The parties presented competing expert medical testimony with respect to the issue of medical causation. Employee advances the expert medical opinion of Dr. Robert Poetz, who believes the accident was a substantial factor causing employee to suffer 1) a cervical strain, (2) a herniated disk at C5-6, and (3) exacerbation of preexisting cervical spondylitic myelopathy with severe spinal cord stenosis. Dr. Poetz rated employee's cervical spine injuries resulting from the accident at 40 % permanent partial disability of the body as a whole. Dr. Poetz also believes the accident was a substantial factor causing employee to suffer a thoracic strain with exacerbation of degenerative disc disease, which he rated at 10 % permanent partial disability of the body as a whole, and a lumbar strain with exacerbation of lumbar degenerative disc disease, which he rated at 15 % permanent partial disability of the body as a whole.

Employer, on the other hand, advances the expert medical opinion of Dr. Russell Cantrell, who believes that the accident is not a substantial factor in causing employee's "current and ongoing complaints" as of the date of Dr. Cantrell's evaluation on March 11, 2013. Transcript, page 3032. Notably, Dr. Cantrell did assign permanent disability to the effects of the June 2005 accident: specifically, he rated 3\% and 2\% permanent partial disabilities of the body as a whole referable to cervical and lumbar strains, respectively. We find these ratings inconsistent with Dr. Cantrell's opinion that the work injury was not "a substantial factor" in employee's overall disability.

Additionally, employer procured the testimony of the treating physician, Dr. Thomas Corsolini, who believes the accident caused employee to suffer a strain to the cervical spine and to the spine in general, as well as possible aggravation of his preexisting degenerative spine conditions, for which Dr. Corsolini would assign a 5\% permanent partial disability of the body as a whole.

Thus, the uncontested expert medical opinion evidence on this record compels a finding that, at the very least, employee suffered some permanent aggravation and/or change in pathology with regard to his preexisting degenerative spine conditions as a result of the June 2005 accident, which causes him to suffer permanent disability. We have thoroughly reviewed the deposition testimony from the experts. We note that Dr. Poetz provided a rather vigorous defense, on cross-examination, of his opinion that the accident caused employee to suffer a herniated disc at C5-6. After careful consideration, we find Dr. Poetz's medical causation opinion to be the most persuasive in this case. We find, therefore, that employee's work for employer was a substantial factor causing employee to suffer (1) a cervical strain, (2) a herniated disk at C5-6, (3) exacerbation of preexisting cervical spondylitic myelopathy with severe spinal cord stenosis, (4) a thoracic strain with exacerbation of degenerative disc disease, and (5) a lumbar strain with exacerbation of lumbar degenerative disc disease. Dr. Poetz offered some testimony suggesting he believes that the effects of the work injury would render employee permanently and totally disabled in isolation. We are not persuaded. Instead, we find that the effects of the work injury resulted in an overall 30\% permanent partial disability of the body as a whole referable to the resulting medical conditions we have identified affecting employee's spine.

We deem reasonable and hereby adopt the administrative law judge's finding that employee reached maximum medical improvement from the effects of the work injury as of January 4, 2012, when the treating surgeon, Dr. Chad Morgan, released employee following the July 2011 surgery he performed (in part) to address employee's C5-6 herniation resulting from the work injury. ${ }^{1}$

The administrative law judge determined that employee is permanently and totally disabled as a result of the effects of the work injury considered alone. As noted above, we disagree, and we have found instead that the last injury resulted in a 30\% permanent partial disability of the body as a whole referable to the spine. We turn now to the question whether employee is permanently and totally disabled as a result of the primary injury in combination with his preexisting conditions of ill-being.

The administrative law judge, in his award, thoroughly summarized the evidence with regard to employee's preexisting disabling conditions, which included extensive cardiovascular disease resulting in heart attacks and multiple surgeries; an intestinal blockage surgery in 1991 with subsequent development of two incisional hernias; cervical spine complaints requiring a January 1996 bi-level fusion surgery; thoracic spine complaints requiring decompression and microdiscectomy surgeries in May 1996; and lumbar spine complaints. Dr. Poetz believes employee suffered considerable preexisting permanent partial disability referable to these conditions, and provided extensive ratings for each. Dr. Cantrell concurred that employee suffered from considerable preexisting permanent partial disability, and suggested that if employee is unable to compete for work in the open labor market, it would be owing to a combination of the work injury and these preexisting conditions, including employee's chronic spinal pain complaints and oxygen dependence referable to preexisting COPD.

We acknowledge the deposition testimony from employee, as well as the testimony from employee's wife and the claimant herein, Carolyn Courtois, asserting that employee was very active and wholly able-bodied prior to the primary injury. We find, however, more persuasive the unanimous expert opinions from Drs. Poetz and Cantrell that employee suffered considerable preexisting permanent partial disability. Specifically, we find that, at the time of the primary injury on June 15, 2005, employee suffered considerable preexisting permanent partial disability referable to the lumbar, thoracic, and cervical spine, the cardiovascular system, and the abdomen.

Following employee's release in January 2012 by Dr. Morgan, employee continued to suffer ongoing pain and discomfort referable to the effects of the work injury, as well as

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[^0]: ${ }^{1}$ We acknowledge employer's argument that Dr. Morgan believed his July 2011 surgery was necessary to cure and relieve the effects of an unrelated November 2008 motor vehicle accident. First, we are not persuaded from a review of his notes that Dr. Morgan accurately understood employee's history of two different motor vehicle accidents, e.g., Dr. Morgan variously references a "rear-end" MVA (which would correspond to the 2008 incident) versus an MVA in 2005 (which would correspond to the work injury). See Transcript, page 1477-79. Second, Dr. Morgan specifically declined to address causation. See Transcript, page 1552. Third, we have ultimately credited Dr. Poetz's opinion that the C5-6 herniation resulted from the work injury.

his preexisting degenerative spinal conditions. At that time, employee was 64 years of age, had been out of work for over six years owing to his medical problems stemming from the primary injury and his preexisting conditions of ill-being, and had a work history limited to managing his father's convenience store, working in a limited sales capacity at his son's furniture store, and sales/route driving. Employee was taking narcotic pain medications on a daily basis, and suffered severe functional limitations including an inability to withstand prolonged walking or standing. Employee also suffered sleep deficits owing to his chronic pain. We are persuaded that given all of these circumstances, a hypothetical employer would not have been likely to hire employee, and that employee was thereby unable to compete for work in the open labor market owing to the combination of the work injury and his preexisting conditions of ill-being.

We acknowledge the argument advanced by employer and the Second Injury Fund that, if employee is unable to compete in the open labor market, such inability must necessarily stem (in part) from permanent disability resulting from the unrelated motor vehicle accident of July 4, 2008. ${ }^{2}$ While this intervening event undeniably complicates the analysis in this case, we are not persuaded by this argument. We note that, as early as July 6, 2007, employee's primary care physician, Dr. Felipe Eljaiek, believed employee was unable to work owing to the effects of the work injury in combination with his preexisting conditions of ill-being. Likewise, employee's vocational expert, Timothy Lalk, believed employee was permanently and totally disabled as of the date of his evaluation of employee on September 11, 2006. And, direct