Kimberly Replogle v. Mexico School District

This workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties’ briefs, heard the parties’ arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to determine the following issues: (1) whether the notice requirement of $\S 287.420$ RSMo serves as a bar to compensation in this case; (2) whether the work accident of August 29, 2006, is the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence; (3) employer’s liability, if any, to reimburse employee for expenses for past medical treatment; (4) employer’s liability, if any, for future medical benefits; (5) employer’s liability, if any, for permanent partial disability benefits or permanent total disability benefits; and (6) the liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits.

The administrative law judge determined as follows: (1) employee’s failure to comply with the written notice requirement of $\S 287.420$ does not serve as a bar to the claim for compensation in this case; (2) the work accident of August 29, 2006, was the prevailing factor in causing injury to employee’s lumbar spine, including L3-4 and L4-5 discogenic back pain; (3) the work injury to employee’s lumbar spine necessitated medical treatment, including, but not limited to, injections, medication, multiple radiological and diagnostic testing, as well as surgery; (4) employee does not have post-laminectomy syndrome or failed back syndrome; (5) the work accident is not the prevailing factor in the cause of employee’s pain complaints which began 14 to 19 months post-surgery; (6) employee is not permanently and totally disabled; (7) employee has sustained a 35% permanent partial disability of the body as a whole as a result of the work accident; (8) employer is liable for $\ 4,533.95 in past medical expenses; (9) employer has a continuing duty, pursuant to $\S 287.140$ RSMo, to provide employee with medical care and treatment to cure and relieve her from the effects of the work-related low back injury; and (10) the Second Injury Fund is liable for 26.5125 weeks of enhanced permanent partial disability benefits owing to the combination of the effects of the last injury and employee’s preexisting permanent partial disability.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred in denying employee’s claim for permanent total disability benefits from either employer or the Second Injury Fund.

The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge erred in awarding employee permanent partial disability benefits from the Second Injury Fund.

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

The administrative law judge concluded that employee's accident at work on August 29, 2006, was not the prevailing factor causing her current, debilitating lower back and radicular pain complaints, or the diagnosis of failed back syndrome. Instead, he found that the June 2009 fusion surgery successfully treated employee's low back and radicular pain referable to her work injury. In reaching these determinations, the administrative law judge expressly credited the opinion from the treating surgeon and employer's medical expert witness, Dr. James Coyle, over the opinion from employee's medical expert witness, Dr. David Volarich. As further discussed below, we discern no compelling reason to overturn the administrative law judge's choice to credit Dr. Coyle over Dr. Volarich with regard to the issue of the causation of employee's current complaints of ongoing, debilitating low back and radicular pain.

However, we do note that certain of the administrative law judge's comments are susceptible to a reading that suggests he relied, in part, upon his own administrative experience in resolving the issue of medical causation involved in this case:

In my 21 years as an administrative law judge, I have not seen a case such as this where a back surgery has been unquestionably successful for over fourteen months, and then turns into a situation where, nineteen months post-surgery, the patient has $8 / 10 to 10 / 10$ pain every day despite taking high doses of narcotics unless there has been a failure of the fusion. (That is clearly not the case here; the fusion is solid.) What happened fourteen to nineteen months post-op to explain this extreme dramatic turn of events? There is nothing in the extensive testing to explain it.

Award, pages 10-11 (emphasis in original).

As much as we appreciate the administrative law judge's unquestionable expertise and his astute factual analysis in this case, the Missouri courts have long cautioned that an administrative law judge's own opinion (or ours) regarding a complex issue of medical causation (such as those involving lumbar spine pathology/symptomatology) does not constitute competent and substantial evidence upon which we may rely in rendering our award. See, e.g., Wright v. Sports Associated, 887 S.W.2d 596 (Mo. 1994). For this reason, we must disclaim the above-quoted commentary.

Again, we have carefully reviewed the opinions from both Drs. Coyle and Volarich. As noted by the administrative law judge, employee specifically stipulated that she is not seeking any compensation herein on the basis of any possible psychiatric diagnosis or condition. After careful consideration, we deem employee's preexisting depression to be as equally likely a source of the recurrent pain and radicular complaints employee first identified over a year after Dr. Coyle released her from his care, as any purely physical sequelae from the work injury itself. In other words, it appears to us that it is no more likely that employee's present symptoms are

related to her work injury than to other, non-compensable causes. For this reason, we will defer to the administrative law judge's choice to credit Dr. Coyle over Dr. Volarich.

The administrative law judge determined that employee is not permanently and totally disabled. After a thorough review of the record, we are not persuaded to disturb his finding in this regard. As employer's brief points out, employee's testimony recounting her June 2009 surgery, initial recovery, and subsequent recurrence of symptoms substantially (and materially) departs from the timeline of these events reflected by the medical records in evidence. Consequently, we find that we are unable to wholly rely upon employee's testimony in assessing the appropriate degree of permanent disability she experienced as a result of the work injury, considered alone.

Nor are we persuaded to adopt Dr. Volarich's revised opinion, issued for the first time in his second report of April 24, 2012, suggesting that employee had then become permanently and totally disabled owing to the effects of the work injury considered alone. Again, it appears equally likely to us that employee's recurrence of debilitating low back and radicular pain in 2011 was a product of her depression rather than the purely physical sequelae from the work injury and fusion surgery. Employee's ability to work two jobs for approximately two years following her June 2009 surgery is further evidence undermining the claim for permanent total disability benefits. For these reasons, we adopt the administrative law judge's finding that employee failed to meet her burden of proving that she is permanently and totally disabled owing to the effects of the work injury considered alone.

We do, however, deem the administrative law judge's permanent partial disability rating to be somewhat low. The administrative law judge determined that employer is liable under § 287.190 RSMo for 140 weeks of permanent partial disability benefits based on his finding that the accident was the prevailing factor causing employee to suffer a 35 % permanent partial disability of the body as a whole referable to the lumbar spine. After a thorough review of the record, we deem a 40 % rating more appropriate. Accordingly, we hereby modify the award of the administrative law judge on this point.

We find the accident was the prevailing factor causing employee to suffer a 40 % permanent partial disability of the body as a whole referable to the lumbar spine. We conclude employer is liable for 160 weeks of permanent partial disability benefits, at the stipulated weekly rate of $\ 234.42, for a total of $\ 37,507.20.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the Fund in all cases of permanent disability where there has been previous disability. The administrative law judge awarded permanent partial disability benefits to employee from the Second Injury Fund based upon a finding that her preexisting disability referable to the left elbow interacts synergistically with the disabling effects of her primary injury affecting the lumbar spine. This synergistic interaction as between an employee's preexisting disabling conditions and a subsequent compensable injury is a necessary showing in any claim for permanent partial disability benefits from the Second Injury Fund:

[T]he claimant must establish that the present compensable injury and his preexisting permanent partial disability combined to cause a greater degree of disability than the simple sum of the disabilities viewed independently. This is referred to as the "synergistic effect." If a claimant establishes that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, then the Fund is liable for the degree of

the combined disability that exceeds the numerical sum of the preexisting disabilities and the disability from the last injury, or the "synergistic effect" of the combined disabilities. In other words, the Fund is liable only for the amount attributable to the synergistic combination. Thus, the failure to prove a synergistic combination between the primary injury and a preexisting disability is proper grounds for denying Fund liability.

Winingear v. Treasurer of State, 474 S.W.3d 203, 207-08 (Mo. App. 2015).

In making his award of permanent partial disability benefits from the Second Injury Fund, the administrative law judge did not specifically identify the evidence upon which he relied to find that employee's preexisting disability referable to the left elbow combines synergistically with the disability referable to employee's primary injury affecting the lumbar spine. ${ }^{1}$ Dr. Volarich did, in both of his reports, provide the conclusory assertion that "[t]he combination of [employee's] disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and a loading factor should be added," but he did not further elaborate or explain this opinion. Transcript, page 1132. The Missouri courts and this Co