Robin Barnes v. Park Express, LLC

(3) in finding employer responsible for unauthorized past medical expenses; (4) in calculating the total medical expenses for which employer was held responsible; (5) in awarding future medical expenses related to treatment for the L4-5 disc on the right and the L5-S1 disc; (6) in admitting Exhibit 17; (7) in refusing to admit or consider the January 21, 2009, report of Dr. Berkin into evidence; (8) in finding employee permanently and totally disabled as a result of the November 11, 2009, work injury in isolation; and (9) in finding that there is no evidence that the employer authorized surgery at any level.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issues of: (1) the nature and extent of employer's liability for permanent disability; and (2) the nature and extent of the Second Injury Fund's liability for permanent disability. In addition, we modify the administrative law judge's decision with regard to the parties' evidentiary objections, and supplement her award and decision with respect to the issue of interest on uncontested, past due weekly temporary total disability benefits pursuant to $\S 287.160 .3$ RSMo.

Employer objects to employee's Exhibit 17 on the basis of relevance. This exhibit consists of a price quotation from Lasting Impressions Home Remodel Center, Ltd., for the cost of modifications to employee's home. The parties did not ask the administrative law judge to resolve the issue whether employee is entitled to home modification, nor did employee seek an award of the amount identified in this exhibit. Given these circumstances, we fail to see the relevance of this document, as it would appear that there is no need for us to consider the cost of home modifications in this matter, and to the extent the exhibit is advanced as evidence of employee's severe disability, we deem it unduly cumulative of the voluminous expert testimony on the topic, as well as employee's own firsthand testimony describing, in detail, his limitations. Consequently, we find employer's relevance objection to be well-taken. Exhibit 17 is hereby excluded from the record, and the administrative law judge's decision is modified accordingly.

With regard to the January 21, 2009, report of Dr. Shawn Berkin (which employer offered into the record via myriad exhibits and theories of admissibility), we acknowledge the hearsay objections from both employee and the Second Injury Fund. Section 287.550 RSMo, however, specifically provides, in relevant part, that "[a]ll proceedings before the commission or any commissioner shall be simple, informal, and summary, and without regard to the technical rules of evidence[.]"

Missouri's evidentiary rules with regard to hearsay evidence are numerous, complex, and unquestionably "technical." In keeping with the specific instruction of $\S 287.550$, and the obvious legislative intention that all relevant evidence in workers' compensation proceedings be admitted into the record for whatever worth it may have, we are ultimately inclined to admit Dr. Berkin's report into the record, despite the fact that it unquestionably amounts to, and contains, hearsay.

For the foregoing reasons, we admit Dr. Berkin's report wherever it appears in the exhibits, and thereby modify the administrative law judge's decision accordingly. Having admitted this evidence, we find the purported statements from employee contained in Dr. Berkin's report lack substantial probative value, as they constitute hearsay-upon-hearsay. Accordingly, we will not rely on Dr. Berkin's report to modify or otherwise disturb the administrative law judge's relevant factual findings.

The administrative law judge determined that employee is permanently and totally disabled as a result of the effects of the November 2009 work injury, such that employer is liable for permanent total disability benefits. In reaching this determination, the administrative law judge appeared to rely solely upon the fact that employee was, despite his considerable preexisting disability referable to the low back and left shoulder, able to maintain his heavy-duty work for employer prior to the work injury; whereas, following that injury, employee is incapable of competing for work in the open labor market.

After careful consideration, we agree with the administrative law judge's finding that employee is now incapable of competing for work in the open labor market. However, we disagree with the analysis with regard to the nature and extent of disability resulting from the work injury considered alone, for the following reasons.

Practically speaking, in every case where the employee is permanently and totally disabled after suffering a compensable work injury, the employee will be capable of working prior to the injury, but incapable of working thereafter. If this circumstance, standing alone, were sufficient to support an award of permanent total disability benefits against the employer, the Second Injury Fund would never be liable. By the same token, an assessment of employee's overall level of functioning following the work injury would appear to necessarily include the contribution of preexisting disabling conditions. As the relevant case law makes clear, however, we must exclude the effects of employee's preexisting disabling conditions to properly assess the nature and extent of disability referable to the work injury alone:

In deciding whether the Second Injury Fund has any liability, the first determination is the degree of disability from the last injury. Until that disability is determined, it is not known whether the second injury fund has any liability. Accordingly, a claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined.

Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000)(citations omitted).

This analysis, of course, is especially difficult in a case such as this, where the nature of the last injury and requisite treatment therefor are significantly intertwined with the fact that employee suffered preexisting lumbar spine pathology and disability. For example, it is unclear whether the treating surgeon, Dr. Keith Wilkey, would have recommended a bi-level fusion at L4-5 and L5-S1 after the work injury, if employee had not previously undergone a microdiscectomy at the level of L5-S1. Nevertheless, in order to apply the

Injury No.: 09-099109

Employee: Robin Barnes

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appropriate analysis, we must try to isolate the effects of the work injury upon employee, and evaluate them as if he had never experienced any preexisting disability.

We acknowledge the arguments from both employee and the Second Injury Fund that the medical expert and vocational opinions offered in this case suggest that employee is permanently and totally disabled as a result of the last work injury. We are not persuaded:

In determining the extent of disability, the Commission may reject the uncontradicted opinion of a vocational expert. Additionally, while it is true that the Commission may not reject uncontradicted medical testimony in favor of the ALJ's opinion on the issue of medical causation[,] the extent of an employee's disability, and thus employability, is not an issue of medical causation, nor does it exclusively require medical testimony. The extent and percentage of disability is a finding of fact within the special province of the Industrial Commission. As a result, in determining the degree of a claimant's disability, the Commission may consider all the evidence and the reasonable inferences drawn from that evidence.

*Palmentere Bros. Cartage Serv. v. Wright*, 410 S.W.3d 685, 692 (Mo. App. 2013).

As the foregoing makes clear, we are not required to adopt the opinions from the vocational and medical experts in this case as to the question of the nature and extent of disability resulting from the November 2009 work injury.

Second, we note that the vocational and medical experts who testified in this case did not appear, in rendering their opinions, to apply the requisite "last injury in isolation" analysis. Instead, it appears that they (like the administrative law judge) focused solely on employee's overall level of functioning after the work injury—which, again, necessarily includes employee's disability referable to preexisting conditions. For example, Dr. Wilkey agreed to a leading question that proposed that a need for narcotic medication; a need to alternate sitting, standing, and walking; and a need to lie down during the day would be sufficient to render employee unable to work "without any preexisting conditions." *Transcript*, page 315. Yet, this question posed by counsel for the Second Injury Fund assumed facts not in evidence: that all of these circumstances and limitations resulted solely fr