Michael Thomson v. Payne Electric

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 05-041432

**Employee:** Michael Thomson

**Employer:** Payne Electric (Settled)

**Insurer:** Amerisure (Settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480, RSMo. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090, RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Employee claims an injury resulting when he missed the last rung of a ladder while descending and landing on his right foot. Employee did not feel pain at the time, but "felt a stretch ... [and] discomfort." Tr., p.120. Employee felt pain two days later and received medical treatment thereafter.

The administrative law judge found that an accident occurred. However, regarding causation, the administrative law judge found that the accident did not cause the "resulting medical condition" as defined in RSMo, 287.020.3, RSMo, Supp. 2005.

Employee appealed the administrative law judge's decision, arguing that the administrative law judge erred in finding that the accident did not cause the resulting medical condition. Specifically, employee argued that the administrative law judge relied on hearsay over credible expert testimony.

For the following reasons, we agree with the result of the administrative law judge's decision.

We note, however, that the administrative law judge used law that was not yet in effect on the date of the injury. The date of injury in this matter was April 26, 2005, before substantial amendments that took effect on August 28, 2005. Therefore, we must apply the law prior to the 2005 amendments in this matter. Section 287.020.3, RSMo, as it existed in April 2003, provided:

MNKOI 0000714566

Injury No.: 05-041432

Employee: Michael Thomson

- 2 -

(1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. The injury must be incidental to and not independent of the relation of employer and employee. Ordinarily, gradual deterioration or progressive degeneration of the body caused by aging shall not be compensable, except where the deterioration or degeneration follows as an incident of employment.

(2) An injury shall be deemed to arise out of and in the course of employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing injury; and

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life[.]

Section 287.020.2, RSMo, provided:

"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."

Thus, the appropriate question is whether employee's April 26, 2005 accident of missing a ladder rung was "a substantial factor in the cause of the resulting medical condition or disability" or simply "a triggering or precipitating factor."

Even pursuant to the applicable law, Dr. Shelby Kopp's opinion persuades this Commission to find that employee failed to meet his burden to show medical causation. We find persuasive that employee's bilateral avascular necrosis in his hips caused his medical condition; the incident of missing a step was simply a triggering or precipitating factor.

We note that both Dr. Robert Pierron and Dr. Michael Burns agreed that there was a possibility of a subchondral fracture. However, Dr. Burns never saw a fracture line and Dr. Pierron never mentioned the possibility of a fracture after reviewing the MRI taken on September 8, 2005. Dr. Pierron's impression after reviewing the new MRI was, "Findings compatible with bilateral avascular necrosis of the hips. The right side is affected to a greater extent than the left which would correspond with the patient's clinical presentation." Tr., p. 144.

Injury No.: 05-041432

Employee: Michael Thomson

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We do not find persuasive Dr. David Volarich's or Dr. Robert Sciortino's opinions regarding medical causation. After employee's initial visit with Dr. Sciortino, Dr. Sciortino never again mentioned the possibility of a fracture. Instead, Dr. Sciortino focused on employee's avascular necrosis.

Therefore, employee failed to meet his burden regarding medical causation.

**Comments by the Administrative Law Judge**

We disavow particular comments by the administrative law judge in this matter regarding medical causation, namely, that:

1. "Falling off a single rung of a ladder, hardly supports Dr. Volarich's assertion of an 'impaction injury.'" Award, p. 12.
2. "Again, employee's minor fall is not a reasonable supposition to impose liability of surgical treatment of a chronic condition." Award, p. 12.

The administrative law judge's comments regarding medical causation were not appropriate as a basis for determining a lack of medical causation. "[T]he question of causation is one for medical testimony, without which a finding for claimant would be based upon mere conjecture and speculation and not on substantial evidence." *Van Winkle v. Lewellens Prof'l Cleaning, Inc.*, 258 S.W.3d 889, 897 (Mo. App. 2008) (quoting *Elliott v. Kan. City School Dist.*, 71 S.W.3d 652, 658 (Mo. App. 2002)). The *Van Winkle* court continued, "[a]ccordingly, where expert medical testimony is presented, 'logic and common sense,' or an [administrative law judge's] personal views of what is 'unnatural,' cannot provide a sufficient basis to decide the causation question, at least where the [administrative law judge] fails to account for the relevant medical testimony." *Van Winkle*, 258 S.W.3d at 897-98.

As opposed to relying on the administrative law judge's statements regarding medical causation, we rely on the statements and opinions of the medical experts in this matter, as stated above.

Because we do not find that employee established medical causation in this matter, we must deny the claim. All other issues are moot.

**Decision**

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

The award and decision of Administrative Law Judge Joseph P. Keaveny, issued May 31, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Employee: Michael Thomson

Given at Jefferson City, State of Missouri, this $\qquad$ day of March 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Curtis E. Chick, Jr., Member

Attest:


Injury No.: 05-041432

Employee: Michael Thomson

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

Pursuant to the law predating the 2005 amendments, the law is to be liberally construed with a view to the public welfare. Section 287.800, RSMo 2000. "Any doubt as to the right of an employee to compensation should be resolved in favor of the injured employee." *Van Winkle v. Lewellens Prof'l Cleaning, Inc.*, 258 S.W.3d 889, 894 (Mo. App. 2008) (quoting *Schhoemehl v. Treasurer of State*, 217 S.W.3d 900, 901 (Mo. 2007)).

In light of the liberal construction mandate, I disagree with the majority's medical causation analysis. I am persuaded by Dr. David Volarich's opinion that employee's April 26, 2005 accident was "the substantial contributing factor as well as prevailing or primary factor causing" employee's resulting medical condition. *Tr.*, p. 226. Here, there is some doubt regarding whether an acute injury took place. While Dr. Volarich, opined that there was an acute fracture on top of avascular necrosis, other experts only suggested a "possible" fracture. In resolving the doubt in employee's favor, there was an acute fracture. Dr. Volarich addressed this fracture as the substantial contributing factor in employee's medical condition. Dr. Volarich also properly rated employee's disabilities and found synergy. Dr. Robert Sciortino also found "an acute process as evidenced by [employee's] MRI scan of May of 2005." *Tr.*, p. 147. Dr. Sciortino ultimately agreed with Dr. Volarich's causation opinion and opined that employee's April 26, 2005 work injury was a substantial factor in the cause of the resulting medical condition or disability.

Based on the evidence in the record, I find that employee's injury arose out of and in the course of employment. In addition to Dr. Volarich's persuasive disability ratings and finding of synergy, I find persuasive that employee was permanently and totally disabled due to the combination of the April 26, 2005 injury and the preexisting injuries. I further find that the Second Injury Fund should be liable for compensation in the amount of the increase in disability caused by the synergistic effect resulting from the combination of the April 26, 2005 injury and employee's preexisting injuries.

I would reverse the administrative law judge's award denying compensation. Because the Commission majority has decided otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Issued by DIVISION OF WORKERS' COMPENSATION

injury NO.: 05-041432

Employee: Michael Thomson

Dependents: N/A

Employer: Payne Electric (Settled)

Additional Party: Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Insurer: Amerisure (Settled)

Hearing Date: 2/27/18

Injury No.: 05-041432

Before the

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Jefferson City, Missouri

Checked by: JPK

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? No (See narrative award)

1. Was there an accident or incident of occupational disease under the Law? Yes (Alleged)

Claimant's missing the bottom rung of the ladder was undisputed in the record.

1. Date of accident or onset of occupational disease: 4/26/05

1. State location where accident occurred or occupational disease was contracted: St. Louis (Alleged)

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted:

Claimant was coming down a ladder and missed the last step.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Right hip

1. Nature and extent of any permanent disability: N/A

1. Compensation paid to-date for temporary disability: $0.00

1. Value necessary medical aid paid to date by employer/insurer? $146.27

Revised Form 31 (3/97)

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