Thomas Dubuc v. OTG, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 15-087903

**Employee:** Thomas Dubuc

**Employer:** OTG, LLC (settled)

**Insurer:** Travelers Indemnity Company of America (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. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we reverse the award and decision of the administrative law judge.

The only issue in dispute in this case is the liability of the Second Injury Fund, including the nature and extent of disability related to employee's primary injury. The employee claims permanent total disability against the Second Injury Fund as a result of injuries from the October 30, 2015, primary injury in combination with preexisting disabilities.

On February 1, 2017, the employee settled his claim against the employer/insurer in this case for the lump sum of $50,000.00, based on 30% of the left wrist and 13.5% of the body as a whole referable to the kidneys and low back.

The administrative law judge denied all compensation, ruling as follows:

> The claimant, Thomas Dubuc, has failed to sustain his burden of proof that he is permanently and totally disabled as the result of his October 30, 2015 accident and injuries combined with his preexisting disabilities. While both Dr. Mullins and Mr. Strauser said that Mr. Dubuc's permanent and total disability is the result of his injuries from the October 30, 2015 accident combined with his preexisting disabilities, Dr. Mullins stated that the injuries from the October 30, 2015 accident alone were sufficient to cause Mr. Dubuc to be permanently and totally disabled and Mr. Strausser[sic] similarly concluded that the restrictions imposed by Dr. Mullins from the October 30, 2015 accident were sufficient to preclude Mr. Dubuc from participating in the workplace.

The employee filed a timely application for review, alleging that the administrative law judge erroneously determined claimant was permanently and totally disabled due to the last injury alone, and alleging that the weight of the evidence clearly shows claimant permanently and totally disabled due to an accumulation of injuries from preexisting disabilities and the last injury.

*Award, p. 7.

Injury No.: 15-067903

Employee: Thomas Dubuc

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For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Employee worked for OTG, LLC, an independent cable and fiber optic installer. Employee's job as an installer required him to lift a ladder that weighed sixty pounds, climb twenty-five to thirty feet to a telephone pole, and haul sixty or seventy pounds of wire from his truck in addition to various tools and equipment. On October 30, 2015, employee sustained an injury at work when the ladder he climbed fell out from underneath him.

The employee sought treatment at Capital Region Medical Center after the injury. Hospital emergency room records documented his account of a seven-foot fall onto gravel after a ladder he climbed fell over, hitting his left side. The employee reported pain in his left wrist and left ribs. He related that he scraped his scalp, but denied any pain in his head. He stated, "[I]t hurts to breathe." Emergency Department admitting physician Dr. Charles Ludy administered anti-nausea and narcotic pain medication and discussed orthopedic follow-up for employee with the VA hospital. As he was about to be discharged, employee used the restroom and noticed excessive blood in his urine. This was of particular concern because employee took blood-thinners for preexisting deep-vein thrombosis and pulmonary embolism. A CT of his abdomen and pelvis "revealed laceration of his left kidney with hematoma." Dr. Ludy arranged for employee's transfer to the trauma center at the University of Missouri (MU Hospital).

At MU Hospital, employee underwent selective left renal embolization and treatment of his left radial fracture that included changing his splint. MU Hospital admission notes list the following injuries attributable to employee's work accident: 1. Left radial fracture; 2. Left grade 2 renal laceration; 3. Hematuria; 4. Acquired coagulopathy on Coumadin; 5. Factor V Leiden mutation with a history of deep vein thrombosis and pulmonary embolus and 6. Multiple root abrasions, contusions on the left flank. MU Hospital released employee on November 6, 2015, and referred him to Dr. Jay Bridgeman for follow up on his left wrist fracture.

On February 26, 2016, Dr. Bridgeman released employee to return to light duty work, limiting lifting no greater than ten pounds with his right hand only and ordering that he work only in a clean and dry environment. On April 8, 2016, Dr. Bridgeman recommended twenty-one sessions of physical therapy. On May 20, 2016, the employee saw Dr. Bridgeman for the last time. Dr. Bridgeman assessed employee's left distal radius fracture as healed. He further noted numbness and tingling in employee's left hand consistent with carpal tunnel syndrome, which he considered unrelated to employee's primary injury. Dr. Bridgeman's May 20, 2016, clinic note referenced no restrictions.

2 Transcript, 222.

3 Id. 226.

4 Id. 287.

5 Transcript, 302.

Injury No.: 15-087903

Employee: Thomas Dubuc

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**Expert Testimony**

Dr. Mitchell C. Mullins, an emergency and urgent care osteopathic physician examined employee on June 28, 2016, for the purpose of assessing disability from employee's October 30, 2015, accident.

In a June 29, 2016, report documenting his independent medical examination (IME), Dr. Mullins noted employee's history of prior back pain since a fall off of an 18-foot wall in 2010, from which employee suffered a nondisplaced vertebral fracture, concussion and shoulder dislocation. He further noted employee's past medical history of depression, hyperlipidemia, factor V Leiden with history of deep venous thrombosis and pulmonary embolism and hernia repairs in 1988 and 1995. Dr. Mullins' June 29, 2016, report specifically noted that the employee's October 30, 2015, injury caused "an exacerbation of pre-existing low back pain [emphasis added]." The report did not include an assessment of employee's impairment related to any of the referenced preexisting conditions.

Dr. Mullins' June 29, 2016, report only evaluated impairment relating to employee's primary, October 30, 2015, work injury. With respect to this injury, Dr. Mullins determined disability of:

1. 12% of the body as a whole rated at the lumbar spine
2. 36% permanent partial disability rated at the left wrist, relating to traumatic arthritis and posttraumatic carpal tunnel syndrome
3. 5% permanent partial disability rated at the left elbow due to lateral epicondylitis
4. 6% permanent partial disability of the body as a whole due to kidney laceration, including post injury scarring and possible long-term effects on renal function

Dr. Mullins' June 29, 2016, report includes a Medical Source Statement of Ability to Do Work-Related Activities, dated July 5, 2016. This statement lists employee's physical restrictions supported by Dr. Mullins' June 29, 2016, diagnosis. Dr. Mullins' June 29, 2016, report expressly includes diagnoses both of employee's "present injury" and employee's "pre-existing injuries or diseases." The fact that Dr. Mullins' June 29, 2016, report did not include impairment ratings related to employee's diagnosed preexisting conditions did not preclude Dr. Mullins from considering employee's preexisting conditions in the physical restrictions he cited in his July 5, 2016, statement. We find that the list of physical restrictions cited in Dr. Mullins' Medical Source Statement of Ability to Do Work-Related Activities report were supported by Dr. Mullins' diagnoses related to employee's "present injury" sustained on October 30, 2015, as well as Dr. Mullins' diagnosis of employee's multiple preexisting injuries and diseases as specifically identified in his June 29, 2016, report.

6 Id. 81.

7 Id. 84.

8 Id. 81.

Injury No.: 15-087903

Employee: Thomas Dubuc

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Dr. Mullins subsequently produced a second report dated September 1, 2016, specifically assessing disabilities that preexisted employee's October 30, 2015, primary injury. In this supplemental report, Dr. Mullins assessed impairment from employee's preexisting disabilities as:

1. 10% PPD BAW rated at the thoracolumbar spine due to compression fractures at T12 and L2.
2. 18% PPD rated at the right shoulder due to prior dislocation
3. 23% PPD rated at the abdomen BAW due to recurrent bilateral inguinal hernias
4. 25% PPD BAW due to factor V Leiden deficiency and chronic anticoagulation
5. 9% PPD BAW due to depression
6. 8% PPD BAW rated at the cervical spine due to acquired spinal stenosis and degenerative disc disease

Dr. Mullins' September 1, 2016, report concluded, "In light of the multiple pre-existing injuries as well as the significant trauma on October 30, 2015, it is my opinion the patient is permanently and totally disabled as a result of this combination."9

In addition to Dr. Mullins' June 29, 2016, and September 1, 2016, reports, based on his June 28, 2016, IME, the record also includes Dr. Mullins' November 13, 2017, deposition testimony. Dr. Mullins' testimony confirmed his opinion that the restrictions he cited on July 5, 2016, were based on the entirety of employee's conditions, including "The worsening of his back, his carpal tunnel, the pain that he has on-going with his ribs, elbow."10 Id. Dr. Mullins' statement that he considered employee to be permanently and totally disabled even prior to specifically evaluating impairment attributable to each of employee's preexisting conditions does not persuade us to conclude that Dr. Mullins considered employee's permanent and total disability to be exclusively attributable to his October 30, 2015, primary injury.

Given that Dr. Mullins' June 29, 2016, report assesses only permanent partial disability related to employee's primary injury, it is illogical to conclude that Dr. Mullins would have found employee permanently and totally disabled solely as a result of the primary injury on that date. Dr. Mullins' arguably inconsistent agreement with the Second Injury Fund's attorney's suggestion that he had already "determined" employee permanently and totally disabled at the time of his June 28, 2016, exam, overlooks the plain meaning of Dr. Mullins' deposition testimony as a whole as well as the opinions carefully set out in his June 29, 2016, and September 1, 2016, written reports. To attribute substantial weight to a single inconsistent statement imposes the sort of "overly technical and parsed analysis" of medical evidence that courts have admonished the Commission to avoid. Malam v. Dep't of Corr. 492 S.W.3d 926, 929 (Mo. 2016); See also Moss v. Treasurer of Missouri-Custodian of the Second Injury Fund (WD 81467, 2018), transfer denied by Supreme Court of Missouri, April 2, 2019.

9 Id. 89.

10 Id. 1239-1240.

Injury No.: 15-087903

Employee: Thomas Dubuc

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Vocational expert Dr. David Ross Strauser¹¹ testified by deposition on November 13, 2017. Dr. Strauser conducted an evaluation of employee on June 23, 2017. Based on his review of employee's medical records, he noted preexisting disabilities including multiple fractures to employee's back, a shoulder dislocation, multiple hernia repairs and hyperlipidemia, factor V Leiden with a history of deep venous thrombosis and pulmonary embolism. Dr. Strauser noted that prior to his 2010 work injury employee fulfilled his necessary job duties despite multiple disabilities, but experienced significant pain and discomfor