Jimmy Mickelberry v. ICF and LG Holding

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 15-030849

**Employee:** Jimmy Mickelberry

**Employer:** ICF and LG Holding (Settled)

**Insurer:** Travelers Property Casualty Company (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 parties' briefs, and considered the whole record, we find that the award of the administrative law judge allowing 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.

Dr. P. Brent Koprivica credibly opined that the work injury on February 6, 2015, was the prevailing factor in causing employee's disability to the cervical spine and hands. Specifically, Dr. Koprivica's written report¹ indicated he found the February 6, 2015 injury:

> ...to represent the direct, proximate and prevailing factor in Mr. Mickelberry's development of further structural injury in the cervical region resulting in the development of acute cervical radiculopathy in the presence of the pre-existent degenerative disease ...

Earlier in his report, the doctor opined that pre-dating the February 6, 2015, injury the employee did have pre-existent industrial disability of significance in the cervicothoracic region. Dr. Koprivica noted the complex nature of employee's history and symptom development. He further explained in his written report that the February 6, 2015 injury also impacted:

> ... the development of bilateral double crush syndromes resulting in the development of disabling symptoms based on bilateral carpal tunnel syndromes.

¹ Some of the exhibits, and in particular, Dr. Koprivica's report, have highlighted markings. We note for the record, that these marks were present in the record received by the Commission.

Improved Health

Injury No.: 15-030849

Employee: Jimmy Mickelberry

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Transcript, page 666.

To the extent the administrative law judge's attempt to paraphrase the doctor's opinion may give the impression she suggests the February 6, 2015, injury was the "cause and prevailing factor of his permanent total disability," Award, page 10, we correct the administrative law judge's truncated summary of Dr. Koprivica's opinion at page 10 to comport with the opinion found in his written report. Clearly, throughout her award and decision, the administrative law judge found permanent total disability was the result of the combined preexisting disabilities and the primary injury.

Here, a primary injury and disability has been proven, and the February 6, 2015, accident was proven to be the prevailing factor. In assessing the next issue, nature and extent of disability, an analysis of prevailing factor is no longer a relevant inquiry for consideration in evaluating permanent total disability.

Nature and Extent of Disability

The administrative law judge found Dr. Koprivica to be credible, uncontroverted, and persuasive, as do we, on the issue of nature and extent of employee's injuries/disabilities (both preexisting and primary); and that the combined effect of those disabilities resulted in permanent total disability. We also agree that the employee was credible in his reports of prior conditions and limitations, which were part of the basis of Dr. Koprivica's findings.

Dr. Koprivica's opinion was based, in part, on documented medical treatment records² of employee's past injuries, showing a preexisting disability to the cervical and thoracic regions and chronic low back pain. All of these conditions limited employee's activities in the past. Corresponding with this, employee's work history over five years with the employer showed progressively less strenuous work requirements as he changed job positions and duties over the years in response to his increased physical limitations.

Dr. Koprivica's unrefuted opinion was further substantiated by the work restrictions identified by Dr. Norman Bamber in 2016. The doctor's recommended restrictions were based on the conditions and limitations Dr. Bamber observed after the bilateral carpal tunnel release (August and October, 2015) and cervical fusion (January, 2016) surgeries he performed.³ Dr. Bamber was only involved in employee's care relative to the primary injury and did not review any records prior to February 2015. He was not asked to provide an opinion on whether certain restrictions were the result of specific injuries or conditions (preexisting or primary) and he was not asked to opine on the level of preexisting disability. His purpose in reviewing employee's need for work restrictions was to evaluate his functional capabilities and limitations at that moment in time, (June 14, 2016), six months following surgery. (Transcript, page 415).

² Objective medical testing also showed mild carpal tunnel syndrome was identified in 2010. Dr. Koprivica opined that the 2015 primary injury caused development of double crush syndrome, affecting the wrists and resulting in symptoms.

³ We agree with the administrative law judge that Dr. Bamber's observations of employee's physical limitations and need for work restrictions (also unrefuted by other experts), are persuasive and credible, as he personally witnessed the employee's physical limitations after a functional capacity evaluation. Dr. Bamber did not testify at hearing or by deposition in the record before us.

Injury No.: 15-030849

Employee: Jimmy Mickelberry

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We note the suggestion by the Treasurer of Missouri on behalf of the Second Injury Fund (Fund) that according to employee's vocational rehabilitation expert (Michael Dreiling), Dr. Bamber attributed the restrictions to the primary injury. In fact, the evidence does not support that inference. Mr. Dreiling's response to a question about what he "understood" about the doctor's restrictions was simply, "that's how he worded it." Transcript, page 801-802. Mr. Dreiling was referring to Dr. Bamber's functional capacity evaluation form. In fact, the doctor did not provide any qualifying language to suggest the restrictions had resulted solely due to the primary injury. The functional capacity evaluation form Dr. Bamber signed on June 14, 2016, only identified that it was based on review of medical records back to February 6, 2015 and the doctor's personal examinations and observations (Transcript, pages 414-415).

The medical records, report and opinions of Dr. Koprivica and Michael Dreiling, Dr. Bamber's noted restrictions, and employee's reports of his limitations and injuries, support a finding that employee is permanently and totally disabled as a result of the combined effect⁴ of his preexistent disabilities and the disability resulting from his primary injury.

**Corrections**

The administrative law judge identifies a chronology of medical treatment and testing at page 8 of the Award. There are typographical errors in two of the dates listed. We correct them as follows.

Page 8, paragraph one, identified a date of February 16, 2016, for "CT scan of the lumbar spine..." (Emphasis ours).

We correct page 8, paragraph one, to read:

> February 16, 2015, CT scan of the lumbar spine revealed mild central spinal stenosis at L3-L5, narrowing of the right lateral recess at L5-S1, and small area of vacuum disk herniation in the right lateral recess area.

Page 8, paragraph two, identified a date of February 18, 2018, for "MRI scan of the cervical spine..." (Emphasis ours).

We correct page 8, paragraph two, to read:

> February 18, 2015, MRI scan of the cervical spine revealed degenerative disk disease with broad-based posterior disk protrusions at C5-C6 and C6-C7.

⁴ We note the reference by the administrative law judge to a synergistic effect of the primary injury of the neck and right wrist and his preexistent disabilities to create a greater disability. While synergy is not a necessary element to prove in a permanent total disability claim, we recognize that the combination of these injuries, and the additional limitations which resulted to employee's ability to turn his neck and use his hands for certain activities do increase his level of disability when combined with his preexisting disabilities.

Injury No.: 15-030849

Employee: Jimmy Mickelberry

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Verification of these dates can be found in Dr. Koprivica's identification of the records reviewed, at pages 652-653 of the transcript and are contained in Claimant's Exhibit B, beginning at page 291.

**Conclusion**

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

The award and decision of Administrative Law Judge Angela C. Heffner is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 13th day of June 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Checked by: AH/lh

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: February 6, 2015
5. State location where accident occurred or occupational disease was contracted: Pleasant Hill, Cass County, Missouri
6. Was above employee an employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of employment? Yes
9. Was claim for compensation filed within time required by law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was lifting a radiator and turning, with his arms extended out and up,

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

when he heard a pop and felt a sharp pain in his neck that radiated to his extremities.

1. Did accidents or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Neck and hands

1. Nature and extent of any permanent disability: Permanent total disability

1. Compensation paid to-date for temporary disability: N/A

1. Value of TTD not furnished by employer/insurer? N/A

1. Value necessary medical aid paid to date by employer/insurer? $77,492.31

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Value of necessary medical mileage not furnished by employer/insurer? N/A

1. Did accidents or occupational diseases cause a need for future medical treatment? N/A

1. Employee's average weekly wages: 480.51

1. Weekly compensation rate: 320.50/320.50

1. Method of wages com