Charles Bourrage v. General Motors

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 15-053452**

**Employee:** Charles Bourrage

**Employer:** General Motors

**Insurer:** Self-Insured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence, heard oral arguments and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms and adopts the award and decision of the administrative law judge dated May 6, 2019.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

The award and decision of Administrative Law Judge Margaret D. Landolt, issued May 6, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 12th day of December 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Corgejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 15-053452

TEMPORARY OR PARTIAL AWARD

Employee: Charles Bourrage

Dependents: N/A

Employer: General Motors

Additional Party: N/A

Insurer: Self-Insured

Hearing Date: February 26, 2019 and March 12, 2019

Injury No.: 15-053452

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

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

1. Date of accident or onset of occupational disease: July 25, 2015

1. State location where accident occurred or occupational disease contracted: St. Charles County, Missouri

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 happened or occupational disease contracted: Employee was pushing and pulling a heavy container when he felt a pop and pain in his low back

1. Did accident or occupational disease cause death? No

1. Parts of body injured by accident or occupational disease: Body as a whole - low back

1. Compensation paid to-date for temporary disability: 0

1. Value necessary medical aid paid to date by employer/insurer? 0

1. Value necessary medical aid not furnished by employer/insurer? 0

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1. Amount of compensation payable:

Each of said payments to begin and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. Andrew J. Gregory

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-053452

Employee: Charles Bourrage

Dependents: N/A

Employer: General Motors LLC

Additional Party: N/A

Insurer: Self-Insured

Injury No.: 15-053452

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on February 26, 2019 and March 12, 2019 at the Division of Workers' Compensation in St. Charles County, Missouri. Charles Bourrage ("Claimant") was represented by Mr. Andrew J. Gregory. General Motors LLC, ("Employer") which is self-insured, was represented by Mr. John Rommel. Mr. Gregory requested a fee of 25% of Claimant's award.

The parties stipulated that on or about July 25, 2015, Claimant was an employee of Employer; venue is proper in St. Charles County, Missouri; Employer received proper notice of the injury; the claim was timely filed; and Claimant's rates are 738.97 for Temporary Total Disability ("TTD") and 464.58 for Permanent Partial Disability ("PPD") benefits. Employer denied the claim, and paid no benefits.

The issues to be resolved are whether Claimant sustained an accidental injury arising out of and in the course of employment on or about July 25, 2015; medical causation; liability of Employer to provide future medical care; and whether Claimant is entitled to, and Employer is liable for, TTD benefits beginning on July 14, 2017, until such time as Claimant is at maximum medical improvement ("MMI").

Only evidence necessary to support this award will be summarized. The exhibits are in the same condition as they were when received, and no markings were placed on them by the Court.

Claimant, who is 37-years-old, began working for Employer in June 2014. Claimant passed a pre-employment physical before working for Employer. Before working for Employer, Claimant had no treatment or diagnostic testing with respect to his low back, and no physical restrictions.

On July 25, 2015, Claimant was working as a material handler, and was driving a tugger to deliver a 200-pound bin of brake pedals to the assembly line. Claimant unhooked the bin from the tugger, and pushed and pulled the container by the handles. While attempting to move the heavy container into position on the line, Claimant felt a pop, followed by pain in his low back.

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Claimant immediately told his supervisor and requested medical treatment. Claimant went to the plant medical department on July 25, 2015, and reported a sharp knotting pain across his lower back after pushing and pulling a brake pedal bin. Under objective findings Claimant was observed to be walking with a slow gait, and was slowly and deliberately moving up and down from a seated position in the chair. The assessment was lumbosacral pain. Claimant returned to the plant medical department on July 27, 2015, and reported his back continued to hurt. Under objective findings Claimant was observed to be walking slowly with an unsteady gait and walking slouched over. The assessment was back pain. Claimant was given Motrin, a cold compress, and Biofreeze to use PRN. Claimant was given a medical pass for the remainder of his shift.

Due to significant low back pain, Claimant sought treatment on his own at Anderson Hospital Emergency room on July 27, 2015. Claimant gave a history of a sudden onset of back/side pain while pulling some equipment at work. Claimant was diagnosed with a muscle strain and was prescribed medications and given a restriction of no heavy lifting.

Claimant also saw his primary care physician, Dr. Melissa Kalaher, on July 29, 2015, and reported a work injury the previous Friday while pushing/pulling, and experienced the sudden onset of low back pain. Claimant indicated he returned to work on Sunday, and his prior pain had not yet resolved when he lifted something overhead, and the pain got significantly worse. Dr. Kalaher diagnosed low back pain, prescribed medication, and took Claimant off work for two weeks.

Claimant returned to the plant medical department on July 30, 2015. Claimant again gave a history of injuring his low back on July 25, while pulling a bin full of brake pedals. Claimant was in terrible pain and his right leg felt numb. Claimant was walking very slowly, bent forward at the waist. Claimant was placed on light duty restrictions, given suggested home exercises, and a follow-up appointment was scheduled for August 17, 2015.

Claimant received a letter dated August 5, 2015, from Employer, denying his July 25, 2015 work injury. Employer opined the claim for Workers' Compensation benefits was not compensable, and it would accept no liability for any medical treatment rendered.

After Employer's denial, Claimant continued to seek medical treatment from Dr. Kalaher. Dr. Kalaher continued to prescribe pain medications, continued Claimant's work restrictions, and ordered an MRI. The MRI performed on August 19, 2015, revealed chronic bilateral L5 pars defects without spondylolisthesis, and mild lumbar and lower thoracic spondylosis. Claimant followed up with Dr. Kalaher on September 2, 2015. Claimant told Dr. Kalaher his back pain would come and go, and sitting and standing for long periods could bring it on and make it worse. He indicated he had changed his job to quality control which did not require reaching, bending, stooping, and lifting and asked to return to work. Dr. Kalaher diagnosed back pain with radiation. She allowed him to return to work with no lifting over 25 pounds.

Claimant returned to the emergency room at Anderson Hospital on September 12, 2015. Claimant was complaining of back pain. He stated his pain had worsened while at work. Claimant was diagnosed with back pain, and was given a Medrol Dosepak and work restrictions.

Claimant followed up with Dr. Kalaher on September 17, 2015, regarding the

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exacerbation of his severe low back pain. Claimant was advised to use Percocet as-needed for pain, and was given a work restriction. On September 22, 2015, Dr. Kalaher assessed Claimant with low back pain and advised him to keep his return appointment with pain management to formulate a long-term plan. Claimant was advised to remain off work.

Claimant began treating with Vigilant Pain Management on October 5, 2015. Claimant gave a history of a work injury in July 2015, and complaints of low/mid back pain since. On October 13, 2015, Dr. Kalaher wrote a letter stating Claimant suffered a work place injury to the low back on July 25, 2015. She indicated Claimant had been diagnosed with low back pain and degenerative disk disease in the thoracic and lumbar spine. Dr. Kalaher indicated Claimant had been referred to a pain management specialist for further evaluation and treatment. She opined the injury he suffered while at work was the prevailing factor in his current condition.

On January 26, 2016, in the midst of his treatment for his back, Claimant underwent bariatric weight loss surgery.

Claimant followed up with Dr. Kalaher on November 1, 2016, for several complaints, including back pain. Claimant reported his job had changed and required more lifting. He reported he had no radiation to the buttocks or legs, but it went to the mid-back.

Dr. David Volarich examined Claimant on two occasions, prepared reports, and testified on behalf of Claimant. At his December 13, 2016 examination of Claimant, Dr. Volarich diagnosed moderately severe thoracolumbar sprain and left T-11-12 disc extrusion without radicular symptoms. He opined the injury of July 25, 2015 was the primary and prevailing factor causing the thoracolumbar strain injury and disc protrusion at T-11-12 for which he received conservative treatment. He opined the work injury was the prevailing factor causing his symptoms, need for treatment and resulting disabilities. He opined Claimant was at MMI, and rated his disability at 20% PPD of the body as a whole at the thoracolumbar spine.

Claimant returned to Dr. Kalaher on February 20, 2017, and reported all-over back pain, among other things. Claimant reported lifting more at work over the past several months. Claimant was referred to pain management.

On April 28, 2017, Claimant had an MRI of the lumbar spine at Anderson Hospital. The impressions were chronic bilateral L5 spondyloses with interval development of grade 1 anterolisthesis, more significant neural foraminal stenosis compared to prior study and otherwise mild spondylosis.

Claimant returned to Vigilant Pain Management on June 28, 2017, and received a radiofrequency ablation of the medial branch nerve at left L4-L5 and L5-S1 facet joint.

Claimant stopped working on July 14, 2017. He went on short term disability/sick leave, and has not worked since.

On July 28, 2017, Claimant underwent a lumbar facet ablation. He returned to Dr. Kalaher on July 20, 2017, and reported the injections for his back did not work. Claimant reported worsening back pain. On August 2, 2017, Claimant had a lumbar facet ablation at left L3- L5-S-1.

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On August 7, 2017, Claimant went to the emergency room at Anderson Hospital for back pain and sciatica pain with complaints of left foot numbness and pain the past two days following a lumbar facet ablation five days before. A CT of the lumbar spine was performed which revealed bilateral L5 spondylosis and mild disc bulging at L3-4 and L4-5, and a moderate disc bulge at L5-S1.

On August 17, 2017, Claimant had trigger point injections followed by therapy on August 18, 2017. On September 6, 2017, Claimant had L4-5 and L5-S1 nerve root block injections.

On October 25, 2017, Claimant was evaluated by Dr. Daniel Kitchens regarding lower back pain and pain into both hips with intermittent numbness and tingling into his left leg down to his foot and occasional numbness, tingling, and pain into his right leg and ankle. Claimant reported a work injury in July, 2015. Claimant reported he had experienced pain throughout the years, but it worsened over the past few years. Claimant reported he had treatments two years before, including physical therapy and pain management. Claimant reported his pain had improved for about six months, but in January 2017, he had another onset of severe pain in his low back with numbness down his left leg. The pain improved with an injection and therapy, but his pain returned in July, and he had been unable to work since July 2017. Claimant also reported he had another injection in his back in August which provided short-term improvement and his pain returned.

Dr. Kitchens diagnosed grade I spondylolisthesis and a pars defect at L5-S1. He also diagnosed a foraminal disc herniation to the left side at L5-S1, and a foraminal disc protrusion to the right side at L5-S1. He stated Claimant had an intermittent L-5 radiculopathy bilaterally. He noted Claimant had a trial of conservative measures without significant improvement. Treatment options were discussed, and included continued conservative measures, versus surgery. Dr. Kitchens stated surgery would require an L5-S1 laminectomy, discectomy, and fusion. He advised Claimant to stop smoking prior to surgery to ensure adequate fusion. Dr. Kitchens noted his pars defect had worsened when compared to an MRI in 2015.

Dr. Volarich examined Claimant again on November 22, 2017. Dr. Volarich reviewed Claimant's medical records summarizing the treatment he had since he saw him in February 2016. Under additional complaints regarding the injury of July 25, 2015, Dr. Volarich stated Claimant told him in about February 2017, his symptoms increased after he did more lifting at work. As the months progressed, he developed increasing pain in both severity and frequency, with the pain radiating into both buttocks. He had a hard time standing for more than 20-30 minutes. When he went shopping he had to use a motorized scooter. He had a hard time sitting when driving, and after about an hour his pain increased. Dr. Volarich changed his diagnosis regarding the injury of July 25, 2015, to severe thoracolumbar strain/sprain with aggravation of L5 spondylolysis now causing grade 1 spondylolisthesis - status post conservative care. He indicated Claimant was considering a fusion surgery in the near future.

Dr. Volarich stood by his opinion on medical causation as stated in his report of December 13, 2016. Dr. Volarich testified the injury that occurred on July 25, 2015 when Claimant was moving a 200-pound bin about 10 feet from a tugger toward the assembly line, pushing, pulling and twisting when he felt pain in his back, was the primary prevailing factor causing the thoracolumbar strain injury and disc protrusion at T11-12 for which he received

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conservative treatment. He testified in addition, since he had seen Claimant he developed progressively worsening low back symptoms with severe hip girdle pain, left greater than right and had been diagnosed with a grade 1 spondylolisthesis, and was considering spinal fusion surgery. Dr. Volarich withdrew his disability rating and indicated Claimant was not at MMI. Dr. Volarich stated it appeared Claimant needed a lumbar fusion surgery to treat his ongoing symptoms.

Claimant ultimately sought treatment with Dr. Lukasz Curylo. In January 2018, Dr. Curylo reviewed the medical treatment to date, ordered a CT scan and recommended surgery. Dr. Curylo stated Claimant had exhausted all conservative measures, and two years is long enough to work with back pain. On February 28, 2018, Dr. Curylo performed a fusion. The postoperative diagnoses were lumbar stenosis, lumbar 5 and sacral 1, and lumbar spondylolisthesis. Claimant realized relief for his radicular symptoms, but still had pain in his low back. Claimant continued to complain of pain following surgery. Dr. Curylo ordered a CT scan of the lumbar spine on July 3, 2018. Dr. Curylo determined Claimant had a nonunion of the fusion and a revision needs to be performed. Dr. Curylo testified Claimant was unable to currently work because of his condition. He testified Claimant was in too much pain to work, and having an unhealed fusion would be like walking on a fractured leg. Dr. Curylo testified the incident on July 25, 2015, when Claimant was pulling a crate of brake pedals, was the prevailing factor causing his current condition. Dr. Curylo testified his definition of prevailing factor is something that triggered the symptoms. Dr. Curylo did not review all of Claimant's medical records.

Dr. Volarich testified Claimant had a pars defect, which is a congenital or developmental problem that occurs in adolescence. Dr. Volarich explained, typically, it does not cause any problems until there is an injury to the back. He testified Claimant's need for the spinal fusion at L5-S1 flows directly from the July 25, 2015 injury. Claimant's spondylosis was aggravated by the July 25, 2015 accident, and as he continued to work, it eventually became a slippage or a spondylolisthesis. Dr. Volarich testified the July 25, 2015, injury was an acute injury. Dr. Volarich testified the treatment provided to date for the lumbar spine naturally flows from the work injury. He further testified the surgery performed by Dr. Curylo on February 28, 2018 was reasonably required to cure and relieve the effect of the July 25, 2015 injury. Dr. Volarich testified the L5-S1 fusion surgery performed is the appropriate standard of care for unstable spondylolisthesis and was the correct procedure. He further testified the revision surgery recommended by Dr. Curylo is reasonably required to cure and relieve the effect of the July 25, 2015 work injury.

Dr. Volarich testified he is not aware of, nor has he reviewed any medical records related to, treatment for Claimant's low back prior to the July 25, 2015 work injury. He further testified he asked Claimant specifically about prior problems with his low back and was told he did not have any. Dr. Volarich testified Claimant is overweight, and he reviewed records related to a gastric sleeve procedure. Dr. Volarich stated the procedure would not cause problems in his back and should improve the conditions in his back.

Dr. Kevin Rutz, a board certified orthopedic surgeon examined Claimant on January 29, 2019, prepared a report, and testified on behalf of Employer. Dr. Rutz testified in July 2015, Claimant was pushing and pulling a bin of brake pedals and felt a sharp pain and pop in his lower back. He testified Claimant went to the plant medical facility and had no previous history of back pain. Dr. Rutz diagnosed low back pain, pseudoarthrosis after fusion or arthrodesis.

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status post lumbar fusion for spondylolytic spondylolisthesis with a non-union, not work related. Dr. Rutz did not find the injury to be work related because he did not believe Claimant had a traumatic event. He testified Claimant was pushing and pulling a cart, which is something he does all the time. He testified if Claimant had a more aggressive mechanism of injury i.e. an abnormal pull or strain or a fall, or something above and beyond normal activity, then he would possibly consider it to be a factor. He felt Claimant just happened to become symptomatic while at work, and he would have become symptomatic no matter where he was because he didn't actually have an accident. He testified Claimant did not have a work injury. Dr. Rutz testified he did not review any medical records indicating Claimant received medical treatment to his lower back prior to July 25, 2015. Dr. Rutz was not aware of any medical treatment or diagnostic studies prior to July 25, 2015. Dr. Rutz testified Claimant's history regarding the July 25, 2015 injury was consistent throughout all the medical records he reviewed. Dr. Rutz also testified the treatment provided to date has been reasonable within the standard of our community.

FINDINGS OF FACT AND RULINGS OF LAW

Based upon my observations of Claimant, a comprehensive review of the evidence, and the application of Missouri law, I find:

ACCIDENT

§287.020(2) RSMO provides the word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

It is clear Claimant sustained an accident on July 25, 2015. On July 25, 2015, Claimant was using a tugger to deliver a 200-pound bin of brake pedals to the assembly line. Claimant unhooked the bin from the tugger, and pushed and pulled the container by the handles while attempting to move the heavy container into position on the line. Claimant felt a pop and felt immediate pain in his back. Claimant immediately gave notice to his supervisor and requested medical treatment. Claimant reported to the plant medical department on July 25, 2015, and reported a sharp knotting pain in his lower back after pushing and pulling brake pedal bin. The events described by Claimant precisely fit the statutory definition of an accident. The act of pushing and pulling the heavy bin, and feeling a pop and immediate pain was an unusual strain. The unusual strain was clearly identified by time and place of occurrence. Claimant immediately reported the incident as happening on a specific date, at a specific time, during his work shift, and it was well-documented by the plant medical records, as well as in all of the medical evidence. The unusual strain produced objective symptoms of an injury. Under objective findings the plant medical department noted Claimant was walking with a slow gait and was bent forward at the waist. There is no evidence to contradict Claimant's description of the mechanism of injury. This accident resulted in an injury that produced the immediate need for medical treatment.

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§287.020.3 (1) RSMO provides: In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

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

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

(b) 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 non-employment life.

The burden of proving all of the essential elements of the Claim and establishing a causal connection between the accident and the injury rest on the Claimant. *Moreland v. Eagle Picher Techs., LLC*, 362 S.W.3d 491, 504 (Mo. Ct. App. 2012).

Questions regarding medical causation of an injury are issues of fact for the fact finder to decide, as are questions regarding medical treatment. *Gordon v. City of Ellisville*, 268 S.W.3d 454, 461 (Mo. App. 2008). When conflicting medical opinions are in evidence, the fact finder determines which expert's opinion is more credible. *Bock v. Broadway Ford Truck Sales, Inc.*, 55 S.W.3d 427, 439 (Mo. App. 2001). The weight to be given the expert's opinion on medical causation is within the sole discretion of the fact finder. *Id.* at 438.

Claimant's accident on July 25, 2015, resulted in an injury that arose out of and in the course of his employment. The accident was the prevailing factor causing his medical condition and disability. The issue in dispute is medical causation as it relates to Claimant's need for treatment for his lumbar spine. There is no question Claimant had a pars defect prior to his work accident and injury. Dr. Volarich opined the workplace injury aggravated the underlying condition and caused the need for treatment. The instant case is similar to the findings in *Tillotson v. St. Joseph Medical Center*, 347 S.W.3d 511 (Mo. App., 2011). Ms. Tillotson's doctor opined that her (accepted) workplace accident caused an aggravation and a progression of a pre-existing degenerative condition, causing the need for a total knee replacement. As in *Tillotson*, Employer here is required to provide treatment to cure and relieve the effects of the accidental injury, irrespective of the presence of a pre-existing condition.

Claimant suffered a compensable workplace injury on July 25, 2015. His symptoms have continued since the date of injury until today. *Tillotson* states: "once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury." *Id.* at 519, citing *Bowers v. Hiland Dairy Co.*, 188 S.W.3d 79, 83 (Mo. App. 2006).

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Dr. Curylo testified the incident described as occurring on July 25, 2015, was the prevailing factor causing his current condition. Dr. Curylo's opinion however, holds little weight because he testified his definition of prevailing factor was something that triggered symptoms. He also did not have complete medical records to review before he rendered his opinion.

I am more persuaded by Dr. Volarich's opinion. Dr. Volarich credibly testified Claimant had a pars defect, which is a congenital or developmental problem that occurs in adolescence. Dr. Volarich explained, typically, it does not cause any problems until there is an injury to the back. He testified the need for the spinal fusion at L5-S1 flows directly from the July 25, 2015 injury. Claimant's spondylosis was aggravated by the July 25, 2015 accident, and as he continued to work, it eventually became a slippage or a spondylolisthesis. Dr. Volarich testified the July 25, 2015, injury was an acute injury, and was the primary prevailing factor causing thoracolumbar strain injury and disc protrusion at T11-12 for which he received conservative treatment. When Dr. Volarich saw Claimant on the second evaluation he modified his opinion due to the fact he had developed progressively worse low back pain and severe hip girdle pain, left greater than right, and was diagnosed with a grade 1 spondylolisthesis. Dr. Volarich testified the treatment provided to date for the lumbar spine naturally flows from the work injury. He further testified the surgery performed by Dr. Curylo on February 28, 2018, was reasonably required to cure and relieve the effect of the July 25, 2015 injury. Dr. Volarich stated the procedure performed is the appropriate standard of care and was the correct procedure. He further testified the revision surgery being recommended is reasonably required to cure and relieve the effect of the July 25, 2015 work injury.

The opinion of Dr. Volarich is more persuasive than that of Dr. Rutz. Dr. Rutz's opinion is not persuasive because it is based upon the proposition that no accident occurred, which is contradicted by the credible evidence. Claimant had no low back problems or treatment prior to the July 25, 2015 work injury. Claimant immediately reported the work injury to his supervisor and was immediately evaluated in the plant medical department. The accident produced objective symptoms of an injury and was caused by a specific event during a single work shift. Claimant underwent significant conservative treatment for his low back and attempted to return to work following the work injury. All experts believe the treatment course was appropriate for his injury and complaints. All the medical records provide a consistent history as to what happened on July 25, 2015. The only dispute between the three experts that testified is that Dr. Rutz does not believe Claimant had a traumatic event at work. Dr. Rutz's opinion is not supported by any of the evidence, including the medical records and Claimant's credible testimony. The July 25, 2015 work accident was the prevailing factor causing Claimant's injury, disability, symptoms, and need for treatment.

FUTURE MEDICAL TREATMENT

§287.120.1 provides in part: "every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of employee's employment."

§287.140.1 provides: "In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical,

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surgical, chiropractic, and hospital treatment, including, nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury."

All three doctors (Curylo, Volarich and Rutz) agree Claimant currently has a nonunion and needs a revision surgery. Based on this determination, Employer must provide Claimant with additional medical treatment to cure and relieve the symptoms of the July 25, 2015 work injury. Employer shall authorize surgery, any diagnostic testing recommended by qualified medical personnel, any rehabilitation services recommended by the medical professionals, and any medications prescribed.

TEMPORARY TOTAL DISABILITY

Claimant is not at MMI. Dr. Curylo and Dr. Volarich testified Claimant is not able to currently work, and will not be able to do so until his nonunion is fixed. The parties stipulated Claimant has not worked since July 14, 2017. Claimant has been off work because of his back pain and has been unable to work. Claimant has been denied additional medical treatment to his back and his disability has continued. Dr. Volarich established the connection between Claimant's current condition and his injury on July 25, 2015. Claimant is not at MMI and is entitled to TTD benefits from July 14, 2017 until he is accommodated by his Employer or reaches MMI.

CONCLUSION

Claimant sustained a compensable injury on July 25, 2015. Employer is authorized to provide the medical treatment recommended and pay TTD benefits from July 14, 2017 until Claimant reaches MMI.

This award is subject to an attorney's lien of 25% in favor of Claimant's attorney, Mr. Andrew J. Gregory.

I certify that on 5-6-19

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By __________________________

M

M

MARGARET D. LANDOLT

Administrative Law Judge

Division of Workers' Compensation

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