Jeffrey Dudley v. Daimler Chrysler Corporation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 06-076184

**Employee:** Jeffrey Dudley

**Employer:** Daimler Chrysler Corporation

**Insurer:** Old Carco, LLC

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.

We did not find persuasive the medical expert opinion and testimony in this matter from Dr. James Coyle. Employee presented letters from Dr. Coyle, in which he stated his opinion that employee's work duties was the prevailing factor in causing the L5-S1 recurrent disc herniation, but Dr. Coyle's 2017 deposition testimony indicates the opposite.

In a July 30, 2009 letter, Dr. Coyle stated that the 2006 recurrent disc herniation at L5-S1 was a new herniation (instead of a continuation or worsening of a preexisting 2003 herniation). He continued, "[b]ased on review of the actual films, I disagree with Dr. Carper's interpretation that the predominant cause for [employee]'s recurrent herniation in August of 2006 was 'his prior herniation and a gradual deterioration of a pre-existent process and not his activity at work.'" Tr., p. 484. Dr. Coyle ended the letter by stating that a 2010 fusion was appropriate "due in part to the work-related problem at L5-S1 and in part to non-work related causes for the L4-5 level." Tr., p. 485.

Three years later, in an independent medical evaluation report, dated March 21, 2012, Dr. Coyle stated directly that employee's "work activities were the prevailing factor in causing a recurrent herniation at L5-S1 in 2006." Tr., p. 489. In a follow-up letter on June 27, 2012 to employer, Dr. Coyle stated, "I performed an independent medical evaluation for [employee] on March 21, 2012. At that time, I pointed out that [employee]'s recurrent L5-S1 lumbar disc herniation in 2006 was a consequence of his work activities." Tr., p. 490.¹

However, in his 2017 deposition, Dr. Coyle stated repeatedly that he could not say that employee's work duties were the prevailing factor causing the 2006 recurrent herniation at L5-S1.

**Q:** Do you have an opinion as to what was the cause of that recurrent disc herniation shown in the 2006 MRI?

1 On December 6, 2012, Dr. Coyle rated employee at 25% permanent partial disability of the body as a whole referable to the lumbar spine. Dr. Coyle also stated that the rating, "includes [employee's] prior 22.5% partial permanent disability that he received as a result of his lumbar microdiscectomy in 2003 and is referable to his 2006 and 2008 injury claims." Tr., p. 493.

Injury No. 06-076184

Employee: Jeffrey Dudley

- 2 -

A: I think it occurred over time. I don't think you can say with certainty how or when it occurred[,] but I did attribute that to his prior herniation and his activities. But I don't think there was one isolated event that we could identify.

Q: So is it fair to say that his job duties at Chrysler were the prevailing factor in the cause of that recurrent disc herniation at L5-S1?

A: I can't say that with a reasonable degree of medical certainty. I did attribute a little bit of PPD to him for 2006.

Tr., p. 444.

Q: But you don't have an opinion whether that work resulted in the recurrent disc herniation at L5-S1?

A: No. I did attribute some PPD to it[,] but again that was something I just offered.

Q: Okay. Do you offer PPD for work injuries when you don't have an opinion whether or not that was the prevailing factor in causing that condition?

A: I think it's reasonable to assume that some of his back pain may have been attributable to work[,] but I could in no way with a reasonable degree of medical certainty say that his surgery for L4-5 was due to work. It wasn't present on the MRI in 2006.

Q: So [employee] had a work-related accident that resulted in a herniation in 2003[,] which you treated, correct?

A: That's correct.

Q: And then you just testified that you attributed some additional PPD for a recurrent disc herniation in 2006, correct?

A: Not necessarily for the herniation[,] but for symptoms of back pain.

Tr., pp. 451-52.

We find that the complete inconsistency between Dr. Coyle's written opinions and his later deposition testimony greatly weakens any persuasiveness of such in this matter.² Therefore, we cannot rely on Dr. Coyle's opinions or testimony to resolve the issue as to whether employee's work duties were the prevailing factor causing the 2006 recurrent disc herniation at L5-S1.

² Dr. Coyle's sole explanation for his inconsistencies appears to be that in at least one of his prior statements referring to the disc herniation at L5-S1, he was referring to the original 2003 herniation and not the recurrent herniation in 2006. In his 2017 deposition, Dr. Coyle testified that when he mentioned the work-related L5-S1 herniation in this sentence, he was referring to the pre-existing 2003 herniation. However, this explanation does not reconcile Dr. Coyle's opinion in his March 21, 2012 independent medical evaluation report that employee's "work activities were the prevailing factor in causing a recurrent herniation at L5-S1 in 2006." Tr., p. 489.

- 3 -

We also do not find the opinion of Dr. Volarich persuasive, because, without explanation, Dr. Volarich assessed each of employee's three back injuries equally: 25% permanent partial disability for the preexisting 2003 L5-S1 herniation, which required surgery; 25% permanent partial disability for the 2006 recurrent disc herniation at L5-S1, which was treated by injections; and 25% permanent partial disability for the 2008 L4-5 disc herniation, which was treated by a fusion in 2010. Dr. Volarich also appeared to confuse what treatment each injury required by stating that the 2006 recurrent disc herniation required a discectomy, when in fact it only required injections.

Furthermore, Dr. Volarich primarily used generic boilerplate language in his findings regarding the 2006 L5-S1 recurrent disc herniation, as well as in other areas of his report.

Without persuasive medical testimony, we agree that employee failed to meet his burden to establish that his work duties were the prevailing factor causing the 2006 L5-S1 recurrent disc herniation. Therefore, we must deny the claim. All other issues are moot.

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

The award and decision of Administrative Law Judge Joseph E. Denigan is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **14th** day of January 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Robert W. Cornejo, Chairman

**Reid K. Forrester, Member**

**DISSENTING OPINION FILED**

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No. 06-076184

Employee: Jeffrey Dudley

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.

I agree with the majority that the 2017 deposition testimony of Dr. Coyle regarding what caused employee's 2006 recurrent disc herniation at L5-S1 was not persuasive.¹ However, I disagree with the majority regarding Dr. Volarich's opinion. I find Dr. Volarich's opinion in his 2015 deposition persuasive that employee's duties were the prevailing factor causing the 2006 recurrent disc herniation at L5-S1. Dr. Volarich rated the occupational disease at 25% permanent partial disability, body as a whole. Dr. Volarich stated the following in his report:

> It is my opinion the work activities performed by [employee] leading up to and on 7/5/06, particularly bending, twisting and lifting the heavy wire harnesses weighing between 35 and 50 pounds when he developed recurrent back pain radiating into the left lower extremity, is the substantial contributing factor as well as the prevailing or primary factor causing the large recurrent disc herniation at L5-S1 to the left that required anterior and posterior lumbar fusion with instrumentation.

Tr., p. 229. I find this opinion solid and persuasive.

Accordingly, I would reverse the administrative law judge's award denying benefits, find that employee's duties were the prevailing factor causing the 2006 recurrent disc herniation at L5-S1, and adopt Dr. Volarich's rating of 25% permanent partial disability. Because the Commission majority has decided otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

¹ However, I do find persuasive Dr. Coyle's prior written opinions wherein Dr. Coyle opined that employee's duties were the prevailing factor causing the 2006 recurrent disc herniation at L5-S1. Such opinions also support the persuasive opinion of Dr. Volarich.

**Employee:** Jeffrey Dudley

**Dependents:** N/A

**Employer:** Daimler Chrysler Corporation

**Address:** 1200 N. 10th Street, New York 11, N.Y. 10027

**Address:** 1200 N. 10th Street, New York 11, N.Y. 10027

**Address:** 1200 N. 10th Street, New York 11, N.Y. 10027

**Address:** 1200 N. 10th Street, New York 11, N.Y. 10027

**Address:** 1200 N. 10th Street, New York 11, N.Y. 10027

**Address:** 1200 N. 10th Street, New York 11, N.Y. 10027

**Injury No.:** 06-076184

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

**Address:** 1200 N. 10th Street, New York 11, N.Y. 10027

**Hearing Date:** October 3, 2018

**Checked by:** JED

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? No

1. Was there an accident or incident of occupational disease under the Law? No

1. Date of accident or onset of occupational disease: July 5, 2006 (alleged)

1. State location where accident occurred or occupational disease was contracted: St. Louis County (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? No

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: Employee injured his low back from performing assembly work.

1. Did accident or occupational disease cause death? N/A Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: low back

1. Nature and extent of any permanent disability: None

1. Compensation paid to-date for temporary disability: $18,382.53

1. Value necessary medical aid paid to date by employer/insurer? $126,909.31

**Revised Form 31 (3/97)**

**Page 1**

**Document ID:** 201809011A1222

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 06-076184

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

1. Employee's average weekly wages: N/A

1. Weekly compensation rate: $718.87/$376.55

1. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable:

None

1. Second Injury Fund liability: N/A

TOTAL: -0-

1. Future requirements awarded: Unknown

Sai