Jeffrey Dudley v. Chrysler LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 08-124704

**Employee:** Jeffrey Dudley

**Employer:** Chrysler LLC

**Insurer:** Old Carco, LLC

**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 parties' briefs, and considered the whole record. Pursuant to § 286.090, RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to determine the following issues: (1) whether employee sustained an accident or occupational disease arising out of and in the course of his employment and whether employee's injury was medically causally related to the accident or occupational disease; (2) the nature and extent of any disability; (3) employer's liability for future medical; and (4) the liability of the Second Injury Fund.

The administrative law judge determined as follows: (1) employee sustained a work-related occupational disease on July 10, 2008, specifically a disc herniation at L4-5, that arose out of and in the course of his employment; (2) employee sustained a 15% permanent partial disability referable to the body as a whole regarding his lower back; (3) there was no liability for future medical care; and (4) the Second Injury Fund is liable for 30 weeks of permanent partial disability. The administrative law judge also concluded that a 2010 fusion for disc herniations at L4-5 and L5-S1 was not related to employee's work with employer and, therefore, not compensable.

Employee filed a timely application for review with the Commission alleging that the administrative law judge erred in concluding that employee's 2010 fusion for the L4-5 and L5-S1 herniations was not related to employee's work with employer and, therefore, not compensable. Employee also alleged that the administrative law judge erred in failing to award future medical benefits, permanent total disability, 25% permanent partial disability regarding employee's L4-5 disc herniation, and permanent total disability liability against the Second Injury Fund.

The Second Injury Fund also filed a timely application for review with the Commission alleging the administrative law judge erred in awarding liability against the Second Injury Fund because employee (1) failed to prove a preexisting injury and a synergistic effect

Injury No. 08-124704

Employee: Jeffrey Dudley

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between the primary injury and employee's preexisting injuries; and (2) failed to prove that employee's duties were the prevailing factor causing the disc herniation at L4-5 and permanent partial disability.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issues of: (1) the prevailing factor causing the injury and disability; (2) employer's liability for past medical expenses; and (3) the liability of the Second Injury Fund.

**Discussion**

**Prevailing Factor Causing the L4-5 Disc Herniation and Permanent Partial Disability:**

The administrative law judge found that employee's duties were the prevailing factor causing the disc herniation at L4-5 in this matter by stating,

> [t]he new disc pathology at L4-5 revealed by the July 2008 MRI, however, forms the basis for a new work related injury. This medical finding is accompanied by increased symptomotology [sic] and decreased productivity. It is undisputed that [Employee]'s work with Employer was heavy and no other activity is [sic] reasonably suggested in the record that would explain the onset of disabling symptoms. This is especially true in view of the positive clinical findings by Dr. Mirkin correlating with the radiological findings.

Award, p. 15. We note that employer did not appeal the administrative law judge's decision regarding this finding.

We agree with the administrative law judge, and so find, that the record supports a finding of a new occupational disease at the L4-5 level arising out of and in the course of employee's employment.¹ We also find that employee's duties were the prevailing factor causing the disc herniation at L4-5 and employee's 15% permanent partial disability.²

Section 287.067.1 and .2, RSMo, define a compensable occupational disease as follows:

1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general

---

¹ We do not find persuasive Dr. Coyle's deposition testimony as it was contradictory. At one point, Dr. Coyle testified that employee's duties were the prevailing factor causing the disc herniation at L4-5, but at a different point, he also denied the same.

² We are not persuaded to alter the finding of the administrative law judge that employee was at 15% permanent partial disability. We do not find persuasive the rating of Dr. Volarich regarding this occupational disease injury, because Dr. Volarich did not explain his equal rating for employee's L4-5 disc herniation, which was treated by a fusion in 2010; employee's 2003 L5-S1 disc herniation, which was treated by surgery; and employee's 2006 recurrent L5-S1 disc herniation, which was treated by injections. 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.

Injury No. 08-124704

Employee: Jeffrey Dudley

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public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

1. An injury or death by occupational disease is compensable only if the occupational exposure 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. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

As employee's duties were the prevailing factor causing both the disc herniation at L4-5 and employee's 15% permanent partial disability, we conclude that employee had a compensable occupational disease, pursuant to § 287.067.1 and .2, RSMo.

**Reasonably Required Medical Treatment: the 2010 Fusion**

We also find that employee's 2010 fusion was reasonably required to cure and relieve the effects of the L4-5 disc herniation. Dr. Coyle, Dr. Mirkin (through medical records), and Dr. Volarich all agreed that the 2010 fusion was reasonably required to cure and relieve the effects of the L4-5 disc herniation (in connection with a recurrent disc herniation at L5-S1, which is the subject of claim number 06-076184). However, the administrative law judge did not find that the 2010 fusion was related to work because it also treated employee's L5-S1 recurrent herniation. We disagree.

Where experts agree to the treatment reasonably required to cure and relieve a compensable injury, such treatment is compensable even though it also treats non-compensable injuries. *Tillotson v. St. Joseph Med. Ctr.,* 347 S.W.3d 511, 518 (Mo. App. 2011). In *Tillotson,* the employee had a total knee replacement because it was the medical treatment required to cure and relieve the effects of a compensable torn lateral meniscus in light of employee's other non-compensable conditions; anything short of a total knee replacement was insufficient.

Similarly, here, the reasonably required treatment to cure the L4-5 disc herniation, in light of the prior L5-S1 recurrent disc herniation, was the 2010 fusion. Therefore, following the *Tillotson,* decision, we conclude that the 2010 fusion was compensable.

Employer has already paid $126,909.31 in past medical expenses. Absent any evidence to the contrary, we find that such was the proper amount due for past medical.³

³ We recognize that the parties in this matter did not present the issue of temporary total disability benefits. Employer has already paid $18,382.53 in temporary total disability benefits to employee for the period of time from the date of the 2010 fusion on August 3, 2010, through January 28, 2011, when employee reached maximum medical improvement. We note that our ruling with regards to compensability of employee's past medical treatment supports a finding that employer is liable for temporary total disability benefits for this period of time.

Injury No. 08-124704

Employee: Jeffrey Dudley

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**Synergy and Second Injury Fund Liability:**

In order to find Second Injury Fund liability, employee must establish a synergistic effect between the primary injury and employee's preexisting conditions, "resulting in additional permanent partial disability so that the degree or percentage of disability caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself[.]" § 287.220.2, RSMo.

If a claimant establishes that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, then the Fund is liable for the degree of the combined disability that exceeds the numerical sum of the preexisting disabilities and the disability from the last injury, or the "synergistic effect" of the combined disabilities. In other words, the Fund is liable only for the amount attributable to the synergistic combination. Thus, the failure to prove a synergistic combination between the primary injury and a preexisting disability is proper grounds for denying Fund liability.

*Winingear v. Treasurer of State-Custodian 2nd Injury Fund*, 474 S.W.3d 203, 207 (Mo. App. 2015) (inner citations omitted).

To establish a synergistic effect, employee presented the opinion of Dr. Volarich, who stated in his report:

> The combination of his disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and a loading factor should be added.

*Tr.,* p. 240. Dr. Volarich did not expound further regarding this boilerplate finding.

Courts have held that mere boilerplate language does not establish a synergistic effect between an employee's primary injury and his preexisting injuries. *Winingear v. Treasurer of State-Custodian 2nd Injury Fund*, 474 S.W.3d 203, 209 (Mo. App. 2015). Without more, Dr. Volarich's finding of a "substantially greater disability than the simple sum or total of each separate injury/illness" is not persuasive to us. Based on the record before us, we do not find that the combination of employee's disabilities resulted "in a greater disability than that which would have occurred from the last injury alone" or "that exceeds the numerical sum of the preexisting disabilities and the disability from the last injury." § 287.220.2, RSMo. Accordingly, we deny any Second Injury Fund liability for employee's permanent partial disability.

**Conclusion**

We modify the award of the administrative law judge as to the issues of: 1) the prevailing factor causing the injury and disability; (2) employer's liability for past medical expenses; and (3) the liability of the Second Injury Fund.

We conclude that employee suffered a compensable injury by occupational disease arising out of and in the course of his employment.

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Employee is entitled to, and employer is liable for, past medical expenses in the amount of $126,909.31, which has already been paid.

Employee is entitled to, and employer is liable for, temporary total disability benefits in the amount of $18,382.53, which has already been paid.

The Second Injury Fund is not liable for any compensation.

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

The Commission approves and affirms the administrative law judge's allowance of an 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 14th day of January 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No. 08-124704

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 feel that the administrative law judge overreached in finding that employee's duties were the prevailing factor causing the disc herniation at L4-5 in this matter. The administrative law judge relied upon a small portion of Dr. Coyle's deposition testimony that there was a mere possibility that employee's duties were the prevailing factor causing the disc herniation. The administrative law judge then presumed that employee's work was the prevailing factor causing the L4-5 herniation because employee's work with employer "was heavy and no other activity is s [sic] reasonably suggested in the record that would explain the onset of disabling symptoms." In this presumption, the administrative law judge jumped to a conclusion without fully setting forth the support in the record for his finding.

The administrative law judge's reliance on Dr. Coyle's tenuous statement regarding the possibility that employee's duties were the prevailing factor causing the disc herniation at L4-5 and employee's permanent partial disability was unfounded because the majority of Dr. Coyle's deposition testimony supports the opposite. In his deposition, Dr. Coyle also testified as follows:

**Q:** So the disc herniation at L4-5 you do not believe is related to the [employee's] job duties?

**A:** I don't have any evidence that it was...

**Q:** So what did you recommend?

**A:** Well, I answered a few questions and I said the [employee's] job duties were not the prevailing factor for causing a disk [sic] herniation at L4-5.

---

4 The administrative law judge relied on Dr. Coyle's 2017 deposition testimony in which Dr. Coyle opined the slight possibility that the L4-5 herniation was prevailingly caused by employee's work duties, by stating:

Hypothetically is it possible? It's possible with all kinds of activities. It's possible with rolling over in bed, it's possible with sleeping, it's possible with bending down to pick up a pencil. But my job is to give an opinion on causation within a reasonable degree of medical certainty and what I did say was it's a job I'm very much familiar with and if you spend a third of your life there or a fourth of your life there and you get a disk [sic] herniation, it doesn't necessarily mean it's caused by what you were doing at work.

Tr., pp. 450-51.

Injury No. 08-124704

Employee: Jeffrey Dudley

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Q: It's your opinion that the [employee's] job duties leading up to 2008 were not the prevailing factor in causing a herniation at L4-5?

A: I saw no evidence where, under the statute, that herniation, that annular tear could be attributed to work activity.

Tr., pp. 425, 426, and 429.

Dr. Coyle's deposition testimony, as noted above, also agrees with his earlier opinion in a July 30, 2009 letter, where he noted that the herniation at the L 4-5 level was due to "non-work related causes[.]" Tr., p. 485.

I find that Dr. Coyle's testimony that employee's work could possibly have caused the L4-5 disc herniation was more in the nature of speculation and not an affirmative opinion. Therefore, I do not find that statement to be inconsistent with the rest of Dr. Coyle's testimony that employee's duties were not the prevailing factor causing the disc herniation at L4-5 and permanent partial disability. Dr. Coyle's prior consistency regarding the L4-5 disc herniation undermines the administrative law judge's finding, while citing Dr. Coyle, that employee's duties were the prevailing factor causing the disc herniation at L4-5 and employee's permanent partial disability.5

The administrative law judge's finding was also unsupported by the record because he did not rely on the opinion of Dr. Volarich, who was the only expert supporting that employee's duties were the prevailing factor causing the disc herniation at L4-5. Dr. Volarich stated the following in his report:

> [I]t is my opinion the work activities performed by [employee] leading up to and on 7/10/08 including the bending, twisting and lifting heavy wire harnesses while working in awkward positions when he developed increased back pain radiating to the left lower extremity is the substantial contributing factor as well as prevailing or primary factor causing the disc herniation with annular tear at L4-5 that required anterior and posterior lumbar fusion with instrumentation. The work injury was the prevailing factor causing his symptoms, need for treatment, and resulting disabilities.

Tr., p. 239.6

Without the opinion of Dr. Volarich, the record simply does not contain expert medical opinion establishing that employee's duties were the prevailing factor causing the disc herniation at L4-5 and permanent partial disability. The administrative law judge does not have the authority to make a finding regarding the prevailing factor causing a

5 I find Dr. Coyle's opinion persuasive that employee's work was not the prevailing factor in causing the L4-5 disc herniation.

6 I agree with the Commission majority that Dr. Volarich's opinion is not persuasive due to his unexplained ratings, his boilerplate language, and his misunderstanding of what treatment each herniation required. Therefore, I do not rely on Dr. Volarich's opinion regarding the prevailing factor causing employee's disc herniation at L4-5.

Injury No. 08-124704

Employee: Jeffrey Dudley

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herniated disc injury without supporting medical expert opinions. "Medical causation of a herniated disc of the spine cannot be considered uncomplicated." *Wright v. Sports Associated*, 887 S.W.2d 596, 600 (Mo. 1994) (overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220, 224 (Mo. 2003)).

The court in *Wright* stated as follows:

> In line with the general tendency of administrative law to recognize the expertise of specialized tribunals, compensation boards may rely to a considerable extent on their own knowledge and experience in uncomplicated medical matters, and in such cases awards may be upheld without medical testimony or even in defiance of the only medical testimony.

*Wright v. Sports Associated*, 887 S.W.2d at 600. (Citations omitted).

As this matter involves a complicated herniated disc injury, the administrative law judge could not on his own record find, based only on suggestions from medical records, that employee's duties were the prevailing factor causing the disc herniation at L4-5, while not finding persuasive the opinion of the only medical expert supporting such finding.

Because the record does not support a finding that employee's duties were the prevailing factor causing the disc herniation at L4-5 and permanent partial disability, I would reverse the administrative law judge's award allowing benefits. Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Jeffrey Dudley

Jury No.: 08-124704

Dependents: N/A

Before the

Divisions of Workers'

Employer: Chrysler LLC

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Additional Party: Second Injury Fund

Insurer: Old Carco, LLC

Jefferson City, Missouri

Hearing Date: October 3, 2018

Checked by: JED

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 10, 2008

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: 15% PPD of the body referable to the low ack

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

1. Value necessary medical aid paid to date by employer/insurer? $246.96 (stipulated)

Revised Form 31 (3/97)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 08-124704

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

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

1. Weekly compensation rate: $772.53/$404.66

1. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable:

60 weeks of PPD from Employer 24,279.60

1. Second Injury Fund liability:

30 weeks of PPD from SIF 12,139.80

TOTAL: $36,419.40

1. Future requirements awarded: Unknown

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

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:

Andrew Mandel

Michael Kelley

Revised Form 21 (3/97)

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

injury Number: 08-124704

Employee: Jeffrey Dudley

Dependents: N/A

Employer: Daimler Chrysler Corporation

Additional Party: Second Injury Fund

Insurer: Old Carco, LLC

Hearing Date: October 3, 2018

injury No.: 06-076184

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves two separate Claims for Compensation. The first case, identified by Injury Number 06-076184, concerns low back injury to Claimant with an alleged injury date of July 5, 2006 (with no claim alleged against the Second Injury Fund ("SIF"). The second case, identified by Injury Number 08-124704, also alleges low back injury with a reported injury date of July 10, 2008 with allegations of liability against the SIF. These cases may be referred to hereinafter as the first and second cases, respectively and chronologically. Claimant seeks permanent total disability benefits in each case.

The testimony and exhibits in this record constitute the evidence in each Claim. Separate Awards issue on each Claim. All parties are represented by counsel. Any objection, not previously sustained, is overruled consistent with the findings and rulings herein.

1. medical causation;
2. nature and extent of permanent disability

1. occupational disease (exposure and medical causation);
2. future medical treatment;
3. permanent disability; and
4. liability of the SIF

1. Claimant is 47 years old. Claimant testified he last attended school in the 12th grade and dropped out during that year. He did attend North County Technical School in high school. He does have the ability to read and write.

WC-33-B1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 08-124704

1. After Claimant left high school, his first job was working at McDonald's. He also worked at Grandpa Pidgeon's in the sporting goods department and he would check individuals out and stock shelves. He worked at Coinco working with computer circuit boards.

1. Claimant testified that in his early years, he developed asthma. He still has problems with his asthma and does have inhalers and a home nebulizer.

1. Claimant currently is not employed. He last worked in August of 2008 when he accepted a buy-out from Employer because the plant shut down. He received unemployment benefits for two years after the plant closed.

1. Claimant began working for Employer, at age 24, in March 1995. He had a job for one year using a machine to put handles on doors. He did not have to lift the doors as a machine took the doors off, but he did have to push and pull the machine to move them. Sometimes he would have to lift and bend to get into vans. He testified that he did this 400 times per day as it was a two-person job and they did 800-1000 vehicles per day.

1. After that job Claimant floated for two years. One of his jobs was attaching wiring on a lift gate. He would have to push the lift gate up, take a bolt out using air guns, and then he would have to push the 40 pound lift gate up to refasten the bolt. He would perform this job 400 times per day.

1. Thereafter Claimant moved to the EW wire job in 2001. He would grab a bundle of wires from the oven which weighed anywhere from 35 pounds to 55-60 pounds. The wires in the oven were approximately 30 inches off the ground, and he would walk 8-10 feet to go to the line to put the wires in the van. He would spread the wires throughout the van and while doing so he was working at approximately 24 inches from the ground while the assembly line was moving. He would throw part of the bundle to the passenger side and part into the back and then he would have to thread the wires. He performed this job duty 400-500 times per shift as it was a 2-man job.

First Surgery (Prior Claim)

1. Claimant agreed that he was seen in the plant medical dispensary for low back pain in October 2002 and underwent an MRI. He was released back to light duty and he did not do his regular job right away. He was on a job where he would connect wires under the hood and would have to walk backwards. He testified that this did not help his pain and therefore he had to get new restrictions.

1. Claimant was referred to Dr. Coyle who ultimately performed surgery in January 2003 at L5-S1. He returned to work and was seen in plant medical dispensary on April 8, 2003 and reported that his job he was on was not helping his lower back. Subsequently, he was released from Dr. Coyle on April 30, 2003 and he returned to his same job on the wire line. Claimant settled his case six months later for 22.5% of the body, or $30,610.80. Claimant had serious permanent low back pain symptoms.

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 08-124704

1. In 2003 and 2004, he testified he experienced low back pain every day. He also testified that he changed the way he did his job due to his back problems from 2003 to 2006. He admitted he had help from co-workers because of his back problems. He also missed work due to problems in his back from 2003 to 2006. Claimant did improve after he was released from Dr. Coyle, but after he returned to full duty, his pain returned. He believed this was some time in 2005. He sought treatment at the plant dispensary.

1. After he was released in 2006 from the plant medical dispensary, he sought medical treatment on his own with Dr. Mirkin in 2006; he sent Claimant to Dr. Graham and had three injections. Claimant stated the injections released pressure, but not all of it. He was released on October 27, 2016.

1. From 2006 to 2008, Claimant worked in the van plant. When it shut down in 2008 he went to the truck plant and worked for a few months. He testified this was a harder job which required twisting, bending and pulling. He was a floater and one of his jobs required him to install driver side windows into trucks which weighed 45-50 pounds.

1. In July of 2008 Claimant reported back pain and he had numbness. Claimant testified that co-workers helped him do his job and he took breaks. Claimant returned to Dr. Mirkin and underwent an MRI which showed an annular tear at L4-5. Dr. Mirkin recommended surgery. The truck plant closed [in August 2008.]

Second Surgery

1. On August 3, 2010, Claimant underwent surgery with Dr. Mirkin which involved a two-level fusion. He underwent an FCE and was given permanent restrictions of no lifting up to 25 or 35 pounds. Claimant testified he was told to avoid continuous bending and to limit walking.

1. On cross-examination, Claimant did not disagree with the FCE report reflecting he had no plans to return to the workforce, asserting that automotive assembly was all he knew. He admitted Dr. Mirkin did not recommend any additional treatment. Claimant was released from Dr. Mirkin's care on January 28, 2011.

1. After being released from Dr. Mirkin, Claimant continued to have problems. He testified that if he sits for long periods of time, he feels a tightening in his low back. He has tingling and numbness down his leg constantly.

1. Much later, Claimant treated on his own with a Dr. Padda who is a pain management doctor. He has undergone injections but stated they really do not help.

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 08-124704

1. Claimant testified that he does not work because he takes pain medications and he has only been a laborer. He testified he would need breaks to work and he would get tired. He also testified that he has tried to find employment but he could not find any jobs due to his restrictions.

1. Claimant drives his wife to work on a daily basis. He drives her from his residence in Belleville, Illinois to St. Louis University Hospital. After he drops her off, he sometimes then drives to University City. If not, he returns to Belleville. He then drives back to St. Louis University Hospital to pick her up. He then will drive back to Belleville. Most days, he spends most of his time around the house. He testified that sometimes he goes to his mom's house. Also he gets his daughter off to school. He does not do anything physical. He sleeps in a recliner. He does not sleep much, 4 hours at most.

1. On cross, he admitted that he was thinking about moving to Texas. He also reported that his goal was eventually to own and operate a bar/grill in a residential neighborhood. He shared this idea with vocational examiner, Ms. Kane-Thaler (see below).

1. Claimant last worked at Chrysler on August 10, 2008, which was the date of his final layoff. He took the voluntary buyout from Chrysler in 2008 and received unemployment benefits for two years. While receiving unemployment, he had to provide the office with weekly updates with respect to applying for jobs. He admitted that he reported to Mr. Dolan that he applied for a couple of manufacturing jobs. It is after this period that Claimant had his (second) surgery in August 2010.

1. On cross by the SIF, Claimant testified he had no permanent restrictions prior to his first work injury. He can use a computer, but he would have to sit, stand and move around and says he is not a great typist. He does have a cell phone and uses it for social media.

1. Claimant stated he had medical restrictions with respect to pushing, pulling and sitting more than 30 minutes. On re-cross, Claimant admitted those restrictions were from his expert, Dr. Volarich, not his treating surgeon.

Pre-Existing Conditions

1. As stated, on January 23, 2003, Claimant underwent low back surgery with Dr. James Coyle who performed a diskectomy at L5-S1. He was last seen by Dr. Coyle on April 30, 2003 at which time the he was placed at MMI and he was released with no medical restrictions other than observing normal safety precautions. (Exhibit G).

1. Claimant testified he was diagnosed with asthma as a child. He has inhalers but he apparently does not need to carry them with him. He was not to work in non-ventilated places. His asthma has not limited employment.

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 08-124704

January 14, 2003 notes of the plant dispensary reflect lumbar surgery with Dr. Coyle scheduled for January 23, 2003. On March 24-25, 2003 Claimant reported low back pain to the dispensary and was given a 20 pound lifting restriction and no bending at the waist. On April 8, 2003 he reported low back pain despite a new job assignment. On October 18, 2005 he reported sharp pain in left mid-back while doing normal activities. Dispensary notes reflect a history of motor vehicle accident on November 7, 2005. Similar notes were made in May and July, 2006. On August 18, 2006 Claimant reported symptoms worsening since before shutdown (of minivan plant).

Claimant was seen on July 5, 2006 in plant medical at which time he reported he had back problems for a couple of weeks which were worse:

> ...worked this job for seven years. sts (sic) just wear and tear of working triggered (sic) the pain.

Claimant followed up again on August 18, 2006 with complaints of low back pain. He underwent an MRI in August 2006 which revealed a recurrent left-sided L5-S1 disc herniation. (Claimant then elected to treat on his own with Dr. Mirkin.) He returned to work on November 22, 2006 (after being off since September 11, 2006 per Dr. Mirkin.) On August 23 and 29, 2006, the following dispensary notes were entered:

> Job has some slight bending of the back, but lifting does not appear to be a risk.

>

> In view of the job site evaluation and ergonomic analysis [by Dr. Nicholas Carper at Chrysler], the lifting does not pose a significant risk for low back problems. In this case, given his anatomic finding and the predominant cause of his recurrent herniation is his prior herniation and his is a gradual deterioration of a pre-existent process. The predominant cause of his prior DDD and his prior disc herniation, and not his activity at work. [...]

(Exhibit F.)

Claimant was seen on April 18, 2008 and he reported continuing back pain and a new disc herniation. He returned again on May 19, 2008 with complaints of back spasms. He was last seen in plant medical on June 24, 2008 to discuss restrictions. (Exhibit F.)

Claimant treated with Dr. Mirkin on September 11, 2006 and after review of the MRI Dr. Mirkin opined Claimant had a recurrent herniated disc at L5-S1 on the left. (Exhibit C.) The note reads:

WIC-32-R1 (6-81)

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Mr. Jeffrey Dudley is a 34-year-old male. He is employed by Chrysler. He was lifting at work and developed the acute onset of low back pain and pain down his left leg. He tells me that he had not experienced this type of pain since he had surgery in 2003.

[...]

It is my impression that this is a patient with a recurrent herniated disc at L5-S1 on the left. Regarding causation, it appears that his condition is related to an incident that happened at work and that the prevailing cause of his symptomotology and need for treatment is his work incident. (Italics added.)

Claimant was referred to Dr. Graham and underwent an epidural steroid injection on September 12, 2006 and a second injection on September 26, 2006. When he returned on October 10, 2006 he reported he was essentially pain free and that his left leg pain had resolved. Claimant returned to Dr. Mirkin on October 27, 2006 and reported that his pain had much improved and was released at maximum medical improvement. (Exhibit C).

Claimant was next seen on July 9, 2008 which note reads:

Mr. Dudley comes in today, I have not seen him in some time. He complains of severe pain in his back and down his left leg. He had a lumbar surgery in 2003 and did well until he had a lifting incident at work and developed acute pain in his back and down his left leg. [...] At his request we put some restrictions on his work. If his history is correct I think his condition is a direct result of his activities at work. (Underlines added.)

A July 11, 2008 MRI revealed a large annular tear and central disc herniation at L4-5 and a smaller disc protrusion and annular abnormality at L5-S1 consistent with his prior surgery. Claimant returned to Dr. Mirkin on July 16, 2008 and reviewed the MRI. Claimant then experienced a long treatment gap.

Dr. Mirkin's next note on April 14, 2010 reads:

Mr. Jeffrey Dudley comes in today, I have not seen him in a couple of years. He complains of severe pain in his back and down his left leg. [...]. (Exhibit C.)

Some months later, on August 3, 2010 Dr. Mirkin performed an anterior lumbar discectomy and partial vertebrectomy at L4-5 and L5-S1 as well as an interbody fusion at L4-5 and L5-S1 along with placement of anterior interbody cages at L4-5 and L5-S1.

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Claimant returned on December 17, 2010 and reported he did not think that he was ever going to be able to work again. The clinical findings that day included negative straight leg raising, deep tendon reflexes intact and an x-ray revealed "a consolidating fusion." The doctor recommended additional therapy and an FCE. Dr. Mirkin noted Claimant had "some motivational issues."

On January 28, 2011 Dr. Mirkin recommended a 35-pound lifting restriction and placed him at MMI. He did note that Claimant wanted to see a pain physician. In his February 28, 2011 report the doctor stated he did not see any objective reason for him needing chronic pain management as he is a young, healthy well-muscled male.

On June 30, 2011, the claimant underwent a CT myelogram of the lumbar spine and on September 15, 2011 Dr. Mirkin authored a final report. After review of the CT which he noted indicated a solid fusion and no indication of any spinal pathology at any other level. He did not believe Claimant needed any additional treatment. He believed that Claimant remained at MMI.

In a (last) letter dated September 15, 2011, Dr. Mirkin reviewed the myelogram and post-myelogram CT, together with the report, and concluded Claimant has a solid fusion. (Exhibit C.)

Dr. Coyle

Dr. Coyle performed a diskectomy surgery at L5-S1 on January 23, 2003. No treatment records of this surgery are in evidence. Dr. Coyle performed several subsequent examinations and prepared reports as per his deposition (below).

Dr. Coyle opined at page three of his May 15, 2009 letter report in which he physically examined Claimant and reviewed multiple records, including Employer's medical dispensary and a recent MRI:

Based on Mr. Dudley's current clinical exam, any further surgical or medical treatment would be elective and based on his perceptions of quality of life as he does not have any discernible motor or sensory deficits and his principal symptom is chronic low back pain. (Underline added.)

(Exhibit A; Deposition Ex. B, p.)

Apex Network Physical Therapy

Claimant underwent a Function Capacity Evaluation on January 26, 2011. The evaluator noted Claimant did not participate fully in testing and the performance criteria profile was consistent with possible symptom magnification. Claimant failed 14 out of 16 performance criteria. The evaluator could not recommend any medical restrictions based on Claimant's performance behavior. (Exhibit E.)

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On October 19, 2012, Claimant underwent a CT of the lumbar spine without contrast which showed a stable appearing decompression/fusion with changes extending from L4 to S1; no compression, subluxation or osseous destruction; broad-based annular bulging along with mild bilateral facet arthropathy at L3-4 causing bilateral neuroforaminal encroachment without central canal stenosis. (Exhibit D).

Claimant treated from March 12, 2014 through December 1, 2014. He underwent an EMG which was negative. The records state Claimant was administered some injections. (Exhibit 5.)

Employee offered the 2015 deposition of David T. Volarich, D.O. as Exhibit 2. Dr. Volarich examined Claimant in 2011 and 2013. Dr. Volarich reviewed the medical record of the providers including Dr. Mirkin and Dr. Coyle. His 2011 physical findings were remarkable for the absence of radicular symptoms. He noted the (anomalous) findings of flexion to only 20 degrees but SLR of 60 degrees. Dr. Volarich made no detail or observation about the 2003 surgery in his narrative but only mentioned it in his diagnoses.¹ (Exhibit 2; Depo. Ex. 2 & 4.)

Regarding notes, Dr. Volarich did not note that Dr. Carper performed an ergonomic evaluation of Claimant's workstation. Also, after Dr. Carper's determination that Claimant's work was not the cause of his symptoms, he misstated that Claimant was "next referred to Dr. Mirkin," who Claimant privately selected. (Exhibit 2; Deposition Ex. 2, p. 2.)

Dr. Volarich's narrative reports and testimony exactly parallel that of Claimant's surgeon, Dr. Mirkin. However, he seemed to confuse which surgery required instrumentation. In addition, Dr. Volarich did not dispute detail provided on radiological studies provided by Dr. Coyle, or that Claimant had no radiculopathy for the 3½ years following his diskectomy in January 2003.

Dr. Volarich agreed that the L4-5 disc level was normal on the August 21, 2006 MRI, but the July 11, 2008 scan clearly showed a new disc herniation at L4-5. (p. 26). Dr. Volarich disagreed with both treating surgeons as to permanent disability and employability.

Dr. Volarich examined Claimant a second time in May 2013 referable to an injury leading up to the second case. He testified that his diagnosis with respect to the July 10, 2008 injury was a disc herniation with annular tear at L4-5 contributing to low back pain and left leg radicular

1 Relevant here is the Chrysler dispensary notes and Dr. Coyle's notes regarding the absence of radiculopathy for the 3½ years following the diskectomy surgery in January 2003.

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symptoms status post anterior and posterior lumbar fusion with instrumentation at L4-5 and concluded that the claimant's job duties were the prevailing factor in causing the condition at L4-5. (pp. 40-41).

Dr. Volarich assigned 25 percent PPD to the 2003 injury, 25 percent PPD to the 2006 injury and 25 percent PPD to the 2008 injury. He also assigned a 15 percent PPD to the body referable to asthma. Dr. Volarich also opined that if vocational assessment is able to identify a job, he had no objection to Claimant attempting the work. Without further explanation, he next states that if a vocational counselor could not identify a job, Claimant was permanently and totally disabled. He opined total disability was as a result of the work-related injuries of July 5, 2006 and July 10, 2008 in combination with each other as well as in combination with his pre-existing lumbar syndrome and asthma. (Ex. 2, pg. 41-43). He noted Claimant's younger age and education limited to high school.

On cross-examination, Dr. Volarich conceded Dr. Mirkin placed Claimant at MMI on December 27, 2006 and Claimant only returned to Dr. Mirkin on September 11, 2008 which was over a year and a half after the doctor placed Claimant at MMI. (p. 46).

Mr. Dolan

Claimant offered the 2015 deposition of Mr. J. Stephen. Dolan, LRC as Exhibit 1. Mr. Dolan performed a vocational evaluation of Claimant at his attorney's request on July 8, 2013. He concluded that using the restrictions of Dr. Mirkin there would be light exertion level jobs Claimant could perform. (Exhibit 1, p. 26). Mr. Dolan also concluded that based on Dr. Volarich's restrictions, Claimant's education, work experience, academic skills, and work skills and restrictions he is unable to perform any employment for which a reasonably stable market exists. (Ex. 2, pg. 27).

On cross, Mr. Dolan admitted that Claimant would not be considered a worker of advanced age and in fact would be a younger worker. He confirmed Claimant has a high school education. (Ex. 2, pg. 30).

Dr. Polinsky

Claimant offered a report of Dr. Polinsky dated May 10, 2011 as Exhibit 3. Dr. Polinsky saw him after his 2010 fusion. The doctor recommended a lumbar myelogram and thereafter was provided a copy of that report and issued a supplemental report dated July 26, 2011 at which time he concluded that he did not believe Claimant needed any additional testing or treatment. (Exhibit 3).

Dr. Coyle

Employer offered deposition of Dr. James Coyle as Exhibit A. Dr. Coyle reviewed the record, including that of Dr. Peter Mirkin and the Chrysler plant dispensary. Dr. Coyle performed an L5-S1 microdiskectomy surgery in 2003. (Exhibit G.) He performed IMEs of Claimant on May 9, 2009 and March 21, 2012. Dr. Coyle's narrative reports detail the Chrysler plant dispensary history along with available radiological history.

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Dr. Coyle noted Claimant's statement on July 5, 2006 in the plant dispensary record, "Worked this job for seven years, just wear and tear triggered the pain." Radicular complaints are noted this same date. Dr. Coyle also notes Claimant's history to Dr Mirkin, two months later, on September 11, 2006, "He was lifting at work and developed the acute onset of low back pain and pain down his left leg." Dr. Coyle observes that Dr. Mirkin's note suggests Claimant "has not had similar symptoms in over 3½ years." (Exhibit A; Deposition Ex. B, pp. 2-3.)

Dr. Coyle noted a August 21, 2006 MRI evidence of Claimant's prior surgery at L5-S1 and its recurrent herniation. Additionally it showed "at L4-5 there is mild diffuse bulging." The next MRI is on July 11, 2008 per Dr. Mirkin which showed the L4-L5 with "A posterior annular tear with a broad-based central disc herniation is present, producing 5 mm of compression on the anterior thecal sac. [...] Mild bilateral foraminal encroachment is evident bilaterally." (Exhibit A; Deposition Ex. B, pp. 1-2.)

Dr. Coyle's physical findings on that date included mild diffuse low back pain, forward flexion to eighty degrees, negative straight leg raising normal reflexes bilaterally at the knee and ankle, and no sensory or motor deficits.

Dr. Coyle testified that the L4-5 disc herniation was not present on the 2006 MRI. He further testified that the L4-5 disc herniation was not related to Claimant's 2006 claim. Dr. Coyle stated, "its not clear to me that {Claimant} had a 2008 work injury." (p. 12) He believed that any further surgical or medical treatment would be elective based on Claimant's symptoms but, if "you were going to do a decompression and fusion at L4-5 it would be appropriate to incorporate L5-S1 because he had that level operated on and had a recurrent herniation." (pp. 8,10). He appears to be referring to fusion surgery technique that incorporates the adjacent and previously operated disc. Again, this opinion of Dr. Coyle traces to his 2009 IME report.

Dr. Coyle subsequently reviewed the actual films and reiterated on July 30, 2009 that opinions from three months earlier were unchanged. He further explained his disagreement with the plant dispensary physician's reading of the 2006 MRI who thought the cause of Claimant's recurrent L5-S1 herniation was the prior disc herniation and gradual deterioration. Rather, Dr. Coyle explained the the extruded fragment was consistent with a "new acute herniation" at that level. Dr. Coyle further explained that the 2006 MRI "are also consistent with the fact that Mr. Dudley did not have symptoms of radiculapathy for 3½ years following his diskectomy in January 2003.

Dr. Coyle provided a rating of 25% disability, 22.5% due to the surgery he performed in 2003. The doctor did give him an additional 2.5% disability referable to his claims in 2006 and 2008. (Ex. A, pg. 15). Dr. Coyle did not believe Claimant needed any additional treatment to cure and relieve him from the effects of the work injury. (Ex. A, p. 19).

On cross-examination, Dr. Coyle stated that he could not say within a reasonable degree of medical certainty that Claimant's job duties were the prevailing factor in causing the recurrent disc herniation at L5-S1 but he did attribute a small amount of PPD to the 2006 injury. (p. 32).

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Ms. Kane-Thaler

Employer offered the deposition of Ms. Karen Kane-Thaler, LRC, as Exhibit B. Ms. Kane Thaler performed a vocational evaluation of Claimant on June 9, 2017, including interview. Ms. Kane-Thaler testified that Claimant would be able to seek, obtain and maintain employment and compete to obtain the employment. Her opinion was based on either Dr. Volarich's or Dr. Mirkin's restrictions. She explained Claimant could access light duty (20 pounds) with sitting standing and walking. He was not eligible for medium, heavy and very heavy labor positions. She stated there was a higher preponderance of light duty positions in the urban environment. (p. 25).

On cross-examination by the SIF Ms. Kane-Thaler reiterated that based on the medical records, work history and education he would qualify for at least return-to-work assistance and job placement. (p. 49).

Mr. England

The SIF offered the deposition of Mr. James England as Exhibit Roman Numeral I. Mr. England reviewed the medical record and Claimant's deposition in 2015. Mr. England considered the opinions and medical restrictions of both medical experts. Mr. England said he does not attempt to weigh the physicians against one another but simply takes each with what restrictions are indicated. Mr. England noted that Claimant's assembly work required close attention to detail and that Claimant was able to move in and out of several departments. He testified that either assuming the restrictions of Dr. Mirkin or Dr. Volarich, Claimant would still be able to do some entry level types of service employment.

Mr. England further noted that a positive thing was that he was a younger worker and he would be an ideal person for a vocational rehabilitation program. (pp. 13-15).

RULINGS OF LAW

Medical Causation

An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure 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. Ordinary gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable. Section 287.067.2 RSMo (2005). The employer is responsible to provide medical treatment that may be reasonably required to cure and relieve the claimant from the effects of the injury. RSMo § 287.140.1. (2005).

After collecting unemployment benefits for two years during the period following the plant shutdown, Claimant argues that his pre-shutdown disc injury is the basis for a surgery in

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2010 and a PTD claim at time of trial in 2018. This record is complicated by Claimant's reiterations of his expert's comments to him regarding "medical restrictions" or whether his pain would keep him from employment. Such experts speak for themselves. The very basis of expert opinion is that it is required because a subject matter is beyond the competency of lay testimony. See McGrath v. Satellite Sprinkler's Sys., 877 S.W.2d 704, 708 (Mo. App. 1994).

First Case

Claimant was initially seen in plant medical on July 5, 2006 and then treated on his own with Dr. Mirkin. He underwent injections for a disc herniation at L5-S1. Dr. Coyle believed Claimant was status post a recurrent disc herniation "probably" in 2006 at L5-S1, but Dr. Coyle does not state that it is work related in either his 2009 narrative report or in his deposition. Dr. Coyle also did not relate the disc herniation at L4-5 to Claimant's 2006 work-related injury as it was not present on the 2006 MRI. Dr. Volarich agreed with Dr. Coyle that the disc herniation at L4-5 was not related to his 2006 work injury.

Claimant was released by Dr. Mirkin and placed at MMI on October 27, 2006. Dr. Volarich agreed that Claimant was placed at MMI with respect to the L5-S1 herniation on October 27, 2006. Thus, the recurrent L5-S1 disc herniation was quickly resolved.

Dr. Coyle noted that he could not, within a reasonable degree of medical certainty, state there was a clear correlation between Claimant's problems and his L4-5 herniation. (Exhibit A, pg. 38-39). He conceded it was "possible" that repetitive trauma could cause a disc herniation, but so was it for many [non-work] activities. Dr. Coyle's observation in his 2009 narrative report that Dr. Carper's ergonomic site-evaluation in August 2006 did not suggest "significant risk for low back problems" is unrebutted by Dr. Volarich and uncontradicted by other study. This finding by Dr. Carper supports Dr. Coyle's opinion that he cannot, with reasonable medical certainty, state that Claimant's 2006 symptom onset was due to his work duties.

It cannot be disputed that this release and finding of MMI was followed by a long treatment gap. Claimant worked full-time during this period until later 2008. This gap in treatment with Dr. Mirkin from 2006 to 2008 parallels the gap in MRI dates.

Thus, it is reasonable what Dr. Coyle suggests in the alleged 2006 Claim that there does not appear to be a new injury. The 2006 treatment record of Dr. Mirkin does not suggest a new disc pathology and the symptoms were quickly resolved with injection therapy in a matter of weeks. Dr. Mirkin's record is also consistent with Dr. Carper's ergonomic analysis of the workstation.

Second Case

Subsequent medical records show, and Claimant testified, that he did not return to Dr. Mirkin until July 2008 when he underwent another MRI, which revealed a new disc pathology at L4-5, as described. Dr. Coyle noted that he could not, within a reasonable degree of medical certainty, state there was a clear correlation between Claimant's problems and his L4-5 herniation. (Exhibit A, pg. 38-39). He conceded it was "possible" that repetitive trauma could cause a disc herniation, but so was it for many [non-work] activities. Dr. Volarich found the new pathology at L4-5 work related. However, Dr. Mirkin noted a history of "lifting incident," not

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wear and tear, along with development of "acute pain." Dr. Mirkin, nevertheless, recommended surgery with which Dr. Coyle concurred to resolve the pathology.

The new disc pathology at L4-5 revealed by the July 2008 MRI, however, forms the basis of a new work related injury. This medical finding is accompanied by increased symptomotology and decreased productivity. It is undisputed that Claimant's work with Employer was heavy and no other activity is reasonably suggested in the record that would explain the onset of disabling symptoms. This is especially true in view of the positive clinical findings by Dr. Mirkin correlating with the radiological findings.

Dr. Coyle could not say within a reasonable degree of medical certainty that Claimant's recurrent disc herniation at L5-S1 was a result of Claimant's job duties and therefore it follows that Claimant's job duties were not the prevailing factor in causing his disc herniation. It follows that since both Dr. Coyle and Dr. Volarich believed that Claimant's L4-5 disc herniation was not related to the first case, the need for Claimant's surgery was not reasonably required to cure and relieve him from the effects of the 2006 injury.

Dr. Volarich found the fusion surgery necessary and a result of the 2008 work related injury. These points are clearly made by Dr. Volarich but not clearly explained. Dr. Volarich carefully posits his responses relative to the filed Claims in 2006 and 2008. This may be acceptable in undisputed claims but in the broadly disputed claims at hand, resonance with the party's chosen pleadings undercuts credible, and independent, medical causation analysis. The experts reliance on disputed pleadings is necessarily misplaced. On the other hand, Dr. Coyle, and to a lesser extent Dr. Mirkin, both surgeons of record, posit their observations and opinions in terms of Claimant's clinical presentation and medical findings on radiology.

While Dr. Coyle agreed with Dr. Mirkin's surgery recommendation and, separately, the two-level fusion technique, he did not agree that it was work related. Dr. Mirkin's deposition was not taken but his notes reveal Claimant reappeared in his office two years later on April 14, 2010 with severe low back and radicular pain. Dr. Mirkin performed the fusion on August 3, 2010. No medical expert in this record can address what happened to Claimant while he was laid-off from work and on unemployment benefits between 2008 and 2010. Moreover, Dr. Volarich fails to address this long, and presumably active, treatment gap.

Dr. Volarich lacks a foundation from which he can reasonably state that the fusion surgery performed two years after discovery of the new pathology, without any traceable treatment, is, nevertheless, the responsibility of Employer. Moreover, Claimant's acceptance of unemployment benefits confirms the absence of ongoing disabling lumbar pathology that might, otherwise, form the basis of a related surgery. The record compels a finding that the fusion surgery is not work-related. Dr. Coyle, supported by Dr. Mirkin's findings and observations, is more persuasive than Dr. Volarich.

Nature and Extent of Permanent Disability

Dr. Coyle further testified that despite the fact that he awarded PPD for the 2006 injury he noted it was not necessarily for the herniation but for the Claimant's "symptoms in his back."

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This assignment of PPD seems equivocal given Dr. Coyle's detailed narrative of both the radiological and clinical progress of Claimant's complex lumbar disc disease.

Claimant presented evidence of permanent partial disability through Dr. Volarich. Dr. Volarich organized his set of ratings around the Claims filed by Claimant rather than medical events. Unlike his 2011 report, Dr. Volarich's 2013 report clearly assigns 25 percent PPD to the 2003 injury, 25 percent PPD to the 2006 injury and 25 percent PPD to the 2008 injury. These PPD assignments, as stated above, coincide with the alleged injury years rather than medical events and outcomes. He does not explain how each warrants the same amount of PPD although the first is accompanied by lumbar surgery, the second resolved in weeks with injections and the third went untreated while active on unemployment benefits with a disputed and remote surgery two years later. His report does not explain, for example, how Claimant could perform his heavy job and long shifts with 50 percent PPD from the 2003 and 2006 injuries.

Separately, his de minimis physical findings on examination cannot support a 25 percent PPD rating. This examination is consistent with that of Dr. Coyle who found no motor or sensory deficits. Also, these quantities, i.e. 25 percent, cannot be traced to percentage deficits found in his clinical tests for ROM, strength, pain scale or endurance.

Permanent Total Disability

As outlined above, Dr. Volarich found the pre-existing lumbar condition (and asthma) combined synergistically with the L4-5 lumbar pathology (manifest in 2008) to render Claimant's disability greater than each considered separately. As outlined above, the medical opinions from three qualified experts, including Dr. Mirkin, indicate that Claimant's fusion is solid and that no further treatment is required. Dr. Mirkin, Claimant's chosen provider, stated Claimant was in good shape but had motivational issues.

Further, Dr. Volarich opined that Claimant's permanent total disability depended on whether vocational assessment could "identify a job." This is convenient but this is not the law. It also deflects the questions of total disability and employability. Despite the stark anomaly between Dr. Volarich's "no objection" to attempting to return to work, and an opinion of permanent total disability, Dr. Volarich did not discuss the subject to any extent.

For example, Dr. Volarich did not address Claimant's own surgeon's concerns about "motivational issues" with regard to returning to work. Dr. Volarich did not address the FCE performance criteria that the surgeon integrated into his own notes. He did not address the history given the FCE therapist that Claimant had no plan to return to work. Two vocational experts found light duty jobs available to Claimant, including Claimant's expert. The two defense vocational experts each found Claimant young and trainable. Other vocational facts of employability were unaddressed. Mr. Dolan seemed unfamiliar with Ms. Kane-Thaler's suggestion of no-cost rehabilitation available to Illinois residents such as Claimant. Ms. Kane-Thaler and Mr. England were more persuasive than Mr. Dolan which prevents a finding of permanent total disability.

Separately, Claimant's trial testimony that he did not have a high school diploma is noteworthy. The record confirms otherwise. Ms. Kane-Thaler, Mr. Dolan and Mr. England all

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testified that Claimant did have a high school degree. Dr. Volarich noted education limited to high school graduation. This discrepancy is difficult to explain. Claimant also drives and uses computer.

The record of evidence does not permit an award of PPD on the first case (2006) because of the failure of proof on medical causation. The second case (2008) finds substantial probative evidence in the record for an award of PPD reflecting the serious but unoperated, if not abandoned, pathology of 2008 in which the evidence demonstrates Claimant sustained a lifting injury during the period 2006 to 2008 at the truck plant which was diagnosed as a lumbar disc pathology at L4-5. While Dr. Coyle's medical causation was persuasive, his PPD opinions were difficult to understand. Rather, Claimant's medical diagnosis together with clinical presentation warranting Dr. Mirkin's discussion of a surgery form the basis of 15 percent PPD.

Future Medical Treatment

Dr. Mirkin, the treating physician released Claimant at MMI on January 28, 2011. (Exhibit C). He noted Claimant wanted to see a pain physician. However, in his February 28, 2011 report he confirmed that he did not see an objective reason for him needing chronic pain management as he is a young, healthy well-muscled male. Also after review of a CT Claimant underwent on May 30, 2011 he again did not believe there was any indication for further treatment. (Exhibit C).

Assuming, arguendo, that the fusion surgery was work related, Dr. Coyle credibly testified that he did not believe that Claimant needed any additional treatment to cure and relieve him from the effects of the work injury. Furthermore, Dr. Polinsky, authored a report dated July 26, 2011 at the Claimant's attorney's request and after review of the myleogram Claimant underwent, concluding that Claimant did not need any additional treatment or testing. (Exhibit 3). The opinions of Dr. Mirkin and Dr. Coyle clearly support a finding that Claimant is at MMI and the fusion was soild. Dr. Volarich's suggestion of pain management was simply not supported by the treatment record. There is no basis in evidence to allow future medical in view of the finding that the surgery, while medically necessary, was not work related.

Liability of the Second Injury Fund

Claimant alleges synergistic combination between his current PPD and pre-existing PPD. Synergy is the concept in which the current PPD and the pre-existing PPD are found, in combination, to create a "substantially greater" disability, or an increased overall disability, and for which the employer should not be held liable. Section 287.220.1 RSMo (2000). Here, The current disability for the reported injury is determined to be 15 percent PPD of the body referable to the low back at L4-5. The pre-existing PPD of the low back from 2003 is found to be 22.5 percent PPD of the body referable to the lumbar spine at L5-S1. (The asthma claim lacked sufficient medical evidence to find PPD greater that the statutory threshold.)

Claimant's primary injury and prior lumbar disability constitute separate disabilities as identified by the corresponding dermatome of their respective lumbar discs. The evidence

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supports a finding that these disabilities from the current injury and that pre-existing the current injury are hindrances and obstacles to employment and/or retaining employment. Each of the foregoing PPD determinations exceeds the PPD percentage thresholds for the body or an extremity, respectively. Section 287.210.1 RSMo (2000).

The above PPD determinations equate to 150 weeks. The curtailed activity and medical evidence suggest Claimant's increased overall PPD is expressed by a 20 percent load. Thus, under the statute, the synergistic effect results in an additional 30 weeks of PPD from the SIF.

Conclusion

Accordingly, in the second case, identified by Injury Number 08-124704, on the basis of the substantial and competent evidence contained within the whole record, Claimant is found to have sustained a 15 percent PPD of the body referable to the lumbar spine. In addition, Claimant is found to have sustained an additional 30 weeks of PPD from the SIF as a result of the combination between the primary injury and the synergistic pre-existing PPD.

Date: [redacted]

10/06/2021 11:11:19

I am not looking for 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: [redacted]

Made by: [redacted]

JOSEPH E. DENMAN

Administrative Law Judge

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