I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's decision affirming the administrative law judge's award.
The administrative law judge erred in finding that employee had 14.5% permanent partial disability of the body as a whole referable to the low back as a result of the November 13, 2017, accident. The evidence from employee's testimony and medical records supports a finding of 5% permanent partial disability.
In a workers' compensation case, the employee carries the burden of proving all essential elements of his claim. The injured worker must establish a causal connection between the accident and the claimed injuries.¹
Under § 287.190.6(2), in determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures. Further, § 287.190.6(1) provides that when a settlement is approved by an administrative law judge, the percentage of disability shall be conclusively presumed to continue undiminished whenever a subsequent injury to the same part of the body also results in permanent partial disability.
Administrative Law Judge Denigan determined employee had a total of 20% permanent partial disability of the low back, with 5.5% attributed to a prior workers' compensation injury which settled in 2001 and 14.5% attributed to the November 13, 2017, work accident. He based his finding of disability on employee's "diagnosis, recurrent radiculopathy and range of motion curtailments."² However, a review of employee's testimony and the report of employee's expert, Dr. David Volarich, make it clear that employee did not have any radicular symptoms. Despite this, Dr. Volarich and Administrative Law Judge Denigan incorrectly attributed additional permanent partial disability to employee's radiculopathy.
On direct examination, employee's attorney asked employee how his back affected him in performing his job duties and at home. He responded that he would experience numbness in his right leg if he sat for too long. He further responded that he had difficulty with power washing and weed eating. Further, when asked to explain his back pain to the administrative law judge, employee again noted numbness in his right leg with prolonged sitting, but did not testify to any radiating pain or range of motion problems.
¹ Fischer v. Archdiocese of St. Louis, 793 S.W.2d 195, 198 (Mo. App. 1990), overruled in part on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 230 (Mo. banc 2003).
² Award, p. 5.
Injury No.: 17-090769
Employee: Benjamin Branch
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Similarly, when his expert, Dr. Volarich, evaluated employee he reported persistent back pain, but denied any radiating pain into the lower extremities. He also reported increased discomfort with prolonged sitting, but noted that he had no problems with the vibration of a zero turn mower. Employee acknowledged he had told Dr. Volarich about all of the symptoms he could think of.
Employee acknowledged he had returned to the same full-time position that he was working prior to the work injury. He is still doing internal and external theft and audit work as well as injury investigations. He is performing all the same physical movements and is working the same number of hours he was working prior to the injury.
Additionally, employee admitted that he had no difficulty with bathing, dressing or sexual activity. He agreed the vibrations of his zero turn mower did not bother him. He testified he told Dr. Volarich that he is able to walk, stand, and lift appropriate weight.
Employee said he continues to perform his hobby of raising and training police dogs. He testified that he does this in the same capacity as before the injury with the exception that he no longer does "bite work" with the dogs. He did not mention any limitations in this hobby/job to Dr. Volarich.
Employer referred employee to Dr. Matthew Gornet on January 12, 2018. Dr. Gornet diagnosed an annular tear at L5-S1 related to employee's work injury. Dr. Gornet's treatment recommendations included physical therapy and a possible injection. However, employee contacted Dr. Gornet's nurse three days after the initial appointment (January 15, 2018) and indicated he did not want the injection because he was improving. By the time claimant returned to Dr. Gornet on February 8, 2018, three weeks after the initial appointment, Dr. Gornet's only recommendation was observation and he allowed the employee to return to work without restrictions.
When employee last saw Dr. Gornet, he reported some ongoing pain that he was tolerating. Despite the pain, employee was working full duty. Dr. Gornet did not recommend any further treatment. Dr. Gornet subsequently opined employee had 5% permanent partial disability of the spine related to the annular tear. This rating is entirely consistent with employee's minimal complaints and minimal treatment. It also accounts for the fact that Dr. Gornet followed employee's care personally for six months. Despite an initial suggestion for an injection employee did not want, Dr. Gornet never felt employee required treatment other than physical therapy and observation.
Dr. Volarich's own findings do not support his rating. In determining employee had 25% permanent partial disability of the low back, Dr. Volarich noted a portion of the rating was attributed to recurrent right lower extremity paresthesias. Employee told Dr. Volarich that his ongoing complaints from the work injury were increased pain with prolonged sitting. Employee also reported he had problems with weed eating, but not with vibrations from the zero turn mower. Employee denied radiating pain, lower extremity paresthesias and lower extremity paresis.
Injury No.: 17-090769
Employee: Benjamin Branch
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On physical examination, there was only minimal loss of range of motion (8% flexion, 16% right lateral flexion, but no loss in extension or left lateral flexion). Dr. Volarich noted pain to palpitation and a trigger point in the sacroiliac joint, but there were no radicular symptoms. Employee had a normal gait with no foot drop, limp, or ataxia. Employee's strength was 5/5 in all major groups of the upper and lower extremities.
Dr. Volarich reported employee's MRI indicated disc bulging from L1 to S1 as well as degenerative disc disease and degenerative joint disease. Dr. Volarich opined the work injury irreversibly aggravated those prior issues, but did not assess any disability whatsoever to the underlying back issues that any sixty-seven-year-old male would be likely to have. It also appears Dr. Volarich was unaware that employee had previously received a settlement for 5.5% permanent partial disability of the low back from the 1998 car accident. As that disability is "conclusively presumed to continue undiminished," the prior disability (as well as the prior multi-level bulging and degeneration) should be included as part of Dr. Volarich's rating.
When considering employee's minimal complaints, minimal treatment, and minimal findings on physical examination, as well as his underlying back issues, Dr. Volarich's rating of 25% permanent partial disability of the body as a whole is not credible. This rating is clearly inconsistent with the objective physical findings as well as the employee's complaints.
It is clear that both Drs. Volarich and Gornet believe employee had an annular tear as a result of the work injury. Dr. Gornet was the treating doctor and is an experienced back surgeon. However, Dr. Gornet recognized employee's injury did not result in significant enough symptoms or pathologic findings to justify treatment beyond conservative physical therapy and observation.
The administrative law judge relied on Dr. Volarich's diagnosis of recurrent radiculopathy and range of motion curtailments. However, consideration must be given to the actual symptoms and limitations, or lack thereof, not just the diagnosis. Here, the administrative law judge attributed disability to recurrent radiculopathy when there was no evidence of such symptoms presented. Further, the administrative law judge opined employee had 20% overall disability despite minimal objective or subjective symptoms and complaints. Dr. Gornet's rating is more credible and supported by the evidence. The administrative law judge should have credited Dr. Gornet's opinion that employee had 5% permanent partial disability of the low back related to the work accident.
Conclusion
Employee is a sixty-seven-year-old man with prior degeneration and disc bulges in his entire lumbar spine. Employee's own expert acknowledged he had preexisting degenerative disc disease, degenerative joint disease and bulging from L1 to S1. Upon completion of treatment, employee denied any radicular symptoms as a result of the work injury and his only real complaints are a slight increase in back pain with extended sitting and some numbness in the leg which resolves when he stands. The administrative law judge erred in considering "recurrent radiculopathy" in his award of
Injury No.: 17-090769
Employee: Benjamin Branch
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permanent partial disability as there was no evidence of radiculopathy presented and in fact, radicular symptoms were denied.
Dr. Gornet was employee's treating physician and followed his care for six months. Dr. Gornet's rating of 5% permanent partial disability of the spine accurately assesses the disability related to those complaints. Dr. Gornet's evaluation is more credible than that of Dr. Volarich. I would award employee 5% permanent partial disability of the body as a whole at the rate of 483.48, or 9,669.60.
Because the majority finds otherwise, I respectfully dissent.
Reid K. Forrester, Member