Benjamin Branch v. MERS Missouri Goodwill Industries

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 17-090769

**Employee:** Benjamin Branch

**Employer:** MERS Missouri Goodwill Industries

**Insurer:** Sentry Casualty Company

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge 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 the award and decision of the administrative law judge dated August 9, 2019. The award and decision of Administrative Law Judge Joseph E. Denigan, issued August 9, 2019, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this **6th** day of March 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

**DISSENTING OPINION FILED**

Reid K. Forrester, Member

Shalonn K. Curls, Member

**Attest:**

**Pamela M. Hofmann/KK**

Secretary

Injury No.: 17-090769

Employee: Benjamin Branch

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

Employee: Benjamin Branch

Dependents: N/A

Employer: MERS Missouri Goodwill Industries

Additional Party: N/A

Insurer: Sentry Casualty Company

Hearing Date: May 29, 2019

Injury No: 17-090769

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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: November 13, 2017

1. State location where accident occurred or occupational disease was contracted: St. Louis

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 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 occurred or occupational disease contracted: Claimant's chair broke causing him to injure his low back.

1. Did accident or occupational disease cause death? No. Date of death? N/A

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

1. Nature and extent of any permanent disability: 14.5% PPD of the body referable to low back

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

1. Value necessary medical aid paid to date by employer/insurer? $8,072.56

Revised Form 31 (3/97)

Page 1

1. Value necessary medical aid not furnished by employer/insurer? none
2. Employee's average weekly wages: $\ 789.90
3. Weekly compensation rate: $\ 526.60 TTD/\$483.48 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

58 weeks of permanent partial disability from Employer

$\ 28,041.84

1. Second Injury Fund liability: No

TOTAL:

$\ 28,041.84

1. Future requirements awarded:

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:

James J. Sievers, Jr.

Issued by DIVISION OF WORKERS' COMPENSATION

injury Number: 17-090769

Employee: Benjamin Branch

Dependents: N/A

Employer: MERS Missouri Goodwill Industries

Additional Party: N/A

Insurer: Sentry Casualty Company

Hearing Date: May 29, 2019

injury No: 17-090769

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves a low back injury to Claimant on the reported accident date of November 13, 2017. Employer/Insurer admits Claimant was employed on said date and that any liability was fully insured. Both parties are represented by counsel. The single issue for trial is the nature and extent of permanent partial disability.

Claimant testified that he worked for Employer as a District Loss Prevention Manager. His duties involved internal and external theft audits and surrounding investigations. He was required to walk facilities, watch surveillance film, type reports and drive to and from the various stores in his district. He worked seven and a half hours per day, five days per week, with occasional overtime. Claimant performs no manual labor. He has been employed with Employer for six years and continues to work at the same job.

Claimant testified that on November 13, 2017, he was sitting in an office chair at work when the back of the chair broke causing injury to his back. He testified that he heard a popping sensation in his low back and pain radiated into his right lower leg. Claimant had a minor 1998 WC low back injury. (Exhibit E.)

He was seen at Total Access Urgent Care on November 16, 2017 and diagnosed with low back pain. X-rays were taken which were negative for fracture. Back spasms were noted and he was prescribed Prednisone, Taper and Methocarbamol 750mg as needed. Physical therapy was ordered, but was not helpful. An MRI on December 19, 2017 revealed disc bulging at L1-2 through L5-S1 with stenosis and L4-5 neural impingement. A right posterolateral annular fissure was noted at L5-S1.

Claimant was referred to Dr. Matthew Gornet, an orthopedic surgeon, on January 12, 2018. Dr. Gornet reviewed the MRI and recommended aggressive physical therapy as well as a steroid injection on the right at L5-S1. The steroid injection was not initially authorized and subsequently not performed.

WC-32-R1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 17-090769

On February 8, 2018, Dr. Gornet noted "right buttock, right hip and right posterior thigh pain and a component of knee pain." Claimant was allowed to return to work at full duty that day. Dr. Gornet last saw Claimant on June 11, 2018 and gave a final diagnosis of right focal annular tear at L5-S1 and he placed Claimant at maximum medical improvement (MMI).

Current complaints include difficulty with prolonged sitting. Claimant testified that he is able to work and stand, but has difficulty with extended car rides to and from the various stores in his district. He testified that he is able to take care of his home but hires-out some work. He also testified that he continues to train police dogs. This generally occurs on weekends. He mostly watches due to his back injury and no longer does any of the sleeve (bite) work.

Opinion Evidence

Claimant offered the narrative report of Dr. David Volarich as Exhibit 2 dated October 3, 2018. Dr. Volarich reviewed the medical record and examined Claimant. Notes on physical examination included restricted motion at the lumbar spine. Lateral flexion was asymmetric. Back pain occurred with extension and palpation elicited pain in the right sacroiliac joint. No radicular symptoms were present that date although a trigger point was found.

Dr. Volarich assigned a 25 percent permanent partial disability (PPD) of the body as a whole rated at the lumbar spine due to the treated lumbar right leg radiculopathy from the annular tear at L5-S1. He further diagnosed an irreversible aggravation of degenerative disc disease, degenerative joint disease, and disc bulging from L1-S1. The rating accounts for his back pain syndrome, lost motion and recurrent right lower extremity paresthesias. Dr. Volarich's attribution model found no PPD from a 1998 low back injury which settled for 5.5 percent PPD.

Employer offered the medical records of Dr. Matthew Gornet as Exhibit C. Employer did not offer a narrative report. Dr. Gornet's final examination was on June 11, 2018 when he placed Claimant at MMI and assigned a 5 percent PPD due to the annular tear. Dr. Gornet made no attribution for the prior low back injury.

RULINGS OF LAW

Nature and Extent of PPD

Claimant's testimony was straightforward and uncontradicted on cross-examination or by the treatment record. He presented a complete treatment record including that of Dr. Gornet who contemplated active disc pathology at L5-S1 with right-sided radiculopathy. Injection therapy was prescribed but not undertaken. Claimant was allowed to resume full duty in early February 2018, three months after the reported accident. He had been given a ten-pound lifting restriction, among others, as late as January 12, 2018. The parties offered the PPD opinions without objection.

Dr. Gornet's serious diagnosis of an annular tear at L5-S1 was corroborated by the clinical findings and the radiological findings. Claimant was prescribed an injection, which

WC-33-R1 (6-81)

Page 4

Authorization was delayed, but then refused by Claimant, in favor of physical therapy. His diagnosis, recurrent radiculopathy and range of motion curtailments suggest an overall PPD of 20 percent of the body. The pre-existing injury is found to be 5.5 percent PPD, as settled, leaving current PPD at 14.5 percent. Claimant's testimony compared easily with the treatment record.

Accordingly, on the basis of the substantial competent evidence contained within the whole record, Claimant is found to have sustained 14.5 percent PPD of the body referable to the lumbar spine as a result of the reported injury.

I certify that on **8-9-19** 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 **Mr.**


Made by:

**Joseph E. Denigan**

Administrative Law Judge