Birdsong v. Waste Management

Decision Date26 October 2004
Docket NumberNo. 25996.,25996.
Citation147 S.W.3d 132
PartiesPaul BIRDSONG, Employee-Respondent, v. WASTE MANAGEMENT and Insurance Company of the State of Pennsylvania, Employer/Insurer-Appellants, and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Additional Party-Respondent.
CourtMissouri Court of Appeals

Mark Cordes, Hugh S. O'Sullivan, St. Louis, for appellants Waste Management and Ins. Co. of the State of Pennsylvania.

B. Michael Korte, St. Louis, MO, for respondent Paul Birdsong.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Becky J.W. Dias, Asst. Atty. Gen., Springfield, MO, for respondent Second Injury Fund.

JEFFREY W. BATES, Chief Judge.

Paul Birdsong ("Birdsong") sustained a compensable injury while in the employ of Waste Management ("Employer"), whose liability for workers' compensation coverage was insured by Insurance Company of the State of Pennsylvania ("Insurer"). After the Labor and Industrial Relations Commission ("Commission") made a final award of workers' compensation benefits for permanent total disability and temporary total disability to Birdsong, Employer and Insurer appealed. We affirm.

I. Statement of Facts and Procedural History

On November 18, 1998, Birdsong sustained an injury to his left shoulder and cervical spine while working for Employer. Diagnostic studies revealed he had herniated discs at the levels of C6-C7 and C7-T1. On December 9, 1998, Birdsong ceased working and began receiving temporary total disability benefits. Five days later, he underwent an anteriocervical discectomy and C6 through T1 fusion. Following this surgery, Birdsong continued to have significant health problems. These problems included: (1) impotence; (2) a neurogenic bladder; (3) a significant left shoulder soft tissue contracture; (4) neurological deficits in his left hand; (5) weakness in his left leg; (6) a gait disturbance; (7) disabling pain; and (8) depression.

On June 25, 1999, Birdsong stopped receiving temporary total disability benefits, and he returned to work. His physical limitations, however, made it difficult for him to perform his duties. Birdsong was terminated in June 2000 because Employer claimed it did not have any work within the restrictions prescribed by Birdsong's doctors. Birdsong was not able to obtain employment at any other job after he was fired by Employer.

Prior to being injured in 1998, Birdsong had suffered two other injuries which resulted in preexisting disability. In October 1987, he sustained a lumbosacral sprain injury to his low back, for which he received conservative treatment. In May 1993, a pallet fell on him while he was at work, causing an injury to his low back and left shoulder. This latter injury resulted in a workers' compensation settlement in which Birdsong was rated as having a 10% permanent partial disability to his body as a whole.

In August 1999, Birdsong filed a claim for workers' compensation benefits against Employer, Insurer and the Second Injury Fund ("the Fund"). A hearing on Birdsong's workers' compensation claim was held before an administrative law judge ("ALJ") on April 8, 2002. At the hearing, Birdsong's attorney offered the deposition of Dr. Raymond Cohen, who had evaluated Birdsong at the attorney's request. Dr. Cohen's deposition was admitted in evidence by agreement of all parties.

In Dr. Cohen's deposition, he testified that Birdsong's 1998 injury caused the following injuries: (1) a cervical myelopathy secondary to cord compression from disc herniation at C6-C7 and C7-T1; (2) weakness in the left arm and lower extremities, as well as a gait disorder, due to cervical myelopathy; and (3) a cervical fusion for disc herniation at C6-C7 and C7-T1. In addition, Dr. Cohen diagnosed Birdsong as having a preexisting chronic lumbosacral strain/sprain with myalgia due to the October 1987 injury. Dr. Cohen then gave the following testimony in response to questions asked by Birdsong's attorney:

Q. Are you able, do you attribute any disability to the four diagnoses you have told us about here today and/or any preexisting conditions and, specifically, the chronic lumbosacral strain/sprain with myalgia that you have also told us about, doctor?

A. Yes.

Q. And what is, how much disability do you attribute to the various conditions?

A. At the level of his neck a sixty-five percent permanent partial disability of the whole person. A whole person disability of twenty percent due to the depression. And twenty-five percent permanent partial disability of the whole person at the level of the lumbar spine from his preexisting condition[.]

....

Q. Do you have an opinion as to whether or not those conditions, the four work related diagnoses we have been talking about combined in anyway [sic] with his preexisting lumbar disability you have just told us about?

A. Yes.

Q. What is that opinion, doctor?

A. That his preexisting lumbar condition does combine with his primary work related injury to create a greater overall disability or a synergistic affect [sic].

Q. Do you have any opinion as to the extent of Mr. Birdsong's disability as a result of that combined disability you have just told us about?

A. In that question you mean a percentage?

Q. Whether it's a percentage or what is your opinion? Let me ask it this way. Do you have an opinion about the extent of Mr. Birdsong's overall disabilities at the time of his last visit to you?

A. Yes.

Q. And what is that opinion, doctor?

A. That he's permanently and totally disabled and not capable of gainful employment due to that combination of disabilities.

Later in the deposition, Dr. Cohen was questioned by the Fund's attorney and gave the following testimony:

Q. Okay, Doctor, it's your understanding that Mr. Birdsong fully performed his duties at work prior to this accident [on November 18, 1998]; is that correct?

A. Yes.

....

Q. Okay. Well, is there any notation that he had any kind of treatment that you would not qualify as conservative to his lumbar spine?

A. No.

Q. Okay. Given all of that, doctor, and given the quite high percentage of permanent partial disability that you rate at his cervical spine, what would be your opinion if Mr. Birdsong had not earlier suffered that lumbar spine, you think you would still qualify him as permanently totally disabled?

A. Assuming he didn't have the back condition?

Q. The lumbar condition, right.

A. Sure, lumbar.

Q. I'm just trying to be specific.

A. Assuming that condition didn't exist, my answer would be yes.

Q. That he would be permanently totally disabled?

A. Yes.

During recross-examination by the attorney for the Employer/Insurer, Dr. Cohen gave the following testimony:

Q. Doctor, Mr. Blum [the Fund's attorney] had asked you some questions to assume that Mr. Birdsong had no conditions involving the lumbar spine. Mr. Birdsong did have prior injuries and conditions involving the lumbar spine; is that correct?

A. Yes.

Q. And he did receive treatment and was diagnosed with various conditions; is that correct?

A. Yes.

Q. Okay. And those conditions were permanent conditions?

A. Yes.

Q. And, doctor, your opinion today as to whether Mr. Birdsong is permanently and totally disabled, that is based on the combination of all of his injuries and disabilities; is that correct?

A. Yes.

Another issue addressed at the hearing was Birdsong's entitlement to benefits for temporary total disability. There was conflicting evidence concerning the date on which Birdsong reached maximum medical improvement from his 1998 injuries. Dr. Cohen evaluated Birdsong on January 4, 2001 and prepared a supplemental medical rating report. By agreement of the parties, this report was admitted in evidence along with Dr. Cohen's deposition. In the report, Dr. Cohen concluded Birdsong had been totally temporarily disabled from June 2000 to January 4, 2001. A different view was held by Dr. Woodward, who was assigned to treat Birdsong by Insurer. Dr. Woodward issued his final rating report on February 5, 2002. In Dr. Woodward's report, he concluded Birdsong had reached maximum medical improvement for his spinal and urological conditions as of that date.

The ALJ concluded that: (1) the accident of November 18, 1998, caused Birdsong to sustain a permanent partial disability of 45% to the body as a whole; and (2) when this accident occurred, Birdsong was suffering from a preexisting 20% permanent partial disability due to his lumbar spine injury, which constituted a hindrance or obstacle to his employment. Therefore, he awarded Birdsong benefits for permanent partial disability from both the Employer/Insurer and the Fund. The ALJ also awarded Birdsong temporary total disability benefits for the period from July 1, 2000, to February 5, 2002.

The Fund filed an application for review with the Commission, which modified the ALJ's decision only as to the issue of liability for permanent total disability. The Commission adopted all other aspects of the ALJ's findings, conclusions and decision. The Commission decided the Fund was not liable to pay permanent total disability benefits to Birdsong because his 1998 injury, in and of itself, rendered him permanently and totally disabled. The Commission based its conclusion on the testimony elicited from Dr. Cohen by the Fund's attorney:

Dr. Raymond Cohen, D.O., was the only expert to offer an opinion on the issue of whether it was the last injury alone or a combination of claimant's injuries that rendered claimant permanently and totally disabled. Dr. Cohen offered two opinions on this issue. We are persuaded by Dr. Cohen's opinion [given in response to the Fund attorney's questions] because it is the only opinion in accord with the analysis provided by the Supreme Court [in Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. banc 2003)].

Therefore, the Commission concluded Employer and Insurer were responsible for paying the entire amount of permanent total...

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