Harris v. Ralls Cnty.

• Decision Date: 01 October 2019
• Docket Number: No. ED 107606,ED 107606
• Parties: Danny HARRIS, Appellant, v. RALLS COUNTY, Missouri, Respondent.
• Court: Missouri Court of Appeals

588 S.W.3d 579

Danny HARRIS, Appellant,

v.RALLS COUNTY, Missouri, Respondent.

No. ED 107606

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: October 1, 2019

FOR APPELLANT, Emmanuel A. Sevastianos, Sevastianos and Associates, P.C., 120 South Central Avenue, Suite 130, St. Louis, Missouri 63105, James F. McCartney, The McCartney Law Firm, L.L.C., 1099 Milwaukee Street, Suite 40, St. Louis, Missouri 63122, Mark F. Haywood, Jones, Bick, Kistner, Jones & Lorenz, 7777 Bonhomme Avenue, Suite 1501, Clayton, Missouri 63105.

FOR RESPONDENT, Richard L. Montgomery, Jr., 28 North Eighth Street, Suite 200, Columbia, Missouri 65201.

Philip M. Hess, Presiding Judge

Introduction

Danny Harris ("Claimant") appeals the Labor and Industrial Relations Commission’s (the "Commission") decision modifying the decision of the Administrative Law Judge ("ALJ"). The ALJ awarded Claimant permanent total disability and future medical benefits because a work-related accident was the prevailing factor in causing him to suffer injuries to his low back. In modifying the ALJ’s decision, the Commission determined Claimant was not permanently and totally disabled and instead found the work-related accident was the prevailing factor in causing him to suffer a chronic back sprain

or strain. Therefore, the Commission concluded Claimant suffered only five percent permanent partial disability. The Commission also determined Claimant was not entitled to future medical benefits.

On appeal, Claimant argues the Commission erred in modifying the ALJ’s award because in doing so: it misstated the record and disregarded the findings of Claimant’s employer-authorized treating physicians so its conclusion was against the overwhelming weight of the evidence (Point I) and it rejected Missouri law that recognizes an asymptomatic, preexisting condition can be compensable if a work accident aggravates it to a level of disability (Point II). We find the Commission’s award concluding Claimant was not permanently and totally disabled and Claimant was not entitled to future medical treatment is supported by sufficient competent evidence. However, we find the Commission’s award determining medical causation and concluding Claimant suffered only five percent permanent partial disability is not supported by sufficient competent evidence. Accordingly, the award is affirmed in part and reversed and modified in part.

Factual and Procedural Background¹

Claimant began working for Ralls County ("Employer") in July 2007 performing road work, including driving a dump truck. On March 9, 2009, Claimant and a co-worker were told to change a 350-pound tire and wheel assembly on a backhoe. They began by breaking the seal on the tire away from the rim. After completing one side of the tire, Claimant stooped forward to lift the tire and flip it over. As Claimant lifted the tire, he felt a painful sensation in his lower back and legs, which he described as feeling like someone was "squishing a jelly donut" and "stabbing [him] in the back with a knife." Claimant finished his shift but could not complete any of his duties and instead laid on a couch in a breakroom. Claimant drove himself home after his shift ended.

The next day, Claimant drove himself to work and requested medical treatment. After a few hours of work, he went to the emergency room. While in the emergency room, x-rays showed spondylosis

.² He was prescribed some medicine and was told to follow up with his primary physician. Claimant was thirty years old, and he experienced no low back pain or radiculopathy in either leg before the 2009 work accident. Two days later, Claimant followed up with Dr. R.W. Hevel, his primary physician. Dr. Hevel noted Claimant complained he was experiencing low back pain, muscle spasms, and numbness and tingling in his right lower extremity. Dr. Hevel diagnosed lumbar radiculopathy and ordered an MRI of Claimant’s spine ("the March 2009 MRI").

Claimant was referred to Dr. James Coyle, a neurosurgeon, for further authorized treatment. In his initial evaluation of Claimant on March 23, 2009, Dr. Coyle reviewed the March 2009 MRI and determined it showed "evidence of degenerative disc disease

at L4-5 and L5-S1 with central disc protrusions at both levels" and bilateral L5 spondylolysis.³ (emphasis added). Dr. Coyle diagnosed lumbar disc herniations and prescribed physical therapy, medication, and epidural steroid injections with restrictions of no lifting over ten pounds, no repetitive bending, stooping, or twisting at the waist, and intermittent sitting, standing, and walking. Dr. Coyle also recommended Claimant not drive dump trucks. Claimant received epidural steroid injections from Dr. Gregory Smith. Upon his evaluation of Claimant, Dr. Smith assessed lumbrosacral "radiculitis," right S1 "radicular" pain, and L5-S1 spondylolysis

without listhesis. At his physical therapy sessions, Claimant was described as "a middle aged man who presents today with acute onset of back pain after an injury at work while changing a tire on machinery." The therapists noted Claimant repeatedly did not give consistent effort during strength testing, suggesting symptom magnification.

Dr. Coyle subsequently examined Claimant on April 20, 2009, and again on May 20, 2009. On May 20, 2009, Dr. Coyle noted Claimant complained of "back pain, right sided buttock and posterior thigh pain, and dysesthesia radiating into his right foot." Dr. Coyle again reviewed the March 2009 MRI, this time concluding "[h]e has a central disc prolapse at L4-5. He has isthmic spondylolisthesis

at L5-S1 with a very small central disc protrusion."⁴ Dr. Coyle also noted Claimant had undergone three epidural steroid injections without relief. Dr. Coyle recommended pain management and a rehabilitation program and advised against surgery, stating surgery should be an "absolute last resort" because a "two level fusion" would not return Claimant to his pre-injury state.

Dr. Coyle referred Claimant to Dr. Russell Cantrell, a physiatrist, who he saw on May 27, 2009. Dr. Cantrell noted Claimant presented with complaints suggestive of right L5 "radiculopathy

." Dr. Cantrell ordered an EMG study, which was conducted June 6, 2009. The results of the EMG were normal; no electrodiagnostic evidence of lumbar radiculopathy was detected. Dr. Cantrell also reviewed the March 2009 MRI and concluded it showed evidence of "degenerative disc disease at the L4-5 and L5-S1 levels with broad based disc bulging at L5-S1 and a more focal central and paracentral disk protrusion at L5-S1 appearing to result in some compression of the descending S1 nerve root." (emphasis added). Dr. Cantrell concurred in Dr. Coyle’s opinion that Claimant was not a good surgical candidate. Dr. Cantrell prescribed Claimant Tramadol and Prevacid to manage his pain.

On June 17, 2009, Dr. Cantrell released Claimant to return to work with the restriction he not lift over ten pounds. Claimant returned to work for Employer that same day. Claimant said he used leave to reduce the number of hours he drove so he did not consider himself to be working a full time schedule. Claimant underwent a functional capacity evaluation on June 29, 2009. At the evaluation, Claimant lifted fifty-five pounds from floor to waist and seventy-five pounds from both waist to shoulder and from shoulder to overhead. Claimant’s performance at the evaluation reflected inconsistent effort and symptom magnification behaviors. The evaluation found him able to return to safe function in the heavy work demand level but not the employer-reported job demand level. The evaluation reflected Claimant was limited by his decreased heavy load handling ability, his decreased tolerance to constant sitting, and his moderate-to-high subjective pain reports.

Claimant saw Dr. Cantrell immediately following the functional capacity evaluation on June 29, 2009, and again on July 21, 2009. Because of Claimant’s ongoing complaints, Dr. Cantrell referred him for a lumbar myelogram

and post-myelogram CT scan. According to Dr. Cantrell, that scan showed mild spondylolisthesis of L5-S1, with associated spondylolysis, a small left foraminal disc extrusion at L5-S1, circumferential disc bulging at L5-S1, small central disc protrusions at L3-4, and a degenerative disk bulges at L3-4 and L4-5. (emphasis added).

Upon reviewing the results of the July 2009 lumbar myelogram

and post-myelogram CT scan, Dr. Cantrell rated Claimant’s permanent partial disability at eight percent of the body as a whole referable to his low back, with one-half attributable to his work injury and one-half attributable to preexisting degenerative and congenital abnormalities unrelated to his work injury. On August 31, 2009, Dr. Cantrell placed Claimant at maximum medical improvement and released him from care with a permanent restriction he not lift over fifty pounds and that his dump truck driving be limited to one hour of sitting per run.⁵

On August 25, 2010, Claimant saw Dr. Coyle, claiming his symptoms remained intolerable. Dr. Coyle continued to recommend against surgery, stating "a fusion at L5-S1 may possibly result in very brief relief of symptoms and aggravate the pathology proximal to this." Dr. Coyle referred Claimant for a follow-up EMG to "see if there is any possibility that we can help [Claimant] with a one-level anterior interbody arthrodesis

alone." On September 15, 2010, Dr. Cantrell conducted the follow-up EMG study ("the September 2010 EMG"). The results revealed "abnormalities of fibrillations and polyphasic motor unit potentials in the left gastrocnemius and polyphasic motor unit potentials in the right gastrocnemius, both of which are supplied by the S1 nerve root." No radiculopathy at L4 or L5 was noted.

On October 27, 2010, Dr. Coyle reviewed the September 2010 EMG study’s results and concluded they showed "S1 radiculopathy

." Dr. Coyle ordered a second MRI, which showed "mild dessication at L4 and L5 with annular tears at each level, L4-L5 as generalized...