Pruett v. Fed. Mogul Corp.

• Decision Date: 24 April 2012
• Docket Number: No. SD 31360.,SD 31360.
• Parties: Delbert PRUETT, Respondent, v. FEDERAL MOGUL CORPORATION, Appellant, and Travelers Commercial Casualty, Appellant, and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

365 S.W.3d 296

Delbert PRUETT, Respondent,

v. FEDERAL MOGUL CORPORATION, Appellant,andTravelers Commercial Casualty, Appellant,andTreasurer of the State of Missouri as Custodian of the Second Injury Fund, Respondent.

No. SD 31360.

Missouri Court of Appeals,

Southern District,

Division One.

April 24, 2012.

Mary Anne Lindsey, St. Louis, for Appellant, Federal Mogul Corp.

Jonathan James Linter, St. Louis, for Appellant, 2nd Injury fund.

James Nelson Guirl, II, St. Louis, for Respondent.

ROBERT S. BARNEY, Judge.

Appellant Federal Mogul Corporation (“Employer”) appeals from the Labor and Industrial Relations Commission's (“the Commission”) “Final Award Allowing Compensation (Affirming Award and Decision of Administrative Law Judge [“ALJ”] )” which found Respondent Delbert L. Pruett (“Claimant”) to be “permanently and totally disabled” and found no liability on the part of the Treasurer of the State of Missouri as Custodian for the Second Injury Fund (“the Fund”).¹ Employer brings four points of Commission error. Finding no merit in Employer's claims, we affirm the Commission's award.

Claimant, who was sixty-four years old at the time of the hearing, began working for Employer, a manufacturing facility, in 1977 following his honorable discharge from the army.² Claimant was employed as a machine operator for Employer and his duties included standing on his feet all day, squatting, repetitive bending, and lifting twenty to thirty pounds on a frequent basis. On August 4, 2005, while working for Employer, Claimant was moving between machines when he tripped on a rubber floormat and caught himself on a table, twisting his lower back. He immediately felt pain in his lower back as well as numbness in his left leg. He reported the injury to his supervisor, but declined medical attention at that time and finished his shift. He returned to work in the days following the incident although he was walking with a limp on his left side and his left leg was numb and somewhat immobile.

Claimant eventually requested medical care from Employer and an appointment was made for him with Dr. John Hunt for October 5, 2005. Dr. Hunt recommended an MRI of Claimant's lumbar spine, but this test was not authorized by Employer. On October 14, 2005, Claimant filed his “REPORT OF INJURY” with the Division of Worker's Compensation.

Thereafter, on October 27, 2005, Claimant sought emergency medical attention at Dexter Memorial Hospital due to continuing low back pain and lower extremity issues. He reported to the treating physician that he injured his lower back at work in August of 2005 and he was diagnosed with chronic lumbosacral instability and radiculopathy of the left lower extremity. He then saw his personal physician, Dr. Ted Hatfield (“Dr. Hatfield”), who also recommended an MRI, after Claimant's report of a work-related injury.³ Dr. Hatfield noted that “Dr. Hunt thought [Claimant] had a ‘slipped dis[c]’ and needed an MRI, but workers' comp refused.” Dr. Hatfield also noted that Claimant should remain off work and should schedule an MRI. Dr. Hatfield told Claimant to remain off work from October 27, 2005, to November 8, 2005. Claimant returned to work on November 8, 2005, and was unable to perform his duties. November 8, 2005, was Claimant's last day working for Employer.

Dr. Hatfield again saw Claimant on November 9, 2005, at which time Claimant reported having pain in his lower back as well as numbness and tingling in his lower left extremity. An MRI was performed on Claimant's lower back on November 28, 2005. The MRI revealed “a large central disc extrusion with evidence of radial tear/fissure seen at the L4–5 level narrowing the spinal canal and bilateral neural foramina....” Claimant was then referred by Dr. Hatfield to a neurosurgeon, Dr. David Yingling (“Dr. Yingling”). Claimant was examined by Dr. Yingling on December 20, 2005, at which time Dr. Yingling recommended back surgery on Claimant's lumbar spine due to Claimant's symptoms of extreme lower back pain, lower extremity numbness, and the fact that his left leg would often give out. Dr. Yingling's review of Claimant's MRI revealed left lateral disc protrusion with “stenosis left greater than right at the L4–5 and L5–S1 levels, causing neural impingement on the left.” Claimant then underwent “L4–5 and L5–S1 segmental decompression and discectomy” surgery on January 4, 2006, yet following the surgeryhe was still symptomatic. Thereafter, he underwent physical therapy and pain treatments, and was released from Dr. Yingling's care on June 8, 2006, with a restriction that he was not to lift over fifteen pounds. After his release from medical treatment, Claimant was told by Employer that there was not a position available for him that would meet his restrictions. In December of 2006, he retired from Employer with a retroactive retirement date of June 1, 2006.

Claimant filed his “CLAIM FOR COMPENSATION” on November 4, 2005. A hearing was held before the ALJ on February 3, 2010. In addition to the facts stated above, at the hearing Claimant testified that, as for pre-existing health issues, he was diagnosed as an insulin dependent diabetic in 1996, but did not feel that created any complications with his health or employability. He further reported he suffered from post-traumatic stress disorder relating to his years in the service and often had headaches and flashbacks. He also stated that while in the military he suffered a hearing loss of greater than thirty percent. Claimant testified that at the time of the hearing he had ongoing pain in his low back and problems with the use of his left leg including lack of sensation, tingling, and numbness. He related he could only sit for approximately thirty minutes at a time without back pain, that he could only walk a block as a result of his issues, and that he could stand for only thirty minutes at a time. He stated that he was unable to bend forward, he could not squat or kneel down, and was able to lift very little weight. He related he was able to perform light housework and drive. He further related that he did not sleep well because of the pain and only slept about five hours at a time. He was not under a physician's care at the time of the hearing but took medicine for pain management. He also testified that following his separation from Employer he attempted to find another job at “Emerson” and “Wal–Mart” but was rejected.

The deposition testimony of Dr. Thomas Musich (“Dr. Musich”) was offered by Claimant. Dr. Musich testified he had practiced “industrial medicine” and family medicine for a number of years and examined Claimant on April 24, 2007. Dr. Musich related that at that time he reviewed Claimant's medical records and performed a physical examination of Claimant. Claimant reported to Dr. Musich the incident of August of 2005, his resulting physical and medical problems, and the fact that he had no significant prior issues with his lower back and left lower extremity prior to the incident. Upon physical evaluation, Dr. Musich found Claimant had severely restricted lumbar mobility, exhibited a “diminished left ankle jerk reflex,” walked with a limp, and required the use of a cane for walking. Dr. Musich testified these symptoms were consistent with a diagnosis of lumbar radiculopathy with sciatic issues radiating from the lower back into the lower left extremity. Dr. Musich acknowledged that Claimant's diagnosis prior to the injury of degenerative disc and joint disease by Dr. Hatfield were ailments that were consistent with the aging process. He further acknowledged that numbness in the extremities was also a symptom that could be related to Claimant's diabetes. Dr. Musich opined that “the work trauma of August 2005 is causally related to [Claimant's] persistent low back pain and left lower extremity radiculopathy....” He did not believe Claimant had any disability to the low back prior to the August of 2005 injury and did not find any permanent partial disability existing to any part of Claimant's body prior to the injury date. He felt Claimant was unable to return to work for Employer and that based on his age, medical history, educational level, and prior work history, he was permanently and totally disabled as a result of the August of 2005 work-related injury and that the August 2005 injury was the sole cause of this disability.

James England (“Mr. England”), a certified rehabilitation counselor testified for Claimant via deposition that he reviewed Claimant's medical records prior to conducting a vocational evaluation on Claimant. He testified Claimant reported to him constant and severe pain in the lower portion of his left back radiating into his left leg. He stated he administered the “Wide Range Achievement Test” to Claimant and that while Claimant scored well on the reading portion of the test he scored at a third grade level on the math portion. He felt it was possible Claimant could function in a sedentary position, but he determined that with his physical and medical restrictions Claimant would be unable to return to a job such as the one he held with Employer. He also related that Claimant would not be able to compete in the open job market and did not possess any transferable skills due to his hearing impairment, age, diabetes, physical limitations, anxiety, and sleep problems. He opined that Claimant was totally and permanently disabled from a vocational point of view and the August of 2005 accident was the sole cause of Claimant's total, permanent disability.

Employer presented the deposition testimony of Dr. David Lange (“Dr. Lange”), a board certified orthopedic specialist. Dr. Lange examined Claimant, reviewed his medical records, and determined that while Claimant had preexisting degenerative issues in his lower back prior to the incident in August of 2005, the sole result of Claimant's work injury was a central disc herniation at the L4–L5 level. Dr. Lange also testified that Claima...