Roberts v. Mo. Highway and Transp. Com'n

• Decision Date: 18 May 2007
• Docket Number: No. 27109.,27109.
• Citation: 222 S.W.3d 322
• Parties: David ROBERTS, Claimant-Appellant, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Employer/Insurer-Respondent.
• Court: Missouri Court of Appeals

222 S.W.3d 322

David ROBERTS, Claimant-Appellant, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Employer/Insurer-Respondent.

No. 27109.

Missouri Court of Appeals, Southern District, Division Two.

May 18, 2007.

Bradley L. Bradshaw, Springfield, MO, for Appellant.

William D. Powell, Springfield, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

David Roberts (Claimant) appeals from a final award entered by the Labor and Industrial Relations Commission (the Commission), arising from a claim for workers' compensation by Claimant against his employer, the Missouri Highway and Transportation Commission (Employer), for an injury sustained in a work-related traffic accident. Claimant contended this accident rendered him totally and permanently disabled. The Commission found that Claimant only sustained a permanent partial disability of 20% of the body as a whole. On appeal, Claimant argues the Commission erred because: (1) the Commission implicitly determined Claimant sustained further injury to his back after the work accident, and this determination is not supported by expert medical opinion; and (2) the award is otherwise not supported by substantial and competent evidence and is against the great weight of the evidence because Claimant's evidence was more credible than that presented by Employer. We affirm.

I. Factual and Procedural Background

On September 29, 1997, Claimant was driving a dump truck on Highway 60 from Ava, Missouri, to Springfield, Missouri, in the course of his employment. He was wearing his seatbelt. Near Springfield, he encountered a tractor-trailer unit that was blocking both westbound lanes of traffic. To avoid a collision, Claimant drove the dump truck into a very shallow ditch adjoining the right-hand shoulder of the road. He was bounced against the door and his seatbelt. Claimant's supervisor, David Bybee, arrived within two minutes. The dump truck was undamaged. Bybee inquired about Claimant's condition, and he reported no injuries. Nevertheless, Bybee asked Claimant to go to the emergency room because it was company policy for all employees to get checked after an accident. Claimant said it was unnecessary, but he agreed to go. He got back into the dump truck and drove himself to Cox South Hospital in Springfield. At the emergency room, Claimant complained of soreness in his wrists, neck and back.

The emergency-room doctor recommended that Claimant be off work until released and scheduled him to see Dr. Berner in the occupational medicine department. Claimant received treatment from Dr. Berner from October 1 through October 16, 1997. Claimant was then referred by Dr. Berner to a neurosurgeon, Dr. Mark Crabtree, for treatment.

Dr. Crabtree first saw Claimant on October 22, 1997. At that time, he was complaining of headaches, neck pain and back pain. Dr. Crabtree ordered a CT myelogram and flexion/extension films. These studies were performed on October 31, 1997. They revealed a grade I spondylolisthesis at L5-S1 and a disc that was slightly bulging to the left at the L4-L5 level.¹ As shown by the myelogram, however, the slight disc bulge was having no effect on the nerve roots. Claimant's back pain was being caused by his spondylolisthesis, which produced mechanical instability across the L5-S1 segment. Dr. Crabtree initially recommended a conservative course of treatment, consisting of a weight loss and conditioning program.

From late December 1997 through early January 1998, Claimant participated in a work conditioning and strengthening program overseen by physiatrist Dr. Jeffrey Woodward. On January 5, 1998, Claimant was released to return to work full time. He did so, but he continued to report pain in his back and left leg. For the next month, Claimant used a transcutaneous electrical nerve stimulation (TENS) unit prescribed by Dr. Woodward. This device helped him sleep better, but he still reported back and left leg pain. Dr. Woodward diagnosed Claimant as having chronic L5 disc pain without exhibiting any objective evidence of nerve root injury or abnormality.

A magnetic resonance imaging scan (MRI) done on March 23, 1998 showed Claimant continued to have a grade I spondylolisthesis, but this condition had no effect on the nerve roots across that segment. Dr. Crabtree recommended that Claimant undergo a lumbosacral fusion using pedicle screws and rods. The surgery was performed on April 23, 1998.

After surgery, Claimant was placed in a back brace. Radiological studies performed on June 16, 1998 showed that the instrumentation was in proper position and that the L5-S1 joint appeared to be fusing. Claimant was relatively asymptomatic and had little back pain. Additional radiological studies in September 1998 showed a stable fusion of the L5-S1 joint. Claimant began increasing his activity level. By October 13, 1998, Claimant had completed a work conditioning program without his brace. Dr. Crabtree authorized Claimant to undergo strength training and lift objects weighing more than 60 pounds. On November 11, 1998, Claimant returned to work full time. He continued to do well. On December 4, 1998, Dr. Crabtree released Claimant to return to work full time with no restrictions.

On December 28, 1998, Dr. Woodward examined Claimant in order to prepare a report and rating. Dr. Woodward noted that Claimant had been doing "full-time, regular work duty" and had lifted up to 100 pounds since being released by Dr. Crabtree. Dr. Woodward recommended a permanent partial disability of 15% for the body as a whole for Claimant's injury. Claimant's claim for workers' compensation benefits was filed on January 27, 1999.

Claimant and his first wife, Sonja Hubbard, lived on a 32-acre farm in Hartville, Missouri. The couple separated in March 1999 and divorced in May 1999. From the time that Claimant returned to work until the separation occurred, Sonja observed that Claimant walked fine. He did not limp or drag his foot. He was able to work full time, help around the house and do yard work without taking any medication. He did not complain about any pain in his back or legs. The couple owned eight horses, and they both rode them. When Sonja was working, Claimant took care of the horses. Every other day, he loaded one to two 50-pound bags of grain into a truck and took them into the pasture to feed the horses. He then unloaded the bags and emptied them into different piles so the horses could eat. Claimant was able to perform this task without any complaints of pain or numbness. When the couple separated, Claimant appeared to be "perfectly recovered." He was able to fish, hunt and go horseback riding.

In March or April 1999, Claimant spent a week as a substitute worker at the stockyards in Lebanon, Missouri, in place of Tom Hubbard. On one of those days, Claimant worked with Walter Beard. Beard recalled that Claimant arrived at 8:30 a.m. and brought two horses with him. At 10:00 a.m., Claimant and Beard spent 30 to 45 minutes moving pigs, goats and calves into their proper pens. This work was done on foot and involved some running. Thereafter, Claimant helped pen cattle once they had been sold. This work was done on horseback and required the rider to trot, lope or run in order to keep pace with the cattle as they left the sale barn. Claimant saddled his own horse and worked from 10:30 a.m. straight through until approximately 3:00 p.m. During that time, he used both of the horses that he had brought. The work was very strenuous, but he never walked with a limp or complained of being in pain.²

In April 1999, Claimant participated in a recreational activity called "team penning" with Hubbard. He described this activity in the following way:

Team penning. Very aggressive sport on horseback. You got roughly 30 head of cattle at one end of the arena. Every third cow has got the same number on it. They've got a pen down here at this end of the arena. You run down. The halfway mark is the foul line. You cross that line. They call out a number. You go down and pick out those three cows as fast as you can because you're on a time limit. And you run down there. And you cut out a cow and run him down. Whoever's next or closest to the [herd] picks out another one and just keeps them going until you get them all back in a minute and a half time. It's very fast-paced. You have to hang on real good with your legs, balance yourself as much as possible or otherwise you end up in the dirt. It's a very aggressive game.

This sport is very strenuous on the rider because the horse may be trotting fast, loping or galloping as the rider attempts to cut a cow from the herd. Claimant was able to participate in this activity without difficulty or complaint. In addition, Claimant saddled his own horse. To do so, he had to throw a 40-pound saddle up on his horse's back and cinch it down himself. He also mounted and dismounted his horse without difficulty, using his left leg and arms to pull his entire weight up onto and off of his horse.

On June 18, 1999, Claimant was sent by his attorney to see Dr. Bradley Townsend, a family practitioner. Claimant complained of chronic, severe low back pain and occasional incontinence and bowel problems. Dr. Townsend was not told by Claimant that he had been riding horses. Dr. Townsend would not have recommended that activity for someone in Claimant's condition because "it is certainly possible that riding a horse could cause back problems."

In June or July 1999, Claimant helped Tom Hubbard lift up the detached bed of a Mazda pickup truck. The bed weighed 250 to 300 pounds. Together, Claimant and Hubbard raised the bed up over their heads. Claimant was able to do this without complaint.

Sometime during the summer of 1999, Walter Beard was at a convenience store in Lebanon when he observed Claimant getting gas. As Claimant came toward the store to pay, he walked normally and did not limp or drag his leg. As soon as he saw Beard, however, Claimant started limping.

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