Sage v. Talbot Indus.

• Decision Date: 25 April 2014
• Docket Number: SD 32906,Nos. SD 32901,SD 32907.,s. SD 32901
• Citation: 427 S.W.3d 906
• Parties: Jonathan SAGE, Claimant–Respondent/Cross–Appellant, v. TALBOT INDUSTRIES, Employer–Appellant/Cross–Respondent, and Fidelity & Guaranty Insurance Company, Insurer–Appellant/Cross–Respondent, and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Respondent–Respondent.
• Court: Missouri Court of Appeals

427 S.W.3d 906

Jonathan SAGE, Claimant–Respondent/Cross–Appellant,

v.TALBOT INDUSTRIES, Employer–Appellant/Cross–Respondent,andFidelity & Guaranty Insurance Company, Insurer–Appellant/Cross–Respondent,

and

Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Respondent–Respondent.

Nos. SD 32901, SD 32906, SD 32907.

Missouri Court of Appeals,

Southern District,

Division Two.

April 25, 2014.

Ronald G. Sparlin of Joplin, MO, for appellant.

Charles E. Buchanan of Joplin, MO, for respondent Sage.

Stephen N. Freeland of Springfield, MO, for Treasurer.

JEFFREY W. BATES, P.J.

This is a consolidated appeal involving two workers' compensation claims arising from work-related accidents occurring in 2004 and 2005. The Labor and Industrial Relations Commission (Commission) determined that the 2004 accident caused Jonathan Sage (Claimant) to be permanently and totally disabled. Claimant's employer, Talbot Industries (Employer), was ordered to pay Claimant benefits for, inter alia, permanent and total disability, past medical expenses, mileage reimbursement and past temporary total disability. Because the Commission found that Claimant was permanently and totally disabled from the 2004 work injury alone, no liability was assessed against the Second Injury Fund (Fund). Employer and Fidelity & Guaranty Insurance Company (Appellants) present five points for decision. Appellants argue that:

(1) the Commission's finding that Claimant is permanently and totally disabled is not supported by competent and substantial evidence;

(2) the Commission erred by not finding that Claimant was permanently and totally disabled from the combination of the 2004 and 2005 accidents;

(3) the Commission erred by holding Employer responsible for Claimant's past medical expenses;

(4) the Commission erred by holding Employer responsible for Claimant's mileage; and

(5) the Commission erred by holding Employer responsible for Claimant's past temporary total disability benefits.

Finding no merit in any of these contentions, we affirm.¹

Factual and Procedural Background

Claimant began working for Employer in March 1987, when Claimant was 22 years old. He primarily worked on a wire-drawing machine, which drew wire down to a smaller diameter.

On or about February 4, 2004, Claimant was pulling a one-half inch wire when he felt “a pop” in his back. Within an hour, his low back hurt. He also began to have pain in his right buttocks and down his right leg. A CT scan showed a large herniated disc at the L5–S1 level that was compressing the S1 nerve. In the months that followed, Claimant was treated with epidural steroid injections, physical therapy and pain medication. Despite these interventions, the pain continued. In early October 2005, Claimant underwent a “nucleoplasty,” which is an outpatient surgical procedure involving the aspiration of fluid from the ruptured disc. He received “some benefit” from the nucleoplasty. Claimant “was doing pretty good, didn't have any problems.” Claimant continued working through December 2005. At that time, Employer was shutting down the wire-drawing division. Claimant was temporarily transferred to maintenance, where he disassembled equipment.

On December 16, 2005, Claimant stepped on a rotted apron that collapsed. He fell about four feet into a pit, landing on his back on a steel beam. He immediately started having the same kind of pain he had experienced after his 2004 accident, “but magnified.” Claimant continued to work the rest of the day. He saw a doctor on December 19th and was diagnosed as having a rib contusion. Claimant was given a rib belt and more pain medication. Because the wire-drawing division was being closed, Claimant worked for Employer only five more days after the second accident.

In mid-January 2006, a CT scan revealed healing fractures at the left L2 and L3 transverse processes. Claimant also was having pain in his low back, right buttocks and leg. This pain was similar to what he had experienced in the past after his low back injury and subsequent nucleoplasty. In February 2006, Claimant went to Missouri Vocational Rehabilitation in an effort to return to work. He also continued to receive treatment for his low back and leg pain.

In October 2006, Claimant underwent a total disc replacement at the L5–S1 level. The surgeon performing the surgery, Dr. Todd Harbach, released Claimant from care on January 10, 2007. In early February, Claimant went to work with his cousin in a guttering and vinyl siding business. Claimant was only able to work for six months. The pain in his back and buttocks got worse, and he was so uncomfortable he could not sleep at night. Claimant quit working in early July 2007. Treatment for his low back pain continued through 2008.

Claimant filed separate claims for workers' compensation benefits for his 2004 and 2005 accidents. Both claims were tried before an administrative law judge (ALJ) in early February 2012. Claimant testified on his own behalf. He also called his wife, teenage son, cousin, in-laws and a neighbor as witnesses. The latter witnesses testified about their observations of Claimant's limitations and the dramatic changes that developed after his first accident. The parties also offered depositions and reports from various experts, including a vocational expert and medical experts.

Claimant's medical expert, Dr. Koprivica, performed an independent medical evaluation of Claimant in October 2009. Dr. Koprivica diagnosed Claimant with “failed back syndrome” following his total disc replacement at the L5–S1 level. Dr. Koprivica opined that this diagnosis necessitated severe lifting and motion restrictions for Claimant and required that he lie down at least every two hours for pain relief. Claimant's need to lie down resulted, in part, from fatigue caused by lack of restorative sleep at night due to sleep interruption from pain. Dr. Koprivica further opined that Claimant's severe pain and need for narcotic pain medication imposed limitations on his concentration and retraining capacities. In Dr. Koprivica's opinion, Claimant was permanently and totally disabled due to failed back syndrome.

Dr. Koprivica attributed Claimant's failed back syndrome to the 2004 injury. The nucleoplasty performed before the 2005 accident had no long-term benefit because the pain relief was only temporary. Although Claimant had suffered transverse process fractures at L2 and L3 from the 2005 accident, Dr. Koprivica opined that the 2004 accident was a substantial factor in causing Claimant's herniated disc, his surgeries and the discogenic pain at L5–S1. Comparison of diagnostic studies did not reveal any new injury to L5–S1 following the 2005 accident. Dr. Koprivica concluded that Claimant was permanently and totally disabled due to the 2004 accident alone. In Dr. Koprivica's opinion, maximum medical improvement (MMI) for the 2004 injury was not reached until September 4th of 2008.² Claimant was temporarily disabled up to that time and permanently disabled thereafter.

Claimant also offered the deposition of Wilbur Swearingin, the only vocational expert in the case. Swearingin opined that Claimant was not employable in the open labor market. Swearingin would not expect an employer to hire Claimant, given his need for accommodations with respect to lifting, bending, standing, walking, sitting and lying down every few hours.

Employer presented opinions from Dr. Jeffrey Woodward and Dr. Allen Parmet. Dr. Parmet agreed with Dr. Koprivica that Claimant's nucleoplasty could have only provided temporary pain relief and had no long-term benefit. Drs. Woodward and Parmet disagreed with Dr. Koprivica's conclusion that Claimant was permanently and totally disabled from the 2004 accident alone.

In September 2012, the ALJ issued a single award addressing both claims. The ALJ specifically found Claimant and his witnesses “credible and persuasive.” The ALJ found that Claimant was permanently and totally disabled because:

I had an opportunity to observe Claimant as he testified, and I find Dr. Koprivica's testimony that [Claimant] must lie down through the day for pain relief to be credible. This limitation alone, according to Wilbur Swearingin, vocational expert, will disqualify Claimant from working in the competitive workforce. I find this testimony to be credible and determinative.

The ALJ also found that the 2004 accident caused Claimant's permanent and total disability.³ In so finding, the ALJ relied on the opinions of Drs. Koprivica and Parmet. According to the ALJ, these doctors made “it clear that it was predictable that the ruptured disc caused by the first accident could not be repaired by the nucleoplasty. It was more likely than not that it would have failed and the symptoms would have recurred even if [Claimant] had not had the second accident.” The ALJ believed Dr. Koprivica's testimony that the second accident, although causing a recurrence of symptoms, was “inconsequential in the progression of the disability at the L5–S1 level.” The ALJ also believed Dr. Koprivica's testimony that Claimant reached MMI September 4, 2008. In addition to benefits for permanent total disability, the ALJ ordered Employer to pay Claimant benefits for past medical expenses, mileage and temporary total disability.

After applications for review were filed, the Commission issued its final awards for both claims. It adopted the ALJ's findings, conclusions, decision and award with respect to the issues raised on appeal.

Standard of Review

We will review the ALJ's findings and conclusions in this appeal because they were adopted by the Commission. Harness v. Southern Copyroll, Inc., 291 S.W.3d 299, 303 (Mo.App.2009). This Court must decide whether the Commission, upon consideration of all the evidence before it, reasonably could have made its findings and reached its result. Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012).⁴ We defer to the Commission's factual...