Underwood v. High Rd. Indus., LLC

• Decision Date: 14 June 2012
• Docket Number: No. SD 31731.,SD 31731.
• Parties: Larry UNDERWOOD, Claimant–Respondent, v. HIGH ROAD INDUSTRIES, LLC, Employer–Appellant.
• Court: Missouri Court of Appeals

369 S.W.3d 59

Larry UNDERWOOD, Claimant–Respondent,

v.HIGH ROAD INDUSTRIES, LLC, Employer–Appellant.

No. SD 31731.

Missouri Court of Appeals,

Southern District,

Division Two.

June 14, 2012.

Joseph R. Ebbert, Kansas City, MO, for Appellant.

John Wise, Springfield, MO, for Respondent.

WILLIAM W. FRANCIS, JR., P.J.

High Road Industries, LLC (“High Road”) ¹ appeals the “Final Award Allowing Compensation” (“Award”) of the Labor and Industrial Relations Commission (“Commission”) finding Larry Underwood (“Underwood”) permanently and totally disabled. We affirm the decision of the Commission.

Factual and Procedural History

Underwood was born on June 22, 1959, and was 51 years old at the time of the Award. Underwood has limited educational background and work history. Underwood completed the tenth grade, but never obtained a GED because pre-screening tests indicated he would need significant remedial instruction and he did not believe he could accomplish such remedial education. Underwood's only formal vocational training was as a diesel mechanic in the U.S. Army.

From 1977 through 1983, Underwood served in the U.S. Army as a diesel mechanic and obtained an honorable discharge. From 1983 through 1999, Underwood worked as a truck mechanic and local delivery driver in Florida. In 1999, Underwood moved to Missouri and began employment as a mechanic at High Road in Branson. From 2001 through March 2005, Underwood, in addition to his full-time employment with High Road, worked part-time at the bus barn for the Branson School District primarily as a mechanic, and occasionally as a bus driver. Underwood worked at High Road through December 2005.

On November 28, 2005, while standing on a ladder to install a radiator in a truck at High Road, the ladder broke and Underwood fell to a concrete surface landing on his right side and right hip. He experienced immediate pain in his lower back, right hip, and right leg.

On March 7, 2006, Dr. Paul Olive (“Dr. Olive”) first examined Underwood and noted that Underwood had fallen off a ladder on November 28, 2005, while working for High Road, and developed a sudden onset of severe pain. Dr. Olive diagnosed “right S1 radiculopathy causing severe pain” and initiated conservative treatment, including one epidural steroid injection.² However, Dr. Olive eventually determined surgery was appropriate and on April 24, 2006, performed a right L4–L5 laminotomy, L5 nerve root decompression, right L5–S1 laminotomy and discectomy, and right S1 nerve root decompression. Dr. Olive's treatment was authorized by High Road.

Dr. Olive initially released Underwood from treatment in September 2006. Underwood testified that at the time of his initial release, he continued to have significant complaints involving his low back and right leg. Underwood testified he sought treatment on his own with Dr. Diane Cornelison but she did not actually provide any treatment for his injury. He also attempted to return to work at Big O Tires in the spring of 2007, but was unable to work longer than two weeks because of his ongoing low back and right lower extremity complaints.

Underwood returned to Dr. Olive on August 23, 2007, and Dr. Olive noted:

[Underwood] states that his radicular pain is worse down his right lower extremity and into his ankle. His parathesias are worse. He is having more back pain.... He feels that his symptoms have progressed and are now much worse than when he was last seen by me. He would like to have something done in an attempt to lead a more normal life.

Dr. Olive diagnosed “radicular pain secondary to epidural fibrosis from his previous surgery” and indicated Underwood was a candidate for a spinal cord stimulator. On February 25, 2008, Dr. Olive performed surgery on Underwood to implant a “permanent Medtronic spinal cord stimulator[.]”

On July 8, 2008, Dr. Olive again released Underwood from treatment. At that time, Dr. Olive indicated that Underwood was at maximum medical improvement and indicated he did “not think that [Underwood] can work.”

Underwood testified that approximately 40 percent of the pain in his lower back and right lower extremity went away after implantation of the spinal cord stimulator. However, Underwood described significant ongoing complaints involving his low back and right leg, a constant pain across his lower back, slightly below the belt line; throbbing pain in his right hip extending along the outside of his right hip and right calf and down into his foot; and continuing numbness in the outer three toes of his right foot. He also described the pain as nagging and constant, and described difficulty sleeping because of his pain. He also testified he could sit for approximately 30 minutes and then would have to move around in order to get comfortable. He could stand for no more than 30 minutes and then would have to take a break and sit down. He explained he could walk for about a block and then would need to sit down and stretch his leg to relieve the pain.

Underwood takes hydrocodone and Tramadol every four to six hours for pain. His medication is currently prescribed by a physician at the Veterans Health Administration. Underwood testified that his current medication interferes with his “mental clarity.” He stated the medications started to give him problems approximately six to eight months prior to the hearing. Underwood, however, admitted that at the time of his deposition—18 months prior to the hearing—he had no such complaints.

Because of his low back and right lower extremity pain, Underwood can no longer engage in hobbies he previously enjoyed, including fishing, hunting, softball, and attending stockcar races. He also testified it is painful for him to ride his lawn mower and, thus, cannot mow grass anymore.

Underwood testified he drove no more than ten miles at a time. He explained that a representative of Medtronic, the supplier of his spinal cord stimulator, informed him he should not drive while the stimulator was active. If he did so, it would be dangerous because the stimulator could send false signals to his right lower extremity. Underwood explained that if he turned the stimulator off, his pain was nearly unbearable. Underwood testified that given the complaints he has in his lower back and right lower extremity, he could not return to any of his former jobs and did not feel he could currently work anywhere eight hours per day, five days a week.

Dr. Olive assessed disability for Underwood at 13 percent to the body as a whole for the injury of November 28, 2005. Dr. Olive also testified he assessed final restrictions based on the December 2008 Functional Capacity Evaluation (“FCE”) conducted by Nancy Dickey (“Ms. Dickey”), an occupational therapist at Work Evaluations and Ergonomic Assessments, as follows:

Reaching was not restricted, squatting was occasional, bending was occasional, sitting-one hour that could be resumed following positional changes, standing-one hour, can be resumed following positional changes, walking moderate to long distances, stair climbing-very occasional, balance-protective heights, crawling-very occasional, leg lift–30 pounds, carrying–50 pounds, lifting his shoulder–30 pounds, overhead lifting–20 pounds, work level was light/medium.

These restrictions were identical to those assessed in Ms. Dickey's FCE report. Dr. Olive agreed, to a reasonable degree of medical certainty, that although Underwood could not return to work as a diesel mechanic, Underwood could return to the open labor market in some capacity with the noted restrictions.

Dr. Olive was also questioned regarding the issuance of a handicap parking permit to Underwood. He indicated he may not have had direct contact with Underwood at that time, and that the issuance of the permit did not change his opinion regarding Underwood's capacity to work. On cross-examination of Dr. Olive, the following colloquy occurred:

Q. [Attorney for High Road] Doctor, I'm going to hand you what's been marked as Deposition Exhibit 7, and this appears to be the Physician Statement for Disabled License Plate or Placard that you signed on October 1, 2009. And I'll let you look at this in a minute, but you've checked the box that says “The person cannot ambulate or walk 50 feet without stopping to rest due to a severe and disabling arthritic, neurological,orthopedic condition or other severe or disabling condition” and you've indicated that's a permanent disability. You would not have done that had you felt it appropriate [sic]; true?

A. Correct.

Q. And these restrictions that you've checked on here you attribute solely to the accident and resulting injury of November 28, 2005?

A. Yes.

....

Q. Again, you would not have filled out the disability form for him had you not felt it appropriate; true?

A. Correct.

Dr. Olive also agreed that he would defer to a vocational expert to determine Underwood's employability in the open labor market factoring in his work history, transferable skills, and educational background. He explained he found no evidence of symptom magnification during the two years he treated Underwood and found Underwood's complaints to be consistent with the nature of his injury. Dr. Olive explained Underwood's diagnosis of “failed back syndrome” meant “the patient did not improve with surgery and it doesn't appear that there's another solution from a surgical standpoint for him.” Dr. Olive opined that Underwood's back pain and radicular complaints were permanent at that point.

Dr. Allen Parmet (“Dr. Parmet”), a physician who is board certified in occupational and aerospace medicine, testified by deposition. At the request of Underwood's attorney, Dr. Parmet conducted an independent medical evaluation of Underwood on January 15, 2009. Dr. Parmet explained that in his experience in treating some 200 individuals with spinal cord stimulators and tracking their progress, it is extremely rare to see anybody return to work because “basically nobody seems to get...