Morris v Captain D's
2016 MO WCLR Lexis 80, 81
December 15, 2016
Claimant alleges he was hurt in a motor accident in 2007 in Laclede County going to the company store and had a re-injury at work about a week later.
The Commission affirmed a PTD award against the Fund and more than $50,000 in partial disability benefits against the employer for partial disability.Prior to the hearing the employer paid less than $300 in medical bills and no lost time benefits. The employer disputed causation and the extent of any disabilities.
Claimant alleges injuries to the head, back, neck and face. He established 20% disability to the neck and back. On a second accident, he was awarded an additional 12 1/2 % of the body and 10% of the leg.
The court applauded claimant's "strong work ethic" and vocational success despite limited education.
She notes the job injuries "forced him" to quit his job and go on social security.
Claimant treated for soft tissue injuries following an auto accident. He claims he slipped less than 2 weeks later, and experienced increased symptoms in his back and right knee, body parts where he had prior surgical repairs. About a year after the work injury, he pursued pain management for back and right knee complaints. He ultimately underwent a back surgery with unsatisfactory results.
Dr. Volarich, claimant's expert, attributed new disability to the neck, the back, and the knee superimposed on prior impairment to the back, the knee and the heart. Dr. Volarich concluded the worker was a SIF combo. Dr. Volarich related the claimant's back complaints to the accident despite the absence of documented back complaints in the initial emergency room records. " He said he took Claimant at his word that he had conveyed complaints of back pain to the emergency room staff, but those complaints simply did not get recorded."
Claimant later had additional auto accidents and pursued a 2 level cervical fusion and single level lumbar fusion, which Dr. Volarich did not attribute to the work accident(s).
Dr. Lennard concluded claimant had partial disability for cervical and lumbar strains from the accidents.
The employer did not raise subrogation as a disputed issue although suggested claimant had already obtained a settlement in a third-party case.
" I generally find Dr. Volarich more persuasive because his initial examination, performed one year after the accidents, was much closer in time to the accidents than that of Dr. Lennard. I do not agree with Dr. Volarich's assessment of the wrist disability and I find some of his ratings excessive. I find Mr. Swearingin, the sole vocational expert in this case, to be credible" noted ALJ Mahon.
The ALJ did not find the omission of documented back complaints dispositive. "Even though contemporaneous medical records do not substantiate his subjective complaints of lower back pain and injury from the motor vehicle accident, Claimant's deposition and hearing testimonies consistently mention back pain stemming from the motor vehicle accident, as well as from the later January 14, 2007 accident. Dr. Volarich also believed that Claimant hurt his back in the motor vehicle accident."
The ALJ finds the last accident alone combined with pre-existing conditions to render claimant totally disabled, although Dr. Volarich did not distinguish the role between the two January accidents.
The ALJ awards open medical to treat "pain" but notes Dr. Volarich is not clear in his opinion concerning which condition caused the need for treatment.
Attorney John Neuman represented the employee.