The Commission affirmed an award of total disability a worker who twisted his body suddenly when using a 3 foot pneumatic gun and reported disabling back pain 3 months later. Jones v Harley Davison Motor Co., No. 11-062102 (Sept. 14, 2017)
Claimant initially treated for an elbow strain. He had prior chiropractic treatment for his back. After he provide notice of his back condition, the employer did not tender care for the back. He subsequently underwent a L4-5 fusion but reported he continued to experience constant back pain. The treating doctor assigned no disability and concluded the accident exacerbated acquired spondylolysthesis. He reports additional symptoms related to "transition" syndrome. Claimant identifies very limited capacity for daily activity and a need to lie down.
Dr. Koprivica, his expert, concluded he was sat MMI in 2011, and concluded he was PTD due to a failed back syndrome even in isolation. He assigned disability for prior conditions to the low back and both shoulders. Dr. Stuckmeyer concluded claimant required permanent restrictions but any disability was due to a combination.. The ALJ notes the employer's "best evidence" was in favor of compensation when the treating doctor "checked a box" that the condition was the prevailing factor but stated he originally did not "focus" on causation. The expert also provided no definitive opinion whether use of a jet ski better explained the need for surgery. Cordray felt claimant was unemployable in the open labor market due to a need to lie down and from the last accident alone, although claimant's prior disability to the arm precluded his ability to perform sedentary work. The ALJ noted testimony from claimant's former spouse that she would "watch him suffer significant pain."
The ALJ admitted, over objection, references to an expert report from Dr. Zimmerman that was not submitted into evidence. The court found the experts who reviewed the report did not adopt or defer to any opinions and over-ruled the objection.
The defense relied upon a typewritten note from a therapist that claimant injured his back following his honeymoon while using a jet ski. The therapist testified she could not explain why the entry was in typewritten notes but not in handwritten notes but "does not believe she could be inaccurate." The spouse stated claimant did not ride a jet ski and noted at the time of the honeymoon, and after the accident, he could not little more than sit on the beach.
The ALJ found the claimant complied with notice requirements and provide notice of the accident and provide notice of a back condition when he was later told it was related.
The ALJ awarded 13 months of disability benefits, and $129,236.23 n medical bills although the employer argued the bills showed a zero balance. The claimant introduced a financial responsibility form showing liability for the entire amount. The ALJ awarded open medical. The ALJ further awarded PTD based on the testimony of chronic pain, the need for narcotic medication and the need to unpredictably lie down during the day.
The employer appealed and claimed, among other things, that the ALJ ignored testimony and adopted nearly verbatim the proposed award of the employee. The Commission declined to address the issue and noted the proposed awards were not made part of the legal file.
The employer contends claimant failed in his burden of prevailing factor because his chiropractor documented no change in his condition.
The Commission found claimant met his burden to show accident by demonstrating evidence of "an" injury but he was not required to show evidence of symptoms of "each and every" body part claimed when the symptoms of the back did not develop until 2-3 days later. The Commission found no evidence that claimant had evidence to similar hazards away from work.
The Commission found no evidence of prejudice to support a notice defense. The obligation to provide notice of the nature of the injury was defined by the definition of injury to show "violence to the physical structure" and it was the employer's burden to show prejudice when the employer later experience additional symptoms. In this case, the employee reported back problems nearly 3 months after the accident and the employer did not exercise any right to direct medical care or minimize disability.
The Commission noted it would not disturb a finding of PTD against the employer, when the employer did not preserve the issue on appeal that the permanent total was due to a combination of his primary injury and pre-exiting disability. The Commission criticized the employer's brief for being discourteous, hyperbolic and inflammatory. The Commission further admonished the ALJ that an adopted opinion include pertinent citations and "careful, impartial analysis "that only an administrative law judge exercising his or her independent judgment can provide."
ALJ: Siedlik
Atty: Pittman, Billam, Colling
Experts: Koprivica, Cordray
Treater: Drisko
