By J. Bradley Young, Harris Dowell Fisher & Young L.C.
June 16, 2022 - On June 9, the Missouri Labor and Industrial Relations Commission affirmed an award of $0.00 rendered by the ALJ (Administrative Law Judge). The reason I am updating you on this is that the basis for the award is rather unique.
The claimant was a seasonal employee for FedEx Ground and suffered a compensable accident when a box fell and hit her in the head. She alleged significant and extensive injuries to her neck, right shoulder, and low back. Claimant’s IME (Independent Medical Examination) doctor, Dr. Daniel Zimmerman in Kansas City, provided a PPD (Permanent Partial Disability) rating of 20% of the body due to aggravation of cervical disc disease, 15% PPD at the wrist for radial nerve entrapment syndrome, 25% PPD at the right shoulder, and 20% PPD at the lumbar spine. Altogether, Dr. Zimmerman assessed PPD of 58.5% of the body for all injuries combined and opined that future medical care would be required.
Employer/Insurer’s expert, Dr. Chris Fevurly, pointed out the existence of significant degenerative disc disease at both the cervical and lumbar spine. Dr. Fevurly also noted a component of symptom magnification, explaining that Claimant's report of incapacitating pain of "10 on a pain scale of 0 -10" was not compatible or consistent with his examination.
ANALYSIS OF THE AWARD
The Commission upheld the award from the ALJ, finding that the accident was compensable, but the accident was not “the prevailing factor” in causing or aggravating the pre-existing conditions. The Commission also agreed with the judge’s finding that the opinions of the claimant’s expert were less credible than the opinions from the employer’s expert because claimant’s doctor did not have all of the diagnostic imaging and nerve condition studies when he rendered his opinion.
PRACTICE POINTS
First, most $0.00 awards come from accidents that are not compensable as judges rarely find accidents to be compensable and award $0.00. Here, the ALJ and the Commission found the accident compensable but awarded no benefits.
Second, this case is the poster child for ensuring that you provide EVERYTHING to your medical expert prior to an IME. This includes the actual diagnostic imaging (like MRIs), and nerve condition studies. That way, your medical expert can testify: “I personally reviewed the actual films rather than merely relying on the radiology reports.” The ALJ’s award in this case is largely based on her assessment that the employer’s experts were more credible than the claimant’s experts.
Third, while neither the ALJ nor the Commission specifically cited this provision in the award, remember this very important section of the Missouri Workers Compensation Act:
§287.190(6)(3) states: “Any award of compensation shall be reduced by an amount proportional to the permanent partial disability determined to be a preexisting disease or condition or attributed to the natural process of aging sufficient to cause or prolong the disability or need of treatment.”
In this case, since the ALJ and the Commission found that all of the claimant’s disability resulted from pre-existing conditions, there was no PPD award against the employer.
If you have any questions about this award or want to discuss how this award could apply to any claims you are currently handling, please feel free to call or email Brad Young, byoung@hdfh.com, (636) 532-0300.
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