By: Brad Young, Harris Dowell Fisher & Young L.C.
May 25, 2022 - Two weeks ago, the Missouri Labor and Industrial Relations Commission issued a decision in the case of Toska v. American Pulverizer. Essentially, the claimant had a prior 2009 injury resulting in L4-5 lumbar disc surgery. In 2011 he underwent revision lumbar disc fusion surgery.
The claimant alleged that he aggravated his pre-existing lumbar disc condition due to lifting and bending at work in 2017.
Claimant used a well-known osteopathic doctor, Dr. Volarich, for his expert. Dr. Volarich solely (and very frequently) testifies on behalf of claimants and he is not a surgeon. In this case, Dr. Volarich testified that heavy lifting, bending, twisting caused a new injury with resulted in Permanent Total Disability against the Second Injury Fund and 35% of the body in Permanent Partial Disability (PPD) against the employer.
The employer/insurer chose neurosurgeon Dr. Daniel Kitchens as the treating physician, and Dr. Kitchens opined the disc herniation was spontaneous due to a lack of objective medical history and degenerative findings that pre-dated the 2017 work incident.
AWARD FROM THE ALJ (Administrative Law Judge) AND THE COMMISSION
The ALJ denied benefits based on a failure of proof and found Dr. Volarich was not persuasive. The ALJ noted Dr. Kitchens was more credible as he was a neurosurgeon and treated patients on a regular basis.
The Commission affirmed the award of the ALJ, adopting the decision of the ALJ, which stated in relevant part:
"Dr. Kitchens' opined that the large herniation at L3-4 was a spontaneous disc herniation occurring due to aging, or degeneration; which Dr. Kitchens testified is the most common cause of disc herniation. I find Dr. Kitchens' expert medical opinion more persuasive than Dr. Volarich's opinion. First, Dr. Volarich was hired by Claimant to perform an independent medical examination. Dr. Volarich did not treat Claimant. Furthermore, Dr. Volarich is not a neurosurgeon, nor does he perform back surgeries. Conversely, Dr. Kitchens treated Claimant, at Claimant's specific request. Dr. Kitchens is a board certified neurological surgeon who treats conditions like Claimant's on a routine basis."
CONCLUSION
This was a permanent total disability claim that resulted in a $0.00 award. The award from the Commission demonstrates that when a claimant alleges that he/she aggravated a pre-existing condition, there must be objective evidence of an aggravation. Here, claimant could not produce any objective evidence of an aggravation - - only subjective evidence.
The Missouri Workers Compensation Act addresses this exact situation in section 287.190.6(2) which states, in relevant part:
“In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings.”
This decision also demonstrates the importance of choosing the correct expert for the case. The Commission found the opinions of the employer’s expert, a neurosurgeon, more persuasive than the opinions from the claimant’s expert who was only an osteopathic doctor with no surgical experience. The employer won this case because the employer won in the battle of the experts.
If you have any questions about this decision from the Missouri Labor and Industrial Relations Commission, please feel free to call or email Brad Young, byoung@harrisdowell.com, (636) 532-0300.