Durbin v. Ford Motor Co.

370 S.W.3d 305, 2012 WL 2755777, 2012 Mo. App. LEXIS 882
CourtMissouri Court of Appeals
DecidedJuly 10, 2012
DocketNos. ED 97082, ED 97083
StatusPublished
Cited by1 cases

This text of 370 S.W.3d 305 (Durbin v. Ford Motor Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Durbin v. Ford Motor Co., 370 S.W.3d 305, 2012 WL 2755777, 2012 Mo. App. LEXIS 882 (Mo. Ct. App. 2012).

Opinion

LAWRENCE E. MOONEY, Judge.

The claimant, Jody Durbin, appeals the final award of the Labor and Industrial Relations Commission granting her compensation for permanent partial disability from her employer, Ford Motor Company, denying her past and future medical expenses, and granting an enhancement of permanent partial disability from the Second Injury Fund, rather than permanent total disability benefits. Because all issues on appeal hinge on the Commission’s cred[308]*308ibility determinations, we defer to the Commission and affirm the award.

Factual and Procedural Background

The claims in this case arise from injuries the claimant suffered to her back in June 1999 and to her left shoulder in November 2002 while working on the employer’s assembly line.

The claimant testified that on June 16, 1999, she was installing casing into a car for seat mounting, which required her to bend over sideways into the vehicle. The vehicle on which she was working “jumped off the line,” and several other vehicles struck it from the rear, twisting and jarring the claimant’s body and causing immediate pain. The employer provided medical treatment for the claimant, and paid her temporary total disability benefits while she remained off work from June 29 to December 14,1999.

The claimant continued to experience pain, tightness, and pressure in her mid-back and torso after her return to work. She sought treatment from her personal physician, who excused her from work from late January to early April 2000. The employer referred the claimant to Dr. Randolph for an evaluation on March 28, 2000. Dr. Randolph diagnosed the claimant with non-specific mid-back pain with a component of myofascial pain, and opined that the claimant had reached maximum medical improvement. He rated • the claimant at “no more than 3%” permanent partial disability of the body as a whole as a result of the June 1999 injury.

After Dr. Randolph’s evaluation, the employer provided the claimant with no further medical benefits related to her back injury, despite her requests. Over the next ten years, the claimant sought additional treatment from multiple providers, including chiropractic manipulations, massage therapy, trigger-point injections, ra-diofrequency ablations to the dorsal sensory nerve to the spine, and rhizotomies to destroy the nerve root innervating the painful area.

The claimant continued working on the employer’s assembly line. On November 22, 2002, the claimant was lifting a front grill assembly into place when her left shoulder “locked.” The employer provided medical treatment over an extended period. Dr. Jacques Van Ryn diagnosed the claimant with adhesive capsulitis, and assigned significant, permanent restrictions. The claimant worked for the employer with significant restrictions until October 2004, when the employer placed her on long-term disability.

The administrative law judge (ALJ) conducted a hearing on the two claims in June 2010 to consider the nature and extent of temporary total disability, the nature and extent of permanent partial disability, past medical expenses, and future medical care. The claimant testified that she had one incident involving her lower back about two years before the June 1999 accident. She testified, however, that she had no continuing problems or limitation from that incident, and that she took no medication for back pain before 1999. The claimant offered the reports and deposition of Dr. Thomas Musich, the deposition of Dr. Keith Wilkey, and medical bills incurred after her evaluation by Dr. Randolph in the stipulated amount of $163,422.61.

Dr. Musich evaluated the claimant in October 2004, and again in October 2008. In 2004, Dr. Musich rated the claimant at 25% permanent partial disability of the body as a whole as a result of her 1999 back injury, and at 25% permanent partial disability to the left shoulder. In 2008, he rated the claimant at 50% permanent partial disability of the body as a whole as a [309]*309result of the back injury, and 25% permanent partial disability at the left shoulder. Dr. Musich opined that the 1999 work injury resulted in chronic pain syndrome secondary to thoracic and cervical facet syndromes, myofascial pain, and symptomatic costochondritis. He attributed the change in his ratings from the claimant’s first evaluation to the second to her deteriorating symptomatology during that time. The claimant testified on cross-examination that she felt about the same between her first and second visits to Dr. Musich.

Dr. Musich believed that the treatment the claimant received for her back and neck between the time of his first and second evaluations was causally related to her June 1999 work injury, and that she would need pain medication indefinitely. Dr. Musich opined that the combination of the claimant’s disabilities was significantly greater than their simple sum. He wrote in his 2008 report that if the claimant could not obtain and maintain employment in the open job market, then he would consider her permanently disabled based upon the combination of her injuries.

Dr. Wilkey, a board-certified orthopedic spine surgeon, examined the claimant in July 2009. He diagnosed her with neuro-pathy for which he “had no explanation other than persistent symptoms,” and testified to “some non-physiologic overlay in [the claimant’s] presentation.” Nonetheless, Dr. Wilkey believed that the medical treatment the claimant had obtained until that date was necessary and causally related to the 1999 work accident. He rated the claimant’s disability at 6% of the body as a whole.

In addition, the claimant offered the deposition of rehabilitation counselor James England. Mr. England testified that the claimant was unemployable on the open labor market. The employer offered the deposition of Dr. Richard Hulsey, who rated the claimant at 10% permanent partial disability of the left shoulder.

The Commission made extensive credibility determinations, finding Dr. Musich’s 2008 rating to be “the most unreliable.” The Commission determined that the claimant suffered from 15% permanent partial disability of the body as a whole as a result of her 1999 back injury, and modified the ALJ’s inconsistent award accordingly.1 The Commission denied past and future medical expenses. The Commission then determined that the claimant sustained 15% permanent partial disability of the left shoulder as a result of her 2002 injury. The Commission concluded that the claimant’s disability of the left shoulder, and the pre-existing disability combined to create an enhancement of 10% permanent partial disability for which the Second Injury Fund was liable.2

Discussion

In four points on appeal, the claimant challenges the Commission’s finding that certain expert opinions were flawed, the denial of past and future medical expenses, and the denial of permanent total disability benefits from the Second Injury Fund.

Standard of Review

On appeal, we review only questions of law, and we may modify, reverse, [310]*310remand for rehearing, or set aside an award only where: 1) the Commission acted without, or in excess of, its powers; 2) the award was procured by fraud; 8) the facts found by the Commission do not support the award; or 4) the record lacks sufficient competent evidence to warrant making the award. Section 287.495.1 RSMo. (2000)3; Hampton v. Big Boy Steel Erection,

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Cite This Page — Counsel Stack

Bluebook (online)
370 S.W.3d 305, 2012 WL 2755777, 2012 Mo. App. LEXIS 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durbin-v-ford-motor-co-moctapp-2012.