News

August 02, 2013

Andrew Smith worked as a driver for Fischer Lumber on November 6, 2006 when he injured his low back pulling boxes off a truck.  Smith reported right-sided symptoms; an MRI revealed a right-sided disc herniation at L3-L4 and a left-sided disc protrusion at L4-5.  Smith’s physicians concluded he had sustained a right L4 radiculopathy and fibrosis on the right side at L4-5.  He was restricted to no lifting over 20 pounds and limited standing, bending, stooping and other physical activities.

Smith was hired by National Freight as a “spotter” on January 19, 2007, and thereafter took a driving position.  But he continued to treat for the November, 2006 occurrence.  As of September, 2008, he complained of low back pain which radiated down the right thigh.  A repeat MRI taken September 18, 2008 revealed bilateral disc protrusions on the right at L2-3 and L4-5, as well as a protrusion on the left at L3-4.  His physicians discussed conservative measures versus surgery for the L3-4 pathology on the right and scheduled surgery for December 5, 2008.

On December 4, 2008, the day before this surgery, Smith was involved in a motor vehicle accident while working for National Freight.  He described a “pop” on the left side of his back, following which he experienced sharp pain down the left leg.  The surgery was cancelled; a new MRI done December 10, 2008 revealed a disc herniation on the left at L3-4 and a right-sided diffuse bulging disc at L4-5.  A radiologist compared the several MRIs and concluded that there was an interval change between the earlier tests and the December, 2008 study:  the left-sided herniation at L3-4 now crossed the midline and was more extensive, reaching to the medial aspect of the right neuroforamen.

Smith was placed off work after the December 4, 2008 accident.  He reported symptoms in both legs and increased pain after the motor vehicle accident.  A neurosurgeon who saw him at his attorney’s request was of the opinion that the automobile accident caused a significant worsening of the L4-5 disc.  He testified Smith could work before the motor vehicle accident but now could not; before that incident, he was scheduled for an L4-5 microdiscectomy, whereas now a two-level fusion was needed.  The neurosurgeon also stated that a myelogram test revealed more extensive pathology at L4-5 than had the earlier MRI studies.

The physician to whom Smith was referred by Fischer Lumber testified in a similar fashion.  A third doctor who saw petitioner at the request of Fischer Lumber’s physician was less convinced there was an L4-5 disc herniation, stating that the myelogram studies were not dramatically different from the December, 2008 MRI or the September, 2008 MRI.  He found two disc herniations, one at L2-3 on the right and one at L3-4 on the left with degenerative disc disease at L4-5 unrelated to the December, 2008 motor vehicle accident.

The Arbitrator and the Commission found that the motor vehicle accident on December 4, 2008 broke the chain of causation, based on the fact that Smith had not reached maximum medical improvement for his original injury before the motor vehicle accident.  Therefore, Fischer Lumber’s liability for benefits ceased with the December 4, 2008 accident.  The Commission awarded Smith TTD and medical expenses, and ordered National Freight to authorize the two-level fusion.

On appeal, National Freight argued that the December, 2008 accident merely aggravated Smith’s injuries and that the chain of causation from the November, 2006 was not completely broken.  The Appellate Court disagreed, finding the December, 2008 accident an independent, intervening accident which broke the chain of causation between Smith’s work-related injury and his current condition of ill-being.  The evidence showed that Smith’s symptoms changed after the second accident, both qualitatively and quantitatively.  Increased complaints of pain coupled with new and different symptoms supported a finding of an independent, intervening cause breaking the chain of causation between the original work-related accident and petitioner’s condition of ill-being.

Also, there was a change in pathology in Smith’s lumbar spine, namely, a more extensive disc herniation at L3-4 and L4-5.  While it is possible such changes could occur naturally over time, the timing of the change in Smith’s complaints suggested they were rooted in the second accident.  The type of surgery Smith required changed as a result of the motor vehicle accident from a right L3-4 microdiscectomy to a lumbar laminectomy and fusion with stabilization at L3-4 and L4-5.  This more extensive surgery was not related to the original accident.  Last, Smith was completely unable to work after the motor vehicle accident, whereas he lost only a few days of work following the first accident.

The Court also rejected National Freight’s argument that Smith’s condition after December 4, 2008 would not have occurred “but for” Smith’s lumbar condition and need for surgery following the November, 2006 accident.  National Freight relied onVogel vs. Industrial Commission, where the Court found the original accident to be the cause of the claimant’s failed fusion, this despite the claimant having been involved in three subsequent auto accidents.  The Court noted that in Vogel the failed fusion had its origin in the surgery following the original work accident, whereas here there was a change in the pathology of the lumbar spine which was clearly not related to the original work accident.

Perhaps more significant, the Court also ruled on Smith’s cross appeal of the decision of the Arbitrator that Smith was not entitled to a permanency award against Fischer Lumber because his injury had not reached maximum medical improvement before the second accident.  The Court held that because the second accident caused a separate and distinct injury that broke the causal chain, Smith had suffered distinct injuries arising out of two different accidents and should be allowed to seek a permanency award for each accident.  If the two injuries were divisible, as found by the Commission, the Commission should be able to assign separate permanency awards for each of the two accidents.  Therefore, the Court vacated the Commission’s finding that Smith was not entitled to a permanency award from Fischer Lumber and returned the case to the Commission with instructions that it determine the permanency attributable to each injury.

Comment

It is uncommon for the Commission to find a second accident – work-related or otherwise – a separate and intervening cause.  Here there was ample evidence of a distinct injury to a separate level of the lumbar spine.  But the only significant distinction between National Freight and the Vogel case is that here the subsequent occurrence was work related.  The court relied heavily on ‘but for’ reasoning in Vogel but utterly rejected it here, only because liability could be placed on another employer.

More important is the holding that supports a presumption that if there are two accidents, the claimant should be entitled to two awards for permanency.  The Commission found that Smith’s condition of ill-being had not reached maximum medical improvement, an indisputable proposition given that Smith was to have undergone surgery for his original injuries the day after the second accident.  Under the circumstances, it can hardly be said that the Commission’s decision was against the manifest weight of the evidence.  The Court’s ruling on this subject had no basis in fact or in law – this is judicial fiat at its worst.