Emmanuel Caldwell v. Hussmann Corp.

I write by separate opinion to express my concern about the state of the record presented to the Commission on review. The exhibits came to the Commission with permanent highlighting marks throughout. I reiterate my previously expressed opinion that the addition of any permanent markings or annotations to documents, records, or depositions after their entry in the official record is inappropriate. If this case is appealed to the Missouri Court of Appeals or the Missouri Supreme Court, I want the appellate judges to know that the markings were not made by any member of this Commission.

John J. Hickey, Member

Employee: Emmanuel Caldwell

Injury No.: 02-030133

Dependents: N/A

Before the

Enployer: Hussmann Corp.

Divisions of Workers'

Additional Party:N/A

Department of Labor and Industrial

Insumer: Self-Insured c/o ESIS

$\begin{array}{ll}\text { Injury No.: } 02-030133 & \\ \text { Relationship of Missouri }\end{array}$

Hearing Date: July 12, 2005

Jefferson City, Missouri

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: March 13, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was lifting while assembling refrigerator fronts.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Allegedly low back
14. Nature and extent of any permanent disability: -0-
15. Compensation paid to-date for temporary disability: $\ 1,090.28
16. Value necessary medical aid paid to date by employer/insurer? $\ 4,186.39

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 640.00
3. Weekly compensation rate: $\$ 329.42 / \ 424.00
4. Method wages computation: Stipulation

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

-0-

1. Future requirements awarded: N/A

Said payments to begin N/A and to be payable and be subject to modification and review as provided by law.

The compensation awarded to Claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to Claimant:

$\mathrm{N} / \mathrm{A}$

Employee: Emmanuel Caldwell

Dependents: N/A

Employer: Hussmann Corp.

Additional Party:

Injury No.: 02-030133

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

This case involves a lifting incident and reported low back injury to Claimant with the reported accident date of March 13, 2002. Employer admits claimant was employed on said date and that any liability was fully insured. The Second Injury Fund is also a party to this claim but is not represented today. Both parties are represented by counsel.

A complete denial of benefits is always a serious matter and here the decision turned on numerous trial statements and records from a number of treatment providers over a period of years. Unavailability of the trial transcript, after the court reporter's unexpected re-employment elsewhere, ultimately required a review of audiotapes in lieu of a conventional transcript. The delay is inconvenient but thorough analysis is paramount. Section 287.460.1 RSMo (2000).

1. Unpaid medical treatment (authorized, necessary and reasonable);
2. nature and extent of TTD;
3. nature and extent of PPD.

1. Claimant was building refrigerator fronts and felt pain in his right lower back on March 13, 2002.
2. Claimant first treated on March 18, 2002 at SSM where he denied a prior history of back injuries.
3. Claimant was diagnosed with thoracic and lumbar strain, and right SI joint pain. Physical therapy was recommended, and Claimant was put on restricted duty. Employer began temporary total disability ("TTD") payments on this date. He commenced physical therapy the next day.
4. He is seen for a recheck at SSM by Dr. Covert, who notes Claimant has no symptoms in lower extremities. He also notes Claimant "demonstrates bizarre affect when bending over" and makes mention of relation to the basketball season. Again, he is diagnosed with a back strain and continues physical therapy. He then follows up with SSM on March 28, 2002, and it is noted that he rarely takes Tylenol and has no lower extremity symptoms. He returns to SSM on April 4, 2002 and now complains of left sided low back pain. X-rays are negative.
5. Dr. Tate sees Claimant on April 8, 2002 and notes positive Waddell's signs, symptom magnification, myofascial pain, and that the pain is out of proportion with the objective findings. She administers a trigger point injection. He follows up with Dr. Tate on April 15, 2002, and she notes that the trigger point injection did not help, and that Claimant was no longer complaining of pain in the right low back, but was now complaining of left sided low back pain. She again notes subjective complaints without objective findings. She places him at MMI and returns him to work without restrictions.
6. On May 17, 2002, Claimant sees Dr. Rice on his own, who diagnoses him with muscular back pain and recommends more therapy. Two months later, on July 8, 2002, he complains to Dr. Rice of only of left knee pain after a basketball game. Claimant testified he recalled seeing Dr. Rice for his left knee in July of 2002, but denied that the injury was not from playing basketball. Dr. Rice's records specifically refer to a basketball game. He also recalls the basketball injury in December of 2004, where he injured his left upper extremity.
7. On July 29, 2002 a functional capacity exam ("FCE") reveals Claimant compliant in only two exercises. Subsequently, Claimant returns to Dr. Tate who again notes positive Waddell's signs and symptom magnification. She assigns no

1. Five months later, Claimant goes to Christian Hospital on his own, on December 11, 2002. He complains of right-sided low back pain and is given Vicodin. Dr. Kopp advises that the lumbar pain was not related to work at that time, and returned him to regular duty.
2. On that same day, Claimant sees Dr. Culligan, a chiropractor, privately. Claimant's symptoms were noted as aggravated by "everyday normal activities." Dr. Culligan has no history of any prior low back injuries. Dr. Culligan treats Claimant from the end of December through January 9, 2003. According to the records, during this time, he complains of left sided low back pain. At trial, Claimant testified that his low back pain has always been on the right side, and that he told Dr. Culligan his pain was on the right side.
3. Claimant returned to Dr. Kopp on March 18, 2003 for a hand evaluation. No back complaints are noted.
4. On January 10, 2003, Claimant is sent to Dr. Poetz and complains of right-sided low back pain. Dr. Poetz diagnoses a lumbar strain, and then simultaneously recommends an MRI but also assigns a PPD rating of 20\% PPD.
5. Thereafter, on March 16, 2004, noting chronic back pain and an unremarkable MRI. It is noted that clinically he looks well and moves about smoothly, sits up and squats...from no problem, and moves readily on and off the exam table. He is returned to regular duties. He is on no other medications except Tylenol.
6. Another FCE on March 22, 2004 places Claimant at the light to medium demand level. Also noted is submaximal effort and self-limiting behavior.
7. Concentra notes from April 1, 2004 refer to the FCE and the exaggerated behavior, very poor effort or voluntary submaximal effort. Claimant cannot return to work until he can demonstrate the ability to return to work. Claimant testified that this is the last day he worked at Employer. On June 14, 2004, Dr. Culligan released Claimant from treatment. On June 16, 2004, Concentra records note Claimant is allowed to return to work normal duty.

1. Claimant testified that he had an injury in the 1980's to his lower back. He believes it was related to Employer and that he had physical therapy. He did not have any surgery associated with that injury. He testified he had no ongoing complaints in association with that injury. He testified he recalled seeing Dr. Rice for his left knee in July of 2002, but denied that the injury was not from playing basketball. Dr. Rice's records specifically refer to a basketball game. He also recalls the basketball injury in December of 2004, where he injured his left upper extremity.
2. Claimant testified that he had an injury in the 1980's to his lower back. He believes it was related to Employer and that he had physical therapy. He did not have any surgery associated with that injury. He testified he had no ongoing complaints in association with that injury.
3. Claimant sustained a motor vehicle accident on either May 8 or May 12 of 2001. He saw Dr. Rice on May 22, 2001 and complained of mid and low back pain. He was diagnosed with right-sided low back pain. He was sent to physical therapy and returned to work on July 11, 2001. He was discharged from physical therapy on July 26, 2001, with noted right-sided lumbar complaints.

A review of the records reveals that despite two years of treatment, there is no change in pain complaints or progress until December 9, 2004 when he no longer has any low back complaints. The record is replete with variations between

Claimant trial testimony and history and symptoms recorded in the large records exhibits placed in evidence.