Donald Black v. Aulbach Contracting, Inc.

Enters., 32 S.W.3d 666, 671 (Mo. App. W.D. 2000), overruled on other grounds by Hampton, 121 S.W.3d at 225. "Determinations with regard to causation and work-relatedness are questions of fact to be ruled upon by the Commission . . ." Id . Furthermore, in making such determinations, the Commission is the judge of the credibility of witnesses and has discretion to determine the weight to be given opinions. Id.

Medical causation not within common knowledge or experience must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. Selby v. Trans World Airlines, Inc., 831 S.W.2d 221 (Mo. App. 1992).

At the outset, the Commission notes that employer admitted a work-related accident occurred July 29, 2004. The parties placed the following issues in dispute: medical causation; temporary total disability benefits; compensation rate; and future medical benefits.

Employee described an injury due to an accident arising out of and in the course of his employment occurring July 29, 2004. His description of the injury was as follows: he was breaking/busting concrete slabs with a machine; a sliver of concrete, an inch to an inch and a half long, landed in the seat of the machine which employee was occupying; while operating the machine, and sitting on the seat where the sliver of concrete landed, eventually the sliver of concrete cut through his jeans and cut his right buttock; employee believed the event to be minor, and he got up from the seat and brushed the sliver away; employee described the location of the cut as an abrasion to his right buttock between the seam of his jeans and the seam of his right back pocket; and employee admitted the abrasion was not directly on his rectum.

Subsequently, due to symptoms and complaints, employee sought medical care and treatment on August 4, 2004. Employee has been treated for a perirectal abscess since August 4, 2004.

(The Commission notes that due to the fact that we find employee's medical condition, perirectal abscess/perirectal fistula, to not be medically causally related to the above described accident, it is not necessary to recount medical treatment received and residuals pertaining to this medical condition.)

Dr. Levy testified by deposition in behalf of the employee. Dr. Levy received certification from the American Board of Surgery, in 1965, continuous through his date of testimony, April 4, 2006. Dr. Levy admitted that he did not see employee, rather, he conducted a medical records review. On direct testimony, Dr. Levy stated that his review indicated the accident occurred as follows: " . . . On July 29, 2004, he [employee] was sitting on a piece of jagged concrete, and that caused a small cut or laceration in the region of his anus, in the perirectal region, that then became infected."

Dr. Levy was of the opinion that the laceration as described, by the sliver of concrete, near the anus region, resulted in infection and a subsequent perirectal abscess.

On cross-examination, Dr. Levy admitted that the perirectal area is the area "right around the anus". Dr. Levy further explained that perirectal actually means near the rectum.

On further cross-examination Dr. Levy was asked whether a laceration to one's buttock cheek could cause the type of infection employee contracted or would the laceration have to be closer to the anus? The answer given by Dr. Levy was as follows: "That would be very unlikely. The closer to the anus it is, the more likely to cause the problem."

Conversely, Dr. Levy admitted that the further away from the anus the laceration occurs, the less likely the laceration is to cause a problem. Dr. Levy further admitted that he did not physically examine employee, and Dr. Levy did not know exactly where the laceration occurred.

Dr. Brabbee testified by deposition in behalf of the employer. Dr. Brabbee received board certification from the American Board of Surgery in 1979 in colon, rectal and general surgery, continuing through the date of his deposition April 13, 2006. Dr. Brabbee testified that he reviewed employee's treating medical records concerning treatment received subsequent to the accident occurring July 29, 2004, and Dr. Brabbee also physically examined employee on or about May 29, 2005.

The diagnosis of Dr. Brabbee was a complex perirectal fistula with an associated communication with a vein.

Dr. Brabbee explained that almost all of these type fistulas, of this magnitude, arise from an infection within the anal canal in what are called the crypts of the anal canal. Dr. Brabbee further testified that the only type of traumatic perirectal fistula that he could conceive of developing would be through a laceration through the anal canal or an impalement type injury. Dr. Brabbee noted that the accident described by Mr. Black was not the sort of injury that would lead to a perirectal fistula like the one Dr. Brabbee diagnosed. As explained by Dr. Brabbee there were no lacerations through the anal canal or an impalement type injury, rather, employee described an abrasion type injury to his right buttock.

Dr. Brabbee further explained that the location of the pathology concerning employee's medical condition was " . . . a little off to the right, but . . . essentially . . . midline posteriorly". (In reference to the rectum).

In further explanation of the diagnosis and resultant condition, Dr. Brabbee stated that a perirectal fistula, such as the one he diagnosed, develops from the inside out as opposed to from the outside in (emphasis added).

Dr. Brabbee further explained that if the perirectal fistula were attributable to a traumatic occurrence, namely, an impalement type injury, there would be a delay of maybe a day or two before medical treatment would have been necessitated. As stated by Dr. Brabbee: " . . . within the first 24 to 48 hours usually a person would seek medical attention if they had an impalement injury of any significance".

Dr. Brabbee was of the medical opinion that the event occurring July 29, 2004, was not a substantial factor in causing the perirectal fistula/abscess that Dr. Brabbee diagnosed when he evaluated the employee. On crossexamination Dr. Brabbee was asked whether or not the treatment employee received subsequent to the described accident of July 29, 2004, was related to the accident. The answer of Dr. Brabbee was as follows:

"I can only attest to what I'm seeing as what he presented to the emergency room with as of this date, which was August the $4^{\text {th }}. And the findings at August 4^{\text {th }}$, I do not believe, were related to his work-related injury. I do believe that he had a perirectal abscess with necrotizing fasciitis, but I do not believe, based on my understanding of the pathogenesis of this disease or this report, that it was related to the incident of the injury at work."

On further cross-examination, Dr. Brabbee reiterated his opinion that employee's superficial abrasion of his buttock, which employee described to him, did not cause employee's resultant medical condition, his perirectal abscess.

On additional cross-examination Dr. Brabbee summed up his medical opinions as follows:

"All I'm aware of, purely and simply, is this gentleman had what he calls a work-related injury where he sat on a cement block of some sort and had an abrasion of his buttock. That's what he told me. The next thing I know, he's presenting to the doctors on the $4^{\text {th }}$ of August with this perirectal fistulous abscess."

Dr. Brabbee then states unequivocally that he does not relate this medical condition to the accident employee

described occurring on July 29, 2004. The medical opinions of Dr. Brabbee were not impeached.

III. Findings of Fact and Conclusions of Law

The ultimate determination of credibility of witnesses rests with the Commission; however, the Commission should take into consideration the credibility determinations made by the administrative law judge. When reviewing an award entered by an administrative law judge the Commission is not bound to yield to his or her findings including those relating to credibility, and is authorized to reach its own conclusions. An administrative law judge is no more qualified than the Commission to weigh expert credibility from a transcript or deposition. Kent v. Goodyear Tire \& Rubber Co., 147 S.W.3d 865 (Mo. App. 2004).

The instant case involves a complex medical condition clearly outside the realm of lay understanding, i.e., medical causation of a complex perirectal fistula. After reviewing the en