Herbert Houston v. Finninger's Catering Service

We first address the objections of employer/insurer and the Second Injury Fund raised in the deposition of Dr. Joseph Hanaway on April 10, 2009. Employer/insurer's first objection was raised when employee's counsel asked Dr. Hanaway to offer his opinion as to whether the accident of September 10, 2004, was a substantial causative factor of employee's condition as observed by Dr. Hanaway on January 12, 2005. Counsel for employer/insurer objected to this question on the basis that the question was asked and answered in the prior deposition of Dr. Hanaway on March 21, 2008. Counsel for the Second Injury Fund joined in this objection.

The objections of employer/insurer and the Second Injury Fund are hereby overruled. In the earlier deposition of March 21, 2008, employee did not elicit Dr. Hanaway's opinion as to whether the accident of September 10, 2004, was a substantial causative factor of employee's condition as observed on January 12, 2005. Indeed, Dr. Hanaway's testimony tended to indicate that he was completely unaware that employee sustained an accident in September 2004. For this reason, the objection is overruled. In reaching our decision in this matter, we have considered Dr. Hanaway's testimony at the deposition of April 10, 2009, regarding his opinion as to whether the accident of September 10, 2004, was a substantial causative factor of employee's condition as observed on January 12, 2005.

Employer/insurer's second objection was raised when employee's counsel moved to admit Employee's Exhibit No. 2. Counsel for employer/insurer objected to the introduction of Employee's Exhibit No. 2 for the following reasons: that the Exhibit was cumulative in light of Dr. Hanaway's prior deposition on March 21, 2008; that the Exhibit was not newly discovered evidence, but that the evidence was available and could have been discovered with reasonable diligence prior to Dr. Hanaway's first deposition; and finally, that the admission of the Exhibit would not further the interests of justice. Counsel for the Second Injury Fund joined in this objection.

The objections of employer/insurer and the Second Injury Fund are hereby overruled. Employee offered the testimony of Dr. Hanaway to explain why the medical reports and correspondence contained in Employee's Exhibit No. 2 were not available and thus were not offered as evidence by employee at the original hearing before the administrative law judge in this matter. In the deposition of April 10, 2009, Dr. Hanaway explained that the reports contained in Employee's Exhibit No. 2 were not available as of the date of his earlier deposition because, although he dictated the reports and sent them electronically to be transcribed, the reports were never printed prior to the earlier deposition. Dr. Hanaway further explained that his office assistant generally prints the transcribed reports, and that it was not his procedure to check to see that all reports had been printed prior to a deposition. Under these circumstances, the report was not reasonably discoverable by employee in advance of the hearing before the administrative law judge, and thus could not have been produced at the hearing. We are convinced that employee has made a sufficient showing for purposes of Commission Rule 8 CSR 20-3.030(2) (A), such that Employee's Exhibit No. 2 may be admitted into the record. In reaching our decision in this matter, we have considered Employee's Exhibit No. 2.

Employer/insurer's third and final objection was raised when employee's counsel moved to admit Employee's Exhibit No. 3. Counsel for employer/insurer objected to the introduction of Employee's Exhibit No. 3 for the following reasons: that the Exhibit constituted hearsay; that the Exhibit was outside the scope of employee's motion to submit additional evidence; and because the introduction of the Exhibit was a violation of the seven-day rule. Counsel for the Second Injury Fund joined in this objection.

The objections of the employer/insurer and the Second Injury Fund are sustained. Employee's Exhibit No. 3 consists of a single page correspondence dated July 31, 2008, attributed to Dr. Hanaway, and offering Dr. Hanaway's opinion that employee is depressed. Employee fails to offer any explanation for the submission of this additional evidence. This report was not originally identified or included with employee's original motion to submit additional evidence dated December 1, 2008. Nor has employee attempted to make any showing that this evidence does not amount to a "merely cumulative or additional medical examination" of the kind expressly excluded under the Commission Rule pertaining to additional evidence. See 8 CSR 20-3.030(2) (A) (5). We conclude that employee's submission of this additional evidence fails to comply with the requirements of Commission Rule. Accordingly, in reaching our decision in this matter, we have not considered Employee's Exhibit No. 3.

Dr. Hanaway's Deposition of April 10, 2009

The administrative law judge concluded that the opinions of Dr. Michael Chabot were the more competent, credible, and persuasive as compared to those of the other physicians offering their opinions in this case. After reviewing the testimony of Dr. Hanaway at the deposition of April 10, 2009, we are inclined to agree with this conclusion.

The present claim arises from employee's contention that he sustained an injury to his lower back which resulted in subsequent disability and need for future medical care as a result of a work-related accident on September 10, 2004. Employee has a history of injury to his low back predating the accident of September 10, 2004: employee previously injured his low back on May 9, 2002, while working for another employer. Employee received treatment for the May 2002 injury from Dr. David Anderson and Dr. Joseph Hanaway.

Dr. Hanaway has repeatedly offered his opinion in this case that employee's symptoms and subsequent disability stem from the May 2002 back injury. This is true even in Dr. Hanaway's reports and correspondences generated after September 2004, when employee sustained the work accident at issue in this matter.

At the deposition of April 10, 2009, Dr. Hanaway testified that he wished to redact his prior testimony and opinions in this case on the basis of three medical reports that were unavailable to him at the time of his earlier deposition of March 21, 2008. Dr. Hanaway explained that, because these three reports were not printed from his computer before his deposition of March 21, 2008, he incorrectly testified that employee's symptoms were traceable to the May 2002 injury.

In order to accept this theory, we would be obliged to ignore the numerous other occasions throughout this proceeding in which Dr. Hanaway has consistently opined, even after September 2004, that the May 2002 back injury is the causative factor resulting in claimant's symptoms and claim of disability. These include Dr. Hanaway's reports dated March 31, 2005, November 14, 2005, October 9, 2006, and September 19, 2007. In each of these reports, Dr. Hanaway identified the May 2002 back injury as the causative factor underlying employee's symptoms. Even after reviewing MRI scans taken both before and after the 2004 injury, Dr. Hanaway continued to attribute employee's back condition to the May 2002 injury. We are not convinced that the discovery of the three missing reports constitutes a credible reason for accepting the wholesale revision of Dr. Hanaway's earlier opinions in this case. In sum, we find Dr. Hanaway's testimony on remand to lack credibility.

Because we agree with the conclusion of the administrative law judge that Dr. Chabot's opinions are the more competent, credible and persuasive medical evidence on the record, we must agree that employee has failed to meet his burden of demonstrating that he is entitled to

compensation on his claim arising from the accident of September 10, 2004. Accordingly, we affirm the award of the administrative law judge dated August 1, 2008.

Because the Commission agrees with the findings, conclusions, and analysis by the administrative law judge in the award dated August 1, 2008, employee's claim that he be awarded future medical treatment, temporary total disability benefits, and permanent partial disability benefits, is denied. Further, employee's claim for permanent total disability benefits and his claim against the Second Injury Fund are also denied.

The award and decision of Administrative Law Judge John K. Ottenad, issued August 1, 2008, is affirmed, and is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $8^{\text {th }}$ day of April 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Me