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, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

There is no dispute that employee sustained a work-related injury on September 10, 2004. The threshold question in this case is whether employee met his burden of showing that his present back condition, symptoms, and need for treatment were caused by the work injury of September 2004. Employee's history includes a previous injury to his low back in May 2002, but employee testified that after his treatment for that injury, he was able to return to work, and that before his injury of September 2004, he was able to successfully perform his duties for employer. Although employee admitted that he had a little pain in his low back from the injury in May 2002, employee was not taking any medications and was under no restrictions from any physician leading up to the injury of September 2004.

On September 10, 2004, employee was performing his duties for employer as a delivery driver, when he reached overhead to remove a tray of food from the top of a stack of trays in the delivery van. Employee estimated that the tray of food weighed between 80 and 90 pounds. While employee was reaching overhead to remove the tray, the tray slipped off the stack, and employee twisted and reached to grab the tray as it fell. At that time, employee experienced immediate pain in his lower back, which caused employee to fall to the ground.

Employee reported the injury to his employer immediately. Employer sent employee to Barnes Care, where he was first examined on September 13, 2004. Employee returned to Barnes Care and was examined by Dr. David Anderson on September 30, 2004, after a course of pain medications and physical therapy failed to relieve employee's symptoms. On Dr. Anderson's recommendation, an MRI was performed on October 1, 2004, which revealed disc desiccation and narrowing at the L5-S1 level and a disc bulge with foraminal narrowing at the L4-L5 level. Dr. Anderson recommended conservative care and physical therapy, and assigned work restrictions of no lifting over 10 pounds, and no repetitive bending, stooping, or squatting. Employee underwent a second round of physical therapy, but his symptoms did not improve. Employee returned to Dr. Anderson on October 28, 2004. Due to the intensity of employee's symptoms, Dr. Anderson recommended employee visit a spine surgeon, and that employee continue limiting himself to desk work in the meantime.

At the direction of employer, Dr. Michael Chabot examined employee on November 17, 2004. Dr. Chabot noted employee's prior back injury of May 2002, and that employee was able to return to his regular work duties after that injury. As for employee's symptoms stemming from the September 2004 injury, Dr. Chabot recommended employee continue physical therapy and opined that employee could return to work with restrictions of no lifting in excess of 35 pounds. In a series of subsequent reports dated December 8, 2004, January 18, 2005, and September 25, 2006, Dr. Chabot reiterated his opinion that employee did not sustain any permanent disability as a result of the September 2004 injury, despite imposing work restrictions on employee of no lifting in excess of 35 pounds. Although employee's symptoms did not improve and employee continued to have significant back pain, employer provided no further medical treatment.

Employee returned to work briefly for employer on light duty. His duties consisted of placing slices of bread into plastic bags for use in meals delivered to employer's customers. Employee was discharged by employer after several months performing these duties. Employee was

informed that he was discharged because there was no work available for employee if he could not perform any heavy lifting.

As stated above, the threshold question presently before the Commission is whether employee met his burden of showing that his present back condition, symptoms, and need for future treatment were caused by the work injury of September 2004.

Under Missouri law, it is well-settled that the claimant bears the burden of proving all the essential elements of a workers' compensation claim, including the causal connection between the accident and the injury. While the claimant is not required to prove the elements of his claim on the basis of "absolute certainty," he must at least establish the existence of those elements by "reasonable probability." Furthermore, the element of causation must be proven by medical testimony, "without which a finding for claimant would be based on mere conjecture and speculation and not on substantial evidence."

Shelton v. City of Springfield, 130 S.W.3d 30, 38 (Mo. App. 2004) (citations omitted).

Employee presented the following evidence in support of his claim for compensation. Employee presented the records and testimony of Dr. Hanaway, who, after correcting an earlier opinion due to a technical mistake which prevented him from reviewing all of his records, opined that the injury of September 2004 was the substantial causative factor of employee's condition as observed on January 12, 2005. Dr. Hanaway further opined that the CT and MRI scans from October 15, 2004 and January 12, 2005, respectively, revealed a herniated disc at the L5-S1 level and a bulging disc at the L4-L5 level.

Employee also presented the records and testimony of Dr. Robert Poetz, who examined employee on October 2, 2006. Dr. Poetz opined that the May 2002 injury resulted in the herniated disc at L5-S1, but noted that employee was able to return to work despite some occasional pain attributable to that injury. Dr. Poetz further opined that the September 2004 accident was a substantial factor causing lumbar strain and exacerbation of the herniated disc as well as exacerbation of lumbar degenerative disc disease. Dr. Poetz assigned permanent partial disability ratings of 25 % of the body as a whole attributable to the 2002 injury, 15 % at the level of the left elbow (attributable to another preexisting injury), and 20\% of the body as a whole attributable to the September 2004 accident.

Finally, employee presented the records and testimony of Dr. Samuel Bernstein, a licensed psychologist and vocational expert who evaluated employee on September 21, 2006. Dr. Bernstein noted that employee's work history was limited to heavy manual unskilled work, and that his education level was limited to completion of the ninth grade. Dr. Bernstein also administered tests for depression and anxiety; employee scored within the severe range on both tests. Dr. Bernstein opined that due to employee's unskilled background, limited education, and a combination of employee's preexisting injuries and the work injury of September 2004, employee is not employable in the open and competitive labor market.

The Second Injury Fund offered the records and testimony of an additional vocational expert, Mr. James England. Mr. England did not conduct an in-person evaluation of employee at any time. Rather, Mr. England merely reviewed employee's records in July 2007. Mr. England opined that based on the restrictions assigned by Dr. Chabot, employee was employable in the open labor market. However, Mr. England did admit that if employee's complaints as to anxiety and depression were true, they would certainly constitute a hindrance to employment. Mr. England further admitted that there was objective support for employee's subjective

Symptoms on the basis of employee's results on the psychological tests administered by Dr. Bernstein.

The administrative law judge found the opinions of Dr. Chabot and Mr. England to be more credible than the opinions of Drs. Hanaway, Poetz, and Bernstein, and thus denied employee's claim. I disagree with this finding.

The ultimate determination of credibility of witnesses rests with the Commission. The Commission is not bound to yield to an administrative law judge's findings, though, including those relating to credibility; and the Commission is authorized to reach its own conclusions. The law only requires the Commission to take into consideration the credibility determinations of an administrative law judge and not give those determinations deference. Kent v. Goodyear Tire \& Rubber Co., 147 S.W.3d 865 (Mo. App. 2004). I find Dr. Chabot's opinion as to the cause of employee's present low back condition and symptoms, as well as Dr. Chabot's opinions as to nature and extent of employee's disability to be simply not credible. As a result, I believe the award founded upon Dr. Chabot's opinion is not supported by competent and substantial evidence.

The law in effect at the time employee sustained the injury to his lower back dictated that, "[w]here the performance of the usual and customary duties of an employee leads to physical breakdown or a change in pathology, the injury is compensable." Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781, 784 (Mo. 1983). "[T]he worsening of a preexisting condition is a 'change in pathology." Winsor v. Lee Johnson Constr. Co., 950 S.W.2d 504, 509 (Mo.App. 1997) (citation omitted), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003). It is also important to remember that the law applicable to employee's claim requires us to resolve "[a]ny doubt as to the right of an employee to compensation ... in favor of the injured employee." Wolfgeher, 646 S.W.2d at 783.

I would reverse the award of the administrative law judge because employee provided competent medical testimony which established by a reasonable probability that the injury sustained in the performance of employee's work duties on September 10, 2004, resulted in a change in pathology in employee's lower back. Dr. Hanaway testified as to his review of the MRI scans taken on both July 10, 2003, and January 12, 2005. Dr. Hanaway indicated that the earlier scan revealed a protruding herniated disc at L5-S1, but that the post-September 2004 scan demonstrated a protruding disc at L4-L5 in addition to the herniated disc at L5-S1. Clearly, then, employee's injury of September 2004 is compensable, because employee's work duties caused a change in pathology as compared to the condition of employee's lower back prior to September 2004.

Based upon the testimony provided by employee, along with the opinions provided by his medical experts, Drs. Hanaway and Poetz, which I find credible, I conclude that the accident of September 10, 2004, was a substantial factor in causing employee's back condition and need for further medical treatment. In addition, I believe employee has met his burden of demonstrating that he is totally and permanently disabled, based upon the credible medical evidence and the findings of Dr. Bernstein.

I would reverse the award of the administrative law judge. For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

Employee: Herbert Houston

Department: N/A

Employer: Finninger's Catering Service

Additional Party: Second Injury Fund

Insurer: Travelers Commercial Casualty

Hearing Dates: April 7, 2008

Injury No.: 04-092822

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: JKO

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: September 10, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Claimant was a delivery van driver for Employer who tried to grab a tray of food as it was slipping and sustained lumbar spine complaints.
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: Body as a Whole-Lumbar Spine
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 5,881.84

Employee: Herbert Houston Injury No.: 04-092822

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 300.00
3. Weekly compensation rate: $\ 200.00 for TTD/\$200.00 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

None $\ 0.00

1. Second Injury Fund liability:

None $\ 0.00

TOTAL:

$\ 0.00

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Harry J. Nichols.

Employee: Herbert Houston

Department: N/A

Employer: Finninger's Catering Service

Additional Party: Second Injury Fund

Insurer: Travelers Commercial Casualty

Injury No.: 04-092822

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On April 7, 2008, the employee, Herbert Houston (Claimant), appeared in person and by his attorney, Mr. Harry J. Nichols, for a hearing for a final award on his claim against the employer, Finninger's Catering Service, and its insurer, Travelers Commercial Casualty, and the Second Injury Fund. The employer, Finninger's Catering Service (Employer), and its insurer, Travelers Commercial Casualty, were represented at the hearing by their attorney, Mr. Robert W. Frayne. The Second Injury Fund was represented at the hearing by Assistant Attorney General Jennifer Chestnut. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about September 10, 2004, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant.

2) Claimant was an employee of Employer.

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by law.

6) At the relevant time, Claimant earned an average weekly wage of $\ 300.00, resulting in applicable rates of compensation of $\ 200.00 for total disability benefits and $\ 200.00 for permanent partial disability (PPD) benefits.

7) Employer paid no temporary total disability (TTD) benefits.

8) Employer paid medical benefits totaling $\ 5,881.84.

1) Is Employer liable for future medical care?

2) Is Employer responsible for the payment of TTD benefits for a time period yet to be determined?

3) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury?

4) What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A) Deposition of Dr. Joseph Hanaway, with attachments, dated March 21, 2008

B) Deposition of Samuel Bernstein, Ph.D., with attachments, dated December 11, 2006

C) Deposition of Dr. Robert Poetz, with attachments, dated April 16, 2007

D) Medical treatment records of BarnesCare (and Dr. David Andersen)

1) Deposition of Dr. Michael Chabot, with attachments, dated July 13, 2007

2) Records of The Work Center, Inc. dated January 14, 2005

3) MRI report from NYDIC St. Louis dated October 1, 2004

I) Deposition of Mr. James M. England, Jr., with attachments, dated January 7, 2008

Notes: 1) Unless otherwise specifically noted below, any objections contained in these Exhibits are overruled and the testimony fully admitted into evidence.

2) Some of the records submitted at hearing contain handwritten remarks or other marks on the Exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on April 7, 2008.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and depositions, the vocational expert opinions and depositions, and the medical records, as well as based on my personal observations of Claimant at hearing, I find:

1) Claimant is a 44-year-old, currently unemployed individual, who was working for Finninger's Catering Service as a delivery van driver in September 2004, at or around the time of his injury that is the subject of this Workers' Compensation case.

Claimant worked for Employer from 2002 through March 2005. He worked full time ( 40 hours per week) and was paid $\ 7.50 per hour. His job entailed delivering food to nursing homes and day care centers. He was terminated when he was unable to return to full duty.

2) Claimant testified that he has a $9^{\text {th }}$ grade education and he cannot read or write to a certain point. He has had no other training. The evidence revealed that prior to his job at Finninger's Catering Service, he worked at Hart Printing Company in a cutting and binder operator job from 1999 to 2002, at American of St. Louis as a warehouse laborer, at Shamrock Advertising delivering circulars door to door, and at Busch Stadium for Sports Service as a clean-up crew member. All of his prior jobs involved unskilled, manual labor leaving him with no transferable skills from any of them.

3) Claimant sustained his first injury at the age of 15 when he fractured his left elbow. He is left arm dominant. He testified that the arm was put in a cast. He never had surgery on the elbow and he could not recall any restrictions that were placed on him by a doctor because of the elbow fracture. He testified that he cannot extend the left arm all the way, and he cannot bend it to touch his shoulder all the way. He said that he started using the right arm more, especially for lifting.

4) There were no medical records put into evidence showing any treatment Claimant received for the left elbow, nor any problems with the left elbow pre-existing the back injury from September 10, 2004.

5) Claimant next sustained an injury to his left foot in the 1990's sometime when something fell on it as he was working in a warehouse. He testified that he sustained a metatarsal fracture for which he was placed in a boot for the foot to heal. Claimant testified that he gets pain with standing and he still has tenderness at the site of the break. He said that he wears a shoe with support because of that prior injury. Claimant testified that he never had surgery on the foot and he could not recall any restrictions that were placed on him by a doctor because of the left foot injury.

6) There were no medical records put into evidence showing any treatment Claimant received for the left foot, nor any problems with the left foot pre-existing the back injury from September 10, 2004.

7) Claimant then sustained his first low back injury in 2002 while working for Hart Printing Company. Claimant injured his low back on May 9, 2002 when he was working at a cutting job and developed acute low back pain from the heavy lifting he

was required to do as a part of that job. He received treatment for this injury from Dr. David Andersen and Dr. Joseph Hanaway. The only pre-existing medical treatment records in evidence for this low back condition are the records from Dr. Joseph Hanaway.

8) Dr. Joseph Hanaway (Exhibit A) first examined Claimant in connection with the 2002 injury on July 2, 2003. Claimant denied any prior problems with his low back despite the heavy nature of his work leading up to the injury at work on May 9, 2002. Claimant described the mechanism of injury in that initial report and also noted that he had received conservative treatment consisting of physical therapy, light duty restrictions and an MRI. This report noted that Claimant was now working as a van driver for a catering company, and he had constant low back pain at the belt-line with radiation down his legs. He noted that he does not play sports now because of his low back complaints. The physical examination revealed lost range of motion in the back and tenderness.

9) Dr. Hanaway (Exhibit A) next saw Claimant on July 10, 2003 after Claimant obtained his MRI film and provided it to Dr. Hanaway for review. Dr. Hanaway wrote that the MRI showed a central protruding disc at L5-S1. Claimant reported pain that may radiate to his buttocks. Dr. Hanaway prescribed medications and a TENS unit for his pain complaints in the low back.

10) Dr. Hanaway (Exhibit A) next authored a couple of reports dated August 20, 2003 and February 9, 2004 after he had the chance to review some of Dr. David Andersen's treatment records and reports. On August 20, 2003, Dr. Hanaway confirmed Dr. Andersen's finding from the MRI that Claimant had bulging discs at L4-5 and L5-S1, with a herniation at L5 into the right intervertebral foramen. Dr. Hanaway also wrote that Claimant will never be able to return to the heavy lifting that he did before this injury. He commented that the best thing Claimant can probably do is be a van driver. Then on February 9, 2004, Dr. Hanaway confirmed again that Claimant had an L5-S1 disc herniation and an L4-5 protruding disc, which were both symptomatic. Claimant continued to complain of pain in the back. Dr. Hanaway rated Claimant as having 25 % permanent partial disability of the body as a whole for the L5-S1 herniation and 10 % permanent partial disability of the body as a whole for the L4-5 bulging disc. He noted that Claimant could never return to a heavy lifting job, but he was doing okay as a van driver.

11) Dr. Hanaway's (Exhibit A) last report prior to the September 2004 injury is dated February 23, 2004. In that report, Dr. Hanaway opines that Claimant is a surgical candidate in light of his disc pathology, but he agrees it is okay to settle and close the 2002 case at this point since he does not know if surgery "is ever going to get done." He places restrictions on Claimant's activities of no repetitive lifting any more than 5 pounds, no repetitive bending or extending, and no sitting or standing for more than 1 hour at a time.

12) Claimant testified that after the treatment for the May 9, 2002 injury and leading up to the September 10, 2004 injury, he had no problems with working for Employer. He

admitted that he had a little pain in his low back, but he testified that he was not taking any medications and he was not under any restrictions from the doctor.

13) Claimant testified that he sustained an accidental injury on September 10, 2004 when he was working for Employer driving a delivery van. He said he was delivering food to senior citizens, and a tray of food slipped as he was going to grab it, causing injury to his back. He estimated that the food tray weighed 80 to 90 pounds, including both the food and the container. He said that he immediately noticed pain in his low back when he grabbed the tray as it was sliding, and he twisted. Claimant testified that he reported it immediately to Employer, and he went to BarnesCare for treatment a few days later.

14) Claimant testified that he went back to work a few days after this accident and was working light duty. He said that he sat all day and put a piece of bread in a plastic bag. He was paid his regular salary during this time.

15) The medical treatment records from BarnesCare (Exhibit D) begin with an examination report dated September 13, 2004. In that report, Claimant described a history of injuring his back from lifting a container of food at work. He had moderate pain and discomfort with positive Waddell signs. The doctor found that Claimant could hardly move his back and his skin was sensitive to palpation. X-rays were negative, reflexes were normal, and there was no evidence of nerve impingement in the lower extremities. Claimant was prescribed medications and a course of physical therapy.

16) In the initial physical therapy note dated September 15, 2004 (Exhibit D) Claimant provided a history of his lifting accident on September 10, 2004, and he also provided a history of his prior back injury from two years earlier, from which he had sustained 20 % disability. The therapist noted that he moved slowly and stiffly when walking in the clinic, but he moved freely and without hesitation on and off the examination table.

17) In connection with this treatment at BarnesCare (Exhibit D) Claimant again came under the care of Dr. David Andersen, who saw him on September 30, 2004. The note contained a consistent history of the injury on September 10, 2004 as well as the prior back injury from 2002. The note also mentioned another prior back injury from a car accident for which Claimant received six weeks of chiropractic treatment. At the time of this examination, Claimant described pain radiating down to both of his posterior thighs. On physical examination, Dr. Andersen found that Claimant was neurologically intact. Given Claimant's complaints, he recommended an MRI.

18) The MRI of Claimant's lumbar spine was taken at NYDIC St. Louis (Exhibit 3) on October 1, 2004. The radiologist noted that he compared this study with the MRI of Claimant's low back that was taken on July 2, 2002. The MRI revealed disc bulge with foraminal narrowing at the L4-5 level which showed "no appreciable change from the earlier exam." It also showed a disc bulge with desiccation and osteoarthritic changes in the apophyseal joints at the L5-S1 level, with a disc protrusion at that level "to the right of midline laterally that is not appreciably

changed." The radiologist concluded that overall he did "not see an appreciable interval change in the MRI of the lumbar spine."

19) When Claimant was next examined by Dr. Andersen on October 7, 2004, the results were essentially the same as the prior examination. Dr. Andersen recommended continued conservative care with restrictions of no lifting over 10 pounds, and no repetitive bending, stooping or squatting.

20) Claimant received another course of physical therapy at BarnesCare (Exhibit D). On October 20, 2004, the physical therapy note indicates that Claimant was unable to flex further than 25 % yet he had no difficulty assuming and maintaining a fully seated position, and he also moved through a full range of motion on the machines.

21) Claimant was last examined by Dr. David Andersen on October 28, 2004. Claimant complained of pain radiating down both legs to his calves. Dr. Andersen again found no neurological abnormalities on his examination. He diagnosed degenerative lumbar disc disease and noted that given the intensity of Claimant's complaints, he should be seen by a spine specialist since he may be a candidate for surgical intervention.

22) Claimant was initially examined by Dr. Michael Chabot (Exhibit 1) on November 17, 2004. Claimant provided a history of the injury at work on September 10, 2004, when he was lifting a container of food, it slid, and he tried to catch it, hurting his mid and low back. Claimant also reported his prior back injury from 2002. On physical examination, Dr. Chabot found no limp or list, no spasm or tenderness in the thoracic or lumbar spine, and a negative straight leg raise test. Range of motion testing of the lumbar spine revealed $50^{\circ} of flexion, 30^{\circ} of extension, and 55^{\circ}$ of side-bending. The lower extremity neurological examination revealed symmetric deep tendon reflexes, intact sensation, and equal motor strength bilaterally. Dr. Chabot diagnosed a back strain and back pain. He recommended medications, physical therapy and a restriction of no lifting over 35 pounds. Dr. Chabot also noted that there was a suggestion of some degree of symptom magnification since the examination was devoid of any significant objective findings.

23) Dr. Chabot next examined Claimant on December 8, 2004. His report indicated that Claimant did not go to physical therapy because of a personal scheduling problem with attending therapy after work. Claimant reported that his symptoms were worse when he sits or stands for more than 30 minutes. Dr. Chabot confirmed that the MRI from July 2, 2002 showed evidence of a mild diffuse disc bulge at L5-S1 with disc desiccation. He further noted that the MRI from October 1, 2004, revealed no evidence of a focal disc protrusion or any appreciable changes compared to the 2002 MRI. Claimant's physical examination findings on this date were similar to the last exam with the exception of range of motion findings now which were decreased. Dr. Chabot noted that Claimant now could only flex to $35^{\circ}, but he was able to sit up at 90^{\circ}$ without difficulty. Dr. Chabot offered the same diagnosis as before and noted that he found no significant clinical findings and no significant changes on the MRI. He recommended physical therapy and work conditioning with the continued weightlifting restriction of 35 pounds.

24) Claimant was seen at The Work Center, Inc. (Exhibit 2) on January 14, 2005 for the functional capacity evaluation scheduled by Dr. Chabot. The evaluator was unable to determine Claimant's work demand level because Claimant refused to perform any load handling or functional tasks. The evaluator reported that validity indicators suggested inconsistent effort or submaximal effort. There was reported evidence of symptom magnification. He tested positive for 3 of the 5 Waddell signs suggesting symptom magnification.

25) After Claimant's refusal to attend physical therapy and his refusal to perform the necessary tasks as a part of the functional capacity evaluation, Dr. Chabot authored a report dated January 18, 2005 opining that Claimant is capable of returning to regular work duties. As a basis for this opinion, he indicated that Claimant's complaints do not correlate with his findings on the physical examinations, and symptom magnification is present. He also noted that from what he received from Employer describing Claimant's job duties, even at the lifting restriction of 35 pounds, Claimant could have resumed near normal work duties. Dr. Chabot opined that he was not in need of any further medical care since he refused to cooperate with the treatment recommendations of physical therapy and a functional capacity evaluation. He also opined that Claimant had not sustained any permanent partial disability attributable to this injury from September 10, 2004.

26) Claimant last worked for Employer in March 2005. He said he was fired at that point by Employer because he could not go back to doing the heavy lifting. He testified that no Workers' Compensation benefits have been paid to him. He testified that he was off work about a year after Employer fired him because he was unable to do any lifting. Eventually, he went to a friend who worked for a temp agency and he was placed in a job putting labels on shirts or boxes. He performed that job all day long from February 2007 until February 2008. He said they were aware of his disabilities and so they gave him the lighter job. He was able to perform this job standing or sitting. He worked approximately 40 hours per week and made $\ 8.50 per hour. Claimant said he is no longer working there because they have no light duty work he can do. Claimant testified that no one has offered him any vocational retraining and he has not sought out any on his own.

27) After being released by Dr. Chabot, Claimant returned to Dr. Joseph Hanaway (Exhibit A) for additional examinations and treatment. Claimant next saw Dr. Hanaway on March 31, 2005. There was absolutely no mention of the September 10, 2004 injury in Dr. Hanaway's report. Dr. Hanaway noted that his findings on physical examination have been consistent going back to July 2, 2003. Dr. Hanaway restricted Claimant to 10 pounds of lifting and no repetitive bending, carrying or working with his arms overhead. He also restricted Claimant from loading and unloading trucks. Dr. Hanaway opined that Claimant's work at Hart Printing Co. "is the cause of his present low back condition." He rated Claimant as having 25\% permanent partial disability of the body as a whole referable to the L5-S1 unoperated herniated disc, and an additional 15 % permanent partial disability of the body as a whole for the disc pathology at L4-5.

28) Throughout numerous additional examinations from November 14, 2005 through March 10, 2008, Dr. Hanaway reiterated his prior findings and opinions on Claimant's low back condition. He noted on November 14, 2005 that Claimant last worked on February 11, 2005, and that he really cannot work nor do heavy work. He found no change in Claimant's low back condition and related all of his problems and complaints to the injury of May 9, 2002. By February 14, 2006, Dr. Hanaway noted that although he had previously rated about 40 % of the body as a whole a year earlier, since Claimant's return to work attempt failed, Claimant was now really permanently and totally disabled and unable to work at anything in his experience and education. He reiterated that permanent total disability opinion on July 20, 2006 because of Claimant's chronic low back problem. Finally, on September 18, 2007, Dr. Hanaway explained that his prior rating of disability of 40 % was in error and it should be 40 % for the two herniated discs and then an additional 30 % of the body as a whole ( 15 % for each leg) for bilateral sciatic radiation, which then equals 70 % permanent partial disability of the body as a whole.

29) At no time in any of these reports, did Dr. Hanaway mention a history of the September 10, 2004 injury. He never opined that there was any specific disability attributable to that injury, nor any continuing complaints or problems associated with that injury. Additionally, since he did not have a history of that injury, he apparently never factored that injury into his opinion that Claimant was permanently and totally disabled. He consistently found that Claimant's back problems, complaints, restrictions, need for treatment, and ultimately his permanent total disability, were all completely attributable to the May 9, 2002 injury.

30) Claimant was examined by Dr. Robert Poetz (Exhibit C) at the request of Claimant's attorney on October 2, 2006. Dr. Poetz saw Claimant on one occasion as an examiner only, and provided no medical treatment. His report contained a fairly consistent history of the injury at work on September 10, 2004, as well as the prior injuries to Claimant's left elbow, left foot and low back. Claimant reported that after his 2002 back injury, he was able to return to his usual duties with only occasional low back pain. At the time of Dr. Poetz's examination, Claimant reported constant pain in the low back. He reported that he was unable to sit or stand for more than 30 minutes. The report noted that Claimant reported an inability to lift, push or pull over 10 pounds. Claimant also noted pain down both legs to his toes, with tingling in the toes.

31) The physical examination performed by Dr. Poetz revealed an antalgic gait, with Claimant walking with a limp. Claimant's left elbow flexion was restricted by 15 %. Low back flexion was only to $15^{\circ}$, and the straight leg raising test was positive for low back pain, but no radicular signs. Dr. Poetz reported that Claimant was taking Percocet and a muscle relaxer. Dr. Poetz diagnosed a pre-existing left elbow contusion and fracture, as well as a pre-existing herniated nucleus pulposus at L5-S1 and degenerative disc disease. With regard to the 2004 injury, Dr. Poetz diagnosed a lumbar strain with exacerbation of the herniated nucleus pulposus at L5-S1 and exacerbation of the degenerative disc disease.

32) Dr. Poetz recommended continued treatment in the form of medications, and continued restrictions of avoiding heavy lifting, strenuous activity, or prolonged sitting, standing, walking, stooping, bending, squatting, twisting or climbing. He suggested perhaps a need for a pain management specialist for epidural steroid injections and pain medications. He found that since Claimant had chronic back pain, if he had no response to conservative treatment, then he may need a myleogram, post myleogram CT scan, and if indicated, surgical intervention.

33) Dr. Poetz rated Claimant as having pre-existing permanent partial disability of 15 % of the left elbow, and then 25 % of the body as a whole referable to the low back for the 2002 injury. He also opined that Claimant had 20\% permanent partial disability of the body as a whole referable to the low back for the 2004 injury. He offered no opinion on pre-existing permanent partial disability referable to the left foot injury. Finally, Dr. Poetz opined that the combination of the present and prior disabilities exceeds the simple sum by 15 %.

34) The deposition of Dr. Robert Poetz (Exhibit C) was taken by Claimant on April 16, 2007 to make his opinions in this case admissible at trial. Dr. Poetz is an osteopathic physician and surgeon, who is board certified in family medicine. He testified consistent with his report and opinions described above. He specifically testified that he was not aware of any permanent restrictions placed on Claimant after the 2002 low back injury. He also admitted that he had no medical records on the elbow fracture. Dr. Poetz testified that he agreed with the radiologist's findings on the October 1, 2004 MRI including the fact that there was no appreciable change between that MRI and the one taken in 2002.

35) Claimant was seen by Samuel Bernstein, Ph.D. (Exhibit B) at the request of Claimant's attorney on September 21, 2006. He saw Claimant only on one occasion to provide a psychological and vocational assessment. In terms of Claimant's education and background, he found that Claimant had a $9^{\text {th }}$ grade education, and that he had difficulty doing schoolwork. He noted that Claimant basically had an unskilled labor work history. He administered the Beck and Hamilton tests, for which Claimant scored in the severe range for depression and anxiety. He also administered the WRAT reading test, from which he determined Claimant had limited reading abilities.

36) On the basis of all of this information, as well as the medical records he reviewed, Dr. Bernstein opined that Claimant was not employable in the open labor market. As support for his opinion, he cited Claimant's unskilled background; his limited education; his two work injuries involving his low back, which he believed resulted in a herniated disc at L5-S1 and a bulging disc at L4-5; his continued complaints of numbness down both legs and spasms in his low back; and his exertional limits on sitting, standing, lifting, and bending, which exclude sedentary work. Dr. Bernstein testified that he agreed with the treating doctor (Dr. Hanaway) that Claimant was permanently and totally disabled. However, he misstated Dr. Hanaway's opinion of the cause of that total disability. He further testified that he did detect significant depression and anxiety, which only complicates this matter. However, Claimant's

primary problem is his pain. He finally opined that Claimant's inability to work was based on a combination of the pre-existing disability and the 2004 accident.

37) The deposition of Samuel Bernstein, Ph.D. (Exhibit B) was taken by Claimant on December 11, 2006 to make his opinions in this case admissible at trial. Dr. Bernstein is a licensed psychologist and vocational expert. He testified consistent with his report and opinions described above. On cross-examination, Dr. Bernstein agreed that Claimant's age would not be a negative factor in finding employment, and it might be appropriate to use the terminology "younger" worker in Claimant's case. He admitted that Claimant had no prior history of psychological problems before September 2004. He confirmed that he always gives greater weight to the treating doctor's opinions, who he believed was Dr. Hanaway in this case, and he further acknowledged that Dr. Hanaway opined that Claimant was permanently and totally disabled from the 2002 injury. Dr. Bernstein acknowledged that he did not record Claimant's score on the WRAT reading test anywhere in his report or in his file. Yet, he characterized it as "extremely limited" on work pronunciation, by which he meant that Claimant was at a $6^{\text {th }}$ grade level or lower. Finally, Dr. Bernstein admitted that Claimant had a history of smoking marijuana, which he said he now used for pain, and he noted that that could be a negative factor in seeking employment.

38) Claimant was seen one last time by Dr. Chabot (Exhibit 1) for an evaluation on September 25, 2006. The report indicates that the doctor has now reviewed documents related to the 2002 prior low back injury that showed Claimant sustained 20 % permanent partial disability in connection with that injury. Claimant reported complaints of back pain radiating to the back of both legs down to his toes. He described a stabbing sensation under his feet, and pain in both hips. He rated his pain level at 5 out of 10 . The results of the physical examination were basically the same as they were on prior examinations. The doctor noted that Claimant moaned and groaned with all motion testing and strength testing in the lower extremities. Dr. Chabot found no evidence of focal disc herniation or neural compression. He diagnosed chronic back pain, with evidence of symptom magnification. He opined that the injury of September 10, 2004 was not a significant contributing factor to Claimant's present complaints. He believed that Claimant could return to work duties that do not require lifting more than 35-40 pounds. He placed Claimant at maximum medical improvement and did not believe he was in need of any further treatment for this injury. He finally confirmed that Claimant had sustained no permanent partial disability as a result of this September 10, 2004 injury.

39) The deposition of Dr. Michael C. Chabot (Exhibit 1) was taken by Employer on July 13, 2007 to make his opinions in this case admissible at trial. Dr. Chabot is a board certified orthopaedic surgeon with fellowship training in spine surgery. As noted above, Dr. Chabot was a treating physician in connection with this September 10, 2004 injury. He testified consistent with the reports and opinions described above, including his opinions that Claimant was at maximum medical improvement, in need of no further treatment, had sustained no permanent partial disability from this injury, and needed a permanent lifting restriction of 35-40 pounds. He also explained in the deposition that the lifting restriction was based on Claimant's history of several back injuries and prior radiculopathy.

40) The deposition of Dr. Joseph Hanaway (Exhibit A) was taken by Claimant on March 21, 2008 to make his opinions in this case admissible at trial. Dr. Hanaway is board certified in neurology and psychiatry. He testified consistent with his reports and opinions described above. Dr. Hanaway confirmed that Claimant never told him about an injury on September 10, 2004. He testified that he believed there were differences in the MRI before and after September 2004, including a protruding disc at L4-5 and a definite herniated disc at L5-S1 that was not present on the MRI from 2002. This testimony, however, runs afoul of the doctor's reports dated August 20, 2003 and February 9, 2004 (prior to September 10, 2004) when he definitely diagnosed a disc bulge at L4-5 and a disc herniation at L5-S1.

41) Dr. Hanaway further testified that Claimant was not in need of surgery at the moment, however, he pointed out that this back condition is something that could flare up spontaneously. He also testified that Claimant's last job doing piecework (buttoning shirts) was pretty sedentary, light work which was about the limit of Claimant's capacities because of the two unoperated herniated discs in his low back.

42) Dr. Hanaway provided no opinion or testimony on permanent partial disability or permanent total disability attributable to the September 10, 2004 injury, or on any combination of Claimant's disabilities including the September 10, 2004 injury.

43) The deposition of Mr. James M. England, Jr. (SIF Exhibit I) was taken by the Second Injury Fund on January 7, 2008 to make his opinions in this case admissible at trial. Mr. England is a certified vocational rehabilitation counselor, who has held that certification for over 30 years. Mr. England did not meet with Claimant personally, but instead performed a records review, and based his opinions in this case on his review of the medical records and opinions of the various physicians, Claimant's deposition testimony from March 2007, and the report and deposition of Samuel Bernstein, Ph.D. He issued one report dated July 2, 2007.

44) Mr. England concluded that based on the restrictions placed on Claimant by Dr. Chabot, Claimant would be able to do work in the light to medium level of work activity. He found that the restrictions placed on Claimant by Dr. Hanaway would limit Claimant to the sedentary to light range of work activity. The restrictions placed on Claimant by Dr. Poetz would also limit Claimant to the sedentary to light range of work activity. Mr. England also testified that if one assumes Claimant's subjective complaints, including his psychiatric complaints, are accurate, then Claimant is not employable at all in the open labor market. However, Mr. England noted that if that were the case, then it would be due to the primary injury alone, rather than any preexisting problems, because Claimant categorically denied any problems with functioning with his low back before the primary injury.

45) Mr. England testified that according to the medical records and functional restrictions put in place by the various physicians, he could not identify anything that would prevent Claimant from returning to some type of work. He was not aware whether Claimant ever looked for any work within the doctors' restrictions.

46) On cross-examination, Mr. England admitted that Claimant's subjective psychiatric complaints had some basis in reality since Claimant scored in the severe range for depression and anxiety on the two tests that Bernstein administered. He further noted, however, that the Beck Depression Inventory and the Hamilton are easily faked (which is why he does not use those tests), so if there was a real question of anxiety or depression, Mr. England believed Claimant should have been given the MMPI. Mr. England also testified that he saw no treatment for, or mention of, psychiatric problems, except in Dr. Bernstein's report.

47) In terms of his current complaints, Claimant testified that he has to sit sideways in a chair, not straight back in the chair, because of the pain in his back, buttocks, and down his legs. He said that his back pain had gotten worse because of working a year, and he was now taking extra pain medications because of that increased pain. He testified that his back pain was at a level of 5 , but now it is at a level of 6 . He said that he has filed for Social Security, but it is still pending. He testified that he would like to find training for new work, and he has been looking for other work, but he cannot find any.

48) On cross-examination, Claimant testified that he had looked for work at temp agencies, but he could not remember the names of all of them. He confirmed that he has not been taking medications for mental problems. He said he cannot read or write to a certain point, but he could not answer whether he had a learning disability. With regard to the functional capacity evaluation, he said that he tried to do the tests, including the carrying, pushing, pulling, and climbing, but he could not do it. He disputed their characterization that he declined the tests. When asked to look at the FCE report, he said that he could not read it.

49) When asked on cross-examination about his prior back injury, he admitted that after seeing Dr. Andersen in 2003, he was still having problems with pain, and he saw Dr. Hanaway in 2003 with complaints of continuous back pain. He said that he only missed two days off work and he settled his case. He could not recall Dr. Hanaway's restrictions on his ability to work prior to the September 2004 injury. He remembered that he took pain medication for a couple of months, but he could not remember the TENS unit that Dr. Hanaway prescribed. He did not remember being declared a surgical candidate in February 2004, and he did not remember the lifting restriction of 5 pounds at that time. He did remember the restriction of no standing or sitting for over one hour, and he said that he complied with that. He testified that Dr. Hanaway is still prescribing pain medication, and in fact, he has been on medications from Dr. Hanaway the whole time. Claimant remembered that Dr. Chabot sent him for physical therapy at ProRehab and he said that he went for that therapy. He admitted that Social Security has denied him two times. He also admitted on crossexamination that he was convicted of a felony of possession and sale of illegal drugs for which he spent 13 months in Leavenworth, Kansas.

Based on a comprehensive review of the evidence, and based upon the applicable laws of the State of Missouri, I find:

Claimant sustained an accidental injury to his low back and body as a whole arising out of and in the course of employment for Employer on September 10, 2004, when he was attempting to lift a heavy tray of food, it slid, and he tried to catch it, causing pain in the back. I further find that Claimant received authorized medical treatment on account of this injury up through January 18, 2005, the date on which Dr. Michael Chabot released Claimant from treatment at maximum medical improvement, given Claimant's refusal to attend physical therapy or fully participate in the functional capacity evaluation.

Given the evidence in this case, I believe these two issues can be addressed together.

Under Mo. Rev. Stat. § 287.140.1 (2000), "the employee shall receive and the employer shall provide such medical, surgical, chiropractic and hospital treatment...as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." Just as Claimant must prove all of the other material elements of his claim, the burden is also on him to prove entitlement to future medical treatment. Dean v. St. Luke's Hospital, 936 S.W.2d 601, 603 (Mo.App. 1997) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). Claimant is entitled to an award of future medical treatment if he shows by a reasonable probability that future medical treatment is needed to cure and relieve the effects of the injury. Concepcion v. Lear Corporation, 173 S.W.3d 368, 372 (Mo.App. 2005).

Having thoroughly reviewed the evidence in this case, I find that Claimant has failed to meet his burden of proof to show that he is entitled to any additional medical treatment under the statute on account of this injury at work on September 10, 2004.

There are three physicians in the record who opine on Claimant's need for medical treatment on account of his low back condition. Dr. Chabot opined that no further treatment was necessary for this injury on September 10, 2004 because Claimant's subjective complaints were not matching up to any objective abnormalities on the physical examination, and because Claimant failed to fully participate in the treatment that had been offered, namely, the physical therapy and the functional capacity evaluation. Dr. Hanaway opined that Claimant needs continued conservative medical treatment (medications) and that he is a surgical candidate, and may at some time in the future need that low back surgery. However, Dr. Hanaway has no history in his reports of the September 10, 2004 injury, and in fact, relates Claimant's disability, complaints, restrictions and need for treatment to the May 2002, pre-existing back injury. Finally, Dr. Poetz opined that Claimant was in need of a host of conservative treatment measures for his low back, and also indicated the possible need in the future to consider surgical intervention, but he is silent on whether the need for that treatment is the September 10, 2004 injury, or rather Claimant's pre-existing back injury and condition.

While ultimately, I find that Dr. Chabot's opinions in this case are more competent, credible and persuasive than those of the other physicians for reasons that will be explained in more detail below, even the other physicians' testimony submitted by Claimant in this case do not help Claimant with meeting his burden of proof on this issue in this case. Neither Dr. Hanaway nor Dr. Poetz opine that the need for any more treatment for Claimant's low back condition is causally related to the injury at work for Employer on September 10, 2004. Therefore, on the basis of Dr. Chabot's opinion that no further treatment is needed, and on the basis of Claimant's inability to tender any medical opinion to meet his burden of proof on this issue of the need for future medical treatment, I find that Claimant has failed to meet that burden of proof, and his request for additional medical treatment on account of this September 10, 2004 injury is denied.

Regarding the issue of TTD, Employer is responsible under the statute for the payment of temporary total disability benefits pursuant to Mo. Rev. Stat. § 287.170 (2000) during the continuance of such disability at the appropriate weekly rate of compensation. The statute also defines "total disability" under Mo. Rev. Stat. § 287.020.6 (2000) as the "inability to return to any employment and not merely...(the) inability to return to the employment in which the employee was engaged at the time of the accident." Claimant bears the burden of proof on this element of his claim just as on any other element.

Case law has held that the test for entitlement to temporary total disability is not whether Claimant is able to do some work, but whether Claimant is able to compete for work in the open labor market under his current physical condition. Thorsen v. Sachs Electric Co., 52 S.W.3d 611 (Mo.App. W.D. 2001).

In making the payment of TTD benefits an issue in this case, Claimant was unable to specify any given period of time when he believed TTD benefits should have been paid, and they were not. Instead, Claimant simply made the issue, the payment of TTD benefits for a period of time to be determined.

Based on my thorough review of the evidence in this case, I find that Claimant has failed to meet his burden of proof on this issue, and is not entitled to the payment of any TTD benefits in connection with this Claim.

By Claimant's own testimony, he went back to work a few days after this September 10, 2004 accident and was working light duty. He said that he sat all day and put a piece of bread in a plastic bag. He was paid his regular salary during this time. I find that he was placed at maximum medical improvement, and released back to his regular work, by Dr. Chabot on January 18, 2005. He was then fired by Employer in March 2005, when he did not return to doing the lifting that had been a part of his job prior to the accident on September 10, 2004. By his own testimony he was out of work for one year and then returned to a job he secured through a temp agency where he worked for one year putting labels on shirts or boxes. He was actually paid one dollar more per hour doing this temp agency job than he made performing his regular job for Employer before he was injured on September 10, 2004.

Given this testimony and this history, I find that Claimant is not entitled to any back TTD benefits in connection with this Claim. There is no clear testimony that Claimant missed more

than three days from work immediately following this injury on September 10, 2004. However, it is very clear that Employer accommodated Dr. Chabot's restrictions on Claimant's work activities and provided light duty work for which Claimant received his regular pay and hours up until Dr. Chabot released him from treatment to his regular work on January 18, 2005.

As far as Claimant's entitlement to TTD benefits after he was terminated in March 2005 is concerned, I similarly find that he has failed to meet his burden of proof on this issue. Dr. Chabot opined that Claimant was able to return to his regular work on January 18, 2005 and later placed a permanent lifting restriction of no lifting over 35 to 40 pounds on Claimant. This finding of a date of maximum medical improvement and the imposition of permanent restrictions, by definition, eliminates the possibility of Claimant qualifying for temporary total disability. Dr. Hanaway placed even more restrictive limitations on Claimant's ability to work, but those restrictions are very similar to the restrictions he had in place for Claimant as a result of the May 2002 injury. Even despite these restrictions, I find that Claimant was able to secure employment and work full time for a whole year making more than he had made per hour while working for Employer prior to his September 2004 injury.

Given the competent and substantial evidence in the record, I find that Claimant has not proven he was temporarily totally disabled for any period of time following this injury up through the date of trial for which he would qualify for TTD benefits. Claimant's request for TTD benefits is denied.

Given that these two issues are so inter-related in this Claim with primary and preexisting disabilities to the same parts of the body, I will address these two issues together.

Claimant bears the burden of proof on all essential elements of his Workers' Compensation case. Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195 (Mo.App.E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. Id. at 199.

Under Mo. Rev. Stat. § 287.020.7 (2000), "total disability" is defined as an "inability to return to any employment and not merely ... inability to return to the employment in which the employee was engaged at the time of the accident." The test for permanent total disability is claimant's ability to compete in the open labor market. The central question is whether any employer in the usual course of business could reasonably be expected to employ claimant in his present physical condition. Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173 (Mo.App. E.D. 1995)

In cases such as this one where the Second Injury Fund is involved and there is an allegation of permanent total disability, we must also look to Mo. Rev. Stat. § 287.220 (2000) for the appropriate apportionment of benefits under the statute. The analysis of the case essentially takes on a three-step process:

First, is Claimant permanently and totally disabled?;

Second, what is the extent of Employer's liability for that disability from the last injury alone?; and

Finally, is the permanent total disability caused by a combination of the disability from the last injury and any pre-existing disabilities?

In determining this case, I will follow this three-step approach to award all appropriate benefits under the Statute.

Considering the competent and substantial evidence listed above, I find that Claimant has failed to meet his burden of proof that he is permanently and totally disabled, either as a result of the primary injury alone, or as a result of the combination of the primary injury and any preexisting disabilities. I make this finding based on Claimant's lack of competent, credible testimony to support his Claim and based on the lack of competent, credible and reliable medical evidence to establish this Claim for him.

I find that Claimant's testimony concerning his overall physical complaints and abilities is not credible or believable. Claimant's testimony regarding his complaints and abilities, and his presentation and complaints to the physicians in this case are repeatedly found to be contrary to his actual abilities and the objective findings on the physical examination. Throughout the medical treatment records from BarnesCare, Dr. Andersen, The Work Center, Inc. and Dr. Chabot, there are numerous references to Claimant's complaints not matching his objective findings on physical examination. There are a number of references to positive Waddell signs, indicating symptom magnification. He indicates an ability to only flex his back 25 %, but then is able to sit completely upright in a chair and shows full range of motion when working on the machines in physical therapy. He moves slow and stiff in the clinic, but then moves freely and without hesitation on and off the table. He describes radicular complaints down his legs to various levels, but his physical examination is devoid of any evidence of neurological abnormality. He refuses to fully participate in the functional capacity evaluation, listing extremely high pain values but then moderating them when they talk about calling an ambulance.

Finally, Claimant attempts to minimize any complaints he may have had in relation to his 2002 back injury by testifying that he had no problems working for Employer and had only a little pain in the low back for which he took no medications and had no restrictions. Yet, the medical treatment records from Dr. Hanaway show treatment for Claimant's pre-existing back condition including use of pain medications, a TENS unit, permanent restrictions of no lifting over 5 pounds, and a rating of permanent partial disability of 35 % of the body as a whole referable to the low back for the disc pathology at L5-S1 and L4-5. Based on all of these things, Dr. Hanaway deemed Claimant to be a surgical candidate prior to the September 10, 2004 injury. However, Claimant would have us believe that he was working full duty with very little back pain until the September 10, 2004 injury. Either he was being less than fully truthful with regard to his complaints in connection with the 2002 injury as documented in Dr. Hanaway's report, or he is being less than fully truthful about his complaints now. Either way, I find that his credibility is negatively impacted and irreparably harmed in this case.

In addition to his lack of competent, credible testimony, I find that Claimant has failed to meet his burden of proving permanent total disability by failing to offer competent, credible and reliable medical evidence on this issue. Of the three physicians who offered deposition testimony in this case, Drs. Chabot, Hanaway and Poetz, none of them opined that Claimant was permanently and totally disabled as a result of the last injury alone on September 10, 2004 or as a result of the combination of that injury and his pre-existing disabilities. Drs. Chabot and Poetz opined that Claimant had permanent restrictions as a result of his overall low back condition, but neither of them offered the medical opinion that Claimant was permanently and totally disabled. While Dr. Hanaway did offer the medical opinion that Claimant was permanently and totally disabled, he attributed that permanent total disability to the May 9, 2002 back injury and did not include the September 10, 2004 injury at all in his assessment of disability. Therefore, Claimant has no medical evidence in the record to support his contention that he is entitled to an award of permanent total disability.

Of the vocational evaluation testimony that was offered, I find that Dr. Bernstein's opinions lack credibility, and are not competent or reliable. While he offers the opinion that Claimant is permanently and totally disabled as a result of the combination of the primary and pre-existing disabilities, he does so with no medical evidence to support that opinion, and based on Claimant's statements and complaints, which I have already found to not be credible. To the extent that Dr. Bernstein's opinions rely on the incompetent and unreliable testimony of Claimant, his opinions then are also incompetent and unreliable. Further, he testified that he always give greater weight to the treating doctor (Dr. Hanaway), but Dr. Hanaway opined that the permanent total disability was from the May 2002 injury, not a combination of disabilities.

On the other hand, I find Mr. England's vocational opinion is competent, credible and reliable. Although he did not meet personally with Claimant, he had a full complement of records, deposition testimony and information upon which to base his opinion in this case. Based on the restrictions placed on Claimant by the various physicians, he quite clearly found that Claimant was employable in the open labor market. Only if he added in Claimant's subjective complaints, would Claimant be unemployable, but since I have already found those complaints unbelievable and unreliable, there is no reason to use those in a vocational assessment of Claimant's ability to work.

Since Claimant has failed to prove permanent total disability in this case, the next question must be if there is any permanent partial disability which Claimant is entitled to recover on account of this injury, either from Employer or the Second Injury Fund.

Under Mo. Rev. Stat. § 287.190.6 (2000), "'permanent partial disability' means a disability that is permanent in nature and partial in degree..." The claimant bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 703 (Mo.App. 1973). Expert testimony may be required when there are complicated medical issues. Id. at 704. Extent and percentage of disability is a finding of fact within the special province of the [fact finding body, which] is not bound by the medical testimony but may consider all the evidence, including the testimony of the Claimant, and draw all reasonable inferences from other testimony in arriving at

the percentage of disability. Fogelsong v. Banquet Foods Corp., 526 S.W.2d 886, 892 (Mo. App. 1975)(citations omitted).

Then, there is also the allegation of Second Injury Fund liability based on the combination of his primary and pre-existing disabilities. Pursuant to Mo. Rev. Stat. § 287.220.1 (2000), if an employee has a pre-existing disability of such seriousness to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and if the pre-existing disability and the subsequent compensable injury each result in a minimum of 12.5 % permanent partial disability of the body as a whole or 15 % of a major extremity, and if the combined disability is substantially greater than that which would have resulted from the last injury alone, then Employer is only responsible for payment for the disability from the last injury, any amount of pre-existing disability is subtracted out, and the Second Injury Fund shall pay Claimant compensation based on the balance left (or greater combination).

As referenced earlier in the discussion of permanent total disability, there are three physicians who offered opinions on permanent disability in this case, Drs. Chabot, Poetz and Hanaway. Dr. Chabot diagnosed a back strain and back pain, and opined that Claimant sustained no permanent partial disability associated with this September 10, 2004 injury. He acknowledged that Claimant had previously sustained 20 % permanent partial disability from his 2002 injury. Dr. Poetz also diagnosed a lumbar strain with exacerbation of the herniated disc at L5-S1 and the degenerative disc disease. He opined that Claimant sustained 20\% permanent partial disability of the body as a whole referable to the low back for this September 10, 2004 injury, and then an additional 25 % permanent partial disability of the body as a whole for the May 2002 low back injury. Finally, Dr. Hanaway never offered an opinion on permanent partial disability, but instead opined that Claimant was permanently totally disabled as a result of the May 2002 injury.

I find that it is very clear from the medical treatment records, including the MRI report from 2004, and the medical opinions and reports of Dr. Chabot, Dr. Poetz, and even Dr. Hanaway, that the disc pathology of a herniated disc at L5-S1 and the bulging disc at L4-5 all pre-existed the injury on September 10, 2004. In that respect, I find that at the very most, Claimant sustained a low back strain and an exacerbation of his low back condition which gave rise to the conservative treatment he received from BarnesCare and Dr. Chabot after September 10, 2004 .

I further find that Claimant's complaints, as documented in Dr. Hanaway's pre-existing medical treatment records, are also very similar to those after this accident on September 10, 2004, no doubt giving rise to Dr. Hanaway's ultimate opinion that all of Claimant's complaints and problems arose from the May 2002 injury. The other difficulty I have with trying to determine if there are any new complaints associated with this September 10, 2004 injury is Claimant's lack of credibility with reporting those complaints both in the medical records and in his testimony. Given the numerous references to symptom magnification and the inconsistency between his testimony and records concerning those pre-existing complaints, I find that it is impossible to determine if there are new discrete problems and complaints specifically associated with the September 10, 2004 injury.

Therefore, with no credible complaints, and no specific objective findings on MRI or elsewhere upon which to base an award of permanent partial disability in this case, I find that Dr. Chabot's opinion that there is no permanent partial disability associated with this injury, is the most competent, credible and reliable opinion on this issue in evidence in this case. I should note that I also find this conclusion is supported by Claimant's own expert, Dr. Hanaway, finding that all of Claimant's disability was attributable to the May 2002 injury, and assessing nothing for the 2004 injury. To the extent that Dr. Poetz relied upon Claimant's unbelievable complaints in formulating his opinion on permanent partial disability, I find Dr. Poetz's opinion is, thus, not as competent and credible as the opinion of Dr. Chabot in that regard. Accordingly, I find that Claimant has failed to meet his burden of proof that he sustained any permanent partial disability associated with this injury on September 10, 2004. His request for permanent partial disability benefits in this Claim is denied.

Finally, since Claimant failed to meet his burden of proof on permanent partial disability associated with the primary September 10, 2004 injury, his Claim against the Second Injury Fund must also then fail for that lack of proof. With no permanent partial disability attributable to the primary injury, he cannot meet the necessary statutory thresholds of 12.5 % of the body as a whole or 15 % of a major extremity in order to have a compensable Second Injury Fund Claim. Therefore, the Second Injury Fund Claim is also denied.

Claimant sustained an accidental injury to his low back and body as a whole arising out of and in the course of employment for Employer on September 10, 2004, when he was attempting to lift a heavy tray of food, it slid, and he tried to catch it, causing pain in the back. Claimant failed to meet his burden of proof to show that he is entitled to any additional medical treatment or temporary total disability under the statute on account of this injury at work on September 10, 2004. He also failed to provide competent, credible and persuasive medical or vocational evidence to show that he was permanently and totally disabled, or even that he had sustained any permanent partial disability in connection with this injury at work. Finally, since Claimant failed to prove an entitlement to permanent partial disability from the primary injury, his Second Injury Fund Claim is also denied.

Date: $\qquad

Made by: \qquad$

JOHN K. OTTENAD

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Jeffrey W. Buker

Director

Division of Workers' Compensation