In this case, we find, as did the ALJ, that the competent and substantial evidence establishes that employee sustained no permanent disability as a result of the June 9, 2009, work-related injury.
We find Dr. Carper's and Mr. England's opinions are more credible than Ms. Gonzalez's and Dr. Volarich's opinions. Neither Ms. Gonzalez nor Dr. Volarich reviewed Dr. Carper's records from employee's final visit on July 2, 2009. Ms. Gonzalez and Dr. Volarich came to their conclusions that employee sustained permanent disability from the work injury without the knowledge that employee had been released to work without restrictions after four visits and that Dr. Carper was of the opinion that employee had sustained 0% impairment due to the June 9, 2009, injury. Because Ms. Gonzalez's and Dr. Volarich's opinions were made without this information, we do not find their opinions as credible as those of Dr. Carper and Mr. England. Dr. Carper was the treating physician for employee's primary injury and Mr. England is a vocational rehabilitation expert who reviewed employee's entire medical file. Because Dr. Carper and Mr. England had all of the relevant primary injury medical information available to them at the time they offered their opinions, they were in a position to give a much more educated and credible opinion regarding whether employee sustained permanent disability from the work injury.
Employee argues on appeal that Dr. Carper's opinion is not credible because he indicated in his records that his professional opinion was within "a reasonable degree of medical probability" as opposed to a "reasonable degree of medical certainty." (Emphasis added). Employee maintains that § 287.190.6(2) RSMo clearly states that
"[m]edical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty."
The Court in Williams v. Daus, 114 S.W.3d 351 (Mo. App. 2003) noted that "the precise words used by an expert witness do not necessarily render his testimony inadmissible if he intended to express his opinion or judgment." Id. at 363 (citations omitted). The Court found that the experts in that case intended to express their opinions and/or judgments regarding the respondent's physical condition, "despite the fact that they did not always use the assertedly talismanic phrase, within a 'reasonable degree of medical certainty." Id. The Court also noted that the appellant in that case did not raise an objection to the experts' failure to use the phrase "within a reasonable degree of medical certainty" when soliciting testimony from the experts. The Court held that "[b]y failing to offer a specific objection at trial or during deposition, appellant deprived respondent of the opportunity to rephrase her questions in the form that he now demands on appeal." Ultimately, the Court held that by waiting until the case was being heard on appeal to challenge the basis of the experts' opinions, appellant waived its contention that the experts' testimony is inadmissible.
In this case, we find that Dr. Carper's opinions were intended to express his opinion or judgment regarding employee's physical condition and, therefore, are not rendered useless simply because he did not use the phrase "within a reasonable degree of medical certainty." Further, we find that employee declined to depose Dr. Carper prior to the hearing, and failed to object to Dr. Carper's records being made a part of the record when they were offered at the final hearing. We find that by employee failing to object or raise doubts about Dr. Carper's records before the ALJ, he waived his contention on appeal that Dr. Carper's opinions do not conform to § 287.190.6(2) RSMo.
Employee also argues that Dr. Carper's opinions were not based on objective medical findings or diagnostic procedures. We disagree.
Dr. Carper performed a physical examination during each of his visits with employee. In addition, on June 15, 2009, employee's first date of treatment with employee, Dr. Carper ordered an x-ray of employee's lumbar spine and reviewed the results on the same date. Dr. Carper also reviewed physical therapy records documenting employee's progression.
We find that Dr. Carper's opinions were based on objective medical findings.
Based upon the aforementioned, we find that employee sustained no permanent disability as a result of the primary injury. Consequently, our analysis ends at the first sentence of $\S 287.220$ RSMo.
We find that employee failed to prove Second Injury Fund liability.