Fadil Music v. Red Brick Management

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

**Injury No.:** 08-063192

**Employee:** Fadil Music

**Employer:** Red Brick Management

**Insurer:** New Hampshire Insurance Company

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this separate opinion affirming certain of the administrative law judge's findings, reversing or modifying others, and making our own findings and conclusions as to the disputed issues. We do not adopt any portion of the administrative law judge's decision.

The parties stipulated the following issues for resolution by the administrative law judge:

1. Medical causation
2. Past medical expenses
3. Future medical expenses
4. Nature and extent of permanent disability
5. Liability of the Second Injury Fund

The administrative law judge rendered the following conclusions:

1. Employee suffered a minor aggravation of personality disorder during the course of his treatment
2. The Second Injury Fund is not liable for benefits
3. Employer is liable for medical expenses in the amount of $4,666.00
4. Employer is not liable for future medical treatment
5. Claimant is not credible because he "was very interested in his trial and testified passionately in long narratives."

Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred in numerous respects.

We issue this separate award and decision resolving the disputed issues with our own findings, analysis, and conclusions. We note that Administrative Law Judge Joseph Denigan filled his award with overt misstatements of Missouri law, indulged in gratuitous disparagement of witnesses and their testimony as "misleading" or "sensational," and relied on facts that were either invented by the administrative law judge himself or imported from some other case. We would be remiss if we failed to note this is not the first time we have had to deal with such errors on the part of this administrative law judge.

Particularly in rendering factual findings that wholly depart from the evidence on record (the second such instance we have seen this year) we are concerned not only because the administrative law judge's errors make our task more difficult on appeal, but also because such errors risk the erosion of public confidence in the fairness and competency of the workers' compensation system as a whole.

Injury No.: 08-063192

Employee: Fadil Music

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We can remedy only the most immediate of these concerns by issuing our separate opinion in this matter.

Employee, who fought in the Bosnian War and endured numerous harrowing experiences both while under siege in Srebrenica and as a refugee thereafter, claims that he suffered preexisting post-traumatic stress disorder (PTSD). Employee presents testimony from Dr. Wolfgram, who confirmed the diagnosis of preexisting PTSD and rated the condition at 15% permanent partial disability of the body as a whole. Employer presented testimony from Dr. Stillings, who agreed on the diagnosis of preexisting PTSD, and who rated the condition at 30% permanent partial disability of the body as a whole.

Meanwhile, the Second Injury Fund argues that any psychiatric conditions employee suffered before the primary injury were not disabling. To back up this assertion, the Second Injury Fund does not present any expert testimony, but instead asks us to consider employee's robust work history and the fact he did not seek psychiatric treatment.

We are not persuaded by the Second Injury Fund's argument. The mere fact employee did not have treatment for his psychiatric condition does not mean it did not exist. Likewise, employee's ability to maintain consistent employment does not necessarily mean he was not suffering from a partially disabling psychiatric condition at the time. As Dr. Wolfgram credibly explained, after the Bosnian War ended, employee's acute PTSD symptoms subsided, but he was never cured of the underlying condition and it remained a part of his life at all times. Likewise, Dr. Stillings acknowledged on cross-examination that he had no information to indicate employee had a poor work history, but nonetheless identified a significant preexisting disability referable to PTSD. Dr. Stillings explained that the preexisting PTSD would have prevented employee from tolerating any jobs that were very stressful.

After careful consideration, we decline the Second Injury Fund's invitation to reject the uncontested expert opinions from Drs. Wolfgram and Stillings on this issue. Instead, we credit both doctors and find that, at the time of the primary injury, employee suffered preexisting permanent partial disability referable to PTSD.

On July 24, 2008, employee suffered an accident while working for employer. Employee, who had been tasked with painting an apartment, was standing on a kitchen countertop in order to paint around cabinets when he fell. In the course of the fall, employee struck his upper back against the cabinets. The next day, employer sent employee to Concentra, where he complained of upper back and neck pain and thoracolumbar discomfort, and where treating doctors diagnosed a contusion and dermal abrasion to the back and released employee at full duty with a recommendation to use over-the-counter pain medications and ice. Unhappy with this result, and acting on his supervisor's permission, employee received additional self-directed treatment in addition to further treatment through employer's authorized doctors up until February 23, 2009. Employee received

Injury No.: 08-063192

Employee: Fadil Music

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conservative treatment including physical therapy, medications, diagnostic studies, and injections.

Employee is claiming permanent physical and psychiatric injuries resulting from the July 2008 accident. Employee presents testimony from Dr. Volarich, who provided the following diagnoses and ratings attributable to the accident: 25% permanent partial disability of the body as a whole for cervical left arm radicular syndrome secondary to disc bulges and aggravation of degenerative disc and joint disease at C4-5, C5-6, and C6-7; 30% of the body as a whole for lumbar left leg radicular syndrome secondary to disc bulge to the left at L3-4, bulge and annular tear at L4-5 causing bilateral lower extremity radicular symptoms; 20% of the left shoulder for rotator cuff tendinopathy and mild impingement; and moderately severe pain syndrome with some features of myofascial pain (not rated). Dr. Volarich also issued very limiting restrictions, including no lifting over 15-20 pounds, and that employee should be permitted to rest when needed.

Meanwhile, employer presents Dr. Hurford, the authorized treating doctor, who provided the following diagnoses and permanent partial disability ratings referable to the accident: 0% permanent partial disability for a cervical contusion or neck bruise with strain; 3% of the body as a whole referable to mid back contusion and lumbosacral syndrome; and 2% of the left shoulder referable to left shoulder pain. Dr. Hurford opined that employee reached maximum medical improvement on February 23, 2009. Dr. Hurford assigned the following restrictions referable to the work injury: no lifting greater than 50 pounds occasional and 10 pounds frequently, and no work or activity over the shoulder.

After careful consideration, we find Dr. Hurford more credible than Dr. Volarich with regard to the physical injuries employee suffered in the July 2008 accident. Dr. Volarich conceded on cross-examination that, despite his diagnosis of left arm radicular pain, employee didn't actually complain of left arm symptoms on exam. Dr. Volarich also agreed on cross-examination that employee's documented reports of variable right versus left leg symptoms are inconsistent with a diagnosis of radicular pain.

Accordingly, we credit Dr. Hurford's testimony (and so find) that employee sustained the following injuries as a result of the accident on July 24, 2008: a cervical contusion or neck bruise with strain; a mid back contusion and lumbosacral syndrome; and left shoulder pain. We disagree, however, with Dr. Hurford's low permanent partial disability ratings. We note that employer, in asking us to affirm the administrative law judge's award, concedes employee sustained a 15% permanent partial disability of the low back and 7.5% permanent partial disability of the left shoulder. Given these circumstances, we adopt these ratings and find that they accurately reflect the level of physical disability employee suffers following the accident.

As to employee's psychiatric injuries, employee's expert Dr. Wolfgram rated permanent partial disability resulting from the accident as follows (all "body as a whole" ratings): 20% referable to PTSD, 20% referable to pain disorder with psychological factors, and 20% referable to major depression. Employer's expert Dr. Stillings, on the other hand,

Injury No.: 08-063192

Employee: Fadil Music

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rated only 2% permanent partial disability of the body as a whole referable to aggravation of a preexisting personality disorder.

Especially given the backdrop of considerable PTSD owing to employee's harrowing experiences during and after the Bosnian War, we are not persuaded by Dr. Wolfgram's testimony that the accident is the primary source of employee's psychiatric problems to the extent that it resulted in a total 60% permanent partial psychiatric disability. But notably, all doctors agree that employee is probably suffering a pain disorder as a result of the July 2008 accident. While Drs. Volarich and Stillings suggest the origin of employee's pain problem is physical rather than mental, we believe that Dr. Wolfgram's Axis I diagnosis of a pain disorder with psychological factors best explains why employee's pain complaints are not in keeping with his physical injuries and why he finds no relief from conventional treatments such as pain medications.

Accordingly, we credit Dr. Wolfgram's testimony that the July 2008 accident was the prevailing factor causing employee to sustain a pain disorder with psychological factors. In light of employer's concession that employee suffered the 2% permanent partial psychiatric disability identified by Dr. Stillings as aggravation of a preexisting personality disorder, we credit Dr. Stillings's testimony the July 2008 accident was the prevailing factor causing employee to suffer an aggravation of preexisting personality disorder.

Past medical expenses

Employer is asking us to affirm the administrative law judge's award in the amount of $4,666.00 for past medical expenses incurred for treatment employee obtained on his own prior to February 23, 2009, but that has been subsequently accepted by employer as having been authorized via employee's supervisor. Given these circumstances, we find that employee incurred $4,666.00 in medical expenses as a result of the self-directed treatment he obtained prior to February 23, 2009, and that these expenses were retroactively authorized by employer as flowing from the work injury.

Employee incurred an additional $17,759.78 in disputed past medical expenses. Dr. Volarich testified in a general manner that all of employee's injuries required conservative treatment, suggesting employee's unauthorized past medical expenses flowed from the work injury. But for reasons already explained above, we found Dr. Volarich's testimony lacking credibility with regard to the effects of the accident, and so we likewise find his implied opinions as to the care that was reasonably required following the accident to lack credibility. Instead, we cr