Tammy Stroud v. Health Management Associates d/b/a Poplar Bluff Regional Medical Center

for that video game, and after the matter was extensively pursued on re-direct and re-cross-examination, employee essentially acknowledged that if the game did in fact come out in May 2008, she must have played it after her work injury. Transcript, page 200-204. We find that, contrary to her initial testimony, employee did in fact play the Nintendo Wii Fit video game following her work injury, and that this activity involved performing jumping jacks, step aerobics, tightrope balancing, and going from a squatting to standing position quickly.

Employer and the Second Injury Fund argue that employee's changing her testimony on this point means she lacks any credibility whatsoever, and that we should accordingly find she failed to prove an accident and deny her claim. We are not persuaded. We find employee's testimony with regard to the issue of accident credible. But we share the administrative law judge's concern that employee's testimony is not reliable about her present abilities and limitations.

Notably, although certain of the treating and evaluating doctors found employee's subjective complaints to be inconsistent with their objective findings, none of the experts who ultimately testified in this case diagnosed any conscious or deliberate symptom magnification on employee's part. This includes employer's rating psychiatrist Dr. Bassett, who testified, "I was not prepared to make an accusation of malingering in this case." Transcript, page 1668. Employee's inconsistent testimony regarding her physical abilities strikes us as more likely a product of employee's psychiatric difficulties rather than a deliberate attempt to misrepresent the nature or extent of her disability.

With that said, we concur with the administrative law judge that where employee's testimony as to her post-injury abilities and limitations is demonstrably unreliable, we are less inclined to credit the testimony from her experts (and Dr. Guidos) on the issue of permanent total disability. It's not that employee's ability to play a video game following the work injury demonstrates that she is able to compete for gainful employment; rather, it's her inconsistency on the subject that leads us to question the true nature and extent of her disability. Because of these doubts, and because we otherwise agree with the administrative law judge's findings, analysis, and conclusions on the issue, we affirm the award of permanent partial, rather than permanent total disability benefits, against both employer and the Second Injury Fund.

We are convinced the administrative law judge capably analyzed this factually complex and exhaustively litigated claim, and we ultimately agree with the findings, analysis, and conclusions in his well-reasoned and thorough award. But upon careful review of the record, we noted that several of the administrative law judge's factual findings are inaccurate. We hereby correct those findings as follows.

On page 22 of his award, the administrative law judge states that Dr. Volarich testified that employee was off work following the injury because of peripheral vascular disease. Dr. Volarich actually testified that the diagnosis of peripheral vascular disease was initially considered when employee sought treatment for her pulmonary complaints in June 2006, but noted that diagnosis was ruled out after treating doctors reviewed the

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results of an angiogram. Transcript, page 395-97. Accordingly, we do not adopt the administrative law judge's finding that Dr. Volarich agreed employee was off work following the work injury for peripheral vascular disease.

On page 32 of his award, the administrative law judge characterizes employee's pulmonary condition as having significantly deteriorated following the work injury; the administrative law judge listed this factor as affecting his analysis of the issue of permanent total disability. We are not convinced that the expert medical testimony supports a finding that employee's pulmonary condition worsened so significantly as to affect the analysis of permanent total disability. Dr. Volarich did testify that employee's pulmonary condition worsened "a little bit" following the work injury, but qualified that testimony when he explained that one would expect temporary flare-ups with employee's condition and that her post-injury treatment did not necessarily mean employee's underlying asthma and pulmonary function had permanently worsened. Transcript, page 428-29. Accordingly, we do not adopt the administrative law judge's finding that employee's COPD and asthma conditions worsened following the work injury, or his analysis listing that factor as affecting the issue of permanent total disability.

On pages 29 and 34 of his award, the administrative law judge recites testimony from Roger Barton, a security consultant who employer hired to follow employee and observe her activities. The administrative law judge avers that Mr. Barton testified he saw employee going up some "steps" outside a law office without difficulty. But Mr. Barton did not so testify, and indicated only that there may have been a single step. Transcript, page 259. Accordingly, we do not adopt these findings from the administrative law judge regarding employee negotiating steps outside a law office in view of Mr. Barton.

On page 37 of his award, the administrative law judge finds "credible" the opinions of Drs. Tolentino and Burns as part of his rationale for determining employee is not permanently and totally disabled. We note that these doctors were not identified as experts and did not testify in this matter. Employee argues the administrative law judge improperly credited these non-testifying doctors, and points out employee did not have an opportunity to cross-examine them. It's clear to us that the administrative law judge meant that the medical records and treatment notes authored by Drs. Tolentino and Burns rendered the opinions from the testifying Drs. Volarich, Guidos, and Stillings (and the vocational expert Ms. Gonzales) less credible on the issue of permanent total disability, and that his language assigning "credibility" to the opinions of non-testifying doctors was merely an unfortunate choice of words. But in any event, we wish to make clear that our findings on the issue of permanent total disability are not a product of our choosing to credit any non-testifying doctor. Instead, our findings reflect employee's failure to persuade us to credit the expert testimony suggesting she is permanently and totally disabled. In other words, we believe employee has simply failed to meet her burden of proof on the issue. Accordingly, we do not adopt the administrative law judge's language "crediting" the non-testifying doctors. Instead, we find that the

treatment notes from Drs. Burns and Tolentino detract from the credibility of the opinions of the experts who testified employee is permanently and totally disabled. ${ }^{2}$

Finally, on page 35 of his award, the administrative law judge states employee testified she "delivered food" as part of her activity in helping out at Cyndi's Restaurant in the week prior to the first hearing date. The evidence on this point was somewhat unclear. Employee initially testified that she did not carry any trays of dishes. Transcript, page 82. On cross-examination, employee initially agreed that she "delivered food" but then appeared to qualify that answer when she testified, "I took napkins and crackers, I think." We do not adopt the administrative law judge's finding that employee "delivered food," and instead find that she delivered napkins and crackers to customers in the parking lot.

The Commission affirms and adopts the findings, conclusions, decision, and award of the administrative law judge to the extent they are not inconsistent with this supplemental opinion.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued April 10, 2012, is attached and incorporated by this reference.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 16^{\text {th }} \qquad$ day of January 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Chairman

James Avery, Member

Curtis E. Chick, Member

Attest:

Secretary

[^0]

[^0]: ${ }^{2}$ We also note that on page 30 of his award, the administrative law judge states that he found "credible" the opinions of Drs. Tolentino and Burns on the issue whether employee sustained more than a low back strain; for obvious reasons, employee has not challenged this finding. However, in the interest of consistency, we do not adopt the administrative law judge's language on page 30 "crediting" a non-testifying doctor. Instead, we find that the records of Drs. Tolentino and Dr. Burns lend weight to Dr. Volarich's testimony that employee sustained more than a low back strain.

Employee: Tammy