John Maness v. City of DeSoto

Enployee filed a timely Application for Review with the Commission alleging the administrative law judge erred: (1) in finding employee is not permanently and totally disabled; (2) in failing to find employee entitled to the total of $\ 103,861.64 for past medical expenses; (3) in failing to award prejudgment interest on the past medical bills; and (4) in failing to order payment of all amounts directly to employee.

The Second Injury Fund filed a timely Application for Review with the Commission alleging the administrative law judge erred: (1) in calculating the degree of permanent partial disability by including parts of the body whose weeks of disability are below the statutory thresholds contained in § 287.220.1 RSMo; and (2) in finding that an occupational disease is compensable as to the Second Injury Fund.

Employer filed a timely Application for Review with the Commission alleging the administrative law judge erred: (1) in ruling employee sustained a compensable accident; (2) in ruling employee showed a medical-causal connection between the alleged accident and his cervical spine condition and need for medical treatment; (3) in ruling employee could recover his past medical expenses; (4) in awarding employee temporary total disability benefits; (5) in awarding future medical care; and (6) in finding employee sustained a 40 % permanent partial disability as a result of the alleged accident.

For the reasons explained below, we supplement the findings and conclusions and modify the award of the administrative law judge as to the issues of: (1) medical causation; (2) past medical expenses; (3) permanent total disability; and (4) Second Injury Fund liability.

The administrative law judge's award sets forth the stipulations of the parties and the administrative law judge's findings of fact on the issues disputed at the hearing. We adopt and incorporate those findings to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact pertinent to our modifications, herein.

The factual question whether employee was suffering from neck pain leading up to the accident at work on June 2007 is heavily litigated by the parties on appeal. Employer paints a picture of an employee who never recovered from two separate incidents in 1996 and 2002 wherein he injured his neck, while employee suggests that his complaints resolved with short courses of treatment, and that he was asymptomatic in the two or three years leading up to the accident in 2007. The medical records reveal that employee was having neck pain after the 2002 injury for which he received treatment at least up until October 2002.

Turning to employee's own testimony, which (if credible) would seem to be the best source of evidence on the question, we find what appears at first blush to be a contradiction. On direct examination, employee testified, as follows:

Q. In the two or three years before June of '07, how was your neck and arms?

A. I believe I was doing pretty good.

Q. Were you going to see any doctors for neck or arm complaints?

A. No, I don't believe so.

Transcript, page 35.

But then, on cross-examination by employer's counsel, the following exchange took place:

Q. Okay. Now, from time of that 2002 event up until the time of the '07 event, did you had [sic] any ongoing pain in your neck?

A. Yeah. I think I did.

Transcript, page 97.

Employer points to the foregoing as evidence that employee had neck problems all the way up until 2007, in contradiction of his earlier testimony. But this does not necessarily follow from the temporally ambiguous question posed by employer's counsel. We agree that in using the words "ongoing" and "up until," the question could be understood as asking whether employee was having problems immediately prior to the accident in 2007. But the question can equally be regarded as merely asking whether employee had any pain in his neck between the 2002 motor vehicle accident and the 2007 work accident. As employee concedes and the medical records demonstrate, he complained of pain in his neck up until at least October 2002, so employee's acknowledgment that he experienced ongoing pain in his neck between 2002 and 2007 does not necessarily conflict with employee's testimony that he didn't have problems in the two or three years before June 2007. This becomes even more apparent when we consider the following testimony, elicited on cross-examination by counsel for the Second Injury Fund:

Q. Regardless of the day that you hurt yourself, you didn't have the burning sensation in your neck the day before, correct?

A. Correct.

Q. And you didn't have it the week before, correct?

A. Correct.

Q. Or three months before?

A. Not that I can recall.

Q. Or six months before, correct?

A. Correct.

Transcript, page 117.

After careful consideration, we credit employee's testimony (and so find) that he was not having pain or problems with his neck in the two or three years before the June 2007 accident.

With respect to the medical expert testimony, we specifically adopt the administrative law judge's determination that the opinions of Drs. Volarich and Kennedy are more credible than those of Dr. deGrange. In particular, we are persuaded by Dr. Volarich's testimony that the June 2007 accident is the prevailing factor causing a disc herniation at C6-7 to the left as well as causing the aggravation of underlying and previously asymptomatic degenerative disc disease and degenerative joint disease at C4-5 and C5-6. We find that employee reached maximum medical improvement on November 20, 2007.

We credit the testimony from Dr. Volarich (and so find) that the treatment employee received following the work injury in June 2007 was reasonable and necessary, and specifically that the cervical fusion was necessary owing to the symptoms employee experienced as a result of the work injury. From our review of the bills and the associated medical records provided by employee, in combination with employee's credible testimony that he received these bills in connection with treatment for his work injury, we find that employee incurred past medical expenses, as follows:

Des Peres Hospital \51,856.64

Dr. Rutz

\ 49,813.00

Dr. Poepsel

\$ 100.00

Employee also submitted bills from Esse Health totaling \$2,092.00. But employee did not provide the medical records reflecting the treatment giving rise to the Esse Health bills, nor did he provide testimony or other evidence sufficient to allow us to parse the charges set forth in the bills. We find the charges set forth in the bills to be far from selfexplanatory. Accordingly, we decline to make any findings with respect to the treatment giving rise to the bills from Esse Health.

We also decline to make any findings with respect to the amount of out-of-pocket costs incurred by employee. Employee indicated he paid co-pays every time he went for medical treatment, and sometimes sent in checks, but he conceded he was not sure of this, and he was unable to identify a specific dollar amount. We do not adopt the administrative law judge's finding that the bills themselves establish that employee paid $\ 592.00 in co-pays.

Employee appeals the administrative law judge's finding that he is not permanently and totally disabled. The administrative law judge determined that employee isn't credible regarding his limitations, noting employee's demeanor at the hearing, his hunting and fishing hobbies, some contradictory testimony, and his use of the phrase, "I think," to preface many of his answers.

We disagree with the administrative law judge's finding that employee is not credible regarding his limitations. Employee does appear to be a poor historian as to certain

Enployee: John F. Maness

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details of his medical timeline, and the overall tenor of his testimony is certainly not a model of clarity. But we note the testimony from Timothy Lalk that employee became frustrated and embarrassed during the reading and vocabulary portions of the Wide Range Achievement Test. Mr. Lalk opined that employee scored at the fourth grade level on that test. We note also that employee ultimately only completed the sixth grade, and this when he was sixteen years old, and never obtained a GED. When we review employee's testimony in light of these facts, it appears to us that employee's use of the phrase, "I think," and the noncommittal nature of certain portions of his testimony are more a product of his reaction to the sophisticated questions posed by the attorneys in this thoroughly litigated case, rather than some attempt to intentionally misrepresent his limitations. After careful consi