Mark Dannenmueller v. Noranda Aluminum, Inc.

We do not believe that Dr. Cantrell has persuasively explained the degeneration at L4-5 and L3-4 where he did not consider imaging studies of employee's spine from 2003 going forward. We find, instead, Dr. Smith's opinion more persuasive. We modify the administrative law judge's factual findings as to this issue. We adopt Dr. Smith's opinion (and so find) that the work injury and fusion at L5-S1 put stress on the adjacent levels of employee's spine and caused the symptomatic degenerative pathology at L3-4 and L4-5. We also deem persuasive Dr. Smith's opinion (and so find) that employee reached maximum medical improvement on June 15, 2011.

Employer initially authorized treatment with Dr. Smith for employee's ongoing pain problems with respect to his low back injury. On June 16, 2011, Dr. Smith recommended that employee return to Dr. Coyle or to him to discuss a long-acting opioid. On September 23, 2011, however, employer secured an opinion from Dr. Cantrell that employee's continued symptoms were not causally related to his back injury and instead the product of multilevel degenerative processes in employee's spine. As a result, employer stopped authorizing medical treatment for employee.

Employee continued to seek treatment with Dr. Smith. On December 19, 2011, and April 9, 2012, employee underwent epidural steroid injections to address complaints of radicular pain. Employee received bills of $\ 1,853.00 and $\ 1,756.00 for these visits, and incurred mileage in the amount of $\ 326.00.

Employee visited the emergency room at Southeast Missouri Hospital on March 29, 2012, complaining of unrelenting left leg and left testicular pain. Employee testified that he sought treatment on that date because of increased pain symptoms he experienced after falling down. Employee explained that he fell down due to his left leg giving out, and that this is a problem he's dealt with occasionally since his back surgery in 2003. Employee's testimony is supported by the treatment note, which suggests that employee told attending physicians that he had fallen a week ago and landed on his left hip; that he had left hip pain since; and that his pain felt similar to his chronic pain stemming from his 2003 back surgery, except that nothing was helping with the pain. Employee rated his pain at 10 out of a possible 10 in intensity. Treating doctors ordered a course of intravenous pain medications, performed some diagnostic studies, and discharged employee with a recommendation to follow up with Dr. Smith. Employee received a bill of $\ 5,122.27 for this treatment.

We find credible employee's testimony regarding the circumstances of his March 2012 emergency room visit. We find that employee sought treatment for increased pain owing to his falling down as a result of the left leg radicular symptoms from his work injury and surgery in 2003.

Employer has provided surveillance footage gathered by investigators following employee. The surveillance covers the time periods from August 2006 to March 2007 and July 2009 to October 2009. Jerry Wolsey, the private investigator hired by employer, explained that his surveillance company followed employee for three to four days per

week from four hours per day up to sixteen hours per day. From approximately 310 hours of surveillance, the investigators gathered approximately 48 hours of video footage. This footage was later edited under the direction of employer's counsel.

We have carefully reviewed the surveillance videos. The edited footage shows employee engaged in about 15 or 16 individual instances of activities such as bending to pick up a garden hose, pulling weeds, riding an ATV, operating equipment such as lawnmowers and leaf blowers, and running to catch a dog. During the entire period that investigators followed employee, only about five days demonstrate employee engaged in activity spanning a time period over one hour. The longest period of activity was approximately two hours on October 1, 2006, when employee was mowing his lawn. We note that the investigators did not capture any significant activity by employee for nine days after October 1, 2006; this lends support to employee's testimony that he is "laid up" with back pain after engaging in activities such as those depicted in the videos.

Employer's authorized treating physicians Drs. Bernardi and Swarm found employee was permanently and totally disabled in 2004. But employer's experts Drs. Cantrell and Coyle believe employee is not permanently and totally disabled based on the surveillance footage, while employee's experts Mr. England and Dr. Volarich opined that if the videos show employee is capable of repetitive activity, their opinions that employee is permanently and totally disabled could change. Neither Mr. England nor Dr. Volarich actually saw the videos, but instead responded to a question posed by employer's counsel wherein they were asked to assume employee engaged in the 15 or 16 instances of activity shown on the videos.

We believe that the videos depict only isolated moments over a lengthy period rather than anything approaching the demands of full-time employment. Accordingly, we do not believe the videos would affect Mr. England's or Dr. Volarich's opinions regarding permanent total disability, which are premised upon employee's age, lack of education, and intractable low back pain referable to the work injury. Especially when we consider that employee was using narcotic pain medications while engaged in the activities shown on the videos, and that employee was incapacitated with back pain after the more strenuous activities, we do not find the surveillance videos to be particularly compelling evidence on the subject of permanent total disability.

We modify the administrative law judge's finding with respect to the issue of permanent total disability. We find that Mr. England and Dr. Volarich offer the more persuasive opinions as to this issue. We find that employee is permanently and totally disabled as a result of the effects of the work injury.

Medical causation

Section 287.020.2 RSMo sets forth the standard for medical causation applicable to this claim and provides, in relevant part, as follows:

An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability.

We have modified the administrative law judge's findings with respect to this issue, and found most persuasive and adopted the testimony from Dr. Smith that the work injury and fusion at L5-S1 caused the symptomatic degenerative pathology seen at L3-4 and L4-5. We conclude that the accident of January 2003 was a substantial factor in causing not only the disc herniation at L5-S1, but the subsequent development of symptomatic degenerative pathology at L4-5 and L3-4.

Section 287.200 RSMo provides for the payment of weekly benefits where the employee is determined to be permanently and totally disabled. We have found that employee is permanently and totally disabled as a result of the work injury. We conclude that employer is liable for weekly permanent total disability benefits at the stipulated rate of $\ 649.32.

Section 287.140.1 RSMo provides, as follows:

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

Employer has an "absolute and unqualified duty" to furnish medical care under § 287.140 RSMo; once a compensable injury is shown (as it was here) employee needs only to prove that the disputed treatments "flow" from the work injury. See Martin v. Town \& Country Supermarkets, 220 S.W.3d 836, 844 (Mo. App. 2007); Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 519 (Mo. App. 2011). Employer has the right under § 287.140.10 to direct treatment; the courts have indicated that an employer may avoid an award of past medical expenses if the employee has received treatment with his own providers where employer had no notice that the employee was in need of treatment. Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85 (Mo. App. 1995).

Here, employee claims unpaid past medical expenses for treatment he received from Dr. Smith, whom employer initially authorized to provide employee with injections, and from Southeast Missouri Hospital, where employee received emergency treatment for a flare-up of left leg and left testicle pain after he suffered a fall caused by the left leg radiculopathy resulting from his 2003 work injury and surgery. Employer argues employee is not entitled to his expenses because employer did not authorize these treatments.

Notably, employer does not claim to be ignorant of the fact employee continued to seek additional pain management treatment, or of the fact employee was contesting employer's denial of such treatment. T