Linda McLeary v. Arvin Meritor

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 parties’ briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The administrative law judge’s award sets forth the stipulations of the parties and the administrative law judge’s findings of fact as to 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 Second Injury Fund and employee stipulated that, at the time employee sustained the compensable work injury, she suffered from a 12.5% permanent partially disabling condition of the body as a whole referable to a preexisting diagnosis of cancer that involved surgery and development of a chronic pain condition. The Second Injury Fund and employee also stipulated that an award against the Second Injury Fund for permanent partial disability benefits would be properly calculated using a 12.5% "load" or synergy factor.

Employee’s evaluating expert, Dr. Musich, opined that employee’s preexisting disabilities combine with the effects of the primary injury in such a way as to result in greater disability than the simple arithmetic sum of the disabilities; we find this opinion to be persuasive.

The administrative law judge found that employee lacks credibility and credited employer’s medical experts, Drs. Cantrell and Kitchens, over employee’s expert Dr. Musich, as to the issue of medical causation. We disagree with this analysis for the following reasons.

We find that employee is generally credible. While she is not a completely reliable historian (a circumstance perhaps affected by employee's longstanding issues with depression) employee's testimony is generally consistent with and supported by the medical records. We do not share the administrative law judge's concern that employee's primary care physician, Dr. Boardman, did not consistently note her back and neck complaints; a thorough review of this physician's records reveals that for any given visit, his notes focus solely on the primary concern that brought employee into his office, which was usually follow-up for diabetes. Further, contrary to the findings of the administrative law judge, many of Dr. Boardman's records do indicate back and/or neck pain, e.g., the treatment records for March 13, April 13, May 23, June 6, and September 25, 2006, as well as for February 27 and March 26, 2007. We do not regard Dr. Boardman's occasional silence as to the neck and back when he was seeing employee for high blood pressure or diabetes to cast any material doubt on employee's testimony regarding the severity of her work injury.

Nor do we view the surveillance footage provided by employer to have any impact on employee's credible testimony provided at the hearing. The surveillance video that we reviewed bears little resemblance to the description provided in the administrative law judge's award. The videos depict employee engaged in innocuous activities such as walking or sitting in a car and demonstrate very little physical activity and certainly no prolonged physical activity. The videos also depict employee walking stiffly or holding her back. Especially when we consider that employer did not provide any foundational testimony that would allow us to further evaluate this evidence in light of factors such as when and for how long investigators followed employee or how many hours of raw footage were distilled to produce the videos entered into evidence, we do not find employee's testimony regarding her symptoms or limitations to be materially contradicted or refuted by the surveillance footage.

Turning to the expert testimony, we note that Dr. Kitchens opined that employee's accident, wherein a large industrial plastic bin crashed into her entire left side with enough force to knock her into an adjacent bin, caused employee to suffer only a mild strain of the thoracic spine with a 2 % permanent partial disability of the body as a whole. In minimizing employee's injuries, Dr. Kitchens relied on the erroneous assertion that employee was struck only in the "left flank," as well as the purported absence of any complaints indicative of cervical radiculopathy in the contemporaneous medical treatment records. Dr. Kitchens appears to have overlooked (or simply ignored) the following records: the December 1, 2005, emergency room record from Missouri Southern Healthcare indicating complaints of a "pins and needles" sensation in the left leg and arm on the date of injury; the January 16, 2006, record from Healthsouth indicating complaints of numbness and tingling in the left arm and leg; the January 18, 2006, record from Healthsouth, indicating complaints of numbness and tingling in the left arm and leg; the May 23, 2006, record from Dr. Boardman, indicating tingling and numbness in the arm; and the May 30, 2006, record from Dr. Boardman, indicating arm and hand numbness and hand weakness.

Clearly, Dr. Kitchens's testimony is predicated on demonstrably false impressions or assumptions regarding the nature of the trauma employee sustained and the symptoms

she manifested in the immediate aftermath of the 2005 injury. As a result, Dr. Kitchens is not credible.

On March 7, 2006, Dr. Cantrell provided his opinion that employee suffered only mild strains affecting the cervical and lumbar spine and a strain and abrasion to her left shoulder as a result of the December 2005 accident. Dr. Cantrell provided his opinions without the benefit of a May 30, 2006, cervical MRI. Consequently, we give little weight to his report.

In light of the foregoing considerations, we are more persuaded by Dr. Musich's testimony that, as a result of the work injury, employee suffered acute strain syndromes referable to the cervical and lumbar spine with multilevel cervical disc pathology, as well as symptomatic lumbar spondylosis and left lower extremity radiculopathy over the left L5 dermatome. We are not convinced, however, by Dr. Musich's testimony that employee is permanently and totally disabled as a result of the primary injury. Given employee's postinjury return to full-duty work, subsequent August 2007 event which Dr. Musich agreed worsened employee's symptoms, and multiple surgeries which (as discussed immediately below) we are not convinced were reasonably required as a result of the work injury, we find Dr. Musich's opinion lacking persuasive force on the issue of permanent total disability. Rather, we find that employee suffered a 50 % permanent partial disability of the body as a whole referable to her cervical and lumbar spine injuries as a result of the accident on December 1, 2005.

Whether employee had a need for additional treatment flowing from the work injury Employee claims $\ 277,836.66 in past medical expenses incurred after employer stopped authorizing medical treatment for her neck and back injuries in April 2006. To make her case that employer is liable for these considerable expenses, employee relies solely on the opinion of Dr. Musich, who opined that employee's injury "necessitated several cervical surgeries." Transcript, page 200. Given employee's preexisting degenerative conditions referable to the cervical spine, her successful post-injury return to full-duty work in March 2006, and the subsequent August 2007 event that worsened employee's symptoms, we would expect employee's evaluating expert to provide some explanation as to why cervical spine surgery in October 2007 was reasonably required to cure and relieve the effects of the December 2005 work injury.

It appears that employee's symptoms referable to her neck injury may have waxed and waned over time, but in his report, Dr. Musich did not address this issue, and in fact provided no explanation whatsoever for his opinion regarding past medical expenses. Nor was Dr. Musich asked to do so at his deposition. Potentially helpful would have been testimony addressing how additional treatment including cervical spine surgery was reasonably required despite employee's successful return to full-duty work (including overtime) for over a year, and why a need for surgery should be seen to flow from the work injury in light of the various other factors potentially affecting the condition of employee's cervical spine as of October 2007. In the absence of any such testimony, we are left to speculate as to how Dr. Musich would have answered these pivotal questions.

In her brief, employee also advances the records from her treating surgeon, Dr. Park, as evidence supporting a finding that her need for cervical spine surgery flows from the work injury. Dr. Park's treatment record merely recites that (1) employee had a work injury, (2) employee has a disc herniation at C4-5, and (3) this "correlates with her symptoms." Transcript, page 1083. We disagree that this amounts to an opinion regarding whether employee's need for surgery in October 2007 flows from the December 2005 work injury, but even if it did, we do not find it particularly persuasive, as it is conclusory and lacking any pertinent explanation or rationale.

The Missouri courts have consistently held that we need not adopt each of an expert's opinions, and may reject "any part" of an expert opinion that we do not find persuasive. See, e.g., Massey v. Missouri Butcher \& Cafe Supply, 890 S.W.2d 761, 763 (Mo. App. 1995); Massengill v. Ozark Action, Inc., 762 S.W.2d 850, 851 (Mo. App. 1989). In the absence of any explanation or rationale addressing the concerns identified above, we find Dr. Musich's testimony regarding employee's need for additional medical care after April 5, 2006, to be lacking in persuasive force. Further, we find that by offering only the nonspecific and generalized testimony of Dr. Musich, employee has failed to meet her burden of proof with regard to the question whether, after April 5, 2006, she had a need for additional medical treatment that flowed from the work injury. Accordingly, we find that as of April 5, 2006, employee did not have a need for additional medical treatment flowing from the work injury. For similar reasons, we do not find persuasive Dr. Musich's testimony that employee may have a need for future medical treatment as a result of the work injury.

The above discussion is dispositive with regard to the issues whether employee is entitled to temporary total disability benefits in connection with her surgeries, or reimbursement for her mileage related to disputed treatments after April 5, 2006. We note, however, that employee presented evidence that employer failed to reimburse her for mileage incurred in travelling to a December 23, 2005, authorized treatment with Bluff Radiology Group. Employer failed to present any evidence to contradict or rebut employee's evidence with respect to this issue. We find employee's evidence persuasive. We find that employee drove 85.92 miles for the December 23, 2005, authorized treatment with Bluff Radiology Group. Referring to the bills from Bluff Radiology Group, we find that this medical provider is located in Poplar Bluff, Missouri. The p