Ross Lawrence v. New Bloomfield R-III School District

Improve Ross E. Lawrence

- 2 -

However, in this particular case we do not believe the resulting award would have been any different even if the subpoena had not been quashed. For the reasons set forth below, we find that this decision should not be reversed merely on this basis.

Under the Missouri Workers' Compensation Law, the employee bears the burden of proving all essential elements of his workers' compensation claim. Fischer v. Archdiocese of St. Louis, 793 S.W.2d 195, 198 (Mo. App. W.D. 1990); Grime v. Altec Indus., 83 S.W.3d 581, 583 (Mo. App. 2002). Proof is made only by competent and substantial evidence. Griggs v. A.B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. W.D. 1974). Medical causation not within lay understanding or experience requires expert medical evidence. Wright v. Sports Associated, Inc., 887 S.W.2d 596, 600 (Mo. banc 1994).

In this case, employee relies solely on his own testimony and the medical opinion of Dr. Russell, who he only saw one time for purposes of this litigation in November 2010. In Dr. Russell's written report dated November 2, 2010, he opined that the August 21, 2008, injury was the prevailing factor in employee's ongoing condition and necessitated employee's subsequent surgeries. Dr. Russell opined that the April 2008 fence post injury resolved without significant treatment prior to the August 2008 work injury and was unrelated to employee's current condition. Dr. Russell also opined that the November 2008 vehicular incident only temporarily aggravated employee's condition and "did not appreciably affect the final outcome of his injury." Finally, Dr. Russell concluded with his opinion that employee is 100\% totally disabled as a result of the August 2008 injury alone.

Dr. Russell formed his opinions based on the information given to him by employee and a review of medical records. ${ }^{1}$ Specifically, Dr. Russell's opinions are based on the assumption that employee pulled a muscle in his back in April 2008, but the resulting symptoms from that resolved in a couple of weeks. This assumption is consistent with employee's testimony at trial that all symptoms associated with the April 2008 injury had been resolved by May 2008.

However, medical records from Dr. Bellamy and St. Mary's Hospital do not support employee's testimony. On April 29, 2008, Dr. Bellamy saw employee and diagnosed a lumbar strain with radiculopathy. On May 13, 2008, he noted modest if any improvement in symptoms and continued "clear" evidence of radiculopathy. Records from St. Mary's, where employee sought treatment on the date of the August 2008 accident, refer to a prior back injury from cutting down a tree in Spring 2008, which was not mentioned elsewhere. More importantly, these records also refer to another incident that happened on "the Monday before" (August 18, 2008) when a table gave way and employee twisted his back again.

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[^0]: ${ }^{1}$ Dr. Russell's report lists the following as records which he reviewed for his report: (1) Advanced Radiology of Columbia, MO; (2) Columbia Orthopedic Group, Columbia, MO; (3) Boone Hospital Center, Columbia, MO; (4) St. John's Health System, Springfield, MO; (5) St. Luke's Medical Group, Clinton, MO; (6) Spine Midwest, Inc., Jefferson City, MO; (7) St. Mary's Health Center, Jefferson City, MO; (8) Columbia Regional Hospital, Columbia, MO; (9) University of Missouri Health Care, Columbia, MO; (10) St. Mary's Health Center, Jefferson City, MO; and (11) Report Gallagher-Bassett Services, Kansas City, MO. It is not clear whether Dr. Russell reviewed the records of Dr. Bellamy.

Dr. Russell also was under the assumption, based on employee's representation to him, that employee's symptoms following the motor vehicle accident in November 2008 were basically unchanged. Again, this is consistent with what employee testified to at the trial in this case. However, this is vastly different from the testimony that employee gave in a deposition on June 27, 2011, for his litigation involving that motor vehicle accident (unrelated to this workers' compensation case). In his 2011 deposition, employee testified that the November 2008 vehicular accident resulted in the onset of new, continuing symptoms including moderate to extreme burning in his left leg and foot, and severe pains and muscle spasms in his lower back.

We do not necessarily expect testimony and medical records to meld with mathematical precision, but glaring omissions and contradictions must be addressed by expert testimony in order for such testimony to be persuasive.

Employee has had a very complicated medical history of trauma to his spine, both prior to and subsequent to his August 21, 2008, work injury. His burden of proof would be difficult to sustain even if he was entirely credible, if he had no evidence of serious prior injury, and if the expert testimony upon which his claim rests was fully informed. We agree with the ALJ's finding that employee was not a credible witness. We find that employee suffered a serious injury prior to his August 2008 work injury, and we are not persuaded that employee had recovered from that injury prior to the August 2008 work injury. We also find that Dr. Russell's testimony is not credible because it was not fully or accurately informed. For these reasons, employee has failed its burden of proving a compensable work injury, and this claim for compensation must be denied.

We affirm and adopt the award and decision of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Vicky Ruth, issued February 25, 2013, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $11^{\text {th }}$ day of March 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Ross E. Lawrence

Injury No. 08-122167

Dependents: N/A

Employer: New Bloomfield R-III School District

Additional Party: Second Injury Fund

Insurer: Missouri United School Insurance, c/o Gallagher Bassett Services

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Hearing Date: November 19, 2012

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of alleged accident or onset of occupational disease: August 21, 2008.
5. State location where alleged accident occurred or occupational disease was contracted: New Bloomfield, Missouri.
6. Was above employee in employ of above employer at time of the alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? N/A.
8. Did accident or occupational disease arise out of and in the course of the employment? No.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant twisted and turned while walking down a hallway.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. $\operatorname{Part}(\mathrm{s})$ of body allegedly injured by accident or occupational disease: body as a whole referable to the back.
14. Nature and extent of any permanent disability: none.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? N/A.
17. Value necessary medical aid not furnished by employer/insurer? None.

1. Employee's average weekly wages: $\ 1,250.00.
2. Weekly compensation rate: $\$ 772.53 / \ 404.66.
3. Method of wages computation: by agreement.

1. Amount of compensation payable from employer: none.
2. Second Injury Fund liability: none.
3. Future medical awarded: no.

Employee: Ross E. Lawrence

Injury No. 08-122167

Dependents: N/A

Employer: New Bloomfield R-III School District

Additional Party: Second Injury Fund

Insurer: Missouri United School Insurance, c/o Gallagher Bassett Services

Hearing Date: November 19, 2012

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On November 19, 2012, Ross Lawrence (the claimant), New Bloomfield R-III School District/Missouri United School Insurance (the employer/insurer), and the Second Injury Fund appeared in Jefferson City, Missouri, for a final award hearing. The claimant was represented by attorney Jeffrey Adams. The employer/insurer was represented by attorney Brian Fowler. The Second Injury Fund was represented by attorney Adam Sandberg. Claimant, Debbie Lawrence, Dr. Garth Russell