Ruby Rasa v. Higginsville Habilitation Center

and extent of her preexisting disabling conditions, rather than any intentional or conscious effort on her part to confuse the record or to mislead the fact-finder. ${ }^{1}$

It further appears to us that employee's memory was clearer on the date of the hearing before the administrative law judge than it was at her deposition; for this reason, we credit her testimony at the hearing. From this credible testimony it appears that, at the time of the primary injury of June 6, 2008, employee did suffer from a number of seriously disabling preexisting conditions which would seem to have amounted to hindrances or obstacles to employment or reemployment under the appropriate standard:

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007)(citation omitted).

The problem with employee's case, however, is that her credible testimony at the hearing regarding her preexisting disabling conditions is not adequately supported by the medical testimony from Dr. Stuckmeyer. As noted by the administrative law judge, Dr. Stuckmeyer did not identify, rate, or offer any opinion as to employee's complaints of preexisting chronic headaches, neck pain, urinary incontinence, asthma, or daily burning in her feet referable to diabetes. With regard to employee's complaints of chronic headaches and neck pain, Dr. Stuckmeyer appeared to be misinformed, as he related them to the primary injury based on his (incorrect) belief that employee did not suffer ongoing symptoms of neck pain before June 2008. ${ }^{2}$ With regard to employee's complaints of preexisting urinary incontinence, asthma, and daily burning in her feet referable to diabetes, Dr. Stuckmeyer was wholly silent.

More importantly, Dr. Stuckmeyer did not explain how the preexisting chronic thoracolumbar strain he identified and rated is responsible for any disabling symptoms or limitations that employee now experiences, and instead provided a conclusory opinion that employee is permanently and totally disabled owing to a combination of her preexisting and most recent disabilities. Although Dr. Stuckmeyer mentioned employee had a history of low back pain predating the primary injury, he did not specifically opine as to whether (and if so how) this condition combines with the low back injury that employee suffered as a result of the primary injury. Crucially, Dr. Stuckmeyer did not identify or endorse any restriction that employee be permitted to lie down during the day, or opine whether any such need would be a product of the primary injury alone or in combination with any preexisting condition of ill-being; at his deposition, Dr. Stuckmeyer suggested employee did not mention to him a need to lie down. ${ }^{3}$

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[^0]: ${ }^{1}$ Indeed, employee repeatedly cited her poor memory and included caveats such as "to the best of my knowledge" during her deposition. See, e.g., Transcript, pages 578-79, 589-90.

${ }^{2}$ Employee testified at the hearing that her chronic headaches and neck pain preexisted the primary injury, and that they caused her to miss work and take so much ibuprofen that a doctor warned her about kidney damage.

Transcript, pages 17-8.

${ }^{3}$ Employee credibly describes a need to lie down 3 to 4 times per day owing to severe back pain. Transcript, pages 27-8,565-66.

Likewise, both vocational experts relied on incorrect information in rendering their opinions that employee is permanently and totally disabled owing to a combination of the primary injury and her preexisting disabling conditions. As noted by the administrative law judge, Mary Titterington incorrectly believed that Dr. Stuckmeyer's restrictions related to both the primary injury and employee's preexisting conditions of ill-being. ${ }^{4}$ We note that Michael Dreiling made the same mistake. Transcript, page 455. To the extent that both Ms. Titterington and Mr. Dreiling opine that the restrictions from Dr. Stuckmeyer render employee permanently and totally disabled, their opinions would seem to support an award of permanent total disability benefits against the employer, not the Second Injury Fund.

In sum, we acknowledge that the ultimate opinions from the experts suggest that employee is permanently and totally disabled owing to a combination of her preexisting conditions and the effects of the primary injury. But where the vocational experts relied on incorrect information, and where Dr. Stuckmeyer does not endorse the preexisting disabling conditions or present physical restrictions of which employee actually complains, we cannot credit their ultimate opinions in this matter. For these reasons, we must deny employee's claim against the Second Injury Fund.

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

The award and decision of Administrative Law Judge Lisa Meiners, issued September 25, 2014, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $3^{\text {rd }}$ day of April 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

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[^0]: ${ }^{4}$ We acknowledge employee's argument, in her brief, that Dr. Stuckmeyer opined that the restrictions he assigned were an "overlap" of restrictions referable to preexisting conditions and those referable to the primary injury. A careful reading of Dr. Stuckmeyer's testimony reveals, however, that his use of the word "overlap" refers to the different parts of employee's body that he believed were affected by the primary injury, rather than any preexisting condition of ill-being. Transcript, page 396. At both his deposition and in his report, Dr. Stuckmeyer made clear that the restrictions he assigned are solely due to the effects of the primary injury. Id. at 405, 416.

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that the decision of the administrative law judge should be reversed in favor of an award of permanent total disability benefits from the Second Injury Fund.

As acknowledged by the Commission majority, employee presented uncontested expert medical causation testimony from Dr. James Stuckmeyer that the effects of the primary injury in combination with employee's preexisting conditions of ill-being cause her to suffer the condition of permanent and total disability. The Second Injury Fund did not present any contrary medical testimony. It is well-settled in Missouri that "[t]he commission cannot find there is no causation if the uncontroverted medical evidence is otherwise." Hayes v. Compton Ridge Campground, Inc., 135 S.W.3d 465, 470 (Mo. App. 2004). However, despite the uncontested medical causation evidence on this record, both the administrative law judge and now the majority of this Commission have denied employee's claim, for different reasons.

The administrative law judge found employee's evidence insufficient to support a finding that she suffered any preexisting permanent partially disabling conditions that amounted to hindrances or obstacles to employment before the primary injury. The Commission majority, on the other hand, has specifically credited employee's hearing testimony and determined that employee did suffer from a number of seriously disabling preexisting conditions of ill-being which amounted to hindrances or obstacles to employment. Yet, they deny employee's claim owing to perceived problems with the testimony from Dr. Stuckmeyer. I am convinced that, in so holding, the Commission majority impermissibly substitutes their own lay theories regarding causation of employee's permanent total disability for the uncontradicted expert medical opinion from Dr. Stuckmeyer.

Specifically, in criticizing Dr. Stuckmeyer for failing to identify, rate, or offer any opinion regarding employee's complaints of preexisting chronic headaches, neck pain, urinary incontinence, asthma, and daily burning in her feet, the majority applies the unstated premise that these conditions are necessary causative factors in her permanent total disability. The majority reaches this finding without identifying any expert medical causation evidence to support such a premise. This situation is similar to that presented in Abt v. Miss. Lime Co., 388 S.W.3d 571 (Mo. App. 2012), where the Commission threw out expert opinion evidence regarding the cause of employee's permanent total disability in favor of theories that found no support on the record. In reversing the Commission, the Abt court noted that "[r]ather than choosing one of the medical op