James Bowman v. Central Missouri Aviation, Inc.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The administrative law judge determined that employee's Exhibits 10, 11, and 48, consisting of reports from employee's evaluating medical expert, Dr. A. E. Daniel, were inadmissible into evidence for purposes of employee's claim against the Second Injury Fund. From a review of the hearing transcript, it appears that this ruling was based on a finding by the administrative law judge that employee failed to satisfy the requirements of $\S 287.120.7$ RSMo for the submission of testimony from an examining physician via complete medical report. We disagree that employee's Exhibits 10, 11, and 48 are inadmissible as against the Second Injury Fund. Section 287.210.7 provides, as follows:

The testimony of a treating or examining physician may be submitted in evidence on the issues in controversy by a complete medical report and shall be admissible without other foundational evidence subject to compliance with the following procedures. The party intending to submit a complete medical report in evidence shall give notice at least sixty days prior to the hearing to all parties and shall provide reasonable opportunity to all parties to obtain cross-examination testimony of the physician by deposition. The notice shall include a copy of the report and all the clinical and treatment records of the physician including copies of all records and reports received by the physician from other health care providers. The party offering the report must make the physician available for crossexamination testimony by deposition not later than seven days before the matter is set for hearing, and each cross-examiner shall compensate the physician for the portion of testimony obtained in an amount not to exceed a rate of reasonable compensation taking into consideration the specialty practiced by the physician. Cross-examination testimony shall not bind the

cross-examining party. Any testimony obtained by the offering party shall be at that party's expense on a proportional basis, including the deposition fee of the physician. Upon request of any party, the party offering a complete medical report in evidence must also make available copies of X rays or other diagnostic studies obtained by or relied upon by the physician. Within ten days after receipt of such notice a party shall dispute whether a report meets the requirements of a complete medical report by providing written objections to the offering party stating the grounds for the dispute, and at the request of any party, the administrative law judge shall rule upon such objections upon pretrial hearing whether the report meets the requirements of a complete medical report and upon the admissibility of the report or portions thereof. If no objections are filed the report is admissible, and any objections thereto are deemed waived. Nothing herein shall prevent the parties from agreeing to admit medical reports or records by consent.

Prior to a legislative amendment which took effect on January 1, 2014, the foregoing language included this caveat: "The provisions of this subsection shall not apply to claims against the second injury fund." The amendment removing this language is procedural and thus retroactively applicable, because it relates solely to the procedural "machinery" for carrying on a workers' compensation claim, and does not create a new substantive right or remedy. *Ball-Sawyers v. Blue Springs Sch. Dist.*, 286 S.W.3d 247 (Mo. App. 2009). Thus, we find that § 287.210.7, as set forth above, is applicable to the Second Injury Fund in this matter.

At the February 24, 2015, hearing before the administrative law judge, the Second Injury Fund conceded that it received copies of employee's Exhibits 10, 11, and 48 from employee more than 60 days before the hearing, and was (at least) aware that employee intended to offer Dr. Daniel's reports in lieu of live testimony with respect to his claim against the employer. The Second Injury Fund objected to employee's Exhibits 10, 11, and 48, on the sole basis that counsel for the Second Injury Fund was purportedly unaware of employee's intention to use those exhibits for purposes of his claim against the Second Injury Fund.

The Second Injury Fund did not raise any other evidentiary objection, such as that employee's Exhibits 10, 11, and 48 contain hearsay or lack foundation. Nor did the Second Injury Fund argue that it was without opportunity or otherwise prevented from obtaining cross-examination of Dr. Daniel. The Second Injury Fund did not request a continuance of the hearing for the purpose of obtaining cross-examination of Dr. Daniel.

Nothing in § 287.210.7 requires a party intending to submit a complete medical report in evidence to specify in the notice which party or parties the report is to be admitted against. It does require that "all parties" be provided reasonable opportunity to obtain cross-examination testimony. Thus, in our view, § 287.210.7 implies that a notice of intent to submit a medical report is necessarily applicable to "all parties." Moreover (and more importantly) we cannot, under a strict construction mandate, add requirements to § 287.210.7 that are not specifically contained therein, because "a strict construction of

a statute presumes nothing that is not expressed." Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. App. 2009).

The Second Injury Fund's objection is overruled, and employee's Exhibits 10, 11, and 48 are hereby received into evidence for purposes of employee's claim against the Second Injury Fund.

The administrative law judge determined that employee failed to meet his burden of proving that he sustained a compensable psychiatric injury as a result of the accident of July 16, 2007, when a coworker assaulted him at work. After careful consideration, we agree with this result, but wish to provide some clarifying comments and additional analysis of our own.

Employee's expert, Dr. Daniel, believes the accident of July 16, 2007, was the prevailing factor causing employee to suffer psychiatric injury in the form of severe, chronic, and disabling post-traumatic stress disorder (PTSD), and that employee is permanently and totally disabled as a result of this injury considered alone. On the other hand, employer's medical expert, Dr. Wayne Stillings, believes employee did not suffer psychiatric injury of any kind as a result of the July 2007 accident, and that employee's current psychiatric problems are wholly the product of preexisting conditions. We are faced with the unenviable task of resolving the starkly conflicting opinions from these experts against the backdrop of a significant prior traumatic event in employee's life. Specifically, as detailed in the administrative law judge's award, employee was the victim of a home invasion, forcible abduction, and armed robbery event in 2003.

We write to make clear that our analysis does not turn on the simple either/or question whether the 2003 or 2007 event caused employee to suffer the medical diagnosis of PTSD. This is because it is possible for employee to have suffered psychiatric injury from both events. Under § 287.020.3(1) RSMo, employee had the burden of proving that the work accident was the prevailing factor causing a resulting medical condition and disability. In analyzing whether employee met his burden of proof, it is important to recognize that the term "medical condition" is in no way synonymous with "medical diagnosis." Our dictionary defines "condition," in relevant part, as follows:

4 : a mode or state of being ... e : the physical status of the body as a whole $\ldots$ or of one of its parts ...

Webster's Third New International Dictionary 473 (2002).

While the term "diagnosis" is defined, in relevant part, as follows:

... 2 : a concise technical description of a taxonomic entity giving its distinguishing characters ...

Id. at 622 .

Improve: James Bowman

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Once an employee has met his burden of proving that an accident was the prevailing factor causing a resulting medical condition and disability, evidence of a preexisting condition of ill-being and/or disability may be relevant to the issue of Second Injury Fund liability, and/or the nature and extent of compensable disability, but does not defeat the claim. To the contrary, it is well-settled in Missouri that where a work accident is the prevailing factor causing aggravation or exacerbation of a preexisting disabling condition, the resulting aggravation is compensable; this is true even following the 2005 amendments. *Maness v. City of De Soto*, 421 S.W.3d 532 (Mo. App. 2014).

Here, the mere fact that employee was previously diagnosed with PTSD does not, alone, preclude recovery. Stated another way, there is nothing in Chapter 287 to suggest there can be no "change of condition" unless there is a "change in diagnosis." This is especially true under the 2005 amendments, which require us to strictly construe the language of Chapter 287.

There is evidence in this record which, if believed, would support findings that employee suffered from PTSD in the past, that (although he may have been left in a more fragile state) this condition became quiescent for an extended period of time leading up to the date of injury, and that the sudden, violent assault at the workplace caused a permanent worsening of the latent condition, a permanent increase in disability, and a need for medical care that otherwise would never have been required. Under such circumstances, an award of benefits would be mandated.¹

Accordingly, our inquiry must begin with the sole question whether Dr. Daniel persuasively established that the July 2007 accident was the prevailing factor causing employee to suffer a resulting psychiatric condition and disability, regardless of whether employee was also suffering (or had previously suffered) from preexisting psychiatric conditions and/or disabilities.

In resolving that question, we note at the outset that Dr. Daniel found employee's results on the Minnesota Multiphasic Personality Inventory-2 test to be invalid. (Dr. Stillings found that employee provided the same invalid result on this test.) Dr. Daniel did not perform any other psychological testing. This means that Dr. Daniel was unable to rely on the results of any objective psychological testing in rendering his diagnoses, but instead was constrained to rely on employee's subjective complaints and symptoms. As a result, the persuasive force of Dr. Daniel's opinion turns to a substantial degree upon the extent to which we can rely upon employee's subjective description of his history, complaints, and symptoms.

Turning to employee's testimony and his statements to the evaluating and treating physicians, we find material inconsistencies. For example, on July 25, 2007, and August 20, 2009, during psychiatric treatment visits at University Hospital, employee admitted daily use of marijuana as a "sacrament." *Transcript*, page 579, 592. But

¹ Our review of the relevant provisions of Chapter 287 do