Kevin Cook v. Archdiocese of St. Louis

1. The ALJ concluded that Dr. Cantrell was better informed and more persuasive than Dr. Poetz but failed to explain or point out any facts to support this conclusion.

The foregoing leaves us with several concerns:

First, we note that these allegations of error are not only ungrammatical but also, in large measure, incomprehensible.

Second, we note that employee does not allege in his application for review that the administrative law judge erred in failing to award benefits for permanent total disability but, rather, alleges that the administrative law judge incorrectly determined the synergistic effect of employee's work-related and preexisting injuries. A permanent total disability determination requires no showing of synergy. See Lewis v. Treasurer of Mo., 435 S.W.3d 144, 157 (Mo. App. 2014). In his brief and at oral argument, employee failed to identify any evidence of synergy and advanced no argument that he should be awarded permanent partial disability benefits but, instead, argued he should be awarded benefits for permanent total disability.

Third, specific allegations of error set forth in employee's application for review are patently untrue. Employee alleges that the administrative law judge "placed too much emphasis on the testimony of Dr. Buchowski." In fact, Dr. Buchowski did not testify in this case. Employee further alleges (and reiterates in his brief) that the administrative law judge "failed to explain or point out any facts" to support his conclusion that Dr. Cantrell was more persuasive than Dr. Poetz. In fact, the administrative law judge provided several very specific reasons why he found Dr. Poetz's testimony less persuasive: (1) Dr. Poetz failed to consider employee's thirteen-level spinal fusion surgery of September 2012 in rendering his opinions; (2) Dr. Poetz failed to mention his own referral to Dr. Buchowski in December 2006 in connection with employee's preexisting diagnosis of Scheuermann's kyphosis; and (3) Dr. Poetz unpersuasively attempted to relate employee's (alleged) psychiatric disability referable to depression solely to the primary injury, notwithstanding records demonstrating that employee's depression preexisted the primary injury. This lack of candor on the part of employee's counsel toward this tribunal is troubling, to say the least.

As to employee's brief, we find that he has not provided a single colorable argument why the administrative law judge erred in crediting Dr. Cantrell over Dr. Poetz, and in fact does not even acknowledge the existence of Dr. Cantrell's testimony or opinions at all in his brief. Employee's counsel failed to separate employee's medical records and opinion evidence into separate exhibits, and instead submitted a single exhibit consisting of eighthundred sixty-seven pages. In his brief, he fails to provide a single citation directing us to where Dr. Poetz's opinions can be found. We decline to act, in effect, as advocates by combing through the record searching for and piecing together facts in support of employee's claim.

The Second Injury Fund stipulated that employee sustained an accident at work on September 1, 2009. Based on the record before us, we find employee credible and that he is now totally disabled. This stipulation and these findings alone, of course, do not

establish any liability on the part of the Second Injury Fund. In our judgment, regardless of the failings and shortcomings of advocacy noted above, employee's claim is ultimately, entirely undermined by its reliance on fundamentally uninformed medical opinions and testimony. Dr. Poetz last examined employee in February 2011, apparently without benefit of access to relevant medical records. Dr. Poetz testified in August 2011. Employee subsequently underwent a major, multi-level surgical procedure involving the same parts of his body that are the subject of both his work-related and preexisting injuries and conditions. We find that the opinions rendered and testimony given by Dr. Poetz in this case, because they fail to take into account the findings or the results of such a major, relevant surgical procedure, are almost devoid of probative value and entirely unpersuasive.

For the foregoing reasons, we affirm the administrative law judge's determination that employee has failed his burden of proof, and that the accident of September 1, 2009, was not the prevailing factor causing employee to sustain any identifiable medical condition or disability.

All other issues are moot.

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

The award and decision of Administrative Law Judge Joseph E. Denigan, issued April 9, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **14th** day of January 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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 accident or onset of occupational disease: September 1, 2009
5. State location where accident occurred or occupational disease contracted: St. Louis County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
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 happened or occupational disease contracted: Employee was retrieving paint supplies from closet shelf.
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: spine (alleged)
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? -0 -

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: PPD stipulated at 422.97; TTD/PTD disputed.
4. Method wages computation: Stipulation/moot

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

-0-

1. Future requirements awarded: N/A

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to Claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to Claimant: N/A

Employee: Kevin Cook

Departments: N/A

Employer: Archdiocese of St. Louis (settled)

Additional Party: Second Injury Fund

Insurer: Self-Insured (settled)

Hearing Date: January 6, 2015

Injury No.: 09-110050

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves an accident and injury to Claimant's spine alleged to be compensable and permanent in nature with the reported accident date of September 1, 2009. Employer/ Insurer previously settled its risk of liability. The parties stipulate Employer paid no medical or TTD benefits. The Second Injury Fund ("SIF") is a party to this claim. Both parties are represented by counsel.

1. medical causation;
2. nature and extent of permanent disability;
3. liability of the SIF;
4. average weekly wage.

1. Claimant, currently unemployed, was last employed at one of Employer's high schools as an art teacher, earning $\ 30,000.00 annually, or $\ 575.92 weekly.
2. Claimant sustained accidental injury while moving some paint supplies from the top shelf to the floor inside a classroom closet. The paint cans fell on him. He felt pain symptoms in his upper to mid-back area.
3. Despite serious pre-existing spinal pathology and surgery for that specific pathology later in 2012, Claimant finished his shift on the day of the accident and worked the next day. Claimant indicates in his brief that as of October 2009, he "was no longer able to be employed with the Archdiocese or with anyone."
4. He had treated with his chiropractor, Dr. Riesenberger, up to the day of the reported accident, and, after the reported accident, when he described his reported pain as 8 or 9 on a scale of 10 .
5. Claimant takes morphine for pain and an anti-anxiety medication.

1. Claimant has not worked since October 2009 when he terminated his employment without settlement or award of benefits; he settled his case in December 2012 (Exhibit 1).
2. In 1993, Claimant developed thoracic spine symptoms for which he underwent injection therapy, physical therapy and chiropractic care "for about a year."
3. In 2005, Claimant fell on his buttocks while carrying a portable air condit