Michael Faught v. AT&T

such, and identified numerous, very specific reasons why he found the testimony from employee's medical experts to lack persuasive value.

After our own review of the record, we must agree with the administrative law judge's determination that employee's experts fail to provide persuasive support for his claim. Apart from the fact that they relied upon an incorrect history from employee with regard to his work duties, we additionally note that employee failed to provide Drs. Stuckmeyer and Fleming with highly pertinent medical records, including those from his primary care physician Dr. Frein. When confronted with these omitted records on cross-examination, both Drs. Stuckmeyer and Fleming agreed that it appears employee may have been suffering from the very injury claimed in this case (failed back syndrome) before the alleged captive sitting beginning in 2009. See Transcript, pages 957 and 1477. We have long held that medical expert opinion testimony rendered without the benefit of relevant medical history from the employee is generally inadequate to meet an employee's burden of proof, because it lacks foundation. Once again, we discern no basis to depart from that general rule in this case.

On page 8 of the administrative law judge's award, the administrative law judge states as follows: "Dr. Stuckmeyer admitted that it was significant that Dr. Thomas P. Laughlin with the KC Pain Centers had recommended a spinal cord stimulator to treat employee's complaints of low back pain in 2008, prior to [employee's] alleged 2009 occupational disease." Employee, in his brief, claims that the foregoing statement is incorrect, and that the administrative law judge has affirmatively misrepresented the record owing to alleged "bias and passion" against employee.

We have, of course, carefully reviewed all of the records from Dr. Laughlin, and it appears to us that while Dr. Laughlin did consider a spinal cord stimulator as a possible option to treat employee's preexisting failed back syndrome as of November 2004, he apparently ruled it out and did not approach employee with that option, and therefore did not technically "recommend" such for employee. Transcript, page 610. And, in the cross-examination of Dr. Stuckmeyer to which the administrative law judge refers, Dr. Stuckmeyer did not actually concede that Dr. Laughlin "recommended" a spinal cord stimulator, only that such had been "discussed" and that employee was "potentially a candidate for that." Transcript, page 958.

We provide the foregoing comments solely to make clear that we did not rely upon any mistaken understanding of Dr. Laughlin's records, or Dr. Stuckmeyer's concessions on cross-examination, in rendering our decision herein. At worst, the administrative law judge's choice of words was somewhat inaccurate, but we are not convinced that it affected his analysis in any way. More importantly, the distinction as to whether Dr. Laughlin "recommended" or merely "considered" a spinal cord stimulator, in our view, does not distract from the critical fact that employee failed to provide Dr. Stuckmeyer with the basic factual information regarding his preexisting medical history and treatment necessary to permit Dr. Stuckmeyer to render a persuasive opinion in this case. This includes the aforementioned records from Dr. Laughlin.

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

The award and decision of Administrative Law Judge Kenneth J. Cain, issued November 24, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 14^{\text {th }} \qquad$ day of September 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Michael Faught

Injury No. 09-082752

Dependents: N/A

Employer: AT\&T

Self-Insurer: Self-Insured

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: October 6, 2015

Briefs Filed: November 6, 2015

Checked by: KJC/lh

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: Alleged July 31, 2009.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? See additional Findings of Fact and Rulings of Law.
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: Employee, alleged that AT\&T adopted a mandatory sitting rule in January 2009 and that pursuant to the rule he was not allowed to take any breaks or lunch periods or

stand and stretch or to even go to the restroom. He alleged that he sustained an occupational disease due to the "repeatitive" $\{ sic \}$ sitting he was required to do pursuant to the rule.

1. Did accident or occupational disease cause death? No. Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Alleged low back.
3. Nature and extent of any permanent disability: None.
4. Compensation paid to-date for temporary disability: None.
5. Value necessary medical aid paid to date by employer/insurer? None.
6. Value necessary medical aid not furnished by employer/insurer? None.
7. Employee's average weekly wages: See Additional Findings of Fact and Rulings of Law.
8. Weekly compensation rate: See Additional Findings of Fact and Rulings of Law.
9. Method wages computation: See Additional Findings of Fact and Rulings of Law.

1. Amount of compensation payable: None.

Unpaid medical expenses: None.

Weeks for permanent partial disability: None.

Weeks for temporary total (temporary partial disability): None.

Weeks for permanent total disability: None.

Weeks for disfigurement: N/A

1. Second Injury Fund liability: None.

TOTAL: None

1. Future requirements awarded: None.

Said payments to begin as of N/A and to be payable and be subject to modification and review as provided by law.

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

Employee: Michael Faught

Injury No. 09-082752

Dependents: N/A

Employer: AT\&T

Self-Insurer: Self-Insured

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: October 6, 2015

Briefs Filed: November 6, 2015

Checked by: KJC/lh

Prior to the hearing, the parties entered into various admissions and stipulations. The remaining issues were as follows:

1. Accident or occupational disease;
2. Notice;
3. The nature and extent of any disability sustained by the employee;
4. Liability of the employer for 32 months of temporary total disability benefits covering the period July 31, 2009 to March 30, 2012¹;
5. Liability of the employer for $\ 19,570.31 in past medical aid; and
6. Liability of the Second Injury Fund for compensation, and if so the extent of the liability.

At the hearing, Mr. Michael Faught (hereinafter referred to as Claimant) testified that he was born on November 4, 1962 and that his last job was as a network center technician for AT\&T. He stated that in his job he answered phones, repaired service outlets in Missouri, Kansas, Arkansas, Oklahoma and later Texas by computer and that he did data entry work.

Claimant testified that he worked for AT\&T for 10 years. He stated that he worked the midnight to 8:00 a.m. shift. He stated that AT\&T instituted new rules and regulations when Southwestern Bell became part of it. He stated that pursuant to the new rules and regulations, network technicians were required to sit the entire 8 hour work shift. ${ }^{1}$ He stated that network

[^0]

[^0]: 1 Claimant testified on cross-examination by the Second Injury Fund that the mandatory sitting requirement was instituted by AT\&T in January 2009. Earlier, he had testified that new rules were instituted upon the merger of AT\&T and Southwestern Bell. The evidence showed that the merger occurred in 2005. Claimant never testified, however, that any mandatory sitting rules were instituted until 2009.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Michael Faught

Injury No. 09-082752

technicians were not allowed to take any breaks or lunch periods. He stated that because he had to be continuously logged into the telephone and computer, he could not stand nor move around to do his job.

Claimant testified that he complained to his s