Richard Wentzel v. Production Castings, Inc.

FINAL AWARD ALLOWING COMPENSATION

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 12-009601

Employee: Richard Wetzel

Employer: Production Castings, Inc.

Insurer: Farmington Casualty Co.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to determine the following issues: (1) whether employer is liable for additional temporary total disability benefits owing to a previous underpayment of same; (2) whether employer is liable for future medical treatment; (3) the nature and extent of any permanent disability; (4) whether any drug testing penalties are applicable in this case; (5) whether employee was terminated for post-injury misconduct for purposes of $\S 287.170 .4 RSMo; and (6) whether employee is entitled to costs under \S 287.560$ RSMo owing to employer's underpayment of temporary total disability benefits.

The administrative law judge rendered the following determinations: (1) Dr. Volarich's original permanent partial disability rating is probative and most easily reconciled with the balance of the record; (2) Dr. Volarich and Dr. Hurford both credibly endorsed employee's need for ongoing treatment; (3) no penalty is applicable in connection with a positive drug screen; (4) employer is liable for the stipulated amount of underpaid temporary total disability benefits; (5) there is nothing in the record to suggest employee was terminated from employment; and (6) employer did not defend the issue of underpayment of temporary total disability benefits without substantial evidence.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in determining employee is not permanently and totally disabled as a result of the work injury; and (2) in determining that employee is not entitled to sanctions pursuant to $\S 287.560$ RSMo.

For the reasons stated below, we modify the award of the administrative law judge referable to the issue of the nature and extent of permanent disability.

The parties have stipulated that employee suffered a compensable work injury on February 14, 2012, when he slipped and fell while carrying a heavy die casting in the course of his work performing die cast maintenance at employer's manufacturing facility. Employee suffered a trimalleolar fracture of the right ankle, and also claims to suffer from an ongoing pain syndrome affecting the right lower extremity. Employer's authorized treating pain management specialist, Dr. Patricia Hurford, diagnosed employee's ongoing complaints as complex regional pain syndrome (CRPS), based on her findings of multiple diagnostic criteria for CRPS during periodic examinations of the employee over the course of several years. On the other hand, employer presents expert medical opinions from Drs. John Krause, Joshua Nadaud, and Edwin Dunteman, each of whom question whether employee continues to suffer (or has ever suffered) from CRPS.

The administrative law judge did not indicate one way or another whether he accepts the diagnosis of CRPS. We are mindful that the parties did not specifically place in dispute any issue of medical causation, but the parties do advance conflicting evidence as to whether the diagnosis of CRPS is appropriate, and have argued the issue in their briefs. It would appear that the appropriate diagnosis of employee's (alleged) ongoing pain condition is a necessary component of any determination of the nature and extent of disability in this case, so we will first address the conflicting medical evidence as to the diagnosis of CRPS.

Dr. Hurford first diagnosed CRPS on August 3, 2012, and she thereafter periodically evaluated employee in the course of providing authorized treatment in connection with this condition. In fact, at the time of the hearing, Dr. Hurford continued to provide authorized treatment to employee for his ongoing complaints affecting the right lower extremity. In contrast, Drs. Nadaud and Dunteman saw employee on only one occasion each. The persuasive expert medical evidence on this record supports a finding that the symptoms of CRPS wax and wane, such that an affected individual may not always exhibit the diagnostic criteria for CRPS at any one time; we so find. It follows that Dr. Hurford's numerous, periodic examinations of employee would likely have provided her a better vantage point from which to evaluate whether a diagnosis of CRPS is appropriate in this case, versus the one-time evaluations from Drs. Nadaud and Dunteman. We so find.

Turning to Dr. Krause's deposition, we note that he challenged Dr. Hurford's diagnosis of CRPS on the basis that he did not find, upon his own post-surgical examinations of the employee, enough criteria for CRPS to endorse that diagnosis. However, Dr. Krause failed to acknowledge Dr. Hurford's notes, which memorialize numerous findings supporting her diagnosis of CRPS, such as discoloration, temperature differences, vasomotor changes, hypoesthesia, and allodynia. When confronted with certain of these notes on cross-examination, Dr. Krause incorrectly suggested that Dr. Hurford didn't really observe any of these findings herself, but instead merely recited

employee's subjective reporting of them. ${ }^{1}$ Upon further questioning, Dr. Krause revealed he simply didn't believe employee's complaints of ongoing severe pain in his right lower extremity:

Q. But if in fact he truly does have that pain, isn't that a sign or symptom of CRPS?

A. If he truly has that pain, it wouldn't be magnified. It would be legitimate. His was magnified.

Transcript, page 830.

While we appreciate Dr. Krause's expert testimony as to medical issues, a testifying employee's credibility (or lack thereof) is an administrative determination within the sole discretion of the fact-finder. See Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 86 (Mo. App. 1995). The administrative law judge did not squarely address the issue of the credibility of employee's pain complaints, or even his general credibility as a witness at the hearing. Consequently, we are unable to rely upon or defer to any finding from the administrative law judge with respect to employee's credibility.

Upon our own careful review of the entire record, we find employee's testimony to be consistent, logical, and persuasive. We discern no basis to reject employee's pain complaints. ${ }^{2}$ We find employee credible. Consequently, where Dr. Krause's medical opinion regarding the diagnosis of CRPS appears to turn upon his own choice to disbelieve employee's pain complaints, and where Dr. Krause failed to persuasively explain why he rejected and/or ignored the numerous findings indicative of CRPS documented by Dr. Hurford, we find his testimony to lack sufficient persuasive force on this issue.

Instead, crediting Drs. Hurford, Guarino, and Volarich, we find that employee has CRPS, and that this condition continues to afflict his right lower extremity, causing

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[^0]: ${ }^{1}$ Upon her own physical examination of employee's right lower extremity, Dr. Hurford recorded significant temperature difference, hyperemic changes, hypoesthesia, and severe dysesthesia on July 17, 2012; temperature difference, increased rubor, allodynia, and hypoesthesia on September 6, 2012; temperature difference, discoloration, allodynia, and hypoesthesia on September 19, 2012; temperature difference and vasomotor changes on December 12, 2012; hypopigmentation on November 18, 2013; erythema, dysesthesia, and temperature changes on February 17, 2014; dysesthesia and erythema on March 31, 2014; swelling, allodynia, and dysesthesia on July 21, 2014; and allodynia and dysesthesia on November 4, 2014. See Transcript, pages 164-205.

${ }^{2}$ Apparently, employer obtained surveillance footage of employee, which several of the medical experts addressed in their reports and testimony. Owing to employer's failure to offer this surveillance footage as evidence at the hearing in this matter, we are unable to determine whether said footage materially contradicts employee's testimony. In any event, because Dr. Hurford specifically instructed employee to attempt desensitization exercises such as walking and wearing shoes, any footage depicting same would not detract from employee's otherwise persuasive testimony that such activities cause him to experience pain and discomfort. We find most compelling Dr. Hurford's own comments with regard to the surveillance: "[T]he surveillance is not in any way contrary to expected or anticipated behavior." Transcript, page 205.

regular flare-ups of hypersensitivity with intractable pain. When his CRPS is particularly painful, employee is unable to stand longer than 45 minutes, and spends most of the day lying down with his right foot elevated on a pillow. He is unable to wear socks or normal shoes for more than half an hour before suffering pain and swelling. At the time employee reached maximum medical improvement, he was 47 years of age, with a recent work history devoted mostly to machine operation and general manufacturing work. Employee is unable to return to such jobs, owing to his inability to withstand prolonged standing, walking, or weight-bearing.

Having resolved the issue whether employee suffers from ongoing CRPS, we must now revisit the question whether employee is permanently and totally disabled owing to the effects of the work injury.

The test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.

Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011).

The parties presented conflicting expert vocational testimony with regard to whether any employer would be expected to hire employee in his present physical condition. We note that employer's expert, Donna Abram, was not provided with records from Dr. Hurford after August 22, 2012, including Dr. Hurford's note from January 14, 2013, placing employee at maximum medical improvement and imposing restrictions. ${ }^{3}$ After careful consideration, we find unpersuasive Ms. Abram's ultimate opinions in this case, as she was not fully informed of employee's medical history.

Turning to employee's vocational expert, Timothy Lalk, we note his testimony that he brings to this case a familiarity with the vocational implications of CRPS, derived from his training and study of medical records and transcripts from expert medical witness depositions on the topic. Mr. Lalk accepted employee's complaints referable to the diagnosis of CRPS and rendered his vocational recommendations accordingly. Mr. Lalk believes that employee's symptoms and limitations prevent him from successfully competing for any position in the open labor market. After careful consideration, we find Mr. Lalk's analysis to be most persuasive, as it properly takes into account employee's ongoing symptoms and limitations referable to CRPS.

In sum, we believe employee continues to suffer from CRPS affecting the right lower extremity, and we cannot imagine any employer could reasonably be expected to hire employee in his present physical condition resulting from the effects of the work injury. We credit the opinions from Dr. Volarich and Mr. Lalk. We