Clayton Hosmann v. Bill Grant Ford

Correcting Final Award Denying Compensation

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion) dated October 27, 2017

(Correction In Bold and Underlined)

Injury No.: 12-106338

Employee: Clayton Hosmann

Employer: Bill Grant Ford

Insurer: Auto Owners Insurance Co.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the administrative law judge (ALJ) 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.

In a workers' compensation case, the employee carries the burden of proving all essential elements of the claim. ${ }^{1}$ An employee's testimony may be so contradictory and conflicting that it lacks probative force and is self-destructive. ${ }^{2}$ In this case, we defer to the ALJ's determination regarding the employee's lack of credibility regarding his medical history, physical limitations, and restrictions.

As noted by the ALJ, the parties in this case offer competing and contrasting views from two medical experts and adjudication of employee's claim turns on consideration of which physician provides the more persuasive and compelling evidence:

Dr. Swaim opines that Mr. Hosmann sustained an occupationally related, cumulative trauma injury in the nature of lumbar pain, lumbar radiculopathy, and L3-L4 instability. . . . Dr. Swain opines that Mr. Hosmann's employment as a detailer, while working for Bill Grant Ford, is the prevailing factor in causing the cumulative trauma injury. In rendering this opinion, Dr. Swaim relies upon the medical and occupational history provided to him by Mr. Hosmann and based on this history makes multiple assumptions as to the nature and extent of the trauma experienced by Mr. Hosmann in his employment as a detailer working for Bill Grant Ford.

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[^0]: ${ }^{1} Fischer v. Archdiocese of St. Louis, 793 S.W.2d 195, 198 (Mo. App. 1990).

{ }^{2}$ Sita v. Falstaff, 425 S.W.2d 487 489, (Mo. App. 1968).

Dr. Swaim [also] premises his medical opinion significantly on the assumption that Mr. Hosmann did not suffer from any significant back pain prior to his engagement in employment with Bill Grant Ford. The medical records, however, indicate that Mr. Hosmann suffered from significant back pain, including indications of radicular pain and/or numbness prior to his employment with Bill Grant Ford. ${ }^{3}$

Dr. Belz took a much more detailed work history from Mr. Hosmann and also reviewed Mr. Hosmann's prior job descriptions and extensive medical records. He did not rely solely on Mr. Hosmann's testimony. . . . Dr. Belz provided a credible explanation for the basis of his medical diagnosis. In this context, Dr. Belz diagnosed Mr. Hosmann's presenting low back pain with left leg radiculopathy (pain and numbness) as a progressive disease in the nature of inflammatory polyarthropathy of the facet joints. . . .

Dr. Belz provided a credible explanation as to the cause and effect of this immune-mediated disease, including development of degenerative spondylolisthesis and the resulting instability at L3-L4, which is unrelated to Mr. Hosmann's employment with Bill Grant Ford or any prior employment. ${ }^{4}$

We defer to and adopt the ALJ's finding that the employee is not credible. We agree that employee's lack of credibility (particularly regarding his description of the progression and chronicity of his complaints) fundamentally undermines Dr. Swaim's opinions regarding medical causation. Ultimately, to the extent Dr. Swaim's opinions rely of necessity on employee's account of his medical history, they rely on facts not proven and lose probative force. We disavow, however, any finding that the opinions of Dr. Belz are more credible, more persuasive, or more compelling than those of Dr. Swaim. We note Dr. Belz's sworn testimony that "there is no occupational causation associated with manual material handling, even up to one hundred repetitions per day, that is repeatedly lifting a hundred times 110 pounds."5 We find this testimony unbelievable. As a factual matter, we also reject any finding that employee's presenting medical condition is the result of a progressive immune-mediated disease that cannot conceivably be related to repetitive, biomechanical occupational exposures. Because we conclude that employee fails his burden of proof, any defects in employer's expert's medical analysis are irrelevant. See Seifner v. Treasurer of the State of MissouriCustodian of the Second Injury Fund, 362 S.W.3d 59, 66-67 (Mo. App. 2012); Bowman v. Cent. Mo. Aviation, Inc., 497 S.W.3d 312, 318-321 (Mo. App. 2016).

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

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[^0]: ${ }^{3} Award, 27-28.

{ }^{4} Id. 29.

{ }^{5}$ Transcript, 1315.

The award and decision of Chief Administrative Law Judge L. Timothy Wilson, issued December 20, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $31^{\text {st }}$ day of October 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Clayton Hosmann

Injury No. 12-106338

Dependents: N/A

Employer: Bill Grant Ford

Insurer: Auto Owners Insurance Co.

Additional Party: N/A

Hearing Date: October 11, 2016 (Evidentiary Record Closed Nov. 10, 2016)

Checked by: LTW

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: Allegedly Nov. 20, 2012
5. State location where accident occurred or occupational disease was contracted: Allegedly Polk County, Missouri. (The parties agreed to venue lying in Greene County, Missouri.) Venue is proper.
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? N/A (Employee did not sustain an injury by accident or incident of occupational disease.)
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 alleges that he sustained an occupational injury to his low back in the nature of cumulative trauma. However, Employee's position is not accepted by the undersigned judge. Rather, it is determined that Employee suffers from an immune-mediated disease unrelated to Employee's employment with Employer.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Allegedly Low Back \& BAW
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 438.07
3. Weekly compensation rate: $\ 292.06 (TTD, PTD, PPD)
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: None

Weeks of temporary total disability (or temporary partial disability): None

Weeks of permanent partial disability from Employer/Insurer: None

Weeks of disfigurement from Employer/Insurer: None

Permanent total disability benefits from Employer/Insurer: None

1. Second Injury Fund liability: N/A

TOTAL: None

1. Future requirements awarded: N/A

Employee: Clayton Hosmann

Injury No. 12-106338

Dependents: N/A

Employer: Bill Grant Ford

Insurer: Auto Owners Insurance Co.

Additional Party: N/A

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on October 11, 2016. The evidentiary record was left open for 30 days in order to afford the parties opportunity to submit additional evidence. Further, the parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about November 21, 2016.

The employee appeared personally and through his attorney, Randy Alberhasky, Esq. The employer and insurer appeared through their attorney, Patricia Musick, Esq.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about November 20, 2012, Bill Grant Ford was an employer operating under and subject to The Missouri Workers' Compensation Law and during this time was fully insured by Auto Owners Insurance Co.

(2) On the alleged injury date of November 20, 2012, Clayton Hosmann was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.

(3) The above-referenced employment and alleged accident or incident of occupational disease occurred in Polk County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(5) The employee notified the employer of his injury as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the alleged accident or incident of occupational disease of November 20, 2012, the employee's average weekly wage was $\ 438.07, which is sufficient to allow a compensation rate of $\ 292.06 for temporary

total disability compensation, permanent total disability compensation, and permanent partial disability compensation.

(8) Temporary total disability compensation has not been provided to the employee.

(9) The employer and insurer have not provided medical treatment to the employee.

The issues to be resolved by hearing include:

(1) Whether the employee sustained an accident or incident of occupational disease on or about November 20, 2012. And, if so, whether the accident or occupational disease arose out of and in the course of his employment with the employer.

(2) Whether the alleged accident or incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed.

(3) Whether the employer and insurer are obligated to pay for certain past medical care and expenses. (Included in this issue is whether the past medical care was reasonable and necessary in order to cure and relieve the employee from the effects of the claimed injury.)

(4) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries.

(5) Whether the employee is entitled to temporary total disability compensation.

(6) Whether the employee sustained any permanent disability as a consequence of the alleged accident or incident of occupational disease of November 20, 2012. And, if so, what is the nature and extent of the disability?

The employee testified at the hearing in support of his claim. Also, the employee presented at the hearing of this case the testimony of his wife, Jeanette Hosmann. In addition, the employee offered for admission the following exhibits:

Exhibit 1 $\qquad Medical Records from Citizens Memorial Hospital (Certified 03.12.14)

Exhibit 2 \qquad Medical Records from Citizens Memorial Hospital (Certified 04.20.16)

Exhibit 3 \qquad$ Medical Records from CoxHealth (Certified 02.18.14)

Exhibit