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 4

Medical Records from Mercy Hospital (Certified 04.13.16)

Exhibit 5 Medical Records from Mercy Hospital (Certified 09.02.14)

Exhibit 6 Medical Records from Mercy Hospital (Certified 02.26.14)

Exhibit 7 Medical Records from Springfield Neurological \& Spine Institute (Certified 02.05.14)

Exhibit 8 Medical Report \& CV of Truett Swaim, M.D. (Dated 03.24.14)

Exhibit 9 Medical Report Addendum of Truett Swaim, M.D. (Dated 11.13.14)

Exhibit 10 Medical Report Addendum of Truett Swaim, M.D. (Dated 05.24.16)

Exhibit 11. Vocational Report \& CV of Wilbur Swearingin, CRC (Dated 04.15.16)

Exhibit 12 Medical Report \& CV of Norbert Belz, M.D. (Dated 09.03.15)

Exhibit 13. Missouri Division of Workers' Compensation File

Exhibit 14 Amended Claim for Compensation

Exhibit 15...... Answer of Employer/Insurer to Amended Claim for Compensation Exhibit 16 Section 287.210, RSMo Letter (Dated 09.23.14)

Exhibit 17 Section 287.210, RSMo Letter (Dated 11.14.14)

Exhibit 18 Disclosure of Medical Records 02.19.15

Exhibit 19 Disclosure of Medical Records 04.12.16

Exhibit 20 Disclosure of Medical Records 04.18.16

Exhibit 21 Disclosure of Medical Records 04.21.16

Exhibit 22 Disclosure of Medical Records 04.26.16

Exhibit 23 Disclosure of Medical Records 05.05.16

Exhibit 24 Disclosure of Medical Records 05.11.16

Exhibit 25 Disclosure of Medical Records 06.24.16

Exhibit 26 Section 287.210, RSMo Letter (Dated 06.02.16)

Exhibit 27 Deposition of Clayton Hosmann

Exhibit 28 Deposition of Truett Swaim, M.D.

(Inclusive of Deposition Exhibits)

Exhibit 29 Deposition of Norbert Belz, M.D.

(Inclusive of Deposition Exhibits)

Exhibit 30 Deposition of Wilbur Swearingin, CRC

(Inclusive of Deposition Exhibits)

Exhibit 31 Disclosure of Medical Records 07.26.16

Exhibit 32 Medical Records from Citizens Memorial Hospital (Certified 04.02.16)

Exhibit 33 Billing Records from CoxHealth

Exhibit 34 Billing Records from Mercy Health (02.24.14 - 10.27.14)

Exhibit 35 Billing Records from Mercy Health (01.18.14 - 02.09.14)

Exhibit 36. $\qquad$ Wal-Mart Pharmacy Records

The exhibits were received and admitted into evidence.

The employer and insurer presented one witness at the hearing of this case - Dallen Gettling. In addition, the employer and insurer offered for admission the following exhibits:

Exhibit A Deposition of Clayton Hosmann

Exhibit B Deposition of James England, CRC

(Inclusive of Deposition Exhibits)

Exhibit C Deposition of Norbert Belz, M.D.

(Inclusive of Deposition Exhibits)

Exhibit D Medical Bills Summary Report

Exhibit E Affidavit from Mercy Hospital

(Inclusive of Attached Billing Records)

Exhibit F. Video Surveillance (DVD)

Exhibit G Video Surveillance (DVD)

Exhibit H Video Surveillance (DVD)

Exhibit I Video Surveillance (DVD)

Exhibit J Affidavit from Citizens Memorial Hospital

(Inclusive of Attachment)

Exhibits A, B, C, E, F, G, H, and I were received and admitted into evidence at the hearing. Exhibit D was received and admitted as a demonstrative exhibit only at the hearing. Exhibit J was received subsequent to the hearing, and within the 30-day period the evidentiary record was open for submission of additional evidence. The employee objected to the admission of Exhibit J on grounds that it is inadmissible hearsay. The objection is sustained. Exhibit J is received but not admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

- E-mails from Counsel for Employer/Insurer and Counsel for Employee

- Notice of Hearing

- Answer of Employer/Insurer to Amended Claim for Compensation (Filed 07.27.16)

- Answer of Employer/Insurer to Amended Claim for Compensation (Filed 02.14.16)

- Amended Claim for Compensation (Filed 02.07.16)

- Answer of Employer/Insurer to Original Claim for Compensation (Filed 02.14.16)

- Original Claim for Compensation (Filed 02.07.16)

- Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The employee, Clayton Hosmann, is 53 years of age, having been born on October 27, 1963. Mr. Hosmann resides in Polk County, Missouri. He graduated from Bolivar High School in 1982 .

Mr. Hosmann's employment history is varied and involves employment with multiple employers. Following high school, Mr. Hosmann attended Wichita Automotive and Electronics Institute, majoring in automotive mechanics and obtained certification in automotive mechanics from Wichita Automotive and Electronics Institute in May of 1983. Through this education, and as a consequence of his varied work experience, Mr. Hosmann possesses basic knowledge and skills in performing basic bookkeeping, using a computer, and operating diagnostic mechanical computer equipment. Additionally, he has experience in working as a supervisor for five employees and has past experience in operating numerous types of farm and work equipment, including large and small tractors, front loaders, combines, and forklifts. In addition to his knowledge of automobiles, he is also well versed in the use of mechanics' tools and equipment.

In 1983, Mr. Hosmann obtained employment with Goodyear Tire Company and engaged primarily in customer service work and tire changing. He engaged in this employment for approximately two years. In or around 1985, Mr. Hosmann obtained employment with another employer, Zenith Color TV, working in production and janitorial work. Also, he drove a clamp truck, which involved taking the finished product (TVs) out to the warehouse. Rollers would roll the TVs down a table that had rollers on it and they'd stack them up, and the clamp truck driver would clamp onto them and take them back to the warehouse and put them in a stock row. The production work performed by Mr. Hosmann included building TVs on an assembly line, specifically putting the CRT (picture tubes) in the cabinets, bolting them down, installing the motherboard, and hooking up wires. He continued in this employment through 1991.

In or around 1992, Mr. Hosmann obtained employment with another employer, Teters Floral Products, working in production. This work included building trellises for floral arrangements. According to Mr. Hosmann, this work involved a lot of lifting and bending. He continued in this employment for six months. Also, in or around 1992, Mr. Hosmann obtained employment with another employer, Earl Scheib, working as an auto body technician. In this employment Mr. Hosmann worked as the head body man, doing body work and painting cars. The painting duties included taping the cars, wiping the cars down, mixing the paint/primer, and spray painting the vehicles. He would handle up to 12 vehicles per day. There was heavy lifting ( 60 pounds) involved dependent on the parts that were being repaired. He would work 10-hour days, typically two hours were spent on body work and the rest painting and managing other employees as well as delegating tasks on new jobs. He continued in this employment through 2001.

In 2001, and continuing through May of 2009, Mr. Hosmann obtained employment with another employer, Bristol Manufacturing, working as head painter and quality control monitor. As the head painter, Mr. Hosmann was responsible for setting the paint booth up, monitoring and ensuring seven paint guns painted correctly, and spray painting the inside and outside of a 55-

gallon drum. He had to ensure all surfaces of the drum were painted. An empty drum would weigh 45 pounds. He would have to pick up the drum to place it on the assembly line to prep it for the painting process. To do this, the drum would have to be lifted about head level to place on the roller conveyor. He would then inspect the drums for holes and physically have to manipulate them to do so and move them to hanger area. After the painting process, a hanger would remove the drums from the assembly line, and he would then take them to an oven. The painting quota was 2500-2800 drums a day. He had to handle manually each of the 2500-2800 drums. He continued in this employment through 2009.

In addition, while engaged in the employment noted above, Mr. Hosmann engaged in self-employment activity. He worked on outside body work and painting jobs that he performed out of his own residence. This included repainting vehicles, including semi-trucks and pickup trucks. Also, he would rebuild vehicles that had been involved in accidents. Additionally, he farmed land and raised cattle. The farm was situated on 157 acres and involved primarily growing hay and raising cattle. According to Mr. Hosmann, he last farmed in the year 2000. All of the hay stacking occurred manually.

In or around May 2009, Mr. Hosmann obtained employment with the employer, Bill Grant Ford, working as a detailer. He continued in this employment through 2013. In this employment, Mr. Hosmann's duties consisted primarily of automobile detailing, but he would also perform sales preparation and some mechanical activities. Intermittently, he would change batteries, change oil, fix and rotate tires, and grease vehicle. Tire changing consisted of having someone take the tire off, then running the tire machine and taking the tire off of the rim and then mounting a new one on the rim, rolling it back to the vehicle, picking it up and putting it back on the vehicle. The tires could range from 40-80 pounds. Occasionally, he worked on F-350 trucks, which are one-ton pickup trucks. The work on these trucks involved installation of a push bar on the front bumper, installation of side steps, and installation of bedliners and mudflaps. Additionally, his duties included mowing the lot and moving cars around the lot.

The detail and prep work included washing and waxing the exterior of vehicles, which he did by hand. However, this work was not limited to the exterior cleaning of vehicles. His work duties regularly involved cleaning the engines, cleaning the interior, and sometimes he was required to strip the whole interior of the vehicle. The stripping of the interior of vehicles involved pulling carpet and power washing, removing seats in order to treat and remove stains, vacuuming, removing and repairing/replacing headliners. Notably, his occupational duties frequently involved getting into awkward positions while cleaning the interior of vehicles and while removing and replacing and/or adding carpet, headliners, seats, dashboards, and various accessories.

The detail and prep work primarily related to the process of getting used vehicles ready for resale, and he commonly worked on five to eight vehicles per day. In this employment, Mr. Hosmann would work eight hours a day Monday through Friday, and he worked an additional four hours every other Saturday, averaging 40-45 hours per week.

Prior to the alleged claim of injury, which is alleged to have occurred on November 20, 2012, Mr. Hosmann suffered a medical condition which caused him to present with certain

permanent disability. This prior medical condition includes a surgically-repaired hernia. Notably, in or around 2003, Mr. Hosmann sustained an injury in the nature of a right inguinal hernia. The medical records indicate that Mr. Hosmann underwent a "plug-and-patch technique" surgical repair performed by C. Bruce Rotton, D.O., on January 29, 2003. He returned to work following his recovery from this injury.

Also, prior to November 20, 2012, Mr. Hosmann suffered from significant low back and radicular pain. Yet, the nature and effect of this medical condition is not readily identified by the employee as a preexisting medical condition and is merged into the claim of injury. Discussion of this low back condition as it existed prior to November 20, 2012, is thus incorporated into the discussion of the alleged accident or incident of occupational disease.

The employee alleges that he sustained an injury to his low back as a consequence of an accident or incident of occupational disease occurring on or about November 20, 2012. As an alleged accident, Mr. Hosmann asserts that on November 20, 2012, he was engaged in detailing of a F350 pickup truck, which involved removal of interior parts, including the carpet, seats, console, headliner, and door panels. Additionally, this detail work included installation of a push bar on the front of the truck and installation of four new tires. According to Mr. Hosmann, as a consequence of performing this work, he sustained an injury to his low back. In describing this injury, Mr. Hosmann states that on this date he felt pain in his lower back, so much that he couldn't bend over, he could barely move. Mr. Hosmann further states that at this time his left leg went numb.

Upon suffering this occurrence of pain, Mr. Hosmann called over his supervisor, Tom Hayes, who took over and completed the work tasks. Mr. Hosmann then reported the injury to Kelly Grant and Mark Lockman and called his wife to take him for medical treatment.

Alternatively, and relying upon the medical opinion of his examining physician, Truett Swaim, M.D., Mr. Hosmann alleges an occupational injury to his low back caused by the repetitive and cumulative trauma associated with his employment with the employer, Bill Grant Ford, which began in 2009 and continued through 2013. Additionally, in identifying the occupational exposure attributable to him sustaining an injury to his low back, Mr. Hosmann identifies the work duties he performed in his prior employment with Bristol Manufacturing, which involved working as head painter and quality control monitor from 2001 to 2009.

The facts presented in this case and the nature of the claim of injury requires consideration of the presenting history, which includes a history of Mr. Hosmann suffering chronic low back pain with radiculopathy and regularly seeking treatment that included receipt of narcotic pain medication. This history is noted below.

In April 2008, Mr. Hosmann presented to the emergency room of Citizens Memorial Hospital with complaints of a two-week history of coughing and back spasms. The attending physician diagnosed Mr. Hosmann with bronchitis and back pain and prescribed antibiotics for treatment of this medical condition. The physician providing an independent medical examination for Mr. Hosmann, Truett Swaim, M.D., identified this prior injury to the low back as a strain causally related to coughing, which he says resolved without Mr. Hosmann suffering

any residual permanent disability.

Yet, in 2009, Mr. Hosmann obtained additional medical treatment for low back pain. On January 31, 2009, Mr. Hosmann presented to the emergency room of Citizens Memorial Hospital with complaints of waking-up that morning with back pain. There was no history of an injury. The pain was worse with movement. Lumbar spine x-rays revealed mild degenerative disc disease at the L5-S1 level with mild disc height reduction and S1 spina bifida occulta. Examination revealed tenderness right of the spine and in the right S1 joint region. He was treated with analgesic medication and muscle relaxant.

Also, in 2009, according to Mr. Hosmann, while trying to lift/slide a big drum of paint that weighed 850 pounds up onto the top of the pallet in the paint room, he slipped on oil dry, a kitty litter type absorption substance, that was on the floor and threw out his back. He sought treatment with Dr. Tedrow at Bolivar Family Care Center. "I told him that I got up one morning, and couldn't move or walk. I did tell him that I had-that my job consisted of heavy lifting, and I didn't know if that was attributed to my back doing that, but I figured it did because I slipped."

In light of continuing and unresolved back pain, on May 1, 2009, Mr. Hosmann underwent diagnostic studies in the nature of lumbar spine x-rays, which revealed disc height narrowing at the L5-S1 level and degenerative facet changes at the L4-L5 and L5-S1 levels. The attending physician diagnosed possible symptomatic neural foramina narrowing at L5-S1.

On October 5, 2010, Mr. Hosmann underwent a diagnostic study in the nature of an x-ray of the lumbar spine, ordered by Jeffrey R. Tedrow, M.D., Bolivar Family Care Center. The recorded history at the time of this examination, notes the following:

The patient is a 46-year-old male who presents with an complaint of back pain. The pain has been occurring for years. The course has been increasing (last two days). The pain is characterized as burning. The pain is described as being located in the lower back. The pain radiates to the left thigh. There are no precipitating factors. The symptoms are aggravated by prolonged standing. The symptoms are relieved by lying down. The pain has been associated with back stiffness, hip pain and leg weakness.

The physical examination revealed tenderness in the medial low back region; the pain was mild and increased with sustained postures; there was pain with movement; the pain referred to the hips bilaterally; "straight leg raising" was positive on the left. The diagnosis offered by Dr. Tedrow was sciatica with low back pain. Dr. Tedrow treated the condition conservatively with medications and scheduled follow-up treatment.

On November 5, 2010, Mr. Hosmann returned to the Bolivar Family Care Center with complaints of persistent back pain. The pain had been increasing. Symptoms were aggravated by lifting, prolonged standing, and prolonged sitting. Pain would improve by lying down. Mr. Hosmann was prescribed medications, and a lumbar MRI scan was ordered.

On November 15, 2010, the MRI scan of the lumbar spine revealed the following:

- At the L1-L2 level, there was mild diffuse posterior protrusion of the disc but no

neural compression.

- At the L3-L4 level, there was moderate diffuse posterior disc protrusion with flattening of the thecal sac and canal stenosis with bilateral foraminal narrowing and mild bilateral facet arthritis without compression of the nerve root.

- At the L5-S1 level, there is loss of disc height and dehydration of the disc with mild diffuse posterior disc protrusion with no canal stenosis or compression of the nerve roots.

On January 25, 2011, Mr. Hosmann followed up at Bolivar Family Care Center with complaints of chronic lumbar pain. The pain radiated to his left lateral thigh. He also complained of developing headaches one week prior. Effect was tender.

On March 6, 2011, and upon referral by Dr. Tedrow, Mr. Hosmann presented to Edwin J. Cunningham, M.D., a neurosurgeon with Springfield Neurological \& Spine Institute, with chief complaints of low back pain and left leg pain. He reported having pain for three years but the pain was becoming more persistent. He denied any past injury. He stated that he worked as a mechanic and had several days off recently. Dr. Cunningham reviewed the MRI scan and assessed that there was mild L3-L4 stenosis and what appeared to be a small nerve sheath tumor, which the radiologist did not mention. Dr. Cunningham diagnosed the condition as low back pain with left leg pain/weakness in the L3 and L4 distribution.

On March 22, 2011, Mr. Hosmann underwent an MRI scan of the lumbar spine, with and without contrast. This study revealed the following:

- At the L1-L2 level, there was degenerative disc disease with an annular fissure centrally.

- At the L3-L4 level, there were degenerative changes which resulted in mild spinal canal stenosis centrally, a $4-\mathrm{mm}$ intradural nodule at L3-L4 on the right, presumably representing a nerve sheath tumor.

- At the L5-S1 level there was mild degenerative disc disease without significant narrowing of the spinal canal.

On May 5, 2011, Mr. Hosmann began receiving physical therapy for treatment of his low back. This treatment occurred through Citizens Memorial Healthcare and involved six sessions.

On November 28, 2011, Mr. Hosmann presented to Paul S. Stortz, M.D., Citizens Memorial Healthcare - Southside Medical Center, for severe back pain with radicular symptoms in both legs. He had been previously evaluated and treated by Dr. Tedrow and had undergone spinal decompression therapy and epidural injections without a great deal of relief. Physical exam revealed diffuse lumbar paraspinal tenderness and low back pain with "straight leg raising" past 30 degrees bilaterally. Dr. Stortz diagnosed the condition as chronic low back pain, osteoarthritis. The treatment offered to Mr. Hosmann involved prescription medication, which included tizanidine, hydrocodone, acetaminophen, and ibuprofen.

On January 3, 2012, Mr. Hosmann returned to Southside Medical Care for follow-up care and presented with complaints of severe back pain, pain in both legs from hips to knees and a burning sensation in both knees. He was having a lot of pain while working. The attending physician diagnosed the condition as low back pain and lumbar radiculopathy. The prescribed treatment included continuing with tizanidine and hydrocodone, and naproxen was added to the prescription medication list. Additionally, an MRI scan of the lumbar spine was ordered.

On January 10, 2011, the lumbar MRI scan revealed the following:

- At the L1-L2 level, there was broad-based disc protrusion with mild central canal stenosis and mild bilateral neural foraminal narrowing.

- At the L3-L4 level, there was broad-based disc protrusion in combination with facet hypertrophy narrowing, resulting in mild-moderate central canal stenosis and mild-moderate bilateral neuroforaminal narrowing.

- At the L4-L5 level, there was facet hypertrophy and endplate hypertrophy resulting in mild-moderate bilateral neuroforaminal stenosis.

- At the L5-S1 level, there was mild-moderate bilateral foraminal stenosis secondary to broad-based disc facet hypertrophy.

On February 13, 2012, Mr. Hosmann presented to the emergency room of Citizens Memorial Healthcare with complaints of low back pain, which had become worse since the previous Saturday. He complained of pain radiating to his left leg. He complained of numbness in both legs and both hands. He was examined and assessed as having acute exacerbation of chronic low back pain. He was given prescriptions for hydrocodone and tizanidine.

On February 29, 2012, Mr. Hosmann presented to Dr. Cunningham for follow-up care. At the time of this examination Mr. Hosmann presented with complaints of ongoing low back pain with bilateral leg pain and burning constantly. Additionally, Mr. Hosmann reported having constant low back pain with radiation into bilateral buttock pain and burning into his anterior thighs. Also, he noted that he had been missing work frequently. Dr. Cunningham diagnosed the condition as (1) benign neoplasm of the spinal cord, (2) lumbago, and (3) lumbar radiculopathy. Dr. Cunningham ordered lumbar flexion/extension x-rays. (These x-rays with flexion/extension views revealed 4-mm L3 anterolisthesis in flexion which reduced with extension.)

On March 19, 2012, Mr. Hosmann presented to Dr. Cunningham for follow-up treatment. Notably, at the time of this examination, Mr. Hosmann reported being involved in a motor vehicle accident, wherein he rolled his car in order to avoid hitting a deer. Further, he provided a history of the pain getting worse. The diagnosis remained unchanged, although Dr. Cunningham added the additional assessment that the spondylolisthesis at L3-L4 was unstable. In light of this diagnosis, Dr. Cunningham recommended that Mr. Hosmann undergo a trial of facet blocks at L3-L4 and if such treatment provided relief, that he undergo a fusion at L3-L4.

Subsequently, Mr. Hosmann underwent bilateral lumbar L3-L4 facet joint injections from Dr. Workman on March 27, 2012. Thereafter, subsequent to these injections and prior to undergoing lumbar surgery involving a fusion at L3-L4, Mr. Hosmann continued to experience

flare-ups of chronic low back pain. For example:

- On May 13, 2012, Mr. Hosmann presented to the emergency room of Citizens Memorial Hospital for a flare-up of chronic back pain and received treatment in the nature of medications.

- On November 30, 2012, Mr. Hosmann presented to the emergency room of Citizens Memorial Hospital for continuing complaints of back pain. The attending physician continued the current medications of Dilaudid and Phenergan, and instructed Mr. Hosmann to follow-up with his primary care provider.

- On December 5, 2012, Mr. Hosmann presented to the emergency room of Citizens Memorial Hospital for continuing complaints of back pain and muscle spasms. He was instructed to follow up with his primary care provider.

- On December 28, 2012, Mr. Hosmann presented to the emergency room of Citizens Memorial Hospital for continuing complaints of back pain and running out of medications. The attending physician noted that Mr. Hosmann was having difficulty walking due to severe pain. He was given a prescription for Flexeril and instructed to follow up with his primary care provider.

- On January 2, 2013, Mr. Hosmann presented to the emergency room of Citizens Memorial Hospital for continuing complaints of back pain and increased leg and arm spasms since the previous Saturday. The medical records note that Mr. Hosmann experienced an episode of his arms and legs shaking the night before, causing him to fall in the bathroom and strike his back. A CT scan of the low back revealed multilevel degenerative disc and joint disease. The attending physician diagnosed the condition as chronic back pain, out of analgesic medication, lumbar contusion. Mr. Hosmann was given a prescription for Baclofen and oxycodone and instructed to follow up with his primary care provider.

- On January 13, 2013, Mr. Hosmann presented to the emergency room of Citizens Memorial Hospital by ambulance. Notably, on this date, Mr. Hosmann's wife found him in the home unresponsive and situated half on and half off the bed. She administered CPR and emergency personnel responded to the scene and provided emergent care prior to transporting to him to the hospital. He was admitted to the hospital with a report of having accidentally taking an overdose of Percocet. He was monitored in the ICU and then discharged from the hospital on January 14, 2013.

- On January 16, 2013, Mr. Hosmann followed up with Dr. Cunningham, presenting with complaints of severe low back and leg pain. At the time of this examination, Dr. Cunningham noted that Mr. Hosmann had not been able to work since November and determined that Mr. Hosmann was continuing to experience unstable L3-L4 spondylolisthesis with moderate stenosis at that level. Based on this examination, Dr. Cunningham recommended an MRI and CT scan of the lumbar spine.

- Mr. Hosmann underwent the MRI scan on January 16, 2013. In comparison to the prior diagnostic study, this study revealed progressive degenerative changes

involving the discovertebral and facet joints at both L2-L3 and L3-L4. More specifically, this study revealed the following:

- At the L2-L3 level, there were fairly extensive degenerative changes involving the facet joints, worse on the right, causing minimal spinal canal narrowing.

- At the L3-L4 level, there were extensive degenerative changes involving the facet joints, worse on the right, and causing mild to moderate spinal canal stenosis centrally. Also, there was extensive edema and mild enhancement involving the adjacent paraspinal musculature, worse on the right.

- On January 28, 2013, Mr. Hosmann presented to Dr. Cunningham for additional follow-up examination. At the time of this examination, Dr. Cunningham notes a presenting history of having low back and left leg pain for three years, with the back pain being more bothersome. Additionally, Dr. Cunningham notes Mr. Hosmann denying any injury in the past. Based on this examination, and in light of the continuing and unresolved pain, Dr. Cunningham recommended that Mr. Hosmann proceed with surgery in the nature of a decompression of the lumbar spine with fusion, and a decision was made to proceed with the surgery.

- On February 2, 2013, Mr. Hosmann presented to the emergency room of Citizens Memorial Hospital with complaints of chronic low back pain. He was treated with medication and was discharged.

On February 5, 2013, Mr. Hosmann underwent lumbar surgery performed by Dr. Cunningham. This surgery consisted of the following: lateral L3-L4 decompression of the central thecal sac, L3 nerve root, L4 nerve root; L3-L4 interbody arthodesis using a PEEK interbody spacer and autograft bone; and L3-L4 pedicle screw fixation with posterior lateral bone graft. He was discharged from the hospital on February 7, 2013, with instructions to not lift greater than 10 pounds and to refrain from bending, lifting, and twisting.

Dr. Cunningham provided post-operative follow-up care. In March 2013, Mr. Hosmann indicated that post-operatively he felt better than prior to the surgery, but had some soreness. He continued to complain of intermittent left leg shaking. Dr. Cunningham assessed his condition as progressing as expected and continued to prescribe off-work restrictions. Lumbar x-rays revealed postoperative changes without complications.

On May 10, 2013, Mr. Hosmann presented to the emergency room of Citizens Memorial Hospital with complaints of back and rib pain caused by a fall off of a combine. The medical records indicate that Mr. Hosmann fell 6 to 8 feet to the ground, landing on his back and right side. X-rays of the ribs revealed no evidence of fracture. X-rays of the lumbar spine revealed post-operative changes at L3-L4 level and mild disc height reduction at the L2-L3 and L5-S1 levels. He was given medication and discharged from the hospital.

In October 2013, Mr. Hosmann presented to the emergency room of Citizens Memorial Hospital with complaints of low back pain. He was placed on limitations of no heavy lifting, pushing, or pulling. He followed up with Bolivar Family Care Center on November 6, 2013. X-

rays of the lumbar spine revealed stable post-operative fusion hardware at L3-L4 level, mild disc space narrowing at the L2-L3, L4-L5, and L5-S1 levels, and mild hypertrophic changes at the L4-L5 and L5-S1 levels. The attending physician diagnosed the condition as a stable posterior fusion with mild degenerative disc and joint disease.

On December 10, 2013, Mr. Hosmann returned to the Bolivar Family Care Center for follow-up care. At the time of this visit, Mr. Hosmann presented with complaints of lower back pain and spasms, with left hip and radiating pain to the left thigh to knee. Additionally, the medical records note Mr. Hosmann was experiencing tingly and numbness of left thigh, resulting in spasms to the lower extremity. Also, the medical records note that these symptoms were occurring constantly over the last two weeks, with episodes occurring daily, and that associated symptoms include leg weakness. Dr. Tedrow diagnosed the condition as degeneration of lumbar or lumbosacral intervertebral disc and back pain. He continued the prescription for cyclobenzaprine and added the additional prescription of tramadol.

On January 13, 2014, Mr. Hosmann presented to the emergency room of Citizens Memorial Hospital with complaints of low back pain which had become worse the past few days. He was given an analgesic shot and a prescription for tramadol and discharged from the hospital.

On January 18, 2014, Mr. Hosmann presented to the emergency room of Mercy HospitalSpringfield with complaints of low back pain with radiating pain to the left leg. The recorded history notes the following:

This is a chronic problem. The current episodes started more than 2 days ago (worse 4 days ago). The problem occurs constantly. The problem has been gradually worsening. The pain is associated with no known injury. The pain is present in the lumbar spine. The quality of the pain is described as shooting and stabbing. The pain radiates to the left thigh. The pain is severe. The symptoms are aggravated by certain positions, bending, and twisting. The pain is the same all the time. Associated symptoms include numbness, bladder incontinence (one episode three days ago), and leg pain. Pertinent negatives include no chest pain, no fever, no weight loss, no headaches, no abdominal swelling, no bowel incontinence, no dysuria, no pelvic pain, no paresthesias, no paresis, no tingling and no weakness.

In light of the history given of having experienced an episode of bladder incontinence, the attending physician ordered an MRI scan of the lumbar spine. This diagnostic study revealed the following: (1) intact posterior fusion with pedicle screw fixation at the L3-L4 level, and (2) mild transitional changes at the levels of L2-L3 and L4-L5.

On January 31, 2014, Mr. Hosmann returned to the emergency room of Mercy HospitalSpringfield with complaints of low back pain and left leg numbness, including radiating pain to the left hip and leg. Mr. Hosmann denied loss of bowel or bladder function. He was given hydromorphone by a shot and prednisone orally. He was discharged with prescriptions for Flexeril and prednisone.

Truett Swaim, M.D., a physician practicing in independent medical evaluations, testified by deposition on behalf of the employee. Dr. Swaim obtained his B.A. Biology, M.D. in 1977 from the University of Missouri in Kansas City. Dr. Swaim completed his orthopedic residency at the University of Missouri, Kansas City School of Medicine Affiliated Hospitals from 1978 until 1983. Dr. Swaim practiced at Blue Springs Orthopedics until 1986, then continued his practice with Jackson County Orthopedics, Inc. Until opening his own practice, Independent Medical Examiners, Inc., in 1998. Dr. Swaim is board certified through the National Board of Medical Examiners, American Board of Orthopedic Surgery, and American Board of Independent Medical Examiners.

Dr. Swaim performed an independent medical examination of the employee, Clayton Hosmann, on March 24, 2014. At the time of this examination, Dr. Swaim took a history from Mr. Hosmann, reviewed various medical records, and performed a physical examination of him. In light of his examination and evaluation of Mr. Hosmann, Dr. Swaim noted that Mr. Hosmann experiences constant discomfort of his low back. The pain is sharp and radiated to his left hip and the back of his left leg. He has weakness of the left leg, with occasional numbness of the left anterior thigh. His back discomfort increases with bending, stooping, prolonged walking, twisting, lifting, etc. His back discomfort improves by resting, laying down, medication, and using a TENS unit.

In taking a history from Mr. Hosmann, Dr. Swaim notes that during the previous month the pain has averaged a level of 9 on a 10 scale, with a high of 10 and a low of 6 . Dr. Swaim further notes that Mr. Hosmann has difficulties and increased pain with household chores, driving, yard work, personal hygiene, etc. Mr. Hosmann is currently on hyrocodone as needed and uses a TENS unit as needed.

Mr. Hosmann reported that he had previously strained his back in 2008 while working. He was placed on medication and was off work for two days and this back condition resolved.

Dr. Swaim's examination of the lumbar region revealed tenderness in the lumbar paraspinous region. Lasegue sign was positive bilaterally, worse on the left. Patrick sign was negative bilaterally. Soto-Hall sign was positive on the right. Straight leg raising sign, performed sitting, was positive on the left and caused low back pain performed on the right. There was muscle spasm and guarding noted on examination. Mr. Hosmann walks slow, but normal gait. He used a cane to facilitate ambulation. He could navigate steps with difficulties and used handrails to assist in navigating steps.

Based on his examination of Mr. Hosmann, Dr. Swaim diagnosed Mr. Hosmann's medical condition as chronic lumbar pain and left leg radiculopathy; status post February 5, 2013, lumbar surgery. Also, Dr. Swaim opined that Mr. Hosmann has a psychological/psychiatric condition which would need to be evaluated by a physician who treats psychological/psychiatric conditions as to a specific diagnosis.

In rendering an opinion as to the cause of Mr. Hosmann's presenting low back condition,

Dr. Swaim opined that Mr. Hosmann had sustained an occupational injury in the nature of cumulative trauma, which culminated on or about November 20, 2012, and causally related to Mr. Hosmann's employment with the employer, Bill Grant Ford. According to Dr. Swaim, the work duties performed by Mr. Hosmann while working as a detailer caused or was the prevailing factor to cause him to develop lumbar pain, lumbar radiculopathy, and L3-L4 instability. Further, Dr. Swaim opined that the occupational cumulative trauma associated with the work as a detailer, which culminated on or about November 20, 2012, caused or was the prevailing factor to cause the necessity for the evaluation and treatment he has had for the lumbar condition since the employment with Bill Grant Ford. In rendering this opinion, Dr. Swaim opined that Mr. Hosmann was exposed to a greater risk of sustaining this occupational injury while working for Bill Grant Ford than that faced by the general public.

In rendering opinions as to the nature and effect of this occupational injury, Dr. Swaim opined that while Mr. Hosmann is at maximum medical improvement, he experiences, and will continue to experience, ongoing lumbar pain with left leg radiculopathy, lumbar muscle spasm, and significant lumbar range of motion deficit. As a consequence, Dr. Swaim opines that Mr. Hosmann will require additional or future medical care in order to cure and relieve him from the effects of the occupational injury. In describing the specific medical treatment applicable to Mr. Hosmann's needs, Dr. Swaim opined that Mr. Hosmann would benefit from physical therapy programs transitioned into a work hardening program followed by a functional capacity evaluation.

In addition, Dr. Swaim opined that as a consequence of this occupational injury, Mr. Hosmann has sustained a permanent partial disability of 35 percent to the body as a whole. According to Dr. Swaim, Mr. Hosmann is governed by permanent restrictions directly attributable to the occupational injury. In this context, Dr. Swaim opines that Mr. Hosmann should restrict his occupational stresses to a light work level according to the U.S. Department of Labor, Dictionary of Occupational Titles, with the ability to exert up to 20 pounds occasionally, and/or up to 10 pounds frequently, and/or a negligible amount of force constantly to move objects. Additionally, Dr. Swaim opines that Mr. Hosmann is governed by the following restrictions:

- Mr. Hosmann should avoid repetitive or prolonged bending, stooping, twisting, squatting, climbing, kneeling, or crawling.

- Mr. Hosmann should avoid prolong sitting, standing, or walking. He should have the ability to change frequently.

- Mr. Hosmann should avoid repetitive or prolonged forceful use of the upper extremities extended away from the body.

- Mr. Hosmann should avoid lifting from below calf level.

- Mr. Hosmann should avoid use of vibrating or jarring equipment/tools.

Notably, in explaining the relationship of the duties performed by Mr. Hosmann in his employment as a detailer and the cause of the occupational injury in the nature of chronic lumbar

pain and left leg radiculopathy, status post February 5, 2013, lumbar surgery, Dr. Swaim propounded the following testimony:

Q. In terms of the history he provided you of his work duties from Bill Grant Ford from May of 2000 to May of 2013, in terms of how those might affect one's back or cause injury to the back, can you provide the medical opinion?

A. The -- well, if you are having to repetitively get yourself in an awkward position, you are putting torque on the low back and also if you are having to perform lifting activities and squatting and bending frequently, there is -- there is impact loading and then frequent twisting. What it does is put stress on the ligaments, stress on the facet joints and stress on the disc at these levels. It's different than just sitting for prolonged time or laying on the beach. It's different stresses than I have in my job or probably you have in your job.

Q. As a result of your exam and review of the medical records and deposition, have you formed an opinion as to diagnosis for his lumbar condition?

A. I have got to ask you a question: Is that based on my evaluation in March of this year or does it include the additional medical records?

A. Okay. Well, you know, I previously -- I'll just break it down. I previously assessed that he had chronic lumbar pain and left leg radiculopathies after undergoing the February 5, 2013 lumbar surgery. At that time, I also assessed that he appeared to have a psychological condition that necessitated evaluation. After getting the additional medical records, it appears that he has developed some instability at the L2-3 level or the level right above a fusion and some stenosis with symptoms related to that level. So it -- you know, now it appears that not only does he have chronic lumbar pain and left leg radiculopathy following the lumbar surgery, he has also developed looks like a disc protrusion and instability, spinal stenosis and neuroforaminal narrowing at the level above L2-3 level. And there is also this history of urinary incontinence. So I believe that he has had progression of a problem regarding his back.

Q. And what is your opinion with respect to the prevailing factor for his lumbar condition?

A. I'll break that down. As of March 24, 2014, I assessed that the occupational cumulative trauma which culminated on or about November 20, 2012, that Mr. Hosmann sustained working for Bill Grant Ford caused or was the prevailing factor that caused him to develop the lumbar pain, lumbar radiculopathy in L3-4 instability, and it was therefore the cause or prevailing factor that necessitated treatment for that condition. After receiving the additional medical records in my addendum of November

13, 2014, I assessed that the fusion at the L3-4 level placed increased stress on the adjacent levels and was the contributing cause for the progression of the L2-3 level instability and stenosis and that, therefore, the occupational cumulative trauma which culminated on or about November 20, 2012, he sustained working for Bill Grant Ford was caused or was the prevailing factor to cause him to develop the L2-3 level instability and stenosis.

Q. When you say prevailing factor, my intent is to be meaning the most important factor compared to all the other factors. Is that your use of the term?

A. Right. It's not like other factors don't cause problems but that means that the -- his occupational cumulative trauma was the major factor that caused him to develop the problem that necessitated the treatment.

Q. And what is your basis of that opinion?

A. Well, my basis is one thing is that his occupation is one that puts stress on his back. The other is that the MRI scan shows a progression of abnormalities since his employment with Bill Grant Ford and then additional progression of abnormalities after undergoing the fusion.

Q. The instability at the L2-3 level, is that a risk you face when you do this fusion?

A. Well, I mean, yes. It's pretty well known when you fuse one level, it puts adjacent stress on the vertebral levels, and commonly you develop degenerative changes at the adjacent levels.

Q. Is it your opinion that is what happened in Mr. Hosmann's case?

A. Yes.

On cross-examination, Dr. Swaim acknowledged that the progression of symptoms experienced by Mr. Hosmann could have been caused by factors other than work, including degenerative and congenital issues, as well as non-work-related problems. Also, Dr. Swaim acknowledged that he did not have detailed information about any of Mr. Hosmann's job activities. Finally, Dr. Swaim admitted that according to some of the medical records, Mr. Hosmann's chronic medical condition pre-dated his work with the employer Bill Grant Ford.

Norbert T. Belz, M.D., MPH, FACPM, a physician practicing in preventive medicine, with a specialty in occupational and environmental medicine, testified by deposition on behalf of the employer and insurer. Dr. Belz obtained his Bachelor of Arts degree in 1968 from Lewis University and his Doctor of Medicine degree in 1976 from St. Louis University School of Medicine. He completed his surgical residency at Washington University Medical Center, the Jewish Hospital of St. Louis in 1977. He later obtained his Masters of Public Health degree from St. Louis University, School of Public Health. He possesses multiple certifications. He is board certified in preventive medicine, as well as board certified in occupational and environmental

medicine through the American Board of Preventive Medicine. He is a Fellow of the American College of Preventive Medicine. He is a Diplomate and board certified with the American Society of Bariatric Physicians.

Dr. Belz performed an independent medical examination of the employee, Clayton Hosmann, on September 3, 2015. At the time of this examination, Dr. Belz took a history from Mr. Hosmann, reviewed various medical records, and performed a physical examination of him. This history obtained by Dr. Belz included a lengthy detailed history of Mr. Hosmann's employment and work duties, a detailed history of activities of daily living, and a medical history. Also, at the time of this examination, Dr. Belz notes that Mr. Hosmann presents with a chief complaint of low back pain, described by Mr. Hosmann as "steady and constant" referable to the mid and low lumbosacral area-midline. Additionally, Dr. Belz notes that Mr. Hosmann's complaints of pain include the left leg, described by Mr. Hosmann as having pain and numbness extending from the left front pocket anterior left thigh down to the anterior left knee, with more numbness than pain.

In light of his examination and evaluation of Mr. Hosmann, Dr. Belz noted that Mr. Hosmann limps "mightily," favoring his left lower extremity. He further noted that Mr. Hosmann "carries a cane in the left hand and leans into the cane on the left." However, upon "casual observation" Mr. Hosmann is "seen to pick up the cane, pivot and turn normally, and ambulate normally absent cane use." He also noted that at various times Mr. Hosmann would limp on the left and then limp on the right and when walking backwards, the limp would go away entirely. Additionally Dr. Belz noted that Mr. Hosmann was able to sit straight upright on the table with both legs in front full out demonstrating no pain behavior. In his report, Dr. Belz discusses Mr. Hosmann's non-physiologic sensory complaints.

In evaluating and considering the history provided to him by Mr. Hosmann, Dr. Belz notes in his report that there are numerous inconsistencies between the statements given by Mr. Hosmann during the medical examination and the statements given by Mr. Hosmann during his deposition testimony, and the history and treatment identified in the medical records. For example, in his report Dr. Belz notes that Mr. Hosmann provided a history of having "experienced no back pain at all in life prior to the winter of 2010 when working at the Ford dealership." Yet, this history is in conflict with the medical records.

In evaluating and diagnosing Mr. Hosmann's presenting medical condition, referable to low back pain with left leg radiculopathy (pain and numbness), Dr. Belz diagnosed the condition as a progressive disease in the nature of inflammatory polyarthropathy of the facet joints (in his back, beginning at T12-L1, L1-L2, L2-L3, L3-L4, L4-L5, and L5-S1). According to Dr. Belz, this condition is causing edema and diastasis, where the two joints separate and fall apart because of the erosion within the joints. As explained by Dr. Belz, the erosion allows for the separation of the facet joints, which produces the occurrence of olisthesis, the slipping forward of one vertebra over the vertebrae below. The presenting low back and left pain involves the occurrence of this disease process, which Dr. Belz identifies as degenerative spondylolisthesis, "a very specific type of spondylolisthesis."

In discussing the nature and cause of this medical condition, inflammatory polyarthropathy of the facet joints, Dr. Belz testified that it is an arthritic condition, "a cousin of rheumatoid arthritis and other inflammatory polyarthritis conditions." Notably, according to Dr.

Belz, this condition is an immune-mediated disease process directed to the synovial lining of the facet joints, which produces erosion of the facet joints and subsequent development of slippage in the vertebrae. As the body reacts to this slippage, the vertebrae become inflamed, resulting in the development of degenerative spondylolisthesis. In Mr. Hosmann's case, this disease process cascaded into spinal stenosis and the presenting symptoms associated with him having severe back and leg pain.

In further explaining and describing the nature of this disease process, at page 14 of his deposition, Dr. Belz propounded the following testimony:

Again, his disease process is degenerative spondylolisthesis, and that and that's in the Greek; spondylo- means a vertebrae and olisthesis means "I slip." And a vertebrae slips one on the other.

In adult degenerative spondylolisthesis, what happens and what happed to this individual [Mr. Hosmann] is he has innate disease of the facet joints, where the facet joints are inflamed much like a person with rheumatoid arthritis gets inflammation of their finger joints.

You see this in ladies who have that rheumatoid arthritis. And he has that type of inflammatory polyarthropathy of every image facet joint in his back, beginning at T12-L1, L1-L2, L2-L3, L3-L4, L4-L5, and L5-S1.

This inflammatory polyarthropathy is there, it's causing edema, it's causing diastasis where the two joints separate and fall apart because of the erosion within those joints. And it's that erosion and separation of the joints that allows the olisthesis, the slipping forward.

And this is a disease that is progressive and did progress in him, and it is not related to his work. This is a very specific type of spondylolisthesis called degenerative spondylolisthesis.

And it is distinct from other types of spondylolisthesis that we see. For example, with pars interarticularis defect, this is a separate disease entity.

And the disease entity that he has causes a looseness between the vertebrae above and the vertebrae below, because the facet joints that hold them together become inflamed.

And the best understanding of this is if you could close your eyes and envision a 1950s or 1960s old waffle iron with the lid above and the lid below. ...

Q. I'm familiar with it, yes.

A. But with the - with the waffle iron you have the two hinges in the back, and those are the important things. Those are the facet joints, the hinges.

And if - and if you put a waffle in the there and then the hinges close and the waffle cooks.

Well, if you take that old waffle iron with the iron above and the iron below and just imagine in your mind a whoopee cushion, the old round inflatable type balloon that we would put in a teacher's chair and have her sit on it and sound like she's passing gas, you put that whoopee cushion between the two portions of the waffle iron and then you put a little piece of tape on the front to like hold the front together. That is L3-L4.

And in this case, L3 and L4 are stabilized by the two facet joints, that is the two hinges on the back of the waffle iron. That where the pathology is.

So much pathology was in these facet joints, that is inflammation in there, that there was edema in these joints and loosening of the joints. And when those joints loosen then, the waffle iron above slips forward. And that's what happened with him.

And that caused spinal stenosis, and that spinal stenosis was present in January of 2008 when he first visited Dr. Tedrow.

And when we look at Dr. Tedrow's report, Dr. Tedrow says very accurately that Mr. Hosmann was sitting, leaning forward, and hunched forward, offloading his back like you're leaning forward on your - in your chair putting your forearms on the chair rest.

That's the classic posture - where you lean forward and offload, that's the classical posture of spinal stenosis.

And beginning even at that time and shortly thereafter, the disease process was showing up, initially most at L3-L4 but then involving every other joint that I stated, which was every joint that was able to be visualized in his back from the lower thoracic down to the sacral area.

In light of the foregoing analysis, and based on his examination and evaluation of Mr. Hosmann, Dr. Belz opined that the inflammatory polyarthropathy of the facet joints and the resulting degenerative spondylolisthesis is an innate disease unrelated to Mr. Hosmann's employment as a detailer with Bill Grant Ford and similarly unrelated to any employment previously held by Mr. Hosmann. Additionally, Dr. Belz opined that the inflammatory polyarthropathy of the facet joints and the resulting degenerative spondylolisthesis progressed naturally in its normal course during Mr. Hosmann's employment with Bill Grant Ford, which resulted in segmental L3-L4 instability, spinal stenosis, and left lower extremity radiculopathy that eventually required the L3-4 instrumented fusion. Further, in rendering this opinion, Dr. Belz opined that Mr. Hosmann's employment with Bill Grant did not cause or affect the progression of this disease process, this native disease has progressed independent of work.

In addition, Dr. Belz opined that Mr. Hosmann's work as a detailer did not involve repetitive work and he functioned at a self-directed pace. He similarly opined that the "occupation and biomechanical exposures" experienced by Mr. Hosmann as a detailer at Bill Grant Ford were not sufficient to constitute an injurious exposure and were not the prevailing

factor for the development of degenerative spondylolisthesis. Mr. Hosmann is not suffering from an occupational disease, but rather an immune-mediated disease.

Yet, Dr. Belz acknowledges that the presenting medical condition and disability causes Mr. Hosmann to be governed by permanent restrictions and limitations. In this context, Dr. Belz would restrict Mr. Hosmann to no lifting, pushing or pulling in excess of 25-30 pounds, and no exposure to whole body vibrations. Dr. Belz is of the opinion that as a consequence of this presenting medical condition and disability, Mr. Hosmann presents with a permanent partial disability of 25 percent to the body as a whole.

Also, Dr. Belz opines that as a consequence of this medical condition, Mr. Hosmann may need over-the-counter medications. Further, Dr. Belz indicates that Mr. Hosmann is at risk for adjacent segment deterioration and continued progression of the degenerative spondylolisthesis, which may necessitate other surgical intervention.

The parties presented at the hearing the testimony of two vocational experts. Mr. Wilbur Swearingin testified in behalf of the employee. Mr. James England testified in behalf of the employer and insurer. The vocational opinions of Mr. Swearingin and Mr. England are outlined in their respective reports and deposition testimony.

Mr. Swearingin opined initially that Mr. Hosmann is permanently and totally disabled attributable to the pre-existing impairments and those from his work at Bill Grant Ford in combination. Later, upon reviewing Dr. Swaim's deposition, Mr. Swearingin amended his opinion with a supplemental report, opining that Mr. Hosmann is permanently and totally disabled due to the trauma sustained while working at Bill Grant Ford in isolation and without consideration of the previous degenerative disease.

Mr. England testified that none of the medical would lead him to believe that Mr. Hosmann is totally disabled from all forms of employment. Mr. England opined that the medical restrictions of Drs. Swaim and Belz would both allow access to prospective employment within the "light" level of intensity under Department of Labor classifications. He further testified that the less intensive restrictions of Dr. Belz would allow wider access to prospective jobs within the light classification. Additionally, Mr. England opined that back problems experienced by Mr. Hosmann and the associated restrictions relate to a combination of significant issues occurring before the primary injury in combination with the effects of whatever injury Mr. Hosmann may have had at the Ford dealership and not just in isolation.

The employer and insurer secured a private investigator and secured video surveillance of Mr. Hosmann on multiple dates: Nov. 3, 2015, Nov. 16, 2015, Dec. 29, 2015, Aug. 9, 2016, and Aug. 24, 2016.

The video taken on November 3, 2015, shows Mr. Hosmann standing outside a vehicle at a grocery store. He is not using a cane or support for standing. He is able to go from a standing position to a crouch and can return to a standing position without assistance. He also

demonstrates getting into a truck and driving the truck. After he parked the truck, he took a dog on a walk. He demonstrates long strides. He walks through grass, dirt, and uneven surfaces. He demonstrates bending over to pick up the dog and gets back in the truck.

The video taken on November 16, 2015, shows Mr. Hosmann pumping gas at a gas station and, again, shows him driving a truck. He enters the convenience store at 11:21 am and exits the convenience store at 1:03 p.m. He was in the store for 1 hour and 40 minutes. The video from Dec. 29, 2015, shows Mr. Hosmann at the Casey's convenience store standing with no cane and no support.

The video taken on August 9, 2016, shows Mr. Hosmann working on a large front load tractor from 8:09 a.m. - 12:03 p.m. He demonstrates numerous activities in this footage: lifting and reaching with both right and left arm and hands, high steps over large objects, reaching and working above his head, working under the tractor and squatting, lifting the tractor hood; balancing while standing on the tractor, lifting from a bent over position, continual up and down from the waist and kneel and rise movements, lifting above his head, twisting from both standing and squatting positions, standing on one leg, walking and stepping backwards, lifting while squatting and reaching out and doing work extended away from his body. Also, Mr. Hosmann is shown using tools in the repair of a tractor.

The video taken on Aug. 24, 2016 shows Mr. Hosmann working at an auto body shop. He demonstrates lifting a jumbo pipe wrench solely with one arm, first his left and then his right. He drives a small riding tractor and demonstrates full motion of his neck. At the auto shop he and a second person team lift a transmission from a stand to the back of a pickup truck. He is further seen standing on the ledge of an open truck door using an orbital sander on the top of the vehicle. This activity continues consistently from 12:04 p.m.-12:27 p.m.

The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation is on the employee, Section 287.808 RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts and are to construe strictly the provisions, Section 287.800 RSMo.

Occupational Disease \& Injury

The underlying issue presented in this case is whether the employee's presenting low back condition is in the nature of an injury caused by an incident of occupational disease. The parties readily acknowledge that during the period of his employment with the employer, Bill Grant Ford, while working as a detailer the employee suffered from lumbar pain, lumbar radiculopathy, and L3-L4 instability, which necessitated receipt of medical care, including surgery in the nature of a fusion at L3-L4.

The term "occupational disease" is defined in Section 287.067, RSMo. In pertinent part, this statute states:

1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.
2. An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
3. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

In the case of Vickers v. Missouri Department of Public Safety, 283 S.W.3d 287 (Mo. App. W.D. 2009), the court discussed the burden of proof and evidence necessary for an employee to establish that an occupational disease is compensable under Section 287.067, as the law existed prior to the 2005 amendments. The court stated as follows, 283 S.W.3d at 292 et seq.:

In proving a causal connection between the conditions of employment and the occupational disease, the claimant bears the burden of proof; to prove causation it is sufficient to show a recognizable link between the disease and some distinctive feature of the job . . . and there must be evidence of a direct causal connection between the conditions under which the work is performed and the occupational disease. However, the cause and development of an occupational disease is not a matter of common knowledge. There must be medical evidence of a direct causal connection. . . . 'A claimant must submit medical evidence establishing a probability that working conditions caused the disease, although they need not be the sole cause.' Even where the causes of the diseases are indeterminate, a single medical opinion relating the disease to the job is sufficient to support a decision for the employee.'

Notably, however, the court's discussion of proving causation in Vickers must be viewed in context of Section 287.067, RSMo as amended in 2005. The amendments to this statute changed the causation factor to require that the occupational exposure be the "prevailing factor" in relation to causation. See, Lawson v. Ford Motor Co., 217 S.W.3d 345 (Mo. App. E.D., 2007). In discussing this new requirement, the court in Lawson stated,

The legislature amended several sections of the Workers' Compensation Act in 2005. In particular, portions of section 287.067 and 287.020 were rewritten. Specifically, section 287.067 .2 discusses when an injury by occupational disease is considered compensable. Prior to 2005, the section stated that such an injury will be compensable if it "is clearly work related and meets the requirements of an injury which is compensable as provided in subsections 2 and 3 of section 287.020." Subsections 2 and 3 of section 287.020 previously contained definitions for "accident" and "injury." Prior to 2005, those definitions included language which concluded that an injury was compensable if it is work related, which occurs if work was a "substantial factor" in the cause of the disability.

After the 2005 amendments to the statutes, the definition of a compensable injury by occupational disease was changed to use the language "prevailing factor" in relation to causation. Specifically, section 287.067 .2 states:

An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

Section 287.020.3 defines "injury" using similar terms.

217 S.W.3d at 349-350 et seq.

In addition, medical causation not within lay understanding or experience requires expert medical evidence. Wright v. Sports Associated, Inc., 887 S.W.2d 596 (Mo.banc 1994) (overruled on other grounds). Medical causation must be established by scientific or medical evidence showing the cause-and-effect relationship between the complained of condition and the asserted cause. Shelby v. Trans World Airlines, 831 S.W.2d 221, 222 (Mo. Ct. App. 1992). The weight to be accorded an expert's testimony should be determined by the testimony as a whole and less than direct statements of reasonable medical certainty will be sufficient. Choate v. Lily Tulip, Inc., 809 S.W.2d 102 (Mo.App. 1991) (overruled on other grounds).

The employee alleges that he sustained an occupational injury in the nature of cumulative trauma, which culminated on or about November 20, 2012, and is causally related to his employment with the employer, Bill Grant Ford, which involved work as a detailer. The employee identifies this medical condition and disability as lumbar pain, lumbar radiculopathy,

and L3-L4 instability, and offers in support the testimony and medical opinions of his examining physician, Dr. Swaim.

The employer and insurer contest liability, contending that the employee has not sustained an occupational injury. Although recognizing that Mr. Hosmann presents with lumbar pain, lumbar radiculopathy, and L3-L4 instability, the employer and insurer identify the presenting medical condition as inflammatory polyarthropathy of the facet joints and assert that the resulting degenerative spondylolisthesis is an immune-mediated disease process unrelated to Mr. Hosmann's employment as a detailer with Bill Grant Ford and similarly unrelated to any employment previously held by Mr. Hosmann. The employer and insurer thus contend that Mr. Hosmann is not suffering from an occupational disease, but rather an immune-mediated disease. The employer and insurer offer in support of their position the testimony and medical opinions of their examining physician, Dr. Belz.

The parties offer competing and contrasting views from two medical experts. Both physicians may be viewed as credible physicians. The adjudication of this issue centers upon consideration of which physician provides the more persuasive and compelling evidence.

In this case, it is noted that 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. It is further noted that Dr. Swaim 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.

These assumptions render Dr. Swaim's medical opinion suspect. Dr. Swaim acknowledges that he did not have any independent knowledge of the occupational duties; he did not view any job description; he did not perform a job analysis; he did not view any video of Mr. Hosmann's job duties; and he did not perform any analysis as to the frequency of the job tasks performed by Mr. Hosmann in his employment with Bill Grant Ford. Similarly, in relying upon the history provided to him by Mr. Hosmann, Dr. Swaim acknowledges that he did not perform any analysis or have any specific understanding as to how Mr. Hosmann performed his work tasks in his employment with Bill Grant Ford.

Further, Dr. Swaim acknowledges that during the period of Mr. Hosmann's employment with Bill Grant Ford, Mr. Hosmann fell from a combine, and Mr. Hosmann was involved in a motor vehicle accident, wherein he rolled his car. Yet, Dr. Swaim dismisses these events as causing any significant trauma or disability to Mr. Hosmann based in part on Mr. Hosmann's testimony. Further, Dr. Swaim did not perform a job analysis and evaluation of the physical labor and work activity Mr. Hosmann performed as a farmer, wherein Mr. Hosmann engaged in recurrent and heavy physical labor growing hay and raising cattle.

In addition, in relying heavily upon the medical history provided to him by Mr. Hosmann, Dr. Swaim 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. These medical records include reference to Mr. Hosmann presenting to the emergency room of Citizens Memorial Hospital in January 2009 with complaints of back pain without history of an injury and diagnostic studies evidencing symptomatic degenerative disc disease of the lumbar spine. Later, in May 2009, Mr. Hosmann obtained additional medical treatment for complaints of back pain. Then, in 2010, he presents to the emergency room of Citizens Memorial Hospital with continuing complaints of back pain while giving a history of the back pain occurring for years.

In considering the credibility and veracity of Mr. Hosmann in determining or accepting the facts of his testimony, including the history provided to Dr. Swaim, I do not find Mr. Hosmann credible and do not wholly accept as true his testimony. As a witness, Mr. Hosmann did not make a credible witness. His testimony was replete with contradictions, inconsistencies, and inaccurate statements. Further, the video surveillance contradicts Mr. Hosmann's testimony and self-described limitations and restrictions.

For example, Mr. Hosmann testified via deposition and at the hearing while under oath as to the extent and limitations of his capabilities in light of his alleged work injury. These limitations include not being able to lift over 5 pounds with his left arm and nothing over 12 pounds with his right. He denied the ability to and the actuality of working on the farm, working on any equipment, and working at a job. He testified that he absolutely cannot work with his arms out and extended away from his body and cannot use power or impact tools. He did admit to using a cane and driving a truck on occasion, albeit on a revoked license, in light of the fact he was previously shown some portions of surveillance with him demonstrating these activities.

In contrast to the testimony provided by Mr. Hosmann, the video surveillance demonstrates Mr. Hosmann performing activities inconsistent with the restrictions placed upon him by his own medical expert, Dr. Swaim. In this video footage, Mr. Hosmann is seen not using a cane for support in any footage. He further demonstrates the ability to stand and walk for lengthy periods of time without any support. He demonstrates the ability to maneuver in numerous manners, including down into a kneel/squat position and back up with no assistance. He is shown driving a truck and entering and exiting this vehicle with no limitation or hesitation. He is further shown to demonstrate a fuller range of motion for all body parts and the ability to lift weights from numerous positions while even carrying a large pipe wrench with each arm, directly in contradiction with his testimony. As well, in the video he and a second person team lift a transmission from a stand to the back of a pickup truck and is further seen standing on the ledge of an open truck door using an orbital sander on the top of the vehicle.

Also, the video surveillance shows Mr. Hosmann working for over four hours on a large front tractor; climbing under, around, and on top of this equipment. He demonstrates the ability to work from an extension and reach with his arms as well as showing good balance capabilities. Finally, Mr. Hosmann denied under oath as to working on any automobiles and even working at all. Yet, he is seen at an auto body shop performing an activity of the exact type of work he had performed in the past. He is not only balanced on the edge of an open door sill, body and arms are extended to full reach using a vibrating power oscillating sander. The use of this tool, again, is directly contrary to his testimony in court and requires force and abilities beyond any expert restrictions.

The activities presented in the video surveillance are clearly contrary to Mr. Hosmann's complaints and limitations. The demonstrated activities and direct contradictions to his testimony negate Mr. Hosmann's credibility and similarly negate the credibility of the expert opinions relying upon the testimony of Mr. Hosmann to the extent such opinions are based upon and accept as true the testimony of Mr. Hosmann.

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 took that information, noting inconsistencies, in conjunction with research and his clinical medical findings and provided an evaluation and diagnosis of Mr. Hosmann's presenting medical condition and disability. Further, 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 (in his back, beginning at T12-L1, L1-L2, L2-L3, L3-L4, L4-L5, and L5-S1). Similarly, 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 other prior employment.

Where the opinions of medical experts are in conflict, the fact-finding body determines whose opinion is the most credible. Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 877 (Mo. App. 1984). Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. George v. Shop'N Save Warehouse Foods Inc., 855 S.W.2d 460, 462 (Mo. App. E.D. 1993); Hutchinson v. Tri-State Motor Transit Co., 721 S.W.2d 158, 163 (Mo. App. 1986). See also, Kelley v. Banta \& Stude Construction Co., Inc., 1 S.W.3d 43, 48 (Mo.App. E.D. 1999). The trier of fact determines whether medical evidence is accepted or rejected, and the trier of fact may disbelieve non-contradicted or unimpeached testimony. Alexander v. D.L. Sitton Motor Lines, 851 S.W. 2d 525, 527 (MO banc 1993).

Based on all the credible evidence of record, including the doctors' areas of expertise, the foundation on which each opinion is based, their understanding of the duties involved, and the depth of the analysis provided, I find the opinion of Dr. Belz to be more credible, more persuasive, and more compelling than Dr. Swaim in this case. After consideration and review of the evidence, I find and conclude that the presenting medical condition and disability is in the nature of inflammatory polyarthropathy of the facet joints with resulting degenerative spondylolisthesis. It is an innate disease unrelated to Mr. Hosmann's employment as a detailer with Bill Grant Ford and similarly unrelated to any employment previously held by Mr. Hosmann.

Further, in rendering this determination, and in being persuaded by the medical opinions of Dr. Belz, I find and conclude that the presenting medical condition is an arthritic condition, "a cousin of rheumatoid arthritis and other inflammatory polyarthritis conditions." It is an immunemediated disease process directed to the synovial lining of the facet joints which produces erosion of the facet joints and subsequent development of slippage in the vertebrae. As the body reacts to this slippage, the vertebrae become inflamed, resulting in the development of degenerative spondylolisthesis. In Mr. Hosmann's case, this disease process cascaded into spinal stenosis and the presenting symptoms associated with him having severe back and leg pain.

In addition, I find and conclude that the inflammatory polyarthropathy of the facet joints and the resulting degenerative spondylolisthesis progressed naturally in its normal course during Mr. Hosmann's employment with Bill Grant Ford, which resulted in segmental L3-L4 instability, spinal stenosis, and left lower extremity radiculopathy that eventually required the L3-4 instrumented fusion. I further find and conclude that Mr. Hosmann's employment with Bill Grant did not cause or affect the progression of this disease process. This native disease has progressed independent of work.

Accordingly, after consideration and review of the evidence, I resolve the differences in medical opinion in favor of Dr. Belz, who I find credible, reliable, and worthy of belief. I find and conclude that the employee did not sustain an occupational injury in the nature of an incident of occupational disease. Similarly, I find and conclude that the employee has not sustained an injury by accident. The work activity performed by Mr. Hosmann in his employment with the employer, Bill Grant Ford, did not aggravate, change, or accelerate the pathology of the employee's low back condition. As such, I find and conclude that the employee suffers from an immune-mediated disease unrelated to his employment with the employer.

Therefore, for the foregoing reasons, the employee has failed to sustain his burden of proof. The Claim for Compensation is denied. All other issues not addressed herein are rendered moot.

Made by: $\qquad$

L. Timothy Wilson

Chief Administrative Law Judge

Division of Workers' Compensation