Candace Houchen v. Trimmasters

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-022626

Employee: Candace Houchen

Employer: Trimmasters

Insurer: Auto Owners Insurance Company

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated May 10, 2017. The award and decision of Administrative Law Judge Lawrence G. Rebman, issued May 10, 2017, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $23^{\text {rd }}$ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Candace Houchen

Injury No. 06-022626

Dependents: N/A

Employer: Trimmasters

Insurer: Auto Owners Insurance Co.

Additional Party: N/A

Hearing Date: January 26, 2017

Checked by: LGR/lh

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: January 13, 2006.
5. State location where accident occurred or occupational disease was contracted: 5601 Brookside Blvd., Kansas City, Jackson County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
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 was lifting sheets of plywood when it was caught by the wind.
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: Cervical spine, left and right shoulders and upper extremities, low back, eyes, teeth and body as a whole.

Employee: Candace Houchen

Injury No. 06-022626

Dependents: N/A

Employer: Trimmasters

Insurer: Auto Owners Insurance Co.

Additional Party: N/A

Hearing Date: January 26, 2017

Checked by: LGR/lh

On January 26, 2017, the Claimant and Employer appeared for a final hearing. The Second Injury Fund is not a party to this claim. The Division had jurisdiction to hear the controversy pursuant to Section 287.110, R.S.Mo. The Claimant, Candace Houchen, appeared in person and with counsel, David Mandelbaum. The Employer appeared through its Counsel, Michael Halloran.

The Employer and Insurer stipulated to the following facts:

1. On January 13, 2006, Trimmasters, Inc., was an Employer operating subject to Missouri's Worker's Compensation law.
2. Auto-Owners Insurance Co. fully insured Trimmasters, Inc.'s liability.
3. Ms. Houchen was an employee of Trimmasters, Inc.
4. The Employee worked subject to the Worker's Compensation Act in Missouri.
5. The Employee sustained an accident arising out of and in the course of employment.
6. That Employee's contract of employment occurred in Missouri.
7. The Employee notified Employer of the accident as required by law in MO. Rev. Stat. §287.420.
8. The Employee filed her claim within the time allotted by law, in Mo. Rev. Stat. $\S 287.430.
9. The Employee's average weekly wage was \ 1,045.41.
10. The employee's compensation rate is $\ 696.97 for temporary total disability, $\ 365.08 for permanent partial disability compensation and $\ 696.97 for permanent total disability compensation.

1. The Employer and Insurer paid the Employee temporary total disability compensation totaling $\ 360,737.74 representing 517.58 weeks of compensation from February 27, 2006, through January 28, 2016
2. The Employer and Insurer provided Employee with medical care costing $\ 288,834.94

The issues to be resolved by this hearing are as follows:

1. Whether Employee suffered any disability, and, if so, the nature and extent of the injury and disability, including whether the Employee is permanently and totally disabled.
2. Whether Employee is entitled to future medical treatment, mileage and reimbursment for past medical bills.

The Employee offered the following exhibits:

A. Dr. Michael Poppa's reports with supporting records including Dr. Caffrey's vocational report

B. Deposition of Dr. Gregory Wilson

C. MRI films of cervical spine 6/2/14 - Not Offered.

D. Dr. Brian Smith, M.D., MRI report of June 12, 2014

E. Dr. Brian Torgerson M.D., report of June 24, 2014

F. Mileage Detail

G. Out-Of-Pocket Medical/Prescription Expenses

H. Social Security Award

The Administrative Law Judge admitted the exhibits without objection.

The Employer and its Insurer offered the following exhibits:

1. Deposition of Candace Houchen-Bellamy
2. Deposition of Dr. Brian Torgerson, with exhibits.
3. Deposition of Dr. Alan Fielding, with exhibits
4. Deposition of Dr. Gregory L. Wilson, with exhibits.
5. July 7, 2014 report from Blue Eagle Investigations.
6. Edited and unedited video of July 2 and July 3, 2014
7. August 2, 2014 report from Blue Eagle Investigations.
8. Edited and unedited video of July 29 and July 30, 2014
9. September 30, 2014 report from Blue Eagle Investigations.

1. Edited and unedited video of September 25 and September 26, 2014.
2. July 20, 2015 report from Blue Eagle Investigations.
3. Edited and unedited video of July 17, 2015
4. July 22, 2015, report from Blue Eagle Investigations.
5. Edited and unedited video of July 18, 2015.
6. December 16, 2015 report from Blue Eagle Investigations.
7. Edited and unedited video of December 10 and December 11, 2015
8. Compilation of Edited Versions of All Videos.
9. January 21, 2016 report from Dr. Eden Wheeler.

The Administrative Law Judge admitted the exhibits without objection.

The Claimant, Candace Houchen, was 57 years at the time of the hearing, having been born on September 14, 1959. Ms. Houchen is a high school graduate of the class of 1977. After graduation, she completed only a basic real estate course at Longview Community College but did not pursue a real estate sales or broker's license and has never worked in real estate sales. Ms. Houchen has no other formal education or occupational training.

Ms. Houchen's employment history includes only a one year stint as a cashier at an IGA grocery store, one and one half years as a waitress and pizza maker, which she described at the hearing as being a manager, at a Ken's Pizza restaurant in about 1978 (age 18), one year of employment as an apartment manager in approximately 1990 to 1991 (age 30) and the remainder of her adult life has been spent as a homemaker or working in the construction trades, mostly carpentry, which she learned on the job working with her second husband.

On January 13, 2006, while working at her job for the Employer, the Claimant was making and installing wood trim in apartments or condominium units at the employer's job site located in Kansas City, Jackson County, Missouri. Claimant had been ripping 4 by 8 foot sheets of $3 / 4$ inch thick plywood to cut them to size for use in the trim of the window. To rip the plywood, the Claimant had to pick up each sheet and lay it on the table of a table saw. At the time of her injury, Claimant had lifted a sheet of the plywood up onto the saw table and was attempting to turn it over and move to the saw guide when the wind caught the board jerking it from Ms. Houchen. Ms. Houchen testified that she felt pain and thought it would go away. When it did not, she went to her family physician. Her family doctor referred Ms. Houchen to Dr. Sand, a local neurologist. Dr. Sand ordered an MRI scan of the brain and neck.

The February 26, 2006 MRI scan revealed a "huge left paracentral cervical disc protrusion at C5-6 which produces marked deformity of the cervical thecal sac and marked flattening of the cervical spinal cord. Dr. Sand also performed an EMG/NCS of the left upper extremity. The EMG/NCS test did not show any compression.

Dr. Sand referred Ms. Houchen to Dr. Rosenberg, an area neurosurgeon. On March 9, 2006, Dr. Rosenberg notes that Ms. Houchen is taking Gabapentin and Tramadol.

On March 15, 2006, Dr. Rosenberg performed a C5-6 anterior cervical discectomy, fusion and plate fixation to correct the abnormality. On April 18, 2006, Ms. Houchen complained to Dr. Rosenberg of shock-like symptoms into her legs together with a vague morning stiffness into her

arm with a burning-like pain diffusely in the arm in a non-radicular distribution. An x-ray on April 11, 2006 reported the cervical spine was normal above and below the fusion.

On May 10, 2006, an MRI of the left shoulder indicated severe supraspinatus tendinopathy and a possible tear, as well as displacement of the biceps tendon. An MRI of the cervical spine indicates moderate bilateral neural foraminal narrowing.

During her rehabilitation, Ms. Houchen developed difficulties with her eyesight that Dr. Rosenberg diagnosed in his May 19, 2006 report as being caused by the Neurontin that had been prescribed to her. Ms. Houchen, who had not reported prior visual disturbance, was diagnosed with convergence insufficiency and lateral hyperopia on March 29, 2007 by Dr. Thomas Whittaker, M.D., of the University of Kansas Medical Center, Department of Ophthalmology. Dr. Whittaker opined that the condition could be related to the use of Lyrica.

On June 3, 2006, Ms. Houchen is seen by Dr. Patel complaining of pain into the arms and into the legs. Dr. Patel notes that Ms. Houchen is taking Vicodin, Lyrica and Zonisamide for sleep. Dr. Patel notes she has probable depression and prescribes Cymbalta.

On June 16, 2006, Dr. Larry Frevert operated on Ms. Houchen's left shoulder, debriding the joint and partial cuff tear, subacromial decompression, distal clavicle excision and open rotator cuff repair.

On August 7, 2006, an MRI was performed on the right shoulder which should tendinopathy without evidence of a tear. On October 6, 2006, Dr. Frevert operated on the right shoulder. He performed an examination under anesthesia, arthroscopy, with debridement of joint, debridement of partial tear and debridement of cuff tears, subacromial decompression, distal clavicle excision and open rotator cuff tear. His operative report states: "The tear was quite obvious. It was fairly large tear involving all the supraspinatus and some of the infraspinatus." On October 17, 2006 Dr. Frevert prescribes Vicodin 5-500 (Hydrocodone-acetaminophen 1-2 tablets every 4 to 6 hours for pain not to exceed 8 tablets in 24 hours. On November 21, 2006, Dr. Frevert prescribes Vicodin 5-500. On December 21, 2006, Dr. Frevert notes that Ms. Houchen has pain in her right shoulder and neck and prescribes Vicodin 5-500

On or about February 22, 2007, Dr. Frevert operated on the right shoulder again to debride adhesions and performed an open repair. He found a large full-thickness tear during the second surgery.

After the Employee relocated to Oklahoma, she saw Dr. Morris on May 21, 2008, for pain management. Dr. Morris diagnosed, "pain of central origin, status-post cervical spine fracture with cervical cord contusion and lacerations." Because of neuropathic pain medication and adverse reactions, he recommended pain medications. On February 5, 2009, Dr. Morris discontinued Vicodin and prescribed Norco 10 up to four times per day. On August 3, 2009, Dr. discontinued Norco and started Ms. Houchen on 15 mg of Oxycodone and continued her Xanax and Skelaxin. On January 7, 2010, the medical records state that Ms. Houchen has hoarded large quantities of medications from all her previous experiences with pain and that the Norco was not helping so Dr. Morris prescribes Roxicodone 15 mg . The report also notes that Ms. Houchen's

mother is recovering from brain cancer and her father was ill and her boyfriend was murdered. Ms. Houchen was not on antidepressants. On April 7, 2010, Dr. Morris increases Ms. Houchen's prescription for Xanax because of the stress in her life.

On August 1, 2011, Dr. Dominic Losacco sees Ms. Houchen and notes that her depression began shortly after her injury. Dr. Losacco states:

Ms. Houchen is suffering from a rather severe depressive disorder which renders her temporarily and totally disabled. This is the result of her on-the-job injury and the chronic pain disorder that has evolved.

Psychiatric treatment is clearly indicated and hopefully will be beneficial.

There is no indication that Ms. Houchen was provided any psychiatric care.

Dr. Morris left the practice and Ms. Houchen followed up her care with Dr. Brian Torgerson. Dr. Torgerson treated Ms. Houchen for pain, using morphine and narcotic pain medications. The treatment continued until October 2015. Dr. Torgerson reviewed videotape surveillance suggesting that Ms. Houchen could perform tasks beyond her subjective limitations and planned to wean her medications to a lower amount. On August 30, 2015, Dr. Torgerson terminated the relationship following her attempt to visit another pain management specialist for pain medications. He considered her attempt to obtain other pain medications as a breach of the opioid agreement. Ms. Houchen testified that she ran out of medication because the doctor's office delayed refilling her prescriptions due to the insurer refusing to approve the refills so she sought pain management treatment from another doctor.

On January 21, 2016, Dr. Eden Wheeler examined the Ms. Houchen and concluded that the Employee was dependant on opioids, that her subjective symptoms far outweighed her objective findings and concluded that Ms. Houchen had reached maximum medical improvement. Dr. Wheeler recommended Ms. Houchen be weaned from opioids and provided a lifetime treatment with the TENS unit. Dr. Wheeler assessed disability.

In addition to treating physicians, several other doctors examined Ms. Houchen. Dr. Fielding, a Tulsa neurosurgeon, examined Ms. Houchen on August 27, 2014. The Employer and Insurer asked Dr. Fielding to look at Ms. Houchen and assess a potential need for surgical revision to her neck. When dissatisfied with Dr. Fielding's opinion, the Employer and Insurer sent Ms. Houchen to another Tulsa neurosurgeon, Dr. Gregory Wilson. On January 21, 2016, Dr. Eden Wheeler examined Ms. Houchen on behalf of the Employer and its Insurer. Dr. Poppa examined Ms. Houchen on March 10, 2016.

Ms. Houchen's attorney introduced two reports from Dr. Michael Poppa. Dr. Poppa saw the claimant on two separate occasions. At the October 15, 2010 examination, Ms. Houchen

reported constant pain "that never goes away and is steady. (Cervical spine). I get a throbbing pain down both arms and then whatever I have in my hands just goes. (Cervical spine)." (October 15, 2010 report of Dr. Michael Poppa at Page 6.). Dr. Poppa opined that the Employee reached maximum medical improvement for her cervical spine, bilateral shoulders and reactive depression that prevented her from performing activities of daily living as well as work duties, and chronic pain. Dr. Poppa also commented on the medical conditions involving her eyes and lumbar spine. He did conclude that the related complaints, in light of Dr. Caffrey's vocational report, was "permanently and totally disabled" when taking into account her cervical conditions, bilateral shoulder conditions, visual difficulties and mental condition secondary to her work injury. Dr. Poppa and Dr. Caffrey concluded that the use of medications precludes sedentary work.

Ms. Houchen testified that at the time of the injury, she weighed 157 pounds. She testified that she was hard as a board. Today, she claimed her weight at 138 pounds and described her body like a bowl of jelly. Ironically, Dr. Poppa's October 15, 2010 report reflects the absence of muscle atrophy involving her upper and lower extremities. (Dr. Poppa's October 15,2010 report at page 7).

In Dr. Poppa's March 10, 2016 report, Dr. Poppa reported the following results from his physical examination:

Ms. Houchen's physical evaluation in my office on 3/10/16 is essentially unchanged from her previous evaluation in my office on 10/15/10. She has continued to experience increased pain which has led to a diminution involving her activities of daily living.

(Dr. Poppa's March 10, 2016 report at page 5).

In his March 10, 2016 report, Dr. Poppa alludes to surveillance footage of Ms. Houchen dated in and around July 2015. (Poppa Report of March 6, 2016, at page 4). Dr. Poppa did not review the footage. Instead, Dr. Poppa relied upon Ms. Houchen's statements that the videos did not represent her regular activities and caused increased pain requiring extra rest.

The April 19, 2010 vocational evaluation by Dr. Patrick Caffrey, Ph.D., presented the only vocational evaluation in this matter. Dr. Caffrey opines that Ms. Houchen is permanently and totally disabled in that she is not capable of returning to work on a full or part-time basis. Dr. Caffrey subjected Ms. Houchen to an extensive battery of tests that contain internal validation mechanisms and has consulted the sources relied upon by experts in the field of vocational evaluation to arrive at his conclusions. The most striking being the results of the Fake Bad Scale (FBS). Ms. Houchen posted a FBS score of 31 which is very high and indicates she is exaggerating her claims of disability. Dr. Caffrey makes note of the profession dispute regarding the FBS test and explains these results in light of Ms. Houchen's psychological problems. Dr Caffrey concludes that Candace Houchen does not appear to have the physical capacities, transferable skills, and established skills or training to meet the demands of any occupation in

any setting. Dr. Caffrey concludes that no reasonable employer would be expected to hire Ms. Houchen and she is, therefore, permanently and totally disabled.

On February 20, 2009, the Employer referred Ms. Houchen to Dr. Koprivica for examination. Dr. Koprivica listed Ms. Houchen's complaints and symptoms at length. Those symptoms included significant psychological dysfunction and an inability to give the history of her injury without crying. Dr. Koprivica's report (See Exhibit A), rules out other events and stressors as being the cause of her depression. Dr. Koprivica's diagnosis came over nine months before the December 7, 2009 death of Ms. Houchen's boyfriend, approximately a year before the February 5, 2010 death of Ms. Houchen's father and her mother having received a diagnosis of brain cancer. It is Dr. Koprivica's opinion that Ms. Houchen already had significant psychological dysfunction at the time of his February 20, 2009 examination. According to Dr. Koprivica, she came to tears during the history portion of the exam and appeared to be quite distressed. In spite of her distress, Dr. Koprivica opined that Ms. Houchen was not exaggerating her physiologic impairment. Dr. Koprivica also opined that the work-related injury is "the direct, proximate and prevailing factor in Ms. Houchen's development of the cervical disk herniation and the resultant necessity for the cervical decompression that was performed".

Dr. Koprivica also discusses Ms. Houchen's bilateral shoulder injuries at length. It must be borne in mind that at the time that Ms Houchen's shoulder injuries were diagnosed, Ms. Houchen had been in the employ of Trimmasters for about three years prior to the date of her injury. Dr. Koprivica expressed the opinion that "the bilateral shoulder impairments are not a result of the specific one-time injury of January 14 [sic], 2006, but rather are felt to be a repetitive problem from occupational disease relative to repetitive injury from her employment activities over time". He further opines that "Ms. Houchen's work represents the prevailing factor in causing the resultant impairments in both shoulder girdles and the resultant disability as opposed to the ordinary and gradual deterioration or progression of deterioration of both shoulders caused by aging or by normal activities of day-to-day living". No doctor has disputed this diagnosis.

Dr. Torgerson, a pain management specialist, treated the Employee between June 2, 2014 and October 30, 2015. Based upon Ms. Houchen's complaints, Dr. Torgerson provided pain medication. Dr. Torgerson's records reflected claims of significant pain. On January 20, 2015, Dr. Torgerson, noted that Ms. Houchen reported that she was worse at each visit. Dr. Torgerson states he was trying to refer Ms. Houchen to a surgeon and notes that Ms. Houchen was referred to "...some surgeon who felt she had no pathology anywhere and that she should not be on any medications of any sort and the case should be closed. That seems completely absurd and one review of her MRI would quickly tell that those are not accurate statements. At this point it is becoming very frustrating to get anything accomplished."

Dr. Torgerson examined the Employee on July 17, 2015, the day before the surveillance videotape. According to his July 17, 2015 office note, Dr. Torgerson reported the following complaints:

CHIEF COMPLAINT: Neck and back pain.

HPI: Ms. Houchen-Bellamy is a 55 year old female seen today for follow up. She continues to have pain in the neck and back. The pain is improved she states with OxyContin, Oxycodone, and Skelaxin. She denies any side effects such as constipation, fatigue, or depression. She is still wanting to get in with a surgeon to discuss other options regarding the cervical spine. She now states she is trying to get referred to a surgeon in California who is doing multilevel disc replacements of the cervical spine. She continues to utilize Linzess for constipation which does help resolve it. She also utilizes Lunesta at night to help her sleep.

(Emphasis Added).

On September 8, 2015, Dr. Torgerson wrote a letter following his review of surveillance video correlating with visits to his office. He reviewed videos occurring on the following dates: June 2, 2014, June 3, 2014, July 29, 2014, July 30, 2014, September 25, 2014, and September 26, 2014. He also reviewed videos dated January 27, 2015, January 28, 2015, March 26, 2015, July 17, 2015, and July 18, 2015. She would complain of severe pain at the appointments, and seek increases in her pain medication.

Dr. Torgerson reviewed a videotape of surveillance on July 18, 2015. Dr. Torgerson reported:

She is seen pushing a truck without assistance. On her own she is pushing with all of her strength to move a truck on a grassy parking area.

Throughout the several minutes of pushing and after pushing the vehicle, she never once appears to be in any pain or discomfort. This is not in correlation with the amount of pain that she presents herself in during these visits. An individual in chronic pain of the neck and low back who is repeatedly asking for increases in opioids due to lack of relief should not be in the condition to push a vehicle as was seen.

(Torgerson deposition, Exhibit 3, page 57) (Emphasis Added).

Dr. Torgerson opined that she reached maximum medical improvement and did not need ongoing active treatment. He also concluded that Ms. Houchen did not require the amount of medication previously prescribed. Dr. Torgerson planned to wean down her medications to a lower amount. (Torgerson Deposition, Exhibit 3, page 57).

Dr. Torgerson terminated his relationship with Ms. Houchen on October 30, 2015. Dr. Torgerson sent correspondence to multiple parties. The letter stated:

To Whom It May Concern:

I have been treating Ms. Houchen-Bellamy for her work-related neck and low back injury over the past two and a half years. Unfortunately, it recently came to my attention that she sought treatment at another pain management clinic in town and filled the prescriptions from that clinic. Due to this breach of our opioid agreement, I am going to be releasing Ms. Houchen-Bellamy from my care. I greatly appreciate your understanding in the matter. If you have any questions, please do not hesitate to contact me.

(Torgerson deposition, Exhibit 2, page 40) (Emphasis Added).

Dr. Torgerson also testified that he did not find evidence of muscle atrophy during his examinations. Dr. Torgerson testified that muscle atrophy represented an objective symptom of pain. (Torgerson deposition at page 8 ).

The Employer and Insurer presented testimony from Dr. Fielding and Dr. Wilson based on Dr. Torgerson's recommendation for a surgical consult for the neck, together with the Employee's request for additional cervical surgery. Dr. Fielding practices neurosurgery in the Tulsa area. Dr. Fielding concluded that the Employee's subjective complaints were non-organic in etiology and that the objective findings do not substantiate her complaints. He concluded that she was neurologically normal, the surgical site appeared radiographically healed, and the MRI scan results of June 12, 2014, would not cause her current symptomology. Dr. Fielding recommended tapering off of OxyContin and other pain medications and transitioned to nonnarcotic drugs. He concluded she did not need further treatment including, cervical spine surgery and cervical spine injections.

When Ms. Houchen disagreed with Dr. Fielding's opinion, the Employer and Insurer sent her to Dr. Gregory Wilson, a Tulsa neurosurgeon. Dr. Wilson reviewed the MRI films and found the films consistent with postoperative changes involving effusion at C5-6. He noted ossification of the posterior longitudinal ligament contributing to mild stenosis. Dr. Wilson explained in his deposition that there is a ligament that lines the inside of the spinal canal that is normally flexible and keeps the disk in place and intact. In Ms. Houchen's case, this ossification contributed to the stenosis. He opined that he would not recommend any further surgical intervention to her cervical spine, believing that the surgery would not relieve her symptoms but might cause further problems neurologically given the ossification of the posterior longitudinal ligament. On cross-examination, Dr. Wilson could not tell whether the ossification was impacting the cord and he indicated that this could be the cause of Ms. Houchen's pain.

The Employer and Insurer offered Dr. Wheeler's January 21, 2016 report into evidence. According to the report, Ms. Houchen reported that her neck "is killing me" and that she cannot do anything to obtain real relief. She complained of lower back, leg aches, burning, and

numbness all the time in the left leg. Ms. Houchen claimed that the left leg occasionally quit. She described tingling and burning with stabbing pains in the outer groin, and leg numbness. Ms. Houchen described her worst pain involving her neck and upper back, with the second worst pain intensity in the low back. She described her best pain at 6 or 7 out of 10 as long as she does not do anything for several days.

Dr. Wheeler diagnosed Ms. Houchen as having numerous problems including opioid dependence and emotional lability with current medication dependant anxiety. Dr. Wheeler reviewed the video footage of Employee and found it at odds with her physical complaints. Dr. Wheeler recommended Ms. Houchen be weaned from all opioid medications and provided a lifetime access to TENS unit and supplies. Dr. Wheeler discharged Ms. Houchen with a 12\% disability of the body as a whole for her neck, associating 10 % with the work-related injury. Dr. Wheeler assigned a 12 % disability of the right and 12 % disability of the left upper extremities at the 232-week level, opining that only 3 % in each upper extremity occurred because of her injury.

The Parties stipulated to the following issues to be determined.

1. Whether Employee suffered any disability, and, if so, the nature and extent of the injury and disability including whether the Employee is permanently and totally disabled.
2. Whether Employee is entitled to future medical treatment.

Claimant has the burden of proving all material elements of her claim. Fischer v. Arch Diocese of St. Louis - Cardinal Richter Inst., 703 S.W.2d 196 (Mo. App. E.D. 1990): overruled on other grounds by Hampton v. Big Boy Steel Erections, 121 S.W.3d 220 (Mo. Banc 2003); Griggs v. A.B. Chance Company, 503 S.W.2d 917 (Mo. App. S.D. 1997) overruled on other grounds by Hampton.

Ms. Houchen contends that she is permanently and totally disabled from working in the open labor market.

Mo. Rev. Stat. §287.020.6 defines the term "total disability." The statute provides: The term "total disability" as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

In Missouri, the test for permanent total disability is whether the worker can compete in the open labor market. Scott v. Treasurer of Missouri - Custodian of the Second Injury Fund, 417 S.W.3d 381, 387 (Mo.App. W.D. 2014). Therefore, the critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. Scott v. Treasurer of Missouri - Custodian of the Second Injury Fund, 417 S.W.3d at 387. The term "total disability" does not require an employee

to be completely inactive or inert. Scott v. Treasurer of Missouri - Custodian of the Second Injury Fund, 417 S.W.3d at 387. It simply means the inability to return to any reasonable or normal employment. Scott v. Treasurer of Missouri - Custodian of the Second Injury Fund, 417 S.W.3d at 387 .

In addition to the test for permanent total disability, Mo. Rev. Stat. §287.190.1.6(2) requires a physician to demonstrate and certify both permanent partial disability and permanent total disability. Physicians must state their medical opinions addressing compensability and disability within a reasonable degree of medical certainty. Mo. Rev. Stat. § 287.190.6(2). The statute also provides:

In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.

§287.190.6(2) (Emphasis Added). The statute requires that the permanent partial disability or permanent total disability status must be physician-certified. Patterson v. Central Freight Lines, 452 S.W.3d 759, 766 (Mo.App. E.D. 2015).

In Bowman v. Central Missouri Aviation, Inc., 497 S.W.3d 312 (Mo.App. W.D. 2016), the Western District Court of Appeals reviewed whether the Commission "properly denied" when the Employee alleged psychological injuries from a physical assault at work by another person. The Commission found that the psychiatrist based his opinions on claimant's inconsistent and unreliable statements that rendered the psychiatrist's opinion insufficiently persuasive to carry claimant's burden of proof. 497 S.W.3d at 318. In addition to the claimant's inconsistent statements, the psychiatrist failed to "thoroughly review" the medical records to support claimant's burden of proving that the work incident represented the prevailing factor causing the medical condition and disability.

Under Missouri compensation law, the fact finder may not arbitrarily disregard and ignore competent, substantial and undisputed evidence of unimpeached witnesses, and the Commission may not base their findings upon conjecture or on their mere opinion unsupported by sufficient competent evidence. Houston v. Roadway Express, Inc., 133 S.W.3d 173, 179 (Mo.App. S.D. 2004). In Houston, the appellate court overturned a Commission decision against a permanent total disability award in part because the Commission failed to show any reasonable or substantial basis for refusing to believe the uncontradicted testimony of claimant and her witnesses. Houston v. Roadway Express, Inc., 133 S.W.3d at 180. The appellate court found that the Commission's opinion against permanent total disability represented an ultimate fact representing a conclusion of law. Houston v. Roadway Express, Inc., 133 S.W.3d at 180.

An Administrative Law Judge, or the Commission, has the right to determine the weight it will accord expert testimony or medical causation. Patterson v. Central Freight Lines, 452 S.W.3d at 767. Where the right to compensation depends upon conflicting medical theories, the issue is "peculiarity for the Commission's determination." 452 S.W.3d at 767.

Ms. Houchen provided the only live testimony at the hearing. Ms. Houchen's testimony appears to exaggerate her complaints of pain. Ms. Houchen claims she has constant pain, and at one point claiming that her pain at its worst is $10 / 10 and at its best is 8 / 10$. Throughout the medical records, Ms. Houchen continued to complain of pain that limited her ability to engage in normal activities. When confronted with evidence of activity, Ms. Houchen testified that she always "tries" to do things and that she will continue to "try" to do things. Ms. Houchen reported good and bad days. On bad days, Ms. Houchen lost her grip on things and could not lift her arms above her head. She also described a loss of sensation. It is undisputed that Ms. Houchen has had significant injuries that required 4 serious surgeries. Furthermore, the record is uncontroverted that Ms. Houchen has significant disabilities and needs medication and treatment for pain. Ms. Houchen's exaggerations do not negate her credibility or her injuries, the exaggerations merely go to the weight given her testimony.

Ms. Houchen testified as to the development of depression, which she did not receive any treatment. The employer claims that Ms. Houchen did not produce a report or testimony from any psychiatrist or psychologist connecting the condition. This statement is wholly inaccurate based upon the evidence in this case. Included in the Employee's Exhibit A are numerous statements from physicians hired by the employer regarding depression. These include Dr. Patel in 2006 and 2007 and Dr. Koprivica in 2009. There is also a report to Ms. Camelle Whittenhagen, R.N. on August 1, 2011, from Dr. Dominic Losacco that states: "Ms. Houchen is suffering from a rather severe depressive disorder which renders her temporarily and totally disabled. This is the result of her on-the-job injury and the chronic pain disorder that has evolved." There is no indication that Ms. Houchen was provided any psychiatric care and the record indicates that Ms. Houchen still suffers from mental health problems associated with her injury and treatment.

Ms. Houchen testified that the injuries prevent her from doing household chores. She states that the pain levels go up and down. She only tries to be comfortable. She testified that mornings "are never good." She spends the day up and down with pain, sometimes ending up on the floor. She testified that she was "tired of it." Ms. Houchen claims she cannot do what she wants to do. She describes some days as good and some bad. Although she can drive, she testified she does not trust her legs.

Ms. Houchen also testified she currently takes Synthroid Oxycodone four times a day and she recently started injections in her neck. She claims that the pain management physician, Dr. Nguyen treats her better than other physicians have.

As part of the cross-examination, the Employer and Insurer introduced videotapes of surveillance involving Ms. Houchen. Ms. Houchen testified that she received a knock on the door in July 2015. Three men dressed in all white claimed they were performing a survey and that the employee needed to move the truck. One of the workers muttered something about city fines. Ms. Houchen testified that because the city of Cleveland, Oklahoma is broke, they write tickets for everything. Ms. Houchen testified she panicked because she did not have money left. If fined, Ms. Houchen could not pay for her niece's medications associated with the niece's

medical conditions. Ms. Houchen testified that she panicked and tried to move it and pushed on the fender.

Mr. Dallen Gettling testified for the Employer and Insurer. Mr. Gettling works as an employee of Blue Eagle Investigations, Inc. Mr. Gettling took the June 18, 2015 surveillance videotapes and testified as to the circumstances surrounding the June 18, 2015 videotape of the Employee pushing of a pickup truck. Contrary to the Employee's testimony, Mr. Gettling set up surveillance and approached the door of the Employee's home to find out if the Employee was at home. When the Employee answered the door, Mr. Gettling asked if the pickup truck belonged to her. He told her he was trying to locate utilities and asked if she could move her truck. Mr. Gettling testified he did not know the vehicle did not start. He denied any threats of citations or other fines associated with the truck. He knocked on the door solely as an investigative procedure to determine whether the Employee was at home.

The videotape produced by the employer where Ms. Houchen attempts to move the pickup truck demonstrates that Ms. Houchen is exaggerating her claims of physical limitations. The other tapes depict someone with no obvious signs of physical pain. However, the record in this matter is uncontroverted that Ms. Houchen has a fusion in her neck and two significant shoulder injuries. Furthermore, the employer's physician, Dr. Wilson, could not tell whether the ossification noted on the MRI was impacting the cord and he indicated that this could be the cause of Ms. Houchen's pain. Finally, it is uncontroverted that Ms. Houchen has been prescribed significant amounts of opioid medication for approximately 10 years and has been diagnosed with depression since shortly after her injury with no treatment. There can be little surprise that based upon this history she has developed a chemical dependence and has sought self medication when the employer/insurer failed to authorize her medications in a timely fashion. In support of Ms. Houchen's claims are the clear frustrations listed by Dr. Torgerson at trying to work with the employer/insurer in his January 20, 2015 letter.

The credible evidence and expert opinion proves each element of Ms. Houchen's case. Every physician who treated her found that she suffered a significant disability as a result of the January 13, 2006 injury.

Patrick Caffrey, Ph.D., presented the only vocational evaluation in this matter. Dr. Caffrey opines that Ms. Houchen is permanently and totally disabled in that she is not capable of returning to work on a full or part-time basis. Dr. Caffrey subjected Ms. Houchen to an extensive battery of tests that contain internal validation mechanisms and has consulted the sources relied upon by experts in the field of vocational evaluation to arrive at his conclusions. Dr. Caffrey's opinion is that Candace Houchen does not appear to have the physical capacities, transferable skills, and established skills or training to meet the demands of any occupation in any setting. Dr. Caffrey opined that no reasonable employer would be expected to hire Ms. Houchen and she is, therefore, permanently and totally disabled.

I find the reports of Dr. Poppa, Dr. Losacco, Dr. Koprivica and Patrick Caffrey, Ph.D, to be the most persuasive regarding Ms. Houchen's disability. Patrick Caffrey, Ph.D, is the only vocational expert in this matter. Even after noting the significant indication of exaggerations on

the part of Ms. Houchen, Dr. Caffrey found that the accident and injury rendered the Employee permanently and totally disabled.

There can be little doubt no employer would employ an opioid addicted, severely depressed worker with the restrictions listed by Dr. Koprivica.

To receive an award of future medical benefits, a claimant need not show "conclusive evidence" of a need for future medical treatment. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo.App. W.D. 2007). Instead, a claimant need only show a "reasonable probability" that, because of his work-related injury, future medical treatment will be necessary. Id. There is no dispute that Ms. Houchen needs to be weaned off opioid pain medication and that she needs non opioid pain medication, psychiatric care and TENS unit and supplies for her pain. Accordingly, the employer is ordered to provide such medical care as is necessary to cure and relieve Ms. Houchen of the effects of the January 13, 2006 injury.

Ms. Houchen has submitted invoices for mileage expenses for travel to pain management from her home. Sections 287.140 RSMo states:

...When an employee is required to submit to medical examinations or necessary medical treatment at a place outside of the local or metropolitan area from the employee's principal place of employment, the employer or its insurer shall advance or reimburse the employee for all necessary and reasonable expenses; except that an injured employee who resides outside the state of Missouri and who is employed by an employer located in Missouri shall have the option of selecting the location of services provided in this section either at a location within one hundred miles of the injured employee's residence, place of injury or place of hire by the employer. The choice of provider within the location selected shall continue to be made by the employer. In case of a medical examination if a dispute arises as to what expenses shall be paid by the employer, the matter shall be presented to the legal advisor, the administrative law judge or the commission, who shall set the sum to be paid and same shall be paid by the employer prior to the medical examination. In no event, however, shall the employer or its insurer be required to pay transportation costs for a greater distance than two hundred fifty miles each way from place of treatment.

Ms. Houchen seeks mileage reimbursement for 1,892 miles and drivers expenses for a total of $\ 550.00. (See Employee's Brief) Ms. Houchen does not specify any reimbursement rate but does seek $\ 50 in reimbursement for driver's fees which are not allowed by statute. Based upon Ms. Houchen's demand, she is awarded $\ 550.00 for mileage reimbursement.

Ms. Houchen seeks unpaid out-of-pocket prescription drug cost totaling \$2,124.48. It is well-settled in Missouri that an award of past medical expenses is supported when the record includes (1) the bills themselves; (2) the medical records reflecting the treatment giving rise to the bills; and (3) testimony from the employee establishing the relationship between the bills and the disputed treatment. Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. 1989). Ms. Houchen did not submit bills or medical records reflecting the treatment therefore her request is denied.

I find that Ms. Houchen's work-related injuries to her neck, shoulders, psychiatric injury and opioid dependency render her permanently and totally disabled. Employee shall receive weekly permanent total disability benefits from the employer at the rate of $\ 696.97 per week for the lifetime of the employee or until she is no longer permanently and totally disabled. The employer shall also pay $\ 550.00 for mileage reimbursement. The employer is ordered to provide such medical care as is necessary to cure and relieve Ms. Houchen of the effects of the January 13, 2006 injury.

An attorney's fee in the amount of 25 percent of all payments made pursuant to this award is allowed David B. Mandelbaum, attorney for Ms. Candace Houchen, for necessary legal services provided.

Made by: $\qquad$

Lawrence G. Rebman

Administrative Law Judge

Division of Workers' Compensation