Paul Farris v. ADS Waste Holdings, Inc. d/b/a Advanced Disposal Service

The parties did not specifically request, at the hearing, that the administrative law judge resolve any issue of medical causation; instead, the parties asked the administrative law judge to determine the issue "whether employee sustained an accident or occupational disease arising out of and in the course of his employment." Transcript, page 6. This question, stated in this fashion, would appear to implicate at least two ${ }^{1}$ separate statutory elements of an employee's claim under Chapter 287. Specifically, the question whether employee sustained an "accident" implicates the statutory definition under § 287.020.2 RSMo, which provides as follows:

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.

Meanwhile, the question whether any such accident arose out of and in the course of the employment seemingly implicates § 287.020.3(2) RSMo, which provides, in relevant part, as follows:

(2) An injury ${ }^{2}$ shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

In her award, the administrative law judge did not address either of the foregoing statutory provisions. Instead, she discussed the competing medical opinions in this case, and found that "[employee] did suffer an accident arising out of and in the course of his employment due to the prevailing factor of trauma due to driving over a bumpy road where he had an impact on January 3, 2014." Award, page 18. In other words, the administrative law judge appears to have addressed and resolved, at least partially, the question of medical causation under § 287.020.3(1) RSMo, which provides, in relevant part, as follows:

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[^0]: ${ }^{1}$ Employee appears to have abandoned any theory of injury by occupational disease that may have been previously advanced in this case; accordingly, we will not further discuss or explore such a theory herein. ${ }^{2} It is worth noting here, as we have in the past, that \S 287.020 .3(2)$ does not require an employee to prove an "accident" arising out of and in the course of employment, but rather an "injury" arising out of and in the course of employment; the distinction is not merely academic where both "accident" and "injury" have separate definitions for purposes of the Missouri Workers' Compensation Law, and where we are required to strictly construe the terms thereof. See § 287.800.1 RSMo.

An injury by accident is compensable only if the accident 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.

To summarize, we are now faced with a record where the parties appear to have asked the administrative law judge to consider and resolve at least two statutory tests, and an award wherein the administrative law judge resolved neither, but instead addressed a third question that was not expressly identified for trial. This is troubling because the courts have very recently cautioned the fact-finder against delving into issues the parties have not specifically identified for hearing. See, e.g., Anhalt v. Penmac Pers. Servs., 505 S.W.3d 842 (Mo. App. 2016), concluding the Commission erred in considering, without additional evidentiary proceedings, an issue of joint service where the parties did not specifically identify that issue at the hearing before the administrative law judge, but instead disputed the more general issue whether the employee suffered an injury that arose out of and in the course of employment.

Here, the parties do not now ask us, in their briefs or at oral argument, to consider or apply the aforementioned statutory provisions referable to whether employee sustained an "accident" and/or an "injury arising out of and in the course of the employment." Instead, employer complains that the administrative law judge failed to identify, with sufficient specificity, the nature of the "resulting medical conditions" she deemed to have resulted from employee's accident. In other words, employer asks us to go forward with the issue of medical causation, even though such was not identified as an issue at trial.

Likewise, employee's responsive argument turns, to a considerable degree, on the question of medical causation. Given these circumstances, we will not further explore the issue whether the administrative law judge erred in failing to consider or apply the aforementioned statutory tests under $\S \S 287.020 .2$ and/or 287.020.3(2), or exceeded her authority by delving into an issue of medical causation that was not specifically identified. Instead, we will supplement the administrative law judge's findings with regard to medical causation, in order to address employer's well-taken argument that such findings lack sufficient specificity. ${ }^{3}$

After much careful review and considerable deliberation with regard to the numerous competing expert opinions advanced in this case, we ultimately find most persuasive the opinion from Dr. Stephen Reintjes, who diagnosed a thoracic strain following the accident of January 3, 2014. We find that the accident was the prevailing factor causing employee to suffer the resulting medical condition of a thoracic strain and associated disability. Based on our determination in this regard, and other considerations more fully discussed below, we are persuaded to modify the administrative law judge's finding

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[^0]: ${ }^{3}$ We take this opportunity to remind the parties as to the critical importance of obtaining a statement on the record of the particular issues in dispute that is not only complete, but precise in terms of the various statutory elements and/or defenses at issue, in order to avoid any confusion (and costly multiplication of proceedings) that may result on appeal.

with regard to the issue of the nature and extent of disability employee suffered as a result of the work injury.

The administrative law judge determined that employee is permanently and totally disabled as a result of the accident of January 3, 2014. We acknowledge that the evidence in this matter provides substantial and competent evidence to support the administrative law judge's findings. However, after our own careful review of the entire record, and much deliberation, we are persuaded to find otherwise, for the following reasons.

First, we note that the records of employee's chiropractic treatment reveal (and we so find) that employee reported significant symptoms referable to cervical, thoracic, and lumbar spine dysfunction just months before the January 2014 accident. In particular, from August 2009 through September 2013, employee gave histories to his chiropractors of severe pain in the neck, trapezius, left rib, mid back, low back, and left hip areas, as well as global, generalized complaints of pain "all over." See, e.g., Transcript, pages 413, 1958-59, 1971. As late as September 2013, employee reported to his chiropractor that these complaints were so severe that they interfered with his ability to engage in sitting, standing, bending, and walking. These preexisting complaints mirror, in numerous respects, the list of complaints employee would later ascribe solely to the effects of the January 2014 accident, both in certain of his comments to treating and evaluating physicians, and in his testimony at the hearing in this matter.

This brings us to our second, and more important concern: that employee's hearing testimony is simply not entirely persuasive with regard the nature and extent of disability he suffers referable to the work injury. We acknowledge that the administrative law judge expressly found employee to be a credible witness on this topic. Ordinarily, we will defer, wherever possible, to an administrative law judge's express determination with regard to the credibility of live witnesses. Here, though, the record is replete with numerous and material inconsistencies (exhaustively catalogued in the brief from employer/insurer) on the critical topics of employee's preexisting symptoms, the circumstances of the accident itself, and employee's physical abilities and complaints following the accident, as compared with the evidence from the multiple treating and evaluating physicians, employee's own social media account, and eyewitnesses to employee's post-accident activities.

We are unable to ignore these inconsistencies, and we are not persuaded that employee adequately explains or discounts them in his testimony at the hearing. Consequently, we have been persuaded in this case to depart from our general policy favoring deference to the credibility determinations from an administra