Edward Crawford v. Archway Building Maintenance, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 16-068661

**Employee:** Edward Crawford

**Employer:** Archway Building Maintenance, Inc.

**Insurer:** Hartford Underwriters Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by 8 CSR 20-3.040(2). We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge (ALJ). We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

Employee filed a hardship petition seeking a resumption of benefits and sought a temporary or partial award pursuant to § 287.510 RSMo. At hearing, the parties stipulated that the employee sustained an accident and injury arising out of and in the course of his employment on September 7, 2016; that the applicable rates of compensation were $363.03 for both temporary total disability and permanent partial disability; that employer paid $9,750.46 in temporary total disability benefits for the period September 8, 2016, through March 16, 2017; and $9,546.00 in medical expenses.

The parties asked the (ALJ) to resolve the following issues:

- Medical causation;

- Nature and extent of unpaid temporary total disability for the period March 17, 2017, through September 18, 2017, in the amount of 26 and 4/7th weeks;

- Entitlement to additional medical treatment.

The ALJ found that the employee failed to prove that the September 7, 2016, accident was the prevailing cause of his alleged cervical injuries. He further found that the employee failed to prove the elements of an injury arising out of and in the course of his employment. The ALJ denied all compensation and found all remaining disputed issues, including employee's entitlement to additional medical benefits, moot.¹

On January 5, 2018, the employee filed a timely application for review with the Commission alleging the ALJ's award was erroneous because:

¹ The ALJ's decision, inaccurately titled "Temporary Award", mistakenly provided for a future determination on the issue of nature and extent of any permanent partial disability. Award, pp. 1, 3, and 8.

Injury No.: 16-068661

Employee: Edward Crawford

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In a hardship hearing for additional medical care under § 287.140 in which the parties stipulated to the elements of accident and injury, administrative law judge Denigan erred in applying the "prevailing cause" standard because § 287.140 did not incorporate the prevailing cause standard and the proper standard is whether the treatment is reasonably required to cure and relieve the effects of the injury pursuant to Tillotson v. St. Joseph Med. Center, 347 S.W.3d 511 (Mo.App. 2011).

On January 17, 2018, twelve days after the filing of employee's application for review, employer mailed an answer alleging, "[T]he ALJ correctly applied the law and the applicable standard in determining that the claimant failed to prove his claim of work related injury and causally related necessary medical care. Pursuant to 8 CSR 2-3.030(4), we exercise our discretion to extend employer's ten-day time limit for filing an answer to the employee's application for review.

On or about May 4, 2018, employer filed a Motion to Dismiss Application for Review, raising entirely new issues not referenced in its answer or discussed in its brief. Because we find that employer failed to properly preserve these issues for review by the Commission, we deny employer's motion.

For the reasons stated below, we affirm the ALJ's award, as supplemented herein.

Discussion

We find that the employee has repeatedly been less than candid with regard to his reported medical histories. We agree with the ALJ that the employee is not credible. We further agree with the ALJ that the ultimate opinions expressed by Dr. Lukasz J. Curylo are better informed and more persuasive than those of Dr. Ivan Myers.

The parties stipulated that the employee sustained an accident and injury arising out of and in the course of his employment. They further stipulated that the issue of medical causation remained in dispute.

Section 287.020.3.1 provides, "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability (emphasis added)."

In Malam v. Department of Corrections², the Missouri Supreme Court has recently confirmed that the prevailing factor standard applies where the issue of medical causation is in dispute. Employee's argument that Tillotson v. St. Joseph Med. Center³, an earlier decision by the Western District Court of Appeals, mandates a different standard of proof relating to employer's obligation to provide medical treatment pursuant to § 287.140 RSMo is not well taken.

2 Malam v. Dept. of Corr., 492 S.W.3d 926,929 (Mo. 2016).

3 Tillotson v. St. Joseph Med. Center, 347 S.W.3d 511 (Mo. App. 2011).

MNKOI 0000811698

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Injury No.: 16-068661

Because the employee failed to sustain his burden of proof that the September 7, 2016, accident was the prevailing factor causing any identified medical condition or disability he failed to prove the elements of a compensable injury.

Our decision resolves all issues relating to the employee's claim in this matter and constitutes a final award.

The award and decision of Administrative Law Judge Joseph E. Denigen, issued December 18, 2017, is attached and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this **19th** day of July 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

**REID K. Forrester, Member**

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Edward Crawford

Injury No.: 16-068661

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Archway Building Maintenance, Inc.

Additional Party: N/A

Insurer: Hartford Underwriters Insurance Co.

Hearing Date: September 18, 2017

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

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? Yes (stipulated)
4. Date of accident or onset of occupational disease: September 7, 2016 (stipulated)
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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? No
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 riding in passenger seat of a mini-van involved in minor motor vehicle accident.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: head
14. Compensation paid to-date for temporary disability: $\ 9,750.46
15. Value necessary medical aid paid to date by employer/insurer? $\ 9,546.00

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 16-068661

1. Value necessary medical aid not furnished by employer/insurer? none

1. Employee's average weekly wages: 544.58

1. Weekly compensation rate: 363.03/$363.03

1. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable: None

1. Second Injury Fund liability: No

TOTAL: -0-

1. Future requirements awarded: No. See narrative award.

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25% which is awarded above as costs of recovery of all payments hereunder in favor of the following attorney for necessary legal services rendered to Claimant: N/A

Revised Form 31 (3-97)

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injury No. 16-068661

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Edward Crawford

Dependents: N/A

Employer: Archway Building Maintenance, Inc.

Additional Party: N/A

Insurer: Hartford Underwriters Insurance Co.

Hearing Date: September 18, 2017

Injury No.: 16-068661

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

TEMPORARY AWARD

This case involves a disputed injury to Claimant with the reported accident date of September 7, 2016. Employer admits Claimant was employed on said date and that any liability was fully insured. The Second Injury Fund is not a party to this Claim. Both parties are represented by counsel. This case proceeds pursuant to Hardship Petition in which Claimant seeks a resumption of benefits. Claimant alleges need for cervical spine surgery and his inability to return to work.

Issues for Trial

1. medical causation;
2. entitlement to additional medical treatment;
3. unpaid temporary total disability (Stipulated 26 and 4/7ths weeks).

FINDINGS OF FACT

Claimant had worked for Employer as a office maintenance worker. On the reported accident date, Claimant was involved in a motor vehicle accident as evidenced by bumper damage depicted in Exhibit B. Claimant was a passenger in the mini-van style vehicle and was being dropped at a work site after having attended a work meeting. The vehicle in which Claimant was riding as a (seat-belted) passenger sustained very minor damage to the bumper. (Exhibit B.) Claimant first treated with Concentra urgent care and gave a history of “being hit on the passenger side by another vehicle.”

Claimant subsequently treated with an orthopedist, Dr. Curylo, on October 4. Claimant told Dr. Curylo about the September 7 accident and that he had no pre-existing symptoms or conditions of his cervical spine (Exhibit A, p. 21). Dr. Curylo reviewed the MRI data and found significant stenosis at C3-4. He found no cervical disc herniations. He diagnosed cervical stenosis and recommended surgery.

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At the outset of Claimant's direct testimony, he acknowledged during a series of leading questions that, regarding the posterior neck, he had no prior problems, treatment, MRI, surgery, or complaints to his primary doctor.

Three weeks before the reported accident, on August 14, 2016, Claimant was involved in a motor vehicle accident wherein he was struck in a right angle collision which totaled his Buick LaCross vehicle. On cross-examination, Claimant admitted he reported head and neck complaints to the police. The police report was also referenced on cross-examination. (See also Exhibit C, p. 5 of 6.) He testified he has a pending claim against the driver of the other vehicle in the earlier accident.

Claimant treated arthritis and shoulder pain at People's Health Center on August 9, 2016. Complaints included spasms, swelling and tingling in the arms. (Exhibit 12, p. 73.)

#### Dr. Myers

Claimant offered the deposition, narrative report, and treatment records of Ivan Myers, M.D., as Exhibits 6, 7 and 11, respectively.

Exhibit 11 is described in the record as medical records. It consists of a photocopy of certified "medical records," kept in the regular course of "Florissant Medical," to wit: a five-page narrative report dated October 12, 2016, five nurse/treatment notes, a one-page billing summary showing five appointment dates (August 20 through September 7, 2016), and a five-page Initial Examination Form.

Dr. Myers did not testify to his qualification beyond licensure in the State of Missouri. He identified his rating report:

> This is a summary of our visit which the patient came in to be evaluated for follow-up with his neck pain and, say, from the original accident he had on 9/7/16. (p. 6)

Dr. Myers seems to authenticate five visits by Claimant whereupon Claimant began treatment with Dr. Curylo after the reported accident of September 7. Dr. Myers did not explain why he apparently stopped treating Claimant after November; he stated Claimant appeared at his office in May when a second written report was made but no treatment resumed. Dr. Myers' second written report section on Causation does not address the treating orthopedist's March 7, 2017 addendum report.

In response to what he believed was "Claimant's need for additional medical care," Dr. Myers simply recounted the brief treatment and summarized Dr. Curylo's assessment and surgery.

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recommendation from November 1, 2016 Dr. Myers stated he believed the reported injury (second MVA) was the prevailing factor in causing Claimant's need for surgery.

Dr. Curylo

Claimant took the deposition, but Employer offered the deposition, of Lukasz Curylo, M.D., and orthopedic surgeon, as Exhibit A. Dr. Curylo treated Claimant, diagnosed [significant] cervical stenosis based on his review of a September 19, 2016 MRI. On November 1, 2016 he recommended anterior discectomy and fusion surgery at C3 to C5 (pp. 8-10). On direct examination, Dr. Curylo was expressly asked, with regard to his "original" report, what his opinion was as to causation. He contemplated a September 7, 2016 car accident with a "whiplash" injury. He was then asked a series of narrow questions about whether complaints or diagnoses in an SSM record (of August 14, 2016) and the report of Dr. Myers included the neck or cervical spine, which they did not. Dr. Curylo agreed that an orthopedist could have detected cervical myelopathy from the patient presentations contained in those two records (p. 18).

However, cross-examination revealed Cr. Curylo drafted a March 7, 2017 addendum report wherein he changed his causation opinion (p. 20). (See also Exhibit 8.) After reviewing records from the earlier motor vehicle accident, which he believed was a much more serious accident impact and injury, Dr. Curylo found that the first accident was the source of Claimant's symptoms and need for surgery. Dr. Curylo reviewed the medical records from an August 14, 2016 accident from which Claimant "experienced similar symptoms as he was complaining on 10/4/2016[,]" at his office. "This is a significant preexisting condition that happened only roughly three weeks prior to this workman comp injury. This significantly changes my judgment as to the causality regarding this gentlemen." He said he thought the more severe accident would be the source of the "injury with his disc herniation and stenosis and this was only exacerbated by a second accident which was workman's comp (sic) related on 9/7/2016." (pp. 24-25.)

RULINGS OF LAW

Medical Causation

Although the parties stipulated the occurrence of a work related accident, and Employer's tender of benefits, the parties did not stipulate to medical causation. Here, the evidence shows that prior neck complaints and treatment together with a prior MVA injury three weeks earlier (with neck complaints) prevents a finding that Claimant's current complaints and treatment demand may be traced to the reported injury. Dr. Myers, despite superfluous detail of both accidents, far in excess of Claimant's own testimony, found the second of two motor vehicle accidents to be the cause for the need for surgery. This is particularly curious since Dr. Myers' own notes specifically detail Claimant's car in the first accident was totaled from the impact of a right angle collision. His description of the second MVA, while similarly detailed, includes no detail on the collision impact.

On the other hand, the treating orthopedist who saw Claimant three weeks after the reported injury, and recommended a surgery, ultimately found the earlier MVA in September to

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be the cause of Claimant's complaints.

In cases of accidental injury, a claimant must establish that the accident was the prevailing factor in causing the injury. Section 287.020.3(1) provides, in pertinent part: "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 as the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." Section 287.020.3(1) RSMo Cum. Supp. 2005.

At the outset of his testimony, Claimant testified that he had no prior neck complaints. This testimony was contradicted by prior treatment records from August 9 included in Peoples' Health Clinic, comprising Exhibit 12. He also changes his testimony on cross-examination and admitted he told the police on August 14 that he had neck symptoms. This is not credible testimony and renders less probative any history or complaints he gave in his medical record. It also renders unreliable his expert medical opinions which are based in significant part on his history and complaints.

Dr. Myers' October 2016 narrative report is included in Exhibit 11. Despite admission of the Exhibit without objection, the (first) narrative report was explained by Dr. Myers to be a "summary" when patients no longer appear for treatment; it is not a treatment note and references nothing "at or near the time" of its preparation. Thus, its preparation is not readily understandable. Further, the report states:

> The patient's medical history is non-contributory in that it does not contain any information that would have contributed to the patient's present complaints. (Italics added.)

As outlined above, Claimant treated multiple symptoms and body parts after a severe motor vehicle accident on August 14 in which the car was "totaled." While it is unclear what the term "medical history" might mean to Dr. Myers, i.e. either patient history or prior medical treatment, the above statement is misleading if only because unclear. First, the misstatement is relevant because this case is brought to determine causation between two different accidents and this narrative report was generated on October 12 --- after the August 14 MVA and the September 7 MVA. Second, both patient history and prior treatment may be probative of causation. If Claimant stated this to Dr. Myers, it contradicts his testimony and also suggests Dr. Myers was not fully informed by Claimant's patient histories.

It is noteworthy that the narrative style and diction of the Dr. Myers' written reports contrasts remarkably with his deposition testimony.

Medical causation, not within the common knowledge or experience, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. McGrath v. Satellite Sprinkler Systems, 877 S.W.2d 704, 708 (Mo.App. 1994). As with all proofs in complex medical evidence, a medical expert's opinion must be supported by facts and reasons proven by competent evidence that will give the opinion sufficient probative force to be substantial evidence. Silman v. Wm. Montgomery & Assoc., 891 S.W.2d 173, 176 (Mo.App. 1995), citing Pippin v. St. Joe Mineral Corp., 799

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S.W.2d 898, 904 (Mo.App. 1990). Any weakness in the underpinnings of an expert opinion goes to the weight and value thereof. Hall v. Brady Investments, Inc., 684 S.W.2d 379 (Mo.App. 1984). Admission of a contrary matter weakens the value of expert opinion. DeLisle v. Cape Mutual Insurance, 675 S.W.2d 97 (Mo.App. 1984). It is reasonable to expect an expert to be fully informed about pre-existing disabilities. Plaster v. Dayco Corp., 760 S.W.2d 911 (Mo.App. 1988). Bersett v. National Super Markets, Inc., 808 S.W.2d 34, 36 (Mo.App. 1991). Here, the expertise of Claimant's medical witness was not established and the testimony consisted largely of a summary of Claimant's complaints for the brief period of treatment. Dr. Myer's admissions on cross-examination rendered his causation testimony unpersuasive.

Claimant's proffered expert, Dr. Myers, gave testimony that had little probative value, if any, beyond treatment records authentication of the five described visits to his office. Even there, clearly different handwriting between the examination notes and the diagnostic notes is some basis to infer the diagnostician relied, perhaps, on another's physical examination notes. Further, the examination notes lack recognized orthopedic clinical tests for the cervical spine and upper extremities. The treatment record also is devoid of any referrals, or even radiological tests, given the severe patient complaints. Dr. Myers gave no prescription drug therapy to Claimant. Yet, Dr. Myers affirmed on cross-examination that Claimant's last visit reflected a 9/10 pain scale. There is no basis to infer a discernible treatment plan for serious spine pathology or disabling symptoms.

Probative value here requires that the parties' experts' medical opinions be persuasive. Opinions are persuasive when they are supported by facts and reasons that render the statements convincing. Here, Dr. Myers' qualification was not perfected by his own testimony or by curriculum vitae. Dr. Curylo, on the other hand, is an orthopedist and, separately, a practicing surgeon. These facts make Dr. Curylo more highly trained and experienced in diagnosing and treating orthopedic injury. In this case, Dr. Curylo's testimony must be given greater weight. See Donjon v. Black & Decker (U.S.), Inc., 825 S.W.2d 31 (Mo.App. 1992).

Dr. Myer's unusually brief deposition testimony lacks detail and cogence that would give his opinions sufficient foundation. Dr. Myers reports and testimony consisted essentially of the accident description and Claimant's complaints and stated limitations. Again, the treatment notes themselves lack conventional clinical features. A convincing treatment plan based upon the available medical record is essential to a credible diagnosis and causation opinion.

The larger issue is determining which of two accidents, three weeks apart, is the cause of Claimant's apparent symptoms. The evidence of the disparate impacts of the two accidents was not discussed in Dr. Myers' direct examination. Other omissions explain why his opinions are unreliable: his familiarity with the active treatment record, including MRI data, was unarticulated; he did not explain Claimant's abandonment of treatment after November 2016 with Dr. Curylo; he was not asked about the "violent impact" from the August MVA on direct examination; he was not asked to explain why Dr. Curylo changed his opinion five months after his initial diagnosis; Dr. Myers was unable to simply and directly explain his forensic fees.

Separately, all objections to the references at Dr. Myers' deposition to Dr. London and the football Cardinals are sustained. This record compels the conclusion that Claimant failed to

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make a prima facie proof that the reported accident was the prevailing cause of Claimant's alleged cervical injuries.

Employer's expert, Dr. Curylo, on the other hand, was both the better qualified and better informed witness. Dr. Curylo examined Claimant and reviewed the treatment records from the reported injury. He further reviewed prior records from the first MVA on August 14. On the basis of the second MVA (reported injury herein), Dr. Curylo, upon initial examination of Claimant, found him to have disabling symptoms, unable to work and in need of surgery. However, as disclosed on his cross-examination, he changed his mind upon review of the SSM medical record and accident descriptions by Dr. Myers, indicating Claimant's vehicle in the first accident was totaled. Dr. Curylo opined that the reported accident (second MVA) was not the prevailing factor the cause of Claimant's symptoms and need for surgery.

This evidence compels a finding that the opinions of Dr. Curylo were more persuasive than Dr. Myers' in all respects.

Conclusion

Accordingly, on the basis of the substantial competent evidence contained within the whole record, Claimant is found to have failed to prove the elements of an injury arising out of and in the course of his employment. No further benefits are awarded. The remaining issues, including entitlement to additional medical benefits, are moot.

The nature and extent of any permanent partial disability remains open for determination at a later date.

Administrative Law Judge |

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