Harold Williams v. Dakota Coast, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 00-170204

**Employee:** Harold Williams (deceased)

**Substituted Claimant:** Dustin Williams

**Employer:** Dakota Coast, Inc. (settled)

**Insurer:** Virginia Surety Company, Inc. (settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

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 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.

Along with its brief, employee moved to submit additional evidence that was missing from the transcript. Specifically, employee alleged that the first two pages of a 1988 report by Dr. Thomas Highland were inadvertently omitted, leaving only the third and final page in the record. This report regarded employee's back condition at that time in relation to a 1986 back injury.

State regulation 8 CSR 20-3.030(2)(A) allows a party to submit additional evidence in certain circumstances. This regulation provides that "[t]he hearing of additional evidence by the commission shall not be granted except upon the ground of newly discovered evidence which with reasonable diligence could not have been produced at the hearing before the administrative law judge." 8 CSR 20-3.030(2)(A). Subsection (B) of the same regulation states the following, in pertinent part, "As a matter of policy, the commission is opposed to the submission of additional evidence except where it furthers the interests of justice."

Here, employee had pages one and two of Dr. Highland's report prior to the hearing before the administrative law judge. Therefore, such evidence was not newly discovered evidence and could have been submitted at the hearing. However, admission of the two pages would further the interests of justice in this matter. The Second Injury Fund has not objected to the admission of these two pages nor provided any rebuttal evidence in response to employee's motion. We find that no party would be prejudiced by the admission of the two pages; the two pages did not present anything new regarding the primary injury in this matter. For these reasons and in accordance with the mandate in § 287.550, RSMo, that proceedings before the Commission "be simple, informal, and summary, and without regard to the technical rules of evidence," we hereby grant employee's motion with the case and allow the admission of the two pages.

Injury No.: 00-170204

Employee: Harold Williams (deceased)

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Medical testimony and documents indicate that employee's medical condition reached maximum medical improvement by the end of 2001.¹ For example, Dr. Allen Parmet opined that employee "was at maximum medical improvement since 2001." *Transcript*, page 182. Similarly, both Drs. Timothy Galbraith and William Allen indicated that by the end of 2001 employee could return to work without restrictions regarding his knee. *Transcript*, pages 332, 511.

Regarding employee's mid-back, Dr. Randal Trecha stated on July 9, 2001, that employee might recover without surgery. *Transcript*, page 492. There is no evidence that employee ever had or needed surgery on his back or any later procedures to cure and relieve the effects of the primary injury regarding his back. We find that employee's medical condition related to the December 3, 2000 primary injury² had stabilized and could no longer reasonably improve with additional medical care by the end of 2001.

Dr. Raymond Cohen's opinion did not dispute that employee was at maximum medical improvement by the end of 2001. On the contrary, Dr. Cohen's opinion regarding the need for future medical treatment was only speculative, contingent on the results of possible exploratory MRI procedures. On October 30, 2012, Dr. Cohen opined that employee would require additional treatment for his right knee and for his lower back, but only if exploratory MRIs supported such action. Dr. Cohen agreed that if an exploratory MRI of his right knee "determined that [employee] is a non-surgical case, then he can continue to use the knee brace as well as appropriate medications for pain." *Transcript*, page 219. Thus, if the MRI did not support surgery, then employee was at maximum medical improvement regarding the right knee.

Similarly, Dr. Cohen recommended an MRI with contrast on the lumbar spine only "to determine if there is any impingement on [employee's] right lower lumbar nerve roots." Dr. Cohen continued that "[i]f that study is positive, I would recommend that [employee] see a spine surgeon for additional treatment including the possibility of a lumbar spine surgery." *Transcript*, page 219. There is no evidence that any exploratory MRI indicated the need for spine surgery. Therefore, Dr. Cohen's statements that employee needed additional treatment are conditional based on the results of the exploratory MRIs and do not negate a finding that employee was at maximum medical improvement by the end of 2001.

Although employee was at maximum medical improvement, employee's inherent lack of credibility and the absence of real synergy makes it impossible for us to find fund liability.

Employee lacks credibility because he repeatedly minimized his 1986 back injury. Employee had a back injury in 1986, which resulted in a workers' compensation claim settlement agreeing to 20% of the body as a whole permanent partial disability. However, in his 2003 deposition, claimant downplayed the 1986 injury as only pulled muscles in his back. *Transcript*, page 82. Employee mentioned that he received a shot for his back, but did not mention physical therapy.

1 The Administrative Law Judge erroneously stated that "the term maximum medical improvement is not included in the statute." Award, page 9. One month prior to the issuance of the award, § 287.020.12, RSMo, became effective, defining maximum medical improvement as "the point at which the injured employee's medical condition has stabilized and can no longer reasonably improve with additional medical care, as determined within a reasonable degree of medical certainty."

2 We note that the administrative law judge erroneously listed the primary injury date of October 3, 2008, in his award. Award, page 11.

Injury No.: 00-170204

Employee: Harold Williams (deceased)

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not working for five weeks, or the resulting workers' compensation claim that settled. See Transcript, pages 82, 475-76.

Later, in 2011, employee discussed his medical issues with Dr. Parmet. Employee also minimized his pre-existing back problems by indicating that he suffered an injury in 1983 that only required physical therapy. Transcript, page 143-44. Employee stated that he fully recovered from the "1983" back injury and had no back problems until the December 3, 2000 primary injury. Transcript, page 144. Employee did not mention the continuing severe back pain that is found in medical records from the 1986 injury through to 1998. See Transcript, pages 144-45.

Furthermore, employee lacks credibility because he exaggerated his pain and disability to Dr. Parmet that resulted from the primary injury. Dr. Parmet stated that employee was "projecting more pain and disability than can be reasonably established on a physical basis [and] magnifying his symptoms." Transcript, page 177.

Employee's lack of credibility, downplay of the 1986 back injury, and exaggeration of the injuries from the December 3, 2000 primary injury, counters any credible argument of synergy between the pre-existing back injury and the December 3, 2000 primary injury. If employee's statements are true regarding how quickly he recovered from the 1986 injury, then there was nothing remaining by the time of the primary injury.

In addition to employee's lack of credibility, the medical evidence does not support a finding of synergy. In 2012, Dr. Cohen opined that employee's pre-existing injuries related to employee's lower back combined with the primary injury "to create a greater overall disability than their simple sum." Transcript, page 220. Dr. Cohen recommended a loading factor of 15%. Id.

We find that Dr. Cohen's conclusory statements in this matter did not persuasively establish synergy. Missouri courts have declared that an employee fails to meet his burden of proof where his expert "fail[s] to provide any legitimate, persuasive explanation ... making only conclusory and unsupported statement[s]." Royal v. Advantica Rest. Group, Inc., 194 S.W.3d 371, 378 (Mo. App. 2006). Dr. Cohen does not explain how or in what way the primary injury combined with the pre-existing injuries to create a greater overall disability.³

Employee did not meet his burden to show fund liability because of his lack of credibility and because the evidence does not support that the pre-existing back injury synergistically combined with the primary injury.

Decision

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

The award and decision of Administrative Law Judge Robert Dierkes, issued September 28, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

3 Dr. Parmet also agreed to a 15% loading factor, but only if one included pre-existing disabilities of employee's liver cirrhosis and the loss of a kidney. Transcript, page 139. We agree with the administrative law judge that the evidence does not support that employee's liver cirrhosis and loss of a kidney pre-existed the primary injury. It is not clear that employee's liver cirrhosis existed or affected him at the time of the primary injury. Furthermore, at the time of the primary injury, employee still had both kidneys, with a benign mass on one of them. There is no evidence that the benign mass affected employee at the time of the primary injury.

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Given at Jefferson City, State of Missouri, this 12th day of October 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No additional benefits are awarded.
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: December 3, 2000.
5. State location where accident occurred or occupational disease was contracted: Callaway 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? 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 refueling his truck when he slipped on diesel