Kevin Parvin v. Camcorp Environmental, LLC

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 13-102339**

**Employee:** Kevin Parvin

**Employer:** Camcorp Environmental, LLC

**Insurer:** Missouri Employers Mutual Insurance Company

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

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 November 26, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Karen Wells Fisher, issued November 26, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **16th** day of August 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornelia, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Injury No. 13-102339

Employee: Kevin Parvin

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find the employee has sustained a compensable injury due to occupational disease resulting from repetitive use of his arm while working for this employer.

On March 24, 2014, employee filed a claim for compensation alleging injury to both arms, back, and neck as a result of exposure to repetitive use of his arms throughout all dates of employment with employer, ending on September 17, 2013. At hearing, the parties stipulated that the issue for determination was whether employee sustained an occupational disease. Accident was not at issue. Nevertheless, the majority affirms the administrative law judge's evaluation of employee's claim as if he alleged that an accident occurred, rather than an occupational injury due to repetitive exposure.

The alleged inconsistency between the testimony of employer/co-owner Sara Camerer (Mrs. Camerer) and employee was unsubstantiated. Mrs. Camerer's testimony regarding employee's work activities was consistent with and corroborated employee's testimony, as did employee's medical history. Mrs. Camerer's varied job titles and responsibilities, including estimator, accountant, equipment operator, and manager, kept her moving in and out of the office. Employer's business was booming after the 2011 Joplin tornado, resulting in working on twenty yards at once; Mrs. Camerer had to drive to each site. Because of her constant travel, she would not spend all day with employee, was not always on employee's job site, and was unable, as a practical matter, to supervise him. Mrs. Camerer listened to employee testify at hearing and did not dispute that employee's job duties required him to perform heavy raking just as employee described it. She acknowledged that even though employee's job duties after May 2, 2013, involved mostly excavation, at the end of the day even operators are required to "sweep the street with a broom, possibly rake a few rocks."

Employee testified that he was experiencing intense pain in his shoulders as a result of raking towards the end of his employment and told his boss, co-owner Pat Camerer (Mr. Camerer). Mrs. Camerer stated employer discharged employee because he was "crying quite a bit on the job site." Employer presented no testimony from Mr. Camerer that contradicted employee's account of his physical complaints and his alleged report of them to his boss. The failure of a party to call a witness who is in their control to testify, such as Mr. Camerer, gives rise to an adverse inference regarding what that witness's testimony would have been. See *Graeff v. Baptist Temple of Springfield*, 576 S.W.2d 291, 306 (Mo. 1978).

1 Transcript, 127.

2 Id. 128-129.

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Employee: Kevin Parvin

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Employee testified that he first noticed problems with his left shoulder while carrying fertilizer bags for seeding in November of 2012. Mrs. Camerer acknowledged that during employer's busy time in 2012, employee had to carry 50-pound bags of fertilizer under his arm for what she initially guessed to be 'maybe 30 minutes ... periodically.'3

Mrs. Camerer subsequently conceded that employee had been carrying more fertilizer bags around Thanksgiving of 2012, stating "I do remember us all having to jump in for two or three days right before Thanksgiving on this particular job to hurry up and get these yards finished before the Thanksgiving holiday, because people didn't want their yards all yucky (emphasis added). I remember that."4 Contrary to the administrative law judge's finding, Mrs. Camerer expressly confirmed and corroborated employee's testimony about carrying fertilizer bags around Thanksgiving of 2012.

It is apparent from the witnesses' testimony and from the lack of any countervailing testimony from co-owner Mr. Camerer disputing employee's testimony, that employee was exposed to repetitive use of his arms as he described to physicians. In particular, employee's testimony that he was carrying fertilizer bags under his left arm in November of 2012, and performed raking duties throughout his employment, but especially up until his son's death in May of 2013, was corroborated by co-owner Mrs. Camerer, to the extent that she could testify with firsthand knowledge of employee's activities. The administrative law judge erred in finding employee not credible in his description of his job duties.

Treatment Records and Timing of Complaints

The administrative law judge relied on inconsistencies in employee's medical records to lead her to the conclusion that he was not credible. The supposed inconsistencies are based on a fundamental misunderstanding of the nature of employee's claim, which was alleged to be an occupational disease injury from exposure to repetitive use of the arms, not an accident. Employee has never alleged that there was an accident. Medical records in evidence corroborate his testimony regarding different exposures to several different repetitive work activities, as opposed to exposure to one type of activity on one date. Mrs. Camerer's testimony, as discussed supra, supports employee's medical history.

It is notable that employee was having no ongoing issues with either of his arms or neck prior to his employment with employer beginning in February of 2012. As evidenced by both the medical records and employee's own testimony, he never had problems, complaints or treatment for his left shoulder prior to working for employer. Employee testified that after his second right shoulder surgery in 2007, he had a good recovery and was not experiencing any ongoing complaints in his right shoulder. Employee's treatment records confirm this, with only one mention of back pain from an emergency room visit to Mercy Hospital on June 15, 2011. The first mention of shoulder, neck and arm pain after 2007 is found within therapy records beginning January 14, 2013, continuing through October 28, 2013, five visits recording, "major pain in both arms &

3 Transcript, 135.

4 Id. 137.

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Employee: Kevin Parvin

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shoulders and from neck down the spine. Rotator cuff pain".5 The administrative law judge did not note or discuss these records. The administrative law judge instead points to treatment records from Dr. Rex Gallemore from April 26, 2013, where a referral to an orthopedic surgeon was made, in which employee complained of left shoulder pain, thought to be a torn rotator cuff: "The patient is complaining of having left shoulder pain. The patient's [sic] had this problem since November 2012. The patient states that he is a trailer truck driver and may have injured his left shoulder while driving his truck (emphasis added)."6

The administrative law judge found that this note conflicted with employee's trial testimony that he first experienced problems with his left shoulder after carrying bags of fertilizer under his left arm for an extended period. However, there is no inconsistency, simply a lack of detail on the part of the medical providers and a lack of medical sophistication on employee's behalf. Employee is not a medical doctor, he did not suffer an accident and he cannot be expected to diagnose the cause of an occupational disease. Employee did drive a truck for employer and that was his occupation when he initially felt pain in his left shoulder. Dr. Gallemore wasn't noting the mechanism of injury in his records. No one injures their shoulder simply by driving a truck. Rather, he was obviously referring to employee's occupation at the time of the injury. Indeed, the records reflect that employee himself was honestly unsure as to the mechanism of his injury because it was insidious in nature, which is the very essence of an occupational exposure injury due to repetitive use as opposed to an accident with sudden trauma. Rather than conflicting with employee's testimony, the treatment records are consistent in both the timing and nature of complaints, and employee's realization that left shoulder pain was generally associated with multiple repetitive work activities. The administrative law judge acknowledged as much when she noted that employee attributed his shoulder and neck pain to work activities as documented in Mercy Clinic records of November 1, 2013, which note, "He hurts bad when he gets off work. He runs a back hoe," and on December 11, 2013, when he attributed his pain to "stress."7 The next record from Freeman Hospital emergency room on February 12, 2014, again corroborates the onset date of bilateral shoulder pain, left worse than right, approximately a year and a half earlier, "The pain is worse with stress and range of motion. The patient states he sustain injury 1-1/2 years ago when carrying 50 pound bags of fertilizer. He has been a manual laborer throughout his life."8

Rather than conflicting with the employee, the treatment records contemporaneously record the very onset of his symptoms beginning with the January of 2013 therapy notes, shortly after the episode of carrying the fertilizer bags, activity that was confirmed by employee's testimony. Just as important, the records exclude the possibility of a preexisting condition in the left shoulder or any ongoing complaints in the right shoulder or neck prior to employee's employment with employer. The employee's testimony

5 Id. 1689-1690.

6 Transcript, 2293.

7 Id. 472,475. Employee testified, and Dr. Kent Franks agreed, that emotional stress caused his pain to increase. Id. 20-24. However, there is no question but that employee's underlying pain is physical in nature, given the objective evidence related to his multiple surgeries.

8 Id. 321.

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regarding the progression of symptoms associated with his work activities is corroborated, not undermined, by the treatment records, as the treatment records note pain correlated to work activity.

By the time employee lost his son to suicide in May of 2013, the die was already cast and a referral had been made by employee's doctor for evaluation of a left torn rotator cuff by Dr. Gallemore.9 In September of 2013 employee was experiencing extreme pain in his shoulders and could no longer perform even limited raking activities, as it "put tears in his eyes." Ironically, the judge made a note of his crying as reason for finding the employee inconsistent and unbelievable, stating "I find it significant that while the claimant testified the raking caused 'massive pain' and put tears in his eyes, Ms. Camerer testified unequivocally that claimant never reported any injuries or complaints to the employer."10 However, Mrs. Camerer actually corroborated employee when she testified that he was "crying quite a bit on the job site" towards the end of his employment.11 Notably, employer never called the one person to whom employee reported injury to, co-owner Pat Camerer.

The therapy records beginning January 14, 2013, and continuing through October 28, 2013, also coincide with and confirm the timing of both the development and deterioration of his shoulder and neck complaints while working for employer.12 Mysteriously, the administrative law judge completely neglected to note, consider, or discuss the therapy records in the Award and that failure in itself is fatal to the conclusions made therein. Instead, the administrative law judge illogically noted an incident in 2015, to which the employee readily admitted, where he felt a pop in his right shoulder after lifting a tire, as grounds for denying the claim.13 But this event was completely irrelevant as it occurred well after Dr. P. Brent Koprivica and others evaluated employee, which Dr. Koprivica clearly pointed out.

Medical Opinions

The administrative law judge found Dr. Allen Parmet's opinions more credible than that of Dr. Koprivica, despite the fact that Dr. Parmet only evaluated employee once, didn't have any treatment records after August 28, 2015, did not have records from the left shoulder surgery or neck treatment and never had the critically important physical therapy records. He also did not have the report or opinions of Dr. Kent Franks, who opined that the employee did not have a drug abuse problem and was not exhibiting drug-seeking behavior notwithstanding a one-time experimentation in the immediate aftermath of his son's suicide.14 Dr. Frank's opinions are especially poignant given that the administrative law judge weighed Dr. Parmet's opinions as more credible that Dr. Koprivica, noting that Dr. Parmet labeled employee's behavior "drug seeking" and his alleged "inconsistent history and substance abuse issues" as grounds "to strongly

9 Id. 1193.

10 Award, p. 16.

11 Transcript, 128.

12 Id. 1689-1690.

13 Award, p. 10.

14 Id. 25-26.

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question Mr. Parvin as a reliable historian,"15 The fact that Dr. Parmet lacked so many crucial records and testimony from Dr. Franks completely undermines and invalidates his opinions. Dr. Parmet admitted as much, specifically declining to provide a medical opinion regarding the left shoulder because he didn't have enough records, stating, "I am lacking the surgical documentation of his recent procedure and was unable to perform a complete examination at this time. I will defer judgement on this particular condition until such time as the complete documentation is available. I will note that there are no contemporaneous records supporting a history of a left shoulder injury until more than a year after the alleged event."16

Dr. Koprivica, on the other hand, examined employee twice, on October 8, 2014, and then again on May 14, 2016, after both shoulder surgeries had been completed. Dr. Parmet's one exam was on November 23, 2015, and he didn't have the benefit of seeing the treatment records from the left shoulder surgery. Dr. Koprivica reviewed and discussed all of his treatment records through July 29, 2016, including those from the left shoulder surgery and specifically the therapy records, which note the contemporaneous development of bilateral shoulder and neck complaints from January through October of 2013, during employee's employment with employer.17

The administrative law judge "adopted" Dr. Parmet's opinions on causation, even though he didn't have one with respect to the left shoulder. As noted, Dr. Parmet refused to provide an opinion regarding employee's left shoulder because he hadn't received all of the treatment records, stating, "I will defer judgement on this particular condition until such time as the complete documentation is available." Nevertheless, he conceded that it "may" be compensable, stating:

> Of all his allegations, I believe the only one that can potentially be sustained as work-related would be his complaints of left shoulder pain, and even those have a weak causal connection since he worked for almost a year after the alleged injury, did not report problems during that time, and indeed not until after he had been laid off.18

It is well established that "medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause." *Malam v. Dep't of Corr., 492 S.W.3d 926,930 (Mo. 2016)* citing *Gordon v. City of Ellisville, 268 S.W.3d 454,461 (Mo. App. 2008)*.

The administrative law judge wrongly overlooks the unequivocal meaning of the doctors' testimony and ignores the more credible medical opinion on a complex medical issue. *Id.* at 930. Only one physician, Dr. Koprivica, expressed a clear opinion on medical causation with respect to the left shoulder. Neither the administrative law judge nor this Commission may not reject his opinion or substitute it with their own. The

15 *Id.* at 2122.

16 *Id.* at 2121.

17 *Transcript,* 1781.

18 *Id.* at 2122-2123.

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Employee: Kevin Parvin

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administrative law judge's award should be reversed and employee's claim for occupational injury to his shoulders deemed compensable.

Because the majority finds otherwise, I respectfully dissent.

Curtis E. Chick, Jr. Member

Employee: Kevin Parvin

Employer: Camcorp Environmental, LLC

Invoice Date: July 19, 2018

Injury No. 13-102339

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Checked by:

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: Alleged 9-17-2013.
5. State location where accident occurred or occupational disease was contracted: Alleged to have occurred in Newton 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? No.
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.

1. Describe work employee was doing and how accident occurred or occupational disease was contracted: Employee alleges injury to both arms and shoulders and back from repetitive work.

1. Did accident or occupational disease cause death? No. Date of death? Not applicable.

1. Part(s) of body injured by accident or occupational disease: alleged both arms and shoulders and back.

1. Nature and extent of any permanent disability: Not compensable.

1. Compensation paid to date for temporary disability: None.

1. Value necessary medical aid paid to date by employer/insurer? None.

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

1. Employee's average weekly wages: 1364.49.

1. Weekly compensation rate: 853.08 for temporary total disability and permanent total disability and $446.85 for permanent partial disability.

1. Method wages computed: Agreement.

**COMPENSATION PAYABLE**

1. Amount of compensation payable: None.

1. Second Injury Fund liability: None.

Total: None.

1. Future requirements awarded: None.

**Employee:** Kevin Parvin

**Injury No. 13-102339**

**Employer:** Camcorp Environmental, LLC

**Additional Party:** Missouri State Treasurer, Custodian of the Second Injury Fund

**Insurer:** Missouri Employers Mutual Insurance Company

**Hearing Date:** July 19, 2018

The undersigned Administrative Law Judge conducted a hearing in this case involving Kevin Parvin, Claimant, who appeared with his attorney Randy Alberhasky. Ronald Sparlin appeared on behalf of the employer, Camcorp Environmental, LLC, and its insurer, Missouri Employers Mutual Insurance Company. The Second Injury Fund appeared by attorney Michael Bang.

The parties stipulated to the following facts:

1. Claimant was an employee of Camcorp Environmental, LLC, on and before September 17, 2013. During all times relevant, claimant and employer were subject to the provisions of the Missouri Workers' Compensation Law.

1. Employer is insured by Missouri Employers Mutual Insurance Company.

1. There is no dispute as to venue or statute of limitations.

1. The average weekly wage was 1364.49, which yields a rate of 853.08 for temporary total disability and permanent total disability, and $446.85 for permanent partial disability.

1. No medical benefits have been paid. No temporary benefits have been paid.

The issues submitted by the parties for determination are:

- Did claimant sustain an injury by occupational disease due to repetitive motion?

- Was claimant's work at Camcorp Environmental, LLC the prevailing factor in causing the alleged injury to claimant's arms, shoulders, and back?

- Did the claimant's alleged occupational disease arise out of and in the course of his employment at Camcorp Environmental, LLC?

- Did the claimant provide notice of his injury to the employer as required by Chapter 287?

- Did the claimant sustain any permanent partial disability as a result of the alleged occupational disease and, if so, what amount?

- Is the employer liable for past medical expenses allegedly incurred by claimant?

- Is the claimant permanently and totally disabled?

- If the claimant is permanently and totally disabled, is liability for same the responsibility of the employer or the Second Injury Fund?

- Is the claimant entitled to future medical benefits?

The claimant offered the following exhibits which were admitted:

1. Access Family
2. Country Care Medical Clinic
3. Country Care Medical Clinic Office Notes
4. Cox Medical Care - Cassville
5. Cox Health
6. Free Market Physicians Clinic
7. Freeman Hospital

1. Freeman Hospital

1. Freeman Hospital

1. Mercy Hospital

1. Mercy Clinic - Neosho

1. Mercy Hospital - Joplin

1. Mercy Hospital - Joplin

1. Mercy Hospital - Joplin

1. Mercy Hospital - Joplin

1. Mercy Hospital - Joplin

1. Mercy Neurosurgery - Joplin

1. Mercy Orthopedics - Joplin

1. Mercy Orthopedics - Joplin

1. Ozarks Community Hospital - Gravette Clinic

1. Ozarks Community Hospital - Gravette Clinic

1. Ozarks Community Hospital - Gravette Clinic

1. Ozarks Community Hospital - Gravette Clinic

1. Ozarks Community Hospital

1. Mercy Joplin

1. Dr. Gary Hamlin

1. MRI Cervical ECG/EMG Results

1. St. John's Mercy

1. Ozarks Community Hospital - Gravette Clinic

1. The Pain Relief Studio

1. Country Care Clinic

1. Mercy Clinic

1. Mercy Clinic

1. Mercy Clinic

1. Mercy Hospital

1. Dr. P. Brent Koprivica IME report dated 10/08/14

1. Dr. Koprivica IME report dated 05/14/16

1. Dr. Koprivica Addendum report dated 12/21/16

1. Dr. John Irlam report dated 03/19/16

1. Phil Eldred's Vocational Rehabilitation Evaluation dated 04/12/17

1. Dr. Kent Franks Psychological Evaluation report dated 08/14/17

1. Claim 03/21/14

1. Answer from Employer/Insurer 04/08/14

1. Answer from SIF 04/08/14

1. Claim File/Report of Injury

1. Medical Disclosures to Opposing Counsel dated 06/18/14

1. R.S.Mo. §287.210 letter (Koprivica 10/08/14) dated 01/13/15

1. Medical Disclosures to Opposing Counsel dated 06/26/15

1. Medical Disclosures to Opposing Counsel dated 10/12/15

1. Medical Disclosures to Opposing Counsel dated 11/04/15

1. Medical Disclosures to Opposing Counsel dated 12/31/15

1. Medical Disclosures to Opposing Counsel dated 02/17/16

1. Medical Disclosures to Opposing Counsel dated 04/13/16

1. R.S.Mo. §287.210 (Irlam) letter dated 08/04/16

1. R.S.Mo. §287.210 (Koprivica 05/14/16) letter dated 09/01/16

1. R.S.Mo. §287.210 (Irlam) letter dated 11/28/16

1. R.S.Mo. §287.210 (Koprivica 12/21/16) letter dated 01/04/17

1. Medical Disclosures to Opposing Counsel dated 01/16/17

1. Medical Disclosures to Opposing Counsel dated 04/17/17

1. Medical Disclosures to Opposing Counsel dated 05/25/17

1. Medical Disclosures to Opposing Counsel dated 06/13/17

1. Medical Disclosures to Opposing Counsel dated 12/07/17

1. Medical Disclosures to Opposing Counsel dated 01/29/18

1. Updated Medical Billing Summary

1. Deposition of Kevin Parvin 05/13/15

1. Deposition of Kevin Parvin 12/14/16

The employer offered the following exhibits which were admitted:

A. Dr. Allen Parmet Notice of Intent;

B. Kristine Skahan vocational report;

C. Mercy Hospital and Clinics records;

D. Dr. Rex Gallemore records;

E. Mercy Clinic records;

F. Freeman Health System records.

FINDINGS OF FACT

The witnesses who testified live at the hearing were Kevin Parvin, Dr. Kent Franks, Phil Eldred, and Sara Camerer.

Live Testimony

Kevin Parvin, hereinafter referred to as Claimant, is 56 years old, a high school graduate, who has worked construction most of his life. By his description, Claimant has had "medical issues" with his back and right shoulder over the years. Claimant's low back problems began around 2000 and he underwent his first low back surgery at that time. Within the next two years Claimant had injured his back again, leading to a second low back disk surgery, in 2001. Claimant described ongoing symptoms with his back thereafter, including stiffness and pain, and limited motion. Claimant stated his back was "not right" at any point after his two surgeries, but he had to work nonetheless. Driving

equipment at work Claimant could feel the pain "up to [his] teeth. Claimant's ongoing back complaints led to use of multiple different prescription medications through the years, including Norco, Valium, Lortab, Demerol, Soma, and later Hydrocodone and Percocet. In the claimant's words: "doctors sometimes would not give pills and sometimes I'd get pain pills."

Claimant had undergone two surgeries to repair the rotator cuff of his right shoulder prior to starting work at Camcorp. He injured the shoulder the first time throwing an "air punch" which "ripped" his right shoulder. The second right shoulder rotator cuff surgery was in 2007 following an incident where Claimant was "run over by a Jeep." Claimant admitted that following his 2007 surgery he continued to have ongoing pain and limitations in his right shoulder but that it "wasn't bad enough to miss work over."

Claimant began his employment with Camcorp in 2012. Camcorp does environmental clean-up work, and site reclamation, such as replacing dirt in yards due to lead in the soil. Claimant primarily ran equipment, including driving a dump truck and a track hoe. At times he would perform other duties such as spreading seed and straw on yards and raking dirt.

The formal claim for compensation filed by Claimant alleges an occupational disease date of "9-17-2013" and alleges the exposure for occupational disease as "The employee was exposed to repetitive use of his arm throughout all dates of employment." (Exhibit 42) Claimant's testimony about the onset of problems with his shoulders was varied and inconsistent throughout the medical histories given and in his testimony and therefore not credible. The credibility and reliability of his testimony was further called into question on cross-examination and by reference to multiple entries in medical record exhibits.

Claimant testified that shortly before Thanksgiving in 2012 he was required to handle 50-pound bags of grass seed and fertilizer as part of a crew that was working hurriedly to finish dirt replacement in yards. He described "noticing pain" in his left shoulder during this job, but he testified there was no particular event where he hurt the shoulder. Claimant kept working for the employer as scheduled and his left shoulder continued to hurt though he "didn't pay attention" to it. Claimant continued a practice he'd had for several years of periodically visiting a massage therapist to work on his body "everywhere."

At some point in 2013 (though the claimant gave no more specific time reference) the employer required Claimant to rake dirt. This was another part of the dirt replacement in yards, and included breaking up dirt clods and spreading the dirt. According to Claimant,

he engaged in this raking activity eight hours a day for two to three weeks. Claimant described developing "massive pain" in both shoulders while raking. He testified that he had pain in his "whole upper body" from the waist up, but mainly in his arms and both shoulders.

In May of 2013 Claimant sustained the tragic loss of his son, and as a result, was off work for three weeks. The owners of Camcorp paid him his full wages while he was off. When he returned Claimant was assigned to driving a track hoe. However, Claimant testified that one of the co-owners of Camcorp, Pat Camerer, told him he needed the claimant to rake again. Claimant claimed that he told Pat Camerer that his shoulders were hurting too bad to rake and that they would have to "lay me off or fire me" because he could not rake. Claimant was laid off by Camcorp in September 2013. Claimant testified that at that time his shoulders and arms were hurting so bad he had tears in his eyes from the pain.

There were numerous questions of the claimant on cross-examination about the content of his medical records pertaining to the onset and source of his complaints in the left shoulder. Claimant acknowledged Dr. Rex Gallemore as his primary care physician. The records of Dr. Gallemore (Employer Exhibit D) reflect Claimant being seen on April 26, 2013, with complaints of left shoulder pain. The history states: "The patient states that he is a trailer truck driver and he may have injured his left shoulder while driving his truck." Claimant could neither deny nor explain the entry.

An entry in the record of Mercy Clinic, Inc. (Exhibit E) of November 1, 2013, reads: "Have injured shoulders in the past. . . He hurts bad when he gets off work. He runs a back-hoe." At that same facility on December 11, 2013, the claimant was seen for "shoulder pain - getting somewhat better." He advises the clinic staff that "He thinks it is related to stress."

The records of Freeman Health System (Exhibit F) document a visit to the emergency department on February 12, 2014 with a complaint of left shoulder pain. The history indicates: "He denies any current or new injury." There is no reference to any inciting event or activity nor any reference to any work involvement, including raking. When Claimant saw Dr. Gallemore on April 10, 2014 "to discuss his disabilities" he told the doctor that he had "a history of chronic left and right shoulder pain." Claimant told the doctor he was employed as a heavy equipment operator for years and felt "his occupation resulted in his chronic lumbar pain." Claimant did not make that same statement with regard to his bilateral shoulder problems.

Claimant made a series of emergency room and medical clinic visits on March 1, 2014, (being seen at Mercy and Freeman) and on March 3, 2014 (seen at Mercy). At Freeman on March 1, 2014 Claimant gave a history of "chronic shoulder pain since sept. [sic] where he reported he raked for 3 weeks". The note goes on to say "pt initially would not raise his arms, but once he layed back onto cot, he raised both arms above head and clasped his hands together and placed them behind his head; pt showed no s/s of pain while performing this." Another entry of that same March 1, 2014, visit to Freeman states: "pt reports that he has not reinjured his shoulders, but has had a bill collector call this morning and he felt his back and shoulders start hurting after call". On March 3 his history at Mercy was "hurt shoulders raking in April." When Claimant underwent right shoulder surgery in April 2015 the history indicated an onset of symptoms "since 2007."

Other medical entries of note include the following:

On March 28, 2014, Claimant was seen at Mercy Clinic in Neosho for chronic back and shoulder pain. Claimant indicated at that time that he was hurt 11 months earlier, in April of 2013. An oxycodone prescription was refilled.

On May 1, 2014, at Mercy Hospital Joplin he indicated he injured his shoulders "after raking for eight hours per day at work last fall." He was refused narcotics.

On November 24, 2014, Claimant saw Dr. Joseph Sheppard for pain in his right shoulder, reporting "he was washing windows above his head on Saturday and had subsequent pain." Valium and Percocet were prescribed.

On January 5, 2015, he saw Dr. Joseph Sheppard for left shoulder pain. He was "cleaning guns and has aggravated his shoulder." Percocet was prescribed.

Three weeks later, on January 27, 2015, he was back to see Dr. Sheppard to be evaluated for his application for a handicap placard. Claimant indicated he was unable to push a grocery cart. The doctor felt this was unlikely, in addition to the fact that this was insufficient to meet the provisions for a handicap placard.

Sara Camerer is one of the owners of Camcorp along with her husband, Pat Camerer. Mrs. Camerer testified at the hearing. Mrs. Camerer performs a number of widely varying duties for the employer including administrative tasks as well as physical labor on job sites. She worked on numerous job sites with Claimant. When Claimant's son died in May of 2013 Camcorp gave him all the time off he needed and paid him his full wages. Claimant returned to work for some months thereafter. But ultimately there was an issue reported to the Camerers in which an EPA inspector alleged that Claimant had

menacingly rattled a piece of equipment in her direction. The Camerers liked Claimant and had sympathy for him following the death of his son. So they laid him off rather than fire him.

Mrs. Camerer testified that at no time prior to his separation of employment did Claimant report an injury or complain to them that he was having complaints in his shoulders or elsewhere in his body. He likewise never complained that any of his job activities were causing him difficulty. Camerer confirmed that Claimant would have spent some time raking dirt as well as spreading seed and fertilizer. But she described it as "not often." Her review of Claimant's pay stubs for November 2012 reflected that he was driving a truck but it was common for all employees to "jump in and help" in order to get yards completed. According to Camerer, Claimant would never have carried bags of grass or fertilizer around "all day"; it would be more like thirty minutes out of an 8-hour day. Camcorp had crews of girls who did most of the seeding and spreading of straw.

After Claimant was laid off by Camcorp he applied for unemployment benefits and collected a total of about $5400 through February 2014. Claimant did not discuss treatment with the employer nor seek authorization through them, and none was ever authorized by Camcorp. Claimant "eventually" got treatment on his own that included surgery to both shoulders.

The surgery Claimant underwent on his right shoulder in 2015 was the third procedure on that shoulder. Claimant acknowledged that he had continued to have complaints with the shoulder following the 2007 surgery through 2014 and 2015. Various medical records document ongoing and chronic right shoulder pain. The right shoulder surgery took place on April 28, 2015. In visits that led to that operation, Claimant was seen at the Mercy ER on March 30, 2015, and by Dr. Thomas McClain at Mercy on April 2, 2015. The history given on both occasions was "acute onset of right shoulder and arm pain two days prior. Patient was picking up a spare tire with another person assisting. He is a heavy equipment operator but is on disability. He estimates that the tire might have weighed approximately 40 pounds. He felt a pop in the anterior aspect of the shoulder. . ." The surgery Claimant's left shoulder took place on September 15, 2015.

Currently, Claimant experiences pain that includes his neck, both shoulders and his feet. He continues to take multiple medications to treat his symptoms, including oxycodone, fentanyl patches, and valium.

In addition to his physical complaints, Claimant describes himself as depressed, lonely and sad. He has sustained the loss of two of his sons over the years and those tragedies

affected him emotionally. Claimant testified that there is "nothing so bad or sad" as the loss of a child, and that it has been torture. He has never gotten over the losses. His mental state affects his ability to be around other people or "be social."

Claimant does not feel he could work any longer and lists as reasons that he couldn't follow instructions, can't walk on his feet because of pain, has too much pain in general, and due to the effects of his pain medications. On a typical day Claimant does very little—eat, sleep, nap a couple of times a day and only get out of his house occasionally.

Dr. Kent Franks' practice involves performing psychological evaluations for courts in criminal competency matters, as well as in workers' compensation and personal injury litigation. He evaluated Claimant at the request of his attorney and his report was admitted into evidence as Exhibit 41.

After conducting his evaluation of the claimant, Dr. Franks diagnosed Claimant with major depressive disorder, which pre-existed the alleged 2013 work injury. Dr. Franks identified two contributing sources to Claimant's depressive disorder: severe emotional trauma in the past and chronic severe pain. Franks noted that Claimant has had major depressive disorder since his first son was killed in a motor vehicle accident in 2006, and it was further contributed to by the separation from his wife in 2009 and the suicide of his second son in May 2013. Regarding the deaths of his children, Franks indicated "there is nothing worse than the loss of a child" and that one generally cannot get over such a loss.

Dr. Franks pointed to Claimant's chronic back and shoulder pain, dating back to the 1990's, as adding to his depression. Though Dr. Franks thought the chronic pain existed prior to the alleged 2013 injury, he felt Claimant's pain complaints were increased by the occupational injury. Dr. Franks rated a 20% permanent partial psychological disability, of which he attributed 10% to pre-existing factors and 10% to the September 17, 2013 work injury. Overall, Franks opined that Claimant is permanently and totally disabled when you combine the consequences of the alleged 2013 injury and the pre-existing disabilities.

Phillip Eldred is a certified rehabilitation counselor who performed an assessment at the request of Claimant's attorney. His report was received into evidence as Exhibit 40.

Eldred recounted the process he followed in performing his assessment and which led to his conclusion that Claimant is not employable. Eldred felt that Claimant had no potential to be employed because his restrictions limited him to work at less than the sedentary level. Eldred opined that the claimant is unemployable as a result of his alleged September 17, 2013, injury combined with his pre-existing injuries and

psychological condition. On cross-examination, he conceded that under the restrictions given by Dr. Sheppard, Dr. Parmet, and Dr. Irlam, the claimant would be capable of some employment.

Both the employee and the employer/insurer offered additional expert opinions in the form of written reports. The employee offered the opinions of Dr. P. Brent Koprivica in Exhibits 36, 37 and 38. He also tendered a March 19, 2016 report from John Irlam, D.O. as Exhibit 39. The independent medical evaluation for the employer, with Dr. Allen Parmet, was received into evidence as Exhibit A. The employer further offered the vocational report of Kristine Skahan, which was marked as Exhibit B.

Dr. Koprivica evaluated the claimant at the request of his attorney. He saw Claimant on two occasions, October 8, 2014, and again on May 14, 2016. He authored a total of three reports which set out his opinions in this case.

Dr. Koprivica indicates that claimant sustained trauma to multiple parts of his body during work, particularly to his left shoulder in November 2012, with additional activities during raking and problems with his right shoulder where he had two previous injuries. Dr. Koprivica states "He suffered a specific injury to his left shoulder in November of 2012."

Dr. Koprivica continued by stating "My understanding is that he then had an episode where he was raking at work and both of his shoulders locked up in April of 2013. With the locking-up episode, he told me that he ended up finally going to Dr. Gallemore. Dr. Gallemore noted that he was complaining of left shoulder pain that started in November 2012."

Dr. Koprivica identified significant permanent partial disability that pre-dated the claim of September 17, 2013. He rated 25 % of the body as a whole for Claimant's two prior low back surgeries and their sequelae. He assessed an additional 25 % of the right shoulder in pre-existing disability based on the claimant's history of two prior surgeries to that extremity.

In terms of causation, Dr. Koprivica gave his opinion as follows:

"Mr. Parvin's described work activities, including the labor activities performed as well as the equipment operation and truck driving, represent activities, in terms of physical demand, which exposed him to risk which is unique to that employment compared to his non-work-related outside activities. . . Further, this exposure to risk regarding these tasks,

in terms of the biomechanical stresses placed on the cervicothoracic region and both shoulder girdles in particular, are of the type that are competent to result in cumulative injury. . . There was additional aggravating injury in the lumbar region associated with the bending, pushing, pulling, twisting and lifting activities."

His assignments of permanent partial disability were 20% to the right shoulder, 25% of the left shoulder and 0 to 5% of the body for the low back. Ultimately, Dr. Koprivica found Claimant to be permanently and totally disabled due to the combination of his multiple pre-existing disabilities and the disabilities he attributed to the September 17, 2013, claim.

The report of Dr. Irlam recounts an evaluation of the claimant who presented and "alleges disability due to a torn rotator cuff, torn ligaments and tendons." Claimant told Dr. Irlam that his symptoms "began in late winter of 2013 due to a work related injury." In his report, Dr. Irlam describes his examination findings and lists his diagnoses, including:

"1. Spontaneous tearing, suggestive of depressive disorder. 2. Decrease monofilament sensation right arm, secondary to cervical stenosis. 3. Universal hyporeflexia. 4. Bilateral shoulder pain consistent with osteoarthritis with decrease abduction muscle strength. 5. Low back pain with positive straight leg testing, authentic."

Dr. Allen Parmet evaluated Claimant on behalf of the employer/insurer on September 25, 2015. Parmet is a board certified occupational medicine specialist. He examined the claimant and reviewed extensive medical records. Dr. Parmet noted that there "are no contemporaneous records supporting his history of a left shoulder injury until more than a year after the alleged event." On the right shoulder, the doctor found significant the history of two prior surgeries and "the severe onset of symptoms" following Claimant changing a tire in April 2015. That led to the conclusion that "the right shoulder injuries are both pre-existing and subsequent but not connected to the occupation at Camcorp." Dr. Parmet found, in "scrutinizing" Parvin's medical records a "long history of drug-seeking behavior."

Dr. Parmet's ultimate medical judgment was set out in his report as follows:

"In conclusion, the inconsistent history and substance abuse issues cause me to strongly question Mr. Parvin as a reliable historian. Of all his allegations, I believe the only one that can potentially be sustained as work-related would be his complaints of left shoulder pain, and even those have a weak causal connection since he worked for almost a year after the alleged injury, did not report any problems during that time, and indeed not until after he had been laid off."

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Kristine Skahan's vocational rehabilitation assessment of November 15, 2017, is Exhibit B on behalf of the employer/insurer.

Ms. Skahan's vocational opinion is set out on page 16 of her report as follows:

When considering his medium level restrictions outlined by Dr. Koprivica in his 10/8/14 report, Dr. Irlam in his 3/16/16 report, and Dr. Parmet in his 11/23/15 report, Claimant retains the ability to perform some jobs from his past work history, jobs related to transferable skills, and other entry-level jobs. A search of his local labor market identified 7 full-time jobs for which he is qualified and were within his physical capacities. It is therefore my opinion that Claimant retains the ability to perform full-time work in the open competitive labor market.

Claimant sought payment of past medical bills and offered into evidence certified medical bills related to those charges. Exhibit 64 is a summary of medical bills from Stephens/The Pain Relief Studio, Ozarks Community Hospital, Mercy Hospital and Country Care Clinic. As reflected on Exhibit 64, the claimant sought a total of 1336.00 paid out of pocket, 4447.53 paid by his health insurance, and a balance due providers of $1682.22.

A representative of Mercy, Latisha Cortwright, was subpoenaed by the employer/insurer to testify at the hearing. However, the parties entered into a stipulation of what Ms. Cortright's testimony would be and she was excused. The parties stipulated that Ms. Cortright would testify that the total of $89,705.76 in Mercy charges shown on Exhibit 64 as "Charity" had been adjusted off or written off on a charitable basis so that the claimant had no liability for those charges and would never be pursued for them or be required to pay that amount. The claimant nonetheless sought an award of those amounts that had been written off.

RULINGS OF LAW

The administrative law judge must strictly construe all provisions of the Missouri Workers' Compensation Act and must weigh the evidence without giving the benefit of the doubt to any party. Section 287.800, R.S.Mo. This case involves the allegation of an occupational disease by repetitive motion. Section 287.067, R.S.Mo. is the relevant statutory provision defining occupational disease by repetitive motion and it reads, in applicable part, as follows:

1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context,

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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 needs 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.

1. 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.

§287.067, R.S.Mo.

Pursuant to §287.808, R.S.Mo., the claimant bears the burden of proving an entitlement to compensation under the Missouri Workers' Compensation Law. In asserting his claim, he must establish such proposition is more likely to be true than not true. *Smith v. Capital Region Medical Center*, 458 S.W.3d 406, 417-418 (Mo. App. 2014) discusses that the burden of proof means the claimant has both the burden of production as well as the burden of persuasion. While claimant can sustain his burden of production by having some evidence to support each element of the claim, "[t]he burden of persuasion is a party's duty to convince the fact-finder to view the facts in a way that favors that party." 458 S.W.3d 417 (quoting *M.A.H. v. Mo. Dept. of Social Services*, 447 S.W.3d 694, 700).

The claimant, to meet his burden, must submit credible medical evidence establishing a probability that work conditions caused the disease. *Smith v. Capital Region Medical Center*, 458 S.W.3d 406, 417 (Mo. App. 2014) It is for the Commission (Division) to decide, as a question of fact, between two conflicting medical opinions, and to determine which opinion is the most credible. See, *Schaffer v. Litton Interconnect Technology*, 274

S.W.3d 597, 605 (Mo. App. 2009) Finally, it must be noted that the Commission is free to reject all or part of a claimant's testimony that it does not consider credible, and may disregard a witness's testimony even if no contradictory or impeaching evidence is introduced. *Hembree v. Treasurer of State*, 435 S.W.3d 165, 171 (Mo. App. 2014)

Applying these governing standards to the evidence presented, and considering the entire record, I find that claimant has not met his burden of proof because: (1) I do not find the claimant a credible witness, and (2) I find the medical opinion of the employer/insurer's expert, Dr. Parmet, more persuasive and convincing than that of the claimant's medical expert.

In his trial testimony, Claimant identified two separate activities which he claimed were the source of his shoulder complaints. Claimant testified that "before Thanksgiving" in 2012 he worked on fertilizing and seeding yards saying he was carrying 50 pound bags of seed and fertilizer around for "a couple of days". Secondly, he claimed that he was required to rake black dirt in yards eight hours a day for 2-3 weeks in a row in the fall of 2013. In both scenarios it was the suggestion of the claimant that the work activity was regular and sustained over a considerable period of time.

However, the testimony of Sara Camerer, one of the owners of Camcorp, was not only inconsistent with Claimant's testimony on these work duties; it was totally contrary. Ms. Camerer had knowledge of Claimant's activities on the work site because she was personally present on numerous job sites with Claimant ("too many to count"). In addition, Camerer had gone back and reviewed some of the claimant's pay stubs during the relevant time frames and they primarily showed Claimant driving a truck. The employer representative conceded that the claimant, like all employees, would occasionally jump in and help with what was needed in a yard. But far from the regularity and duration of duties claimed by Claimant; Camerer painted a far different picture. According to the employer, Claimant would have only been required to carry a bag of seed or fertilizer for "probably" 30 minutes out of an 8 hour day. Moreover, as far as raking, Camerer stated the claimant would "not often" have been required to do any raking. Finally, I find it significant that while the claimant testified the raking caused "massive pain" and put tears in his eyes, Ms. Camerer testified unequivocally that Claimant never reported any injuries or complaints to the employer.

Both Claimant and Sara Camerer testified live at the hearing. So I had an opportunity to observe both witnesses, including their presentation and demeanor. I find Ms. Camerer's testimony to be more credible, and thus more persuasive, on these issues.

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Inconsistencies in the claimant's medical records also lead to my conclusion that he is not a credible witness. For instance, on the April 26, 2013 visit to Dr. Rex Gallemore Claimant's history is "he may have injured his left shoulder while driving his truck". Yet at trial the claimant testified that his problems with the shoulder at that time originated with carrying grass seed and fertilizer. Likewise, at Mercy Clinic on November 1, 2013, the only reference to work is "He hurts bad when he gets off work. He runs a back-hoe." But this is the time frame he testified at trial that he had done intensive and sustained raking that allegedly caused him problems. In a December 11, 2013 visit to Mercy Claimant told the staff that he thought his complaints were related to stress. Other records reflect a history that the bilateral shoulder problems were "chronic", and that one was caused by lifting a tire. These are some of the examples of inconsistencies in the claimant's medical records that lead to the conclusion that his trial testimony is not credible regarding his work duties and their alleged causation of his injuries.

The parties presented conflicting expert medical opinions. Having carefully considered the opinions of Dr. Koprivica and Dr. Parmet, I find the opinions of Dr. Parmet to be more persuasive. Dr. Parmet's opinions appear to be more measured and based on a more thorough examination of the medical records.

Claimant's formal claim for compensation alleges a theory of recovery based on occupational disease—"repetitive use of his arm throughout all dates of employment". The claim lists the injury date as "9-17-2013." In both of his 2014 and 2016 independent medical evaluation reports (Exhibits 36 and 37), Dr. Koprivica lists the following as the history of injury from Claimant:

"At CamCorp Environmental, he was a laborer, equipment operator, track hoe operator and also a truck driver."

"He suffered a specific injury to his left shoulder in November of 2012, when hauling 50-pound bags of fertilizer."

"My understanding is that he then had an episode where he was raking at work and both of his shoulders locked up in April 2013."

Koprivica then gives the opinion that "Mr. Parvin's described work activities ... represent activities, ... which exposed him to risk which is unique to that employment."

Dr. Koprivica's opinions are not convincing or persuasive on the topic of whether the claimant's work activity caused his condition. The doctor notes a very rudimentary list of the claimant's job duties, with no detail as to the specific body movements or

mechanics involved in the activity. The only specific information he lists in his report seems to identify two particular alleged events of injury, but not any sustained or repetitive engagement in that activity whatsoever. Even Dr. Koprivica pointed out inconsistencies in the claimant's medical record histories.

In contrast to Dr. Koprivica's opinions, the opinions of Dr. Parmet more accurately recount the claimant's inconsistent history and content of his medical records, as well as reach rational conclusions that logically flow from those records. This statement by Dr. Parmet succinctly summarizes the problem with Claimant's claim for compensation: "In conclusion, the inconsistent history and substance abuse issues cause me to strongly question Mr. Parvin as a reliable historian". Dr. Parmet notes that he "scrutinize[ed]" the claimant's medical records which revealed numerous inconsistencies regarding his history and evidence of drug-seeking behavior. The doctor also found it of significance that there "are no contemporaneous records supporting his history of a left shoulder injury". Regarding the right shoulder, Dr. Parmet found significant support for preexisting injuries as well as for subsequent contribution with the tire changing event in April 2015 which led to acute treatment. But he found no connection to any work activity at Camcorp.

Therefore, having considered all of the evidence, I find that Claimant has not met his burden of proving his claim because I find the claimant's testimony to not be credible or reliable and I find the medical opinions of Dr. Parmet to be more convincing and persuasive than those of Dr. Koprivica. I find and conclude that the claimant's work duties were not the prevailing factor in causing the alleged injury to his arms, shoulders, and back. I find and conclude that the claimant's alleged occupational disease did not arise out of and in the course of his employment at Camcorp. As a result, the claim for compensation is denied and the claimant is awarded no benefits. All remaining issues are moot.


Made by:


Karen Wells Fisher

Administrative Law Judge

Division of Workers' Compensation