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.
Injury No. 13-102339
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.
Injury No. 13-102339
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.
Injury No. 13-102339
Employee: Kevin Parvin
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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