Thomas Fenwick v. The Doe Run Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

Injury No. 15-029217

**Employee:** Thomas Fenwick

**Employer:** The Doe Run Company

**Insurer:** American Zurich Insurance Company

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge awarding 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.

On July 25, 2019, employee filed a Motion to Strike Employer/Insurer's Statement of Facts (Motion to Strike). On July 30, 2019, employer/insurer filed its Response to Respondent Employee's Motion to Strike Employer/Insurer's Statement of Facts (Response).

Commission Rule 8 CSR 20-3.030(5)(C), effective October 30, 2019, provides, in pertinent part:

> The petitioner's brief shall contain a fair and concise statement of facts without argument, with citations to the pertinent pages of the transcript supporting each factual assertion. . . . Upon its own motion, or upon motion by any interested party, the commission may, in its discretion, decline to consider any brief or any portion of a brief that is not filed in accordance with these rules (emphasis added).

Employee's Motion to Strike identifies specific portions of petitioner employer/insurer's statement of facts that construe employee's responses to employer/insurer's cross-examination as representing employee's trial testimony. Employee urges the Commission to strike employer/insurer's statement of facts on the basis that it is not fair and without argument, and, at fifteen pages in length, is not "concise".

Employer/insurer's Response declares that no statutory or regulatory authority supports employee's Motion to Strike and implies that the Commission is devoid of power to strike a party's statement of facts. This argument is clearly erroneous in that the last line of the Commission Rule 8 CSR 20-3.030(5)(C), specifically authorizes the Commission, on its own motion or the motion of any interested party, to decline to

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consider any brief or any portion of a brief that fails to comply with the Commission's rules.

Notwithstanding the deficiencies in petitioner employer/insurer's statement of facts identified in employee's Motion to Strike, we consider the motion as moot in light of our decision herein affirming the administrative law judge's award. We therefore decline to rule on employee's Motion to Strike.

**Medical Causation**

We affirm the administrative law judge's finding that Dr. David Volarich's expert medical opinion on the issue of medical causation of disability to employee's cervical, thoracic, and lumbar spine is more persuasive than the opinions of Dr. Coyle, Dr. Peeples, Dr. Doll, Dr. Cantrell, and Dr. Chabot.

Dr. Volarich based his findings in part on objective tests that included X-rays and MRI's. *Transcript*, 92-93. Dr. Volarich's opinion on medical causation does not entirely conflict with the opinion of employer's expert Dr. James J. Coyle who found that employee's "current condition is due to his work injury of April 28, 2015 as well as congenital cervical stenosis." *Transcript*, 303. Only Dr. Chabot found that the prevailing factor in employee's current complaints was chronic degenerative changes that preexisted his injury and that the employee had no permanent partial disability relating to the April 28, 2015, work injury.

On the issue of medical causation, we note Dr. Volarich's April 5, 2017, finding in connection with his independent medical examination of employee on that date:

> [I]t is my opinion [that] the repetitive impact trauma to the spine driving hauling trucks leading up to and on 4/24/15 are the primary and prevailing factors causing the cervical spine disc herniation at C4-5 and protrusions at C3-4, C5-6, and C6-7 that required non-operative care, as well as causing the thoracic spine disc herniations at T6-7, T7-8, and the protrusion at T8-9 for which he received non-operative care, as well as causing the disc bulging at L2-3, L3-4, and L4-5 that also required non-operative care. The work injury was the prevailing factor causing his symptoms, need for treatment, and resulting disabilities. *Transcript*, 94.

Dr. Volarich's credible opinion, as set out above, constitutes competent and substantial evidence in support of the administrative law judge's finding on the issue of medical causation.

**Nature and Extent of Disability**

We further affirm the administrative law judge's finding that employee suffered disability consisting of twenty-two percent (22%) of the body as a whole at the 400-week level referable to his cervical, thoracic, and lumbar spines as a result of his work injury on or about April 24, 2015. The administrative law judge's disability award represents a compromise of expert opinions produced by both sides that include employee's expert Dr. Volarich's significantly higher evaluation of 25% permanent partial disability at the cervical spine, 25% permanent partial disability of the thoracic spine and 17.5% permanent partial disability of the lumbar spine, all rated at the body as a whole.

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Although the administrative law judge's findings regarding the nature and extent of employee's permanent disability might have included greater specificity, he did not err in making a combined award based on the body as a whole given that employee sustained multiple unscheduled injuries all attributable to distinct components of his spine. See *Carenza v. Vulcan-Cincinnati, Inc.*, 368 S.W.2d 507 (Mo. App. 1963).

**Award**

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

The award and decision of Administrative Law Judge Carl Strange, issued February 7, 2019, is attached and incorporated by this reference.

We approve and affirm the administrative law judge's allowance of attorney's fee as being fair and reasonable.

Given at Jefferson City, State of Missouri, this **4th** day of December 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert Cornejo, Chairman

**DISSENTING OPINION FILED**

Reid K. Forrester, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

**Injury No. 15-029217**

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 the 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 consider the majority's award of permanent partial disability and future medical in this matter excessive in light of employee's demonstrated lack of credibility and the credible expert opinions in the record.

I concur with the majority's opinion insofar as it finds that employee's Motion to Strike Employer/Insurer's Statement of Facts is authorized by Commission Rule 8 CSR 20-3.030(5)(C) which requires that a petitioner's brief "shall contain a fair and concise statement of facts without argument" and expressly permits the Commission "upon its own motion or upon motion by any interested party. [to] decline to consider a statement of fact that is not in compliance with its rules."

That said it is relevant to note that this provision represents a recent change in this Commission rule. Prior to October 30, 2019, 8 CSR 20-3.030(5) only specifically addressed the Commission's authority to decline to consider a brief that failed to comply with the provisions of 8 CSR 20-3.030(5)(B), relating to page limits for petitioner's and respondent's briefs and the time limit for filing a reply brief. The Secretary of State did not publish the current version of Rule 8 CSR 20-3.030(5)(C) for comment in the Missouri Register until May 15, 2019, and the revised rule did not become effective until October 30, 2019, nearly four months after employer/insurer filed its brief with the Commission and three months after employer/insurer's response to employee's motion to strike its statement of facts.

Employer/insurer's July 20, 2019, response to employee's Motion to Strike was therefore accurate in its representation that no express authority to make such a motion existed in either § 287.480 or in the Commission rules that were in effect at the time employer's brief and employee's Motion to Strike were filed.

The administrative law judge erred in finding employee's cervical and thoracic complaints causally related to the April 24, 2015 injury.

Pursuant to § 287.190.6(2), when medical evidence is conflicting, objective findings hold more weight than subjective reports. Here, employee did not even complain of cervical or thoracic spine symptoms until three months after the April 24, 2015, accident. He only began complaining of neck pain after Dr. James Coyle discovered congenital stenosis and disc pathology on an x-ray. Employee then suddenly began complaining of neck pain to every physician thereafter. Employee's delay in reporting his symptoms weighs against a finding of causation. Even Dr. Volarich, employee's own expert, confronted employee with this glaring discrepancy in the record.

A large amount of objective evidence weighs against employee's credibility. In addition to the delay in manifestation of symptoms, the objective record shows many inconsistencies between employee's subjective statements and the objective findings. For example, nearly every physician employee visited, as well as his physical

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therapists, noted symptom magnification behavior. Employee reported to Dr. Coyle that he had neck pain radiating as far distally as his mid-thoracic spine and lower back pain radiating into both lower extremities. However, on physical exam employee displayed good range of motion, negative straight leg raising and excellent lower and upper extremity strength. Dr. Peeples noted the absence of characteristic radicular symptoms that typically accompany such complaints. Dr. Doll contrasted employee's severe pain complaints with an absence of objective findings. Dr. Cantrell and Dr. Chabot found employee's reports of tenderness to even the slightest palpation exaggerated. Employee's physical therapists deemed his complaints inconsistent with any dermatomal or nerve root pattern. Employee was observed walking with a limp when entering the clinic, then leaving the clinic without one.

Employee further demonstrated a lack of credibility when he expressly denied prior back injuries to Dr. Coyle, denied prior cervical or thoracic injuries to Dr. Cantrell and Dr. Chabot, and even denied prior spine issues to his own doctor, Dr. Volarich. The record clearly shows that employee had a well-documented history of severe pain to all of these areas. Yet more damaging was employee's testimony that he never received a physical examination from Dr. Smith, Dr. Peebles, Dr. Doll, Dr. Cantrell, or Dr. Chabot, when the record shows each of these physicians examined him. This evidence demonstrates that employee's subjective complaints lack credibility.

In addition to erring in relying on employee's subjective complaints, the administrative law judge erred in relying on Dr. Volarich's opinions. Dr. Volarich is not a specialist in the cervical, thoracic, or lumbar spine areas. Dr. Doll, on the other hand, is a board certified physiatrist. Dr. Cantrell is board