Justin Kent v. NHC Healthcare

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 08-109881

**Employee:** Justin Kent

**Employer:** NHC Healthcare

**Insurer:** Premier Group Insurance Company

**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. We have reviewed the evidence, read the parties' briefs, heard their arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to determine the following issues: (1) the nature and extent of permanent disability; (2) whether employer is responsible for past medical expenses in the amount of $183,896.46; (3) future medical care; (4) temporary total disability (TTD) from March 2009 to the present; and (5) the liability of the Second Injury Fund.

The administrative law judge determined as follows: (1) employee sustained permanent total disability from his low back injury beginning October 31, 2014; (2) employer is ordered to pay the medical bills of $140,030.65; (3) future medical treatment is awarded; (4) employee's claim for temporary total disability benefits is awarded as of May 12, 2010, for 233 1/7 weeks; and (5) no liability for the Second Injury Fund.

Employer/Insurer (employer) filed a timely application for review with the Commission alleging the administrative law judge erred in: (1) determining permanent total disability resulted from the back strain of December 4, 2008; (2) awarding payment of past medical bills of $140,030.65, when there was no demand for treatment and causal connection was not proven; (3) awarding future medical treatment; (4) awarding TTD based on the arbitrary date of May 12, 2010; and (5) finding no Second Injury Fund liability.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issues of: (1) nature and extent of disability; (2) notice of demand for treatment; and liability for past medical bills; and (3) temporary total disability.

The administrative law judge found employee to be "permanently and totally disabled as a result of his December 2008 work injury, considered in and of itself." Award, page 22. Initially, we note a lack of clarity regarding what the administrative law judge found to be the diagnosis and resulting nature of the disability. Since the nature of the disability resulting from the workplace injury sets the scope and boundaries of the further stated issues the administrative law judge addressed at hearing, i.e. (1) the extent of disability; (2) payment of past medical bills; (3) awarding future medical treatment; and to some degree (4) awarding TTD; we supplement the findings to add clarity.

Injury No.: 08-109881

Employee: Justin Kent

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While the parties did not state medical causation as a separate and distinct issue at the hearing before the administrative law judge, *Transcript*, pages 3-4, their arguments strongly suggest there is disagreement as to what medical condition and disability was caused by the workplace injury.

Any 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 to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

§ 287.020.2(1) RSMo. (Emphasis ours).

Employee's work injury was diagnosed by Dr. Bernard Randolph soon after the injury as lumbar and mild thoracic strain. He did note some evidence of disc protrusion at L4-5, without signs of active radicular symptoms as of March 2, 2009. In 2015, Dr. Thomas Musich diagnosed posttraumatic symptomatic lumbar spondylosis, including weakness and numbness in the right lower extremity. He also noted the work injury resulted in radicular symptoms, and we so find and adopt his diagnoses. The accident was the prevailing factor causing the resulting medical condition/diagnoses identified by Dr. Musich. We further find there is no disability resulting from the work injury referable to any psychological conditions or alcoholism.¹

The Extent of Disability.

Proceeding to the evaluation of the extent of disability rating, the administrative law judge relies on Dr. Musich and Mr. James England, the vocational rehabilitation expert, to find permanent total disability. We find the credible competent evidence does not support a rating of permanent total disability. We agree that Dr. Musich did a thorough review of records and his opinion is worthy of much weight. However, we do not completely discount the opinion of Dr. Randolph the treating physician at the time closest to the injury, as did the administrative law judge. We have carefully considered the evidence and the ratings of Dr. Randolph at 1-5 % in 2009 and 2018. Given that Dr. Randolph's opinion appeared to be rooted in the proposition that there were no radicular symptoms, we find his rating to be unreasonably low. We have also carefully considered the later ratings of Dr. Musich at 60 % in June 2013, 65 % in September 2015, and total disability in October 2018. For the reasons set forth below, we find employee is 35 % permanently partially disabled to the body as a whole, referable to the low back.

First, as noted by Mr. England, none of the treating physicians placed permanent restrictions on employee's ability to return to work.² Employee was released to return to work relatively shortly after the December 4, 2008, injury with some accommodations to lighter duties for a time. The employment ended by discharge for alleged misconduct in or about March 2009. Employee was considered at maximum medical improvement as of March 2, 2009, and released to full duty by authorized treating doctor, Dr. Randolph. Employee reports he has not returned to gainful employment since that time, with the exception of working in his room-mate's businesses on an as-needed basis.

¹ Both parties at oral argument agreed that psychological impairment of any sort was not a claimed disability referable to the work injury. Shoulder pain, neck pain and right hip pain are not part of the claimed injuries. See footnotes 12 and 13 of Award, page 10.

² Mr. England also reviewed Dr. Morris's report, the Social Security disability physician. On the basis of this doctor's restrictions, Mr. England opined employee was precluded from 90 % of the jobs in the workforce. *Transcript*, page 758. This doctor's report was not admitted into evidence and is an example of hearsay information relied on by certain evaluators which we cannot evaluate for accuracy and reliability. (Exhibit 14)

Injury No.: 08-109881

Employee: Justin Kent

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Because of the absence of any identified physician imposed medical restrictions, Mr. England proceeded in evaluating employee with the information available, a significant part being his own observation and employee's self-reports. He did a competent job, however, we view some of his points to be of little value to our consideration. For example, he pointed to possible restrictions, such as the need to lie down periodically which appears to be based solely on employee's self-report. Mr. England stated, "assuming that that's accurate, I think that that could, by itself, negate his ability to do even sedentary work." Transcript, pages 643-644.

Mr. England's assumption is not identified elsewhere in the medical records. We give this speculative restriction no weight. He points to the employee's presentation, (tired, nervous, anxious, discomfort) as a significant part of his assessment of employee's inability to compete in the open labor market; legitimate points, but of lesser significance to our consideration. This also suggests that Mr. England may be attributing some level of disability to psychological components, which are not part of the disability flowing from the work injury. However, employee's poor academic abilities play a significant and valid part in Mr. England's opinion, which could preclude some sedentary work.

Second, the limitations which are addressed throughout the medical records appear to be self-imposed by the employee on the basis of his description of pain symptoms. And while pain can certainly be limiting, that limitation is largely subjective. The records of Dr. Randolph note signs of symptom magnification. The physical therapy records from The Work Center, Transcript, pages 1119-1152, also suggest less than full participation and effort with irregular attendance. While there certainly are objective findings on imaging studies which could support some degree of pain symptoms, the doctors and vocational rehabilitation experts are relying to a substantial degree, on employee's self-reports of pain as a significant reason for his increased level of disability. The records note on several occasions positive Waddell's signs. We find that employee's reliability in reporting his symptoms and history is suspect, and on that basis find his credibility is diminished.³

Employee's credibility is also suspect in that his medical history reports to doctors appear to lack completeness, since we find no reference to certain events that could have impacted his recovery from the December 2008 work injury. In January 2009, there was a car accident which was not mentioned by any of the doctors who opined.4 Dr. Randolph was the employer's authorized treating doctor from date of injury through May 2009. He makes no mention of this event and any impact it may have had; leading to the conclusion that he was never made aware of the car accident. In fact, Dr. Randolph notes in a March 2, 2009 report, that the employee "reports no incident or new accident since his last visit."5 In addition to this accident, employee fell from a ladder in December 2012. He was treated at St. Louis University Hospital. Employee had a car accident in August 2016, hitting a tree. He had two more car accidents on the same day in June 2018. Transcript, beginning page 1804. Dr. Musich does not address

3 We note the administrative law judge's reference to her personal observations of "pain cues" Award, page 20, at the hearing in December 2018. However, we also consider that this presentation would be indicative of employee's condition at that point in time, after a series of unrelated events affecting his physical condition over the past decade.

4 The police report described it as a T-bone collision. The report is inconsistent or incomplete regarding the towing of vehicles; one reference indicating "PVT TOW," another section of the report left blank on that aspect. Transcript, pages 1814, 1817. Emergency medical personnel were on the scene, according to the report, but treatment refused. Id. at 1817. We further note that although the index of exhibits in the transcript indicates Exhibit L, the state motor vehicle reports, were not admitted, the administrative law judge took this exhibit under advisement, but later admitted it. Award, page 4.

5 The last session with Dr. Randolph prior to that report was on February 5, 2009, and prior to that the last notation of treatment was on January 6, 2009. It does not appear that employee sought emergency treatment immediately after the T-bone accident on January 9, 2009.

Injury No.: 08-109881

Employee: Justin Kent

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these events in any of his reports, (June 2013, September 2015, October 1, 2018, and December 6, 2018). Dr. Musich's September 10, 2015, report after re-evaluation and review of additional records notes that employee "denies any additional trauma requiring emergency evaluation and treatment between June 4, 2013 and present," and "denies any motor vehicle accidents and denies any significant trauma affecting his neck, or low back" during that period. Transcript, page 599. While admittedly that timeframe was after the December 2012 ladder event, this reference adds to the doubt regarding whether or not any of these intervening events were considered by Dr. Musich in his disability ratings.

The third consideration in our determination to limit the emphasis we give to Dr. Musich's opinion is the lack of clarity on the impact certain medical records had on his opinion which are not part of this record. At the hearing, a number of medical records and reports were not admitted, with the administrative law judge noting they were inadmissible "Hearsay Reports." Award page 5. She further noted that while a document may be inadmissible, other experts may rely on hearsay in rendering an opinion. Irving v Missouri State Treasurer, 35 S.W. 3d 441, 447 (Mo App 2000). The danger, however, is that it is unclear to the fact-finder how reliable, accurate, or relevant that hearsay information is, and to what extent inaccurate or incomplete information impacted the hearing expert's opinion.

While Dr. Musich listed his review of a large volume of medical records, it is difficult to ascertain the effect any inadmissible records had on his final opinion. It is unclear to what extent, if any, his permanent total disability rating in late 2018 was impacted by review of those records and the extent of injuries which those doctors were considering. Indeed, as pointed out by the administrative law judge in regard to Dr. Morris' report/records, "Well, then if you're relying on physical findings, that's not coming in because we don't know how accurate those are. We don't know how they were tested. You can't use this witness to get in a hearsay report of another doctor." Transcript, page 161. This is not to say Dr. Musich's opinion should be entirely discounted. However, we will not parse the transcript to piece together evidence to support a party's position. To do so would put us in the role of advocate.

We find employee was not permanently and totally disabled due to his work injury to the low back on December 4, 2008. We note that while there is evidence that employee may be permanently and totally disabled, the evidence does not persuade us that it is the disability flowing from the work injury that caused permanent total disability. We further find there is insufficient evidence of any preexisting disability to conclude the work injury has combined with preexisting conditions to result in permanent total disability, such that Second Injury Fund liability is established.

Notice of Request for Medical Treatment

The administrative law judge found employer liable for all medical treatment that was reasonably required to cure and relieve the effects of the work injury "as of the end of January 2010." Award, page 17. The administrative law judge specifically finds that after employee's release from treatment in March 2009, "There is no evidence Employer refused treatment at this

6 June 4, 2013 was the date of Dr. Musich's initial independent medical evaluation. The time period addressed in this report is from June 4, 2013 to September 10, 2015. Dr. Musich examined employee on June 4, 2013 and September 10, 2015.

7 Overruled in part, on other grounds, Hampton v. Big Boy Steel, 121 S.W. 3d 220 (Mo. 2003).

8 There were also a number of physical impairments (hip, neck, right shoulder) which were being considered and evaluated by the providers during the ten year course of this workers' compensation claim, which ultimately were dismissed from consideration as not caused by the work accident. We do note that in his September 2015 report, Dr. Musich reports that according to employee, the right shoulder symptoms and neck pain were unrelated to the work trauma event. Transcript, page 600.

Injury No.: 08-109881

Employee: Justin Kent

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point because Employer was unaware of the need." Award, page 16. The judge further finds that after he left employment, "Claimant thought he needed more treatment, but he did not ask Employer because he did not think they would help." Award, page 8, Transcript, page 34-35. We expressly adopt these findings. From that point on, employee has not pointed to any event that put employer on notice of the need for treatment related to the effects of his work injury.

The administrative law judge reviewed the Division of Workers' Compensation file below and found there was no hardship setting in the record. However, because there were three settings before the Division of Workers' Compensation by the end of January 2010, the judge charged employer with notice of the need for treatment and employer's failure to provide it, which then allowed employee to pick his own providers thereafter. We accept the judge's representation regarding the state of the record, although no party asked for the workers' compensation file to be included in the record at the time of hearing before the administrative law judge. However, there is no evidence of what was discussed at these settings or whether there were, in fact, appearances made as opposed to a docket rescheduling. The other representation made by the judge in reviewing the workers' compensation file was that there is no evidence of an earlier demand in the record.

We agree with the administrative law judge that the filing of the claim is not in and of itself sufficient to provide an employer with notice of the need for medical treatment. But we do not adopt the judge's constructive notice theory that employer knew of a need for treatment and refused to provide it under the facts presented.

While there may be a set of circumstances in which constructive notice of a request for treatment could be imposed on an employer, we see a distinction here, with the Banks case cited by the judge. Banks v. Springfield Park Care Ctr., 981 S.W. 2d 161,165 (Mo. App. 1998). In Banks the employer was provided with a report of examination by employee's chosen doctor who recommended surgery. Thereafter, employer failed to take the opportunity to provide treatment through physicians of its choosing. The notice of the need for treatment came in the form of the doctor's report. Id. In contrast, in the case before us, employee has not pointed us to any medical report provided to employer as of February 1, 2010, that could have substituted for notice of a demand for treatment. Nor has he pointed to any evidence in the record of communication between the parties which would serve as a demand. We also look to a more recent case for guidance on the issue, Customer Eng'g Services v. Odom, 573 S.W. 3d 88 (Mo. App. S.D. 2019). In reversing and remanding the Commission decision, in part, the court noted employee was able to point to his deposition testimony as the earliest date of notice to the employer. In the record before us, we do not have the deposition testimony of the employee, although employee again urges us to consider that his deposition in December 2010, should have put employer on notice of a demand of medical treatment. Rather, employee asserts that in later years, some doctors who opined on his condition reviewed and referred to his deposition. Again, employee asks us to put together a viable argument for him without directing us to the evidence.

We cannot adopt the administrative law judge's reliance on the course of workers' compensation proceedings as constructive notice, without a more explicit notice or demand to employer that further treatment to cure and relieve the effects of the work injury was necessary. The burden of proof, as all aspects of the claim, is on the employee. Without a more specific reference to the nature of communication that employee claims should have put employer on notice, we find he has not met his burden. Again, we will not parse the transcript to piece together evidence to support a party's position. The judge's basis of assumption that the parties must have talked about the need for medical care is not supported by facts in evidence.

Injury No.: 08-109881

Employee: Justin Kent

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We must weigh the evidence impartially without giving the benefit of the doubt to any party, when weighing the evidence and resolving factual conflicts. § 287.800.2 RSMo.

Given the lack of proof in the record of a demand for treatment and refusal of that demand by employer, no past medical expenses are awarded, aside from those already paid by employer.

Finally on this point, to the extent any medical fee disputes proceedings have been initiated and resolved under 8 CSR 50-2.010, they are not appealed to us, and we do not disturb those rulings.

**Temporary Total Disability Benefits.**

The administrative law judge awarded temporary total disability benefits from May 12, 2010, for 233 1/7 weeks, with permanent total disability thereafter from October 31, 2014. She based this award on a record of Dr. David Parks, employee's primary care physician, who noted employee's report to him that he was unable to work due to his pain on May 12, 2010. As noted above, we find that employee's reporting of his symptoms lacks credibility in the respect that he has omitted references to other injuries and events that would affect his general health, and that medical professionals have observed signs of symptom magnification.

Dr. Randolph, the authorized treating physician immediately after the injury, released him to return to full duty work as of March 2, 2009. Aside from this, employee has not pointed us to any reference in the records of Dr. Randolph or other treating physicians imposing permanent restrictions on his ability to work. Employee's brief addresses the recommendations of Dr. Alan Morris (not admitted) and Dr. Benjamin Crane's light duty recommendation in 2018, long after the period of temporary total disability. In fact, the evidence shows he has worked in bartending, restaurant settings and property management duties, although the financial arrangements and details of those employment relationships are unclear.

In the final analysis, it is the employee's burden of proof to establish entitlement to compensation. We are not persuaded by employee's evidence that he was temporarily totally disabled as a result of the work injury aside from a short period of days after the work injury in December 2008, for which employer has compensated employee. Even during that initial period of treatment, the evidence tends to support that employee was working with some accommodation for most of the time until he was released to full duty by Dr. Randolph. We award no additional temporary total disability, due to the failure of employee to meet his burden of proof.

**Conclusion**

We modify the award of the administrative law judge as to the issues of: (1) nature and extent of permanent disability; (2) past medical expenses; and (3) temporary total disability.

Employee is entitled to, and employer is hereby ordered to pay, permanent partial disability benefits in the amount of $44,123.80, representing 140 weeks of permanent partial disability calculated at 35% disability of the body as a whole, referable to the low back, at the stipulated weekly rate of $315.17.

9 We do not find this record has been admitted into evidence. No party referred us to this record. (See Employee Exhibit 15, Transcript, page 1057, which is not admitted, according to the Award, at page 4.) Again, we note that if the parties do not direct our attention to where we can find evidence in the record, it is not our place to search for support for their positions. The transcript presented to us of this proceeding contains 10 volumes of approximately 2000 pages, in addition to several CD's of medical records encompassing thousands of additional pages.

Employee: Justin Kent

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Employee is not entitled to additional temporary total disability.

Employer is not responsible for past medical expenses, as more fully set forth herein.

The award and decision of Administrative Law Judge Karla Ogrodnik Boresi is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 10th day of January 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Justin Kent

Injury No.: 08-109881

Dependents: None

Employer: NHC Healthcare

Additional Party: Second Injury Fund

Insumer: Premier Group Insurance Company

Hearing Date: December 20 \& 21, 2018, and January 4, 2019

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KOB

1. Are any benefits awarded herein? Yes
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 4, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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? 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: Claimant was assisting a patient who fell and injured his low back.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low Back
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to-date for temporary disability: $\ 2,836.53
16. Value necessary medical aid paid to date by employer/insurer? $\ 15,597.83

1. Value necessary medical aid not furnished by employer/insurer? 140,030.65
2. Employee's average weekly wages: 472.75
3. Weekly compensation rate: 315.17 for PTD, TTD, and PPD
4. Method wages computation: wage records and 287,250.4.

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: $140,030.65

233 1/7 weeks of temporary total disability beginning May 12, 2010: $73,479.63

Permanent total disability benefits from Employer beginning October 31, 2014, for Claimant's lifetime: Indeterminate

1. Second Injury Fund liability: No

TOTAL: Indeterminate

1. Future requirements awarded: Yes. See Award.

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Thomas E. Fagan

The matter of Justin Kent ("Claimant") proceeded to hearing for a final award at the Division of Workers' Compensation ("DWC") in St. Louis. Attorney Thomas E. Fagan represented Claimant. Attorney Kevin M. Leahy represented NHC Maryland Heights/NHC Healthcare ("Employer") and its insurer, Premier Group Ins. Co. ("Insurer"). Assistant Attorney General Madalyn Campbell represented the Second Injury Fund.

The parties stipulated that on or about December 4, 2008, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant. The accident occurred in St. Louis County. The parties stipulated Claimant was an employee of Employer; venue is proper in the City of St. Louis; Employer received proper notice; and Claimant filed his claim within the time prescribed by the Missouri Workers' Compensation Act ("Act").

The issues to be determined are:

1. Is Employer responsible for payment of past medical expenses up to the amount of $183,896.46;
2. Is Employer responsible for providing future medical care to cure and relieve the effects of the injury;
3. Is Claimant entitled to recover temporary total disability benefits from March 2009 to the present;
4. What is the nature and extent of Claimant's permanent disability; and
5. What is the liability of the Second Injury Fund?

Claimant seeks permanent total disability ("PTD") compensation.

The following Exhibits were offered and admitted on behalf of the Claimant:

1. Dr. Musich's Report (6/4/13)
2. Dr. Musich's Report (9/10/15)
3. Dr. Musich's Report (3/1/16)
4. Dr. Musich's Report (10/1/18)
5. Dr. Musich's Report (12/6/18)
6. Deposition - Mr. James England (5/30/18)
7. Deposition - Custodian of Records of Dr. Randolph, Ms. Tanya Fields (12/13/18)
8. NHC employee wage statement
9. Dr. Benjamin Crane's Report (2/22/18-without questions)
10. CD of medical records/bills (1227pages)
11. Dr. Musich's Curriculum Vitae

The following Exhibits were offered and admitted on behalf of the Employer/Insurer:

A. Report of Injury

B. Medical Records - Medical Acute Care

C. Medical Records - The Work Center

D. Medical Records - Dr. Bernard Randolph

E. Deposition - Dr. Bernard Randolph 12/18/18

F. Deposition - Mr. Stephen Dolan 12/14/18

G. Medical Records - St. Louis University Hospital

H. Medical Records - St. Anthony's Hospital

I. Medical Records - Dr. Jeffrey Pevnick

J. Medical Records - Center Pointe Hospital

L. Missouri and Illinois Motor Vehicle Reports

M. Medical Records from St. Joseph's Hospital

Roman Numeral I, Employment Application, was the only exhibit offered and admitted on behalf of the Second Injury Fund.

The following Exhibits were offered, but not admitted:

1. Exhibit A (admitted for demonstrative purposes)
2. Deposition of Custodian(s) of Records - Dr. Crane
3. Dr. Randall Otto's Records for treatment of the shoulder
4. Report-Dr. Alan Morris (2011)
5. Report - Dr. David Parks (2011)
6. SLU Myelogram/CT (11/6/18)
7. Dr. Bernard Randolph's records
8. Claimant's Exhibits from Dr. Bernard Randolph's deposition (1, 2, \& 3)
9. Claimant's Exhibits from Mr. Stephen Dolan's deposition (1, 2, \& 10)

K. Functional Capacity Reports of 2/2/08 and 12/22/15 offered by Employer

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[^0]: ${ }^{1}$ Any marks on Exhibits were placed there prior to being offered into evidence, and were not made by the undersigned.

The trial of this claim has been contentious. Without belaboring the history of the proceedings, it is fair to note there has been an unusual number of objections: to a trial continuance, to production of medical records, and to questions at deposition. A key ruling was made at the commencement of the hearing regarding the inadmissibility of three medical reports: Dr. Crane's unsigned 13-Question report (marked Exhibit 11), Dr. Alan Morris' 2011 report (marked Exhibit 14), and Dr. Parks' 2011 report (marked Exhibit 15)(collectively referred to as the "Hearsay Reports"). The Hearsay Reports were expert opinions generated regarding Claimant's application for benefits, not in the regular course of providing healthcare. A physician's letter, which expresses an opinion on causation, disability, or any opinion designed to assist in the handling of a claim, rather than being a contemporaneous record of the doctor's observations, diagnosis, treatment and progress as required by the Uniform Business Records Act, constitutes inadmissible hearsay. See, Kauffman v. Tri-State Motor Transit Co., 28 S.W.3d 369,372 (Mo. Ct. App. 2000). While such document is inadmissible, other experts may rely on hearsay in rendering an opinion. Irving v. Missouri State Treasurer, 35 S.W.3d 441, 447 (Mo. Ct. App. 2000). ${ }^{2}$ Thus, the Hearsay Reports were deemed inadmissible.

While the objections to the Hearsay Reports were argued and ruled upon on the record ${ }^{3}, many of the objections in depositions { }^{4}$ were not. Rather, the undersigned instructed the parties to brief the critical objections made in deposition, as any objections not addressed would be deemed overruled. ${ }^{5}$ Despite being so warned, the bulk of the deposition objections were ignored by the proponent of the objection.

However, the Assistant Attorney General, on behalf of the Second Injury Fund, submitted a well-organized, 6 -paged chart, supporting or opposing key objections in depositions. To the extent Claimant's attorney has attempted to use his deposition witnesses to channel the Hearsay Reports or other inadmissible evidence, the objections ${ }^{6}$ are sustained. A testifying expert cannot be a mere conduit for another non-testifying expert. State ex rel. Missouri Highway and Transportation Commission v. Modern Tractor and Supply Co., 839 S.W.2d 642, 655 (Mo.App.1992). Such testimony ${ }^{7}$ is hearsay and inadmissible. Bruflat v. Mister Guy, Inc., 933

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[^0]: ${ }^{2}$ This is one of several cases cited in this Award in support of other principles of law not affected by the Hampton ruling, which overruled many workers compensation cases only with respect to the proper standard of review. See Hampton v. Big Boy Steel Erection, 121 S.W.3d 200, 224-32 (Mo. banc 2003). No further note will be made of such Hampton cases.

${ }^{3}$ The objection to the admission of Exhibit 13, a CD containing over 1,200 pages of medical records and bills, was taken under advisement, and is now overruled. The records are admissible treatment records and bills, sufficiently authenticated. Hospital records have long been held admissible generally in Missouri (in the absence of privilege) as official records kept pursuant to statute. Allen v. St. Louis Pub. Serv. Co., 365 Mo. 677, 680, 285 S.W.2d 663, 666 (1956). Exhibit K does not comply with the Business Records exception and is excluded. Exhibit L is admitted. ${ }^{4}$ According to the index, one short, 45 -paged deposition (Exhibit 11) contains 47 instances of a form of the word "object," ten references to "strike," and 13 mentions of "hearsay." There is no index in a 241 -paged deposition (Exhibit F) and its 195 -paged counterpart (Exhibit E), so the instances of such words therein will remain uncounted. ${ }^{5}$ It is not the trial court's duty "to sift the wheat from the chaff, which is what the court would be required to do in order to rule on a blanket objection." Friese v. Mallon, 940 S.W.2d 37, 40 (Mo. Ct. App. 1997) citing Crockett by Crockett v. Schlingman, 741 S.W.2d 717, 718 (Mo.App.1987).

${ }^{6}$ Ex. 7, pp. 16, 18, 28, 31, 32; Ex. 8, pp. 13, 17, 22, 23,25; Ex. E, pp. 96, 97, 150, 153, 155-161; Ex. F, pp. 27-28, 56-64,71,120,145-147,149.

${ }^{7}$ An example of an attempt to use a testifying expert as a conduit for hearsay evidence can be found in Exhibit F, p. 70 , where the attorney asks the witness to "tell us what Doctor Parks said," and directs him to read out loud from the 2011 disability letter, one of the Hearsay Reports. The objections to such parroting are sustained.

S.W.2d 829, 833 (Mo. Ct. App. 1996).

Furthermore, the objections to Mr. Dolan testifying beyond his expertise at pages 43-44 and 123-124 of Exhibit E are overruled, as are all other objections contained in every deposition offered and accepted into evidence (see footnote 3), unless otherwise mentioned in this Award.

Special note is made regarding Exhibit 8, which was noticed up to be a custodian deposition for the records of Dr. Crane. Dr. Crane wrote the 13-Question Report determined to be one of the Hearsay Reports, as well as Exhibit 12, which is the 13-Question Report limited to observations, diagnosis, treatment and progress without opinions on causation or disability. Exhibit 12 came into evidence without objection. Among other things, Claimant tried to use the custodian of records deposition to gain backdoor admission of the Hearsay Report. Claimant offered Exhibit 8, Employer and SIF objected on multiple grounds, and I took it under advisement at hearing.

The circumstances surrounding this particular deposition were unusual. I find the irregularities in the custodian of records deposition alone render it inadmissible. After questioning not one but two staff members/custodians, Claimant's attorney asked Dr. Crane himself into the deposition and began questioning him. Supreme Court Rule 57.03 requires a notice of deposition to identify the names of people to be examined. Because Dr. Crane was not identified as the deponent of this deposition, opposing parties did not have proper notice of the deposition. Moreover, this was a custodian of records deposition pursuant to Sup. Ct. Rules 57.09(c) and 58.02, which specify that such depositions are for inspection or copying of records. Claimant attorney's questions crossed into a substantive oral examination of the doctor. Finally, the focus of Claimant attorney's questioning, the 13-Question report marked as Exhibit 4, was not in any of the records produced by the purported custodians, but came from the attorney's file. The objections to the admission of Exhibit 8 are sustained, and the deposition is excluded in its entirety.

Claimant is a 33-year-old, man who attended Red Bud High School through the $10^{\text {th }}$ grade. He suffered physical and mental abuse as a child. He unsuccessfully attempted to earn a GED and had no further technical training other than that necessary to become a licensed CNA. Claimant had learning disabilities which he said prevented him from being successful in school, but he testified it did not cause trouble getting or holding a job as an adult.

After leaving school, Claimant worked various retail jobs at Babies 'R Us, Sam's Club, Walmart, Roma's Pizza, and C.L. Smith Industrial, which was his only heavy labor job. Claimant earned his CNA license while working for Delmar Gardens South, and he worked as a CNA at several nursing homes in the area.

In July 2008, after successfully passing a drug test, Claimant began working for Employer. His duties as a CNA included bathing, feeding, changing, transferring, and transporting patients. He also completed all necessary paperwork. Claimant worked 16 -hour shifts and more than 40 hours a week, although that varied. He testified he was paid ${ }^{10} \ 11.25 an

[^0]

[^0]: ${ }^{8}$ Both Employer and the SIF briefed the objections to Exhibit 8 in post-trial submissions.

${ }^{9}$ Attorney Fagan stated the exhibit came "[f]rom me... and when I say it came from my file, it's the file that I requested from the doctor (Dr. Otto, a partner, who treated Claimant's shoulder) that your office produced to me." ${ }^{10} According to Ex. 10, Claimant's hourly pay rate was \ 12.65. Based on the pay from the September 7 pay period

Issued by DIVISION OF WORKERS' COMPENSATION

hour initially, but received a raise to $12 an hour. Claimant's assignments varied, and he generally was responsible for the care of 10 patients. He performed his job with no accommodations. Jeff Lorraine, nursing director, was his boss.

On December 4, 2008, while working the 7:00 AM to 11:00 PM shift, Claimant and some coworkers were attempting to help a large patient who had fallen in the bathroom. As he lifted, Claimant felt and heard a pop in his lower back. Claimant told the nurse in charge, wrote a report that he experienced the pop and felt pain, and left early. The next day, Claimant began a course of treatment authorized by Employer.

On December 5, 2008, Claimant presented to Medical Acute Care complaining of back pain and tenderness with no numbness or tingling. He received physical therapy, medication, and work restrictions. Based on diagnostic studies and clinical findings, the impression was low back pain, spina bifida, and unilateral left parsinterarticularis defect.

Employer next sent Claimant to Dr. Bernard Randolph for six visits from December 16, 2008, through March 2, 2009. Dr. Randolph's exams revealed pain with movement and palpation, limited range of motion, some degree of symptom magnification, and no radicular symptoms. He felt Claimant sustained a lumbar and mild lower thoracic strain with no findings of structural damage, for which conservative measures were appropriate. The MRI taken January 2, 2009, revealed a mild right paracentral protrusion at L4 - L5, which Dr. Randolph felt was consistent with a chronic, degenerative process. He conceded the work incident may have exacerbated the condition somewhat, and took him off work. He referred Claimant for epidural injections, but Claimant reported the injections were not helpful.

By January 22, 2009, Dr. Randolph concluded Claimant had mechanical back pain with a sub-optimal response to treatment. Given the clinical findings, he decided to return Claimant to work, with instructions to watch his posture and to do his home exercises. Claimant was partially non-compliant with work hardening. Claimant returned to work for Employer around February 2, 2009, and worked light duty, mostly feeding patients. Employer accommodated the doctor's restrictions.

On March 2, 2009, Claimant presented with low back pain. Dr. Randolph noted no radicular findings or sensory deficits, and normal leg strength and reflexes. He felt the complaints were subjective and were not substantiated by the objective findings. Signs of symptom magnification persisted. Dr. Randolph placed Claimant at maximum medical improvement ("MMI"). In a later report, he assigned permanent partial disability of no more than 1%.

Sometime in March 2009, Employer/Jeff Loraine terminated Claimant's employment. Claimant admitted he was written up a couple of times while he was on light duty, and was fired after being written up for parking in visitor's parking. He felt he was also fired in part because of his back. Jeff Loraine testified Claimant was terminated for providing untrue and misleading statements in relation to a mandatory investigation Employer conducted arising out of a patient complaint. Claimant has not had gainful employment since 2009 when he was let go for the alleged rule infractions.

to the November 30 pay period, Claimant's average weekly wage is 472.75, and the rate for TTD, PPD and PTD is 315.17. Although the parties did not specifically identify rate as an issue, they failed to stipulate to an average weekly wage, making it necessary to thus determine the wage and corresponding rates pursuant to §287.250.4.

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Injury No.: 08 - 109881

Page 7

Claimant thought he needed more medical treatment, but he did not ask Employer because he did not think they would help. Rather, on April 13, 2009, without informing Employer, Claimant presented to his primary care physician, Dr. David Parks, with complaints of persistent low back pain, which radiates down into his leg and is worse on right side, and occasional fatigue. The MRI on April 14 showed the conus located at the lower end of normal without evidence of an intradural mass or anatomic tethering. There was a single level mild degenerative changes at L4 - 5 with a small broad-based right-sided disc herniation, but without definite significant stenosis, and otherwise the disc spaces were normal.

Dr. Parks referred Claimant to Dr. Shekhani, who noted Claimant complained of back pain radiating down into lower extremity, with feelings of numbness at right thigh. His assessment as of April 27, 2009, was herniated disc disease, sciatica, lumbago, and antalgic gait. He demonstrated home exercises, and provided a selective nerve root block injection right L4 level. The selective nerve root block offered only 2 or 3 days relief. There is no evidence Employer had advance knowledge of Claimant's treatment with Dr. Shekhani.

Dr. Shekhani recommended a surgical consultation, and Claimant saw Dr. Selwyn Picker for the first of several visits on June 30, 2009, with the main complaint of persistent lower back pain since December 2008. Claimant described the pain all the time and always in the same place. Dr. Picker noted no radiation of the pain, LE pain, numbness, paresthesia or weakness in the lower extremities. Bladder and bowel control were fine. The diagnosis was mechanical back. Dr. Picker notes at least 4 times in the record that the pain is static and there is no radiation or radicular pain. The handwritten notes in Dr. Picker's records are very hard to interpret. There is no evidence Employer had advance knowledge of Claimant's treatment with Dr. Picker, although the DWC first set this case for prehearing conferences in June 2009.

While he was under the care of Dr. Shekhani in August 2009, Claimant was hospitalized at St. John's Mercy Medical Center for febrile illness which turned out to be strep. He returned to Barnes Jewish Medical Center a few days later with abdominal pain and other symptoms. Although certain tests were done to rule out chronic back pain and treatment as the source of Claimant's fevers, I find all the charges associated with the St. John's Mercy and Barnes Jewish hospitalizations in August 2009, were to treat his febrile illnesses, not to cure and relieve the effects of the work injury. Dr. Musich's testimony Employer should be liable for these charges is not compelling. These charges are disallowed for this and other reasons discussed below.

It appears Dr. Picker referred Claimant to Dr. Wright at BJC because of "insurance problems." Claimant's initial consultation with Dr. Wright occurred on January 7, 2010. The history of a lifting incident at work was consistent with the evidence. Dr. Wright read the MRI as showing fairly significant desiccation of the L4 - 5 disc with a broad-based bulge, mild facet degeneration and a Par's defect at L4 with central bulges at L4 - 5 and L5 - S1. The rest of the spine looked healthy.

His assessment was a closed fracture of L4 vertebral body (Par's fractures bilaterally); and lumbar disc degeneration L4 - 5. After discussing options, Dr. Wright offered a lateral fusion and L4 - 5 interbody fusion with discectomy and placement of spacers packed with bone material in addition to a posterior instrumented fusion. Claimant did not undergo the surgery recommended by Dr. Wright. There is no evidence Employer had advance knowledge of Claimant's treatment with Dr. Wright.

On May 12, 2010, Claimant presented to Dr. Parks with complaints of severe low back

pain radiating into buttocks and legs that prevented him from bending, lifting, sitting for prolonged periods, standing, or performing any kind of work. Dr. Parks noted Claimant was filing for disability. Thereafter, Claimant visited Dr. Parks' office on a near monthly basis, through the date of hearing, for his general health maintenance as well as for treatment to cure and relieve the effects of the work injury.

On September 2, 2010, at Dr. Parks' referral, Claimant consulted with Dr. Kitchens. He indicated his back pain started in December 2008, at work. The MRI he ordered showed degenerative changes most pronounced at L4 - L5 with a right paracentral disc protrusion and acute Schmorl's node in the inferior endplate of the L4 vertebral body without significant nerve root compression. A posterior annual lower tear at L4 - L5 could result in discogenic pain. On September 16, 2010, at Frontenac Surgery and Spine Care Center, Dr. Kitchens performed a right L4 - 5 microdiscectomy using an operating microscope.

By October 4, Claimant reported he had great improvement in his radicular pain and no longer had numbness, tingling, or shooting pain. Unfortunately, by the end of the year, Claimant had a return of lower back pain with pain and weakness into the right leg. The January MRI revealed epidural fibrosis and post-operative changes at the right L4 - 5 but no recurrent or new disc herniation. Dr. Kitchens referred Claimant to Dr. Feinberg, who diagnosed lumbar sacral spondylosis and rectus spondylosis, and administered several para vertebral facet joint and trigger point injections in February 2011. In the first part of 2011, Dr. Parks recorded Claimant selfreported an inability to work and was seeking disability. On June 28, 2011, Dr. Miller administered a fluoroscopic guided right L4 nerve block with foraminal epidural.

On November 15, 2011, Dr. Kitchens examined Claimant at a follow-up visit. He noted Claimant continued to have pain in his lower back and down his right leg. His review of the MRI revealed postoperative changes at L4 - 5 to the right side with no evidence of recurrent or residual disc herniation. Dr. Kitchens opined, "[a]t this time, I do not feel he would benefit from surgery." Rather, Claimant was to follow up on a PRN basis.

Throughout 2012, Claimant saw Dr. Parks or one of his associates on a near monthly basis for multiple issues other than his back pain. In January 2013, Claimant received follow-up treatment for a self-imposed stab wound. He received pain medication for severe back pain at St. Mary's Health Center on February 5, 2013, but a visit with Parks a week later, focused on attention deficit disorder diagnosis. In June, Claimant started talking about pain in his shoulder ${ }^{11}$ in addition to his accident-related pain.

Claimant followed up with Dr. Kitchens in August 2013. The MRI of lumbar spine he ordered from Metro Imaging showed disc bulging and postsurgical changes at the L4 - 5 level resulting in mild impression upon the adjacent thecal sac. Mild to moderate foraminal narrowing was also noted at L4-5, with some involvement of the left L4 nerve root. Mild disc bulging was present at the L5 - S1 level. Status post right L4 - 5 microdiscectomy. On August 8, 2013, Dr. Kitchens noted Claimant continued to have discomfort in his lower back, and somewhat into his buttock. Dr. Kitchens recommend only conservative measures because he "does not have evidence of a recurrent disc herniation or nerve root impingement that would warrant surgery." Despite instruction to follow up on a PRN basis, Claimant did not return to Dr. Kitchens.

[^0]

[^0]: ${ }^{11}$ Claimant stipulated he is not seeking benefits related to any shoulder injury. Any treatment for the shoulder will not be discussed in depth.

Issued by DIVISION OF WORKERS' COMPENSATION

Towards the end of 2013 and into early 2014, Claimant developed a new complaint of cervical¹² pain, although the MRI taken at Metro Imaging on December 5, 2013, was normal. It appears it was both his new neck pain and chronic back pain that lead him to seek treatment with Dr. Fangxiang Chen on March 4, 2014. First, Dr. Chen successfully treated the cervical issues with a cervical collar. After 4 weeks wearing the collar, Claimant reported his neck symptoms completely resolved. In April, Dr. Chen turned his attention to Claimant's lumbar pain, noting Claimant has possible mechanical low back pain with some possible radicular pain on the right with no clear radiographic nerve compression or large disc herniation. Rather, the studies showed L4 - L5 degenerative disc disease. When conservative measures failed, Dr. Chen recommended a discogram, which showed 7/10 concordant pain at L4 - 5, and 10/10 concordant pain at L5 - S1, but no evidence of significant disc abnormality or annular tear.

On September 17, 2014, Dr. Chen performed an uneventful L4 - 5 transforminal interbody fusion with instrumentation in a minimally invasive way. Postoperative images showed a good placement of the screws and the rods. The graft had no signs of instability or hardware of failure. Claimant had no neurological deficits, no sensory or motor deficits, and was discharged the following day without issues or concerns. He reported improvement initially, but by October, he not only had the same back complaints, but was also experiencing right hip¹³ pain. As of October 30, Dr. Chen appeared to shift his focus from treating the postsurgical back to exploring the hip symptoms. With respect to the right hip, Claimant underwent various treatments culminating with hip surgery performed by Dr. King on February 24, 2015.

Through the remainder of 2015, Claimant continued to see Dr. Parks and associates on a regular basis. At his April 3, 2015, annual exam with Dr. Parks, Claimant reported the lumbar fusion performed by Dr. Chen improved his back pain by 50%. He said he was no longer having radiating pain, but continued to have localized pain. It is also during these months Dr. Parks noted Claimant's anxiety with increasing regularity, and specifically noted he refused counseling, instead coping with anxiety with Alprazolam. The monthly visits with Dr. Parks through the end of 2015, were for a myriad of issues, including but not limited to back pain.

In 2016, Claimant went to the hospital for an ankle sprain, shortness of breath, and chest pain. On August 12, 2016, he had a motor vehicle accident, and he was treated for sore throat, alcohol use disorder, and injuries associated with the car accident. The CT showed postoperative changes of the lumbar spine with no acute findings. In 2017, Claimant continued to have abdominal pain and nausea, and his mental health became significantly worse, with several suicide attempts and admissions for treatment of his alcohol abuse syndrome. In late October, 2017, Claimant fell on his right shoulder while running from a clown with a chain saw at a haunted house (according to the medical records), and went to the emergency room at St. Anthony's on two consecutive nights for pain relief. In March, 2018, Dr. Otto performed a right shoulder surgery.

On or about June 7, 2018, Claimant was in a motor vehicle accident following a high-speed police chase. He was intoxicated, and thereafter sought admission to Center Pointe Hospital's intensive outpatient detox program. His diagnoses included alcohol use disorder, major depressive disorder, generalized anxiety disorder, panic disorder, borderline personality

¹² As with his shoulder pain, Claimant is not attempting to link his neck pain to his work injury and this claim.

¹³ As with the shoulder and neck, Claimant is not attempting to link his right hip condition to his work injury and this claim.

WC-32-R1 (6-81)

Injury No.: 08 - 109881

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

disorder, and unspecified posttraumatic stress disorder.

Dr. Crane performed an IME on or about February 22, 2018, and Employer's attorney provided a copy of his report¹⁴ to the parties on August 16, 2018. Claimant's main complaint was "my back hurts a lot". X-ray did not show significant bone forming in the disc space or in the lateral gutters, which was concerning for nonunion at this level. Dr. Crane's diagnoses included: 1. Spondylosis L4 - L5; 2. Low back pain; and 3. Nonunion lumbar spine. His disposition/recommendations were as follows:

At this point in time, my concern is that he may have gone to a nonunion at the L4 - 5 level, which would explain his continued low back pain. As such, my recommendation would be to obtain a myelogram and post CT myelogram of the lumbar spine to assess the adequacy of the decompression at the L4 - 5 level...the position of the hardware, and determine if he does indeed have a solid fusion at the L4 - 5 level. If he has a nonunion... He may be a potential candidate for a revision fusion operation. That being said, I am somewhat hesitant to consider surgical intervention because of the degree of his narcotic pain medication use.

Employer's attorney chose not to depose Dr. Crane because he felt he could not provide all the medical records and take the deposition in a timely manner given the firm trial date. Therefore, Dr. Crane's evidence is limited to the face of his admissible report.

Claimant testified in detail at trial regarding his current pain and limited abilities following the work accident. The pain makes it hard for him to do things like showering, standing or sitting for extended periods of time, or climbing the stairs, and the pain prevents him from doing household chores, playing with his son, or getting a good night's sleep. He has to sit or lay down a lot throughout the day. Claimant described himself as a sober alcoholic who started drinking as a means of self-medication following his work accident. His relationships have been affected, and he has had several suicide attempts.

Claimant relies on the financial assistance of friends. Over the years, he has occasionally helped out at his friend's businesses, but has never been paid for the services. Claimant cannot work a 32-hour week because he is in pain, medications he takes make him sleepy, and he has trouble learning. He testified he would work if he thought he could. He has not looked for work since 2009.

Claimant testified he was "in perfect health" prior to December 2008, with no prior back injuries and no work injuries. Before December 2008, Claimant had no limits or restrictions, and required no work accommodations. If he missed work, it was due to a cold or other sickness, not injury. He had no admissions for psychological treatment prior to his work injury in 2008.

Claimant's friend, Robert Dawes, has known Claimant since July 2006, and provided testimony consistent with Claimant's testimony regarding his disability and limitations. Mr. Dawes confirmed Claimant sleeps poorly, requires financial and personal assistance, and has consumed alcohol to a greater degree since the accident. Mr. Dawes also testified that while Claimant occasionally helps out with his businesses as a friend would, Claimant could never work as an employee in any of Mr. Dawes' businesses - he could not even perform to the minimum expectations.

¹⁴ Exhibit 12, the admissible version of Dr. Crane's report without the 13-Questions.

WC-32-R1 (6-81)

Page 11

Dr. Bernard Clyde Randolph was the authorized treating physician chosen by Employer to treat Claimant's initial complaints. He provided conservative treatment from December 16, 2008, through May 21, 2009. Dr. Randolph also reviewed relevant treatment records after Claimant left his care, issued a report, and testified by deposition.

Based on clinical findings, it was Dr. Randolph's opinion Claimant sustained a lumbar and lower thoracic strain as a result of the work accident of December 4, 2008. At the time, he had axial low back pain without clear signs of radicular injury or disease. The imaging studies showed degenerative changes at L4 - 5, a subtle midline L4 - 5 disc protrusion, and a preexisting bilateral pars interarticularis defects at L4. There was no evidence on imaging of neural compression or spinal stenosis.

Dr. Randolph felt Claimant received appropriate workup and treatment through his office, despite which pain continued out of proportion to the objective findings. Symptom magnification, nonorganic pain, inconsistent clinical observations, and some noncompliance were documented. As of March 2, 2009, Dr. Randolph did not think Claimant required additional referrals to pain management, orthopedic surgery, or neurosurgery. Claimant did not have signs of active radicular disease at the time of discharge, and the subtle disc protrusion at L4-5 did not have corresponding clinical signs of active radicular disease which would have warranted a discectomy.

On May 21, 2009, Dr. Randolph provided a rating estimate of no more than 1 % PPD of the person as a whole related to the effects of the lumbar strain occurring on or about December 4, 2008. In his report of December 5, 2018, Dr. Randolph wrote, "strictly with respect to the lumbar strain/sprain which occurred on or about December 4, 2008, I estimate 5\% permanent partial disability of the person as a whole."

Dr. Randolph testified Claimant did not need the surgeries he had, based on his clinical impression. Dr. Randolph particularly noted Claimant did not have radicular complaints which are the normal signal that a microdiscectomy is appropriate. The fact Claimant underwent multiple lumbar injection therapies without significant pain relief indicated there were other factors contributing to his pain complaints besides anatomical or organic factors. Despite the fact that at least 4 neurosurgeons offered to treat Claimant, Dr. Randolph took issue with the treatment decisions Claimant made. He specifically questioned the wisdom of the fusion, because Claimant had signs of nonorganic pain behavior, and pre-surgery testing did not show clear evidence of discogenic pain.

Dr. Thomas F. Musich is a retired physician who is well known in the Workers' Compensation community for providing independent medical examinations. He examined Claimant on two occasions ${ }^{15}, issued five reports { }^{16}$ over a five-year period, and testified live at hearing over two days. Throughout, Dr. Musich considered a history of accident and treatment that is consistent with the evidence of record. He testified the work trauma of December 4 was a substantial and prevailing factor in the development of his lumbar symptomology. From his first report, Dr. Musich consistently recorded complaints of constant low back pain associated with weakness and numbness in Claimant's right lower extremity. His review of the medical records

[^0]

[^0]: ${ }^{15} Exams were conducted on June 4, 2013 and September 10, 2015.

{ }^{16}$ Reports were dated June 4, 2013, September 10, 2015, March 1, 2016, October 1, 2018 and December 6, 2018.

Issued by DIVISION OF WORKERS' COMPENSATION

was accurate and thorough.

He believed, with a reasonable degree of medical certainty, the December 4, 2008 work-related trauma is a substantial and prevailing factor in the development of acute low back pain and radiculopathy which necessitated all the evaluation and treatment received by Claimant referable to the lumbosacral spine after December 4, 2018. After reviewing the bills and related medical records, Dr. Musich testified the bills were customary, usual, and related to the treatment Claimant incurred to cure and relieve the effects of his low back injury. He was of the opinion that all of Claimant's evaluations and treatment referable to the work injury of December 2008 have been reasonable and necessary.

As of September 10, 2015, Dr. Musich was of the opinion Claimant suffered a permanent partial disability of 65% of the man as a whole referable to lumbar spine and associated symptoms consistent with posttraumatic work-related symptomatic lumbar spondylosis. Thereafter, in his reports and testimony, Dr. Musich asserted it is his ongoing medical opinion that Claimant is totally and permanently disabled as a result of the work trauma of December 4, 2008. But for the work-related trauma of December 4, 2008, he felt Claimant would have remained employed by Employer.

Dr. Musich noted Claimant did not suffer any significant symptomatic lumbar pathology or disability prior to December 4, 2008. While Dr. Musich acknowledged Claimant may have had significant educational, psychological, and social deficiencies that would certainly cause a hindrance and obstacle in obtaining or maintaining a position in the open labor market, he still maintained Claimant's permanent and total disability was primarily as a result of the work trauma of December 4, 2008. There were no medical records regarding these conditions from before the date of injury. He had no prior back problems.

In his reports, Dr. Musich stated it was his medical opinion Claimant has reached maximum medical improvement referable to his lumbosacral spine and associated symptomology and should continue to receive conservative medical treatment with analgesics and ongoing home physical therapy. In his trial testimony, he was more equivocal, suggesting additional modalities, including determining whether he has a potential candidate for a revision fusion operation. He further explained Claimant may require additional evaluation or treatment if symptomatically he cannot tolerate his current condition. Future medical would at least involve the cost of pain medication.

James England is a vocational rehabilitation counselor who is well known in the Workers' Compensation community. He reviewed records, met with Claimant on January 21, 2016, and sat for a deposition taken May 30, 2018, on behalf of Claimant.

Mr. England considered several sources of information to determine Claimant's abilities and restrictions. Claimant described functional problems, including the limited ability to stand about 25 to 30 minutes, walk 2 to 4 blocks, lift more than a gallon of liquid, or perform basic household tasks. He considered the report of Dr. Morris, who was the only physician to specifically address restrictions. None of the treating physicians placed restrictions on his ability to return to work.

Mr. England concluded Claimant demonstrated the inability to perform not just his past

WC-32-R1 (6-81)

Injury No.: 08 - 109881

Page 13

Issued by DIVISION OF WORKERS' COMPENSATION

work but any type of work on a consistent day-to-day basis. Dr. Morris' restrictions¹⁷ limit him to less than full range of even sedentary work. Based on his academic performance, Claimant is best suited for nonverbal work activity that could be learned through observation. He would not be candidate for retraining.

In summary, Mr. England felt Claimant is a younger worker who appeared tired, nervous, anxious, and in discomfort. His presentation would make it difficult for him to do even entry-level kinds of employment. The restrictions noted by Dr. Morris would preclude him from about 90% of the jobs. Adding his poor academic ability along with his presentation and functioning, Claimant would not be able to sustain work. If it is true Claimant had to lie down periodically, Mr. England said "I do not think it would matter whether or not he could read or write effectively. I think, assuming that is accurate, I think that that could, by itself, negate his ability to do even sedentary work."

On cross-examination, Mr. England acknowledged the impact of Claimant's psychological and learning difficulties, stating, "[w]hat I said earlier is that if you limit him to sedentary work, sedentary work typically involves more academic ability than he possesses. It is that combination, I think, of that in his personality, the issues with depression in his presentation that I think would affect his ability to do sedentary work. Not physical limitations per se." Mr. England explained the inability to go back to his prior job by itself does not make him unemployable. But when you add all the other factors like limited education, no GED, barely able to read at all, and some psych issues, when you put all that together that changes the picture.

Despite referencing arguably pre-existing conditions, Mr. England acknowledged Claimant missed no work and had no doctor-imposed restrictions leading up to his injury of December 2008. The only prior condition mentioned in the records is seasonal allergies. However, after and because of the December 2008 work injury, Claimant is taking multiple narcotic pain medications per day. Taking narcotic pain medication itself prohibits Claimant from working some jobs, like in interstate commerce or for the railroad. Claimant was first prescribed medicine for anxiety around 2011, and did not begin treatment for ADD until 2013. Prior to the accident, Claimant was on his feet all day, could walk or drive as long as he needed, and could bend backward and forward. He could kneel and squat, lift a gallon of milk, and sleep well. This all changed after the accident.

Mr. J. Stephen Dolan is a vocational rehabilitation counselor who has been active in the field since 1972. He interviewed Claimant on May 17, 2018, issued a report dated August 9, 2018, and testified on behalf of Employer by deposition taken December 14, 2018. Claimant told him he hated school because he had trouble learning, he has always had anxiety, which sometimes made him nauseous, he was in special education because of having ADHD, and he dropped out of school because of social anxiety. These details were unique to Mr. Dolan's report, although not necessarily inconsistent with the evidence. There is no evidence of treatment for these conditions until after the work accident, and Claimant did not describe such social anxiety at hearing.

¹⁷ Maximum lifting of 10 pounds occasionally, less than 10 pounds frequently standing/walking alternatively periodic sitting limited use of lower extremities and pushing pulling also restricted to never climbing, balancing, kneeling, crouching, or crawling. Note is made Dr. Morris determined disability under social security administration standards.

WC-32-R1 (6-81)

Injury No.: 08 - 106981

Page 14

Mr. Dolan considered Claimant's self-reports of function and limitations, including a consistent pain at the level of 7, limited ability to sit, stand, move, crouch, or kneel. He felt Claimant had symptoms of depression including low motivation, not wanting to talk to people, suicidal thoughts, trouble sleeping, and poor self-care. Testing revealed Claimant fell into the $5^{\text {th }}$ percentile or less in reading, spelling, and math.

Based on this information, Mr. Dolan reached some conclusions regarding the labor market. First, he felt Claimant's poorly controlled anxiety problem alone would prevent him from maintaining employment. Second, he questioned Claimant's self-reported work history "because a person with a severe anxiety would not be able to work very long at any type of job. The work history that he explained to me does not match what he explained to me about his anxiety problem." On cross-examination, he acknowledged the sporadic work occurred when Claimant was between 17 and 23 years old, a period during which it is common for young people to change jobs frequently because they are immature and do not have a good idea of what to do for a living.

Mr. Dolan felt, based on his age, academic skills, work skills, and own recitation of his problems, Claimant is not able to maintain employment for a significant period of time because of his anxiety issues. Mr. Dolan would not agree that any of the physical limitations automatically render an individual unemployable in the open labor market. He feels Claimant would be employable if he only had physical problems stemming from the surgeries.

Mr. Dolan would agree that following his fusion surgery, Claimant could probably not lift more than 50 pounds which is a limitation that would prevent him from working as a CNA. Mr. Dolan felt Claimant was disabled from work but would not comment on whether that was a permanent status. His permanent disability would be mostly because of the psychiatric problems, including alcoholism, with the low back condition playing a role as well as his academic struggles.

On cross-examination by the Second Injury Fund, Mr. Dolan conceded Claimant's prior jobs ranged from light to medium, although his nursing assistant and Walmart stocker jobs may have been heavy. All of Claimant's subjectively reported limitations, including limited ability to stand, walk, stoop, crouch, climb steps, were not present until after the work accident, as was his need for medication.

As for Mr. Dolan's reliance on the educational and psychiatric conditions, he agreed there were no educational records and the educational history is based on subjective reporting. The only records reviewed regarding anxiety were generated years after the work accident. ADHD was also diagnosed after the accident and he reviewed no records regarding that diagnosis. There are no records for treatment of panic attacks prior to December 2008, although the Center Pointe records diagnosed posttraumatic stress regarding the childhood abuse that would predate the work accident. There are no records establishing Claimant had to leave work because of panic attacks or anxiety related conditions before 2008.

There is no evidence to suggest Claimant had an alcohol problem prior to the work accident in 2008. Center Pointe records indicate Claimant began drinking up to a bottle of vodka a night since he stopped working. At the time, the problem had been apparent for 7 to 10 years, which postdates the accident. Dr. Parks' records do not include the diagnosis of alcoholism until after 2014.

Having given careful consideration to the entire record, based upon the above testimony, other competent and substantial evidence presented, and the applicable law of the State of Missouri, I find the following:

Pursuant to Section 287.140 of the Act, an employer is obligated to authorize and provide an employee with such care "as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." § 287.140.1; Maness v. City of De Soto, 421 S.W.3d 532, 544 (Mo. App. 2014). A claimant seeking past medical expenses must prove "that the need for treatment and medication flow[s] from the work injury." Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 519 (Mo.App.W.D.2011); Maness at 544. "The employer, of course, may challenge the reasonableness or fairness of these bills or may show that the medical expenses incurred were not related to the injury in question." Id.

An employer is charged with the duty of providing the injured employee with medical care, but the employer is given control over the selection of a medical provider. Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85 (Mo. Ct. App. 1995). It is only when the employer fails to do so that the employee is free to pick his own provider and assess those costs against his employer. Id. Therefore, the employer is held liable for medical treatment procured by the employee only when the employer has notice that the employee needs treatment, or a demand is made on the employer to furnish medical treatment, and the employer refuses or fails to provide the needed treatment. Id., citing Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 880 (Mo.App.1984); see also, Poole v. City of St. Louis, 328 S.W.3d 277, 291 (Mo. Ct. App. 2010).

The initial hurdle to recovering past medical is one of reasonableness. "Once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury." Wilkins v. Piramal Glass USA, Inc., 540 S.W.3d 891, 897 (Mo. Ct. App. 2018), citing Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 519 (Mo. App. W.D. 2011). A claimant need not prove that the compensable injury was the prevailing factor necessitating the treatment, but only that "the treatment [was] reasonably required to cure and relieve the effects of a compensable injury." Id. at 521 (emphasis added). The evidence establishes the treatment Claimant sought for his back flowed from the compensable December 2008, work accident. He was completely asymptomatic prior to the work accident, with no indication of an underlying defect or disability of the spine. After the accident, he has not had a single day free from pain. He sought relief from that pain, and although some have questioned whether he made good choices, the unauthorized treatment he obtained was from qualified experts who were providing treatment that flowed from, and was reasonably required to cure and relieve the effects of, a compensable injury.

Claimant can only recover for unauthorized treatment if he can establish Employer had notice he needed treatment, or he has evidence he made a demand on Employer for medical treatment, and Employer refused. When Claimant was released from care in March 2009, he returned to work briefly before he was fired for alleged rule violations unrelated to his accident. He testified that his lower back still hurt, but he did not ask for treatment from Employer because he did not think they would help. There is no evidence Employer refused treatment at this point because Employer was unaware of the need. Claimant chose to treat with Dr. Parks,

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his personal care physician, who then directed him to Drs. Shekhani, Picker, and Wright, rather than demand treatment from Employer. From the record, it appears Claimant did not give Employer notice of the treatment that he needed before he received it nor the opportunity to select the provider, or to provide or refuse to provide such treatment. Accordingly, Claimant incurred treatment at his own expense. *Poole v. City of St. Louis at 291.*

However, while Claimant elected to pursue unauthorized care, he began pursuing a formal claim under the Act. As is required, the DWC set the case on various dockets over time, and provided notice of each setting to the parties. A review of the DWC file in this case reveals this claim was set before an ALJ for a prehearing, mediation, or dismissal, two to four times per year, every year beginning in June 2009. None of the settings were formally designated as a hardship setting for treatment, and there are no letters or motions demanding treatment from Employer in the record. Each of these settings[^18] represent an opportunity for Claimant's attorney to notify Employer's attorney his client was receiving treatment for his injury, and for Employer, being so informed, to provide or refuse to provide such treatment. It is implausible for an employer to assert it did not have notice of the need for treatment after over 20 court settings dealing with a claimant's injury. The "real question here is whether Employer had notice of the need for additional treatment and failed to provide it." *See, Banks v. Springfield Park Care Ctr., 981 S.W.2d 161, 165 (Mo. Ct. App. 1998).*

I find the filing of a claim is not in and of itself sufficient to provide an employer with notice of the need for medical treatment for a work injury. However, as a claim proceeds through the adjudicative process, an employer can no longer credibly claim lack of notice when Claimant's treatment status is or should be a topic at every setting, the subject of discovery, and an issue at depositions. After a careful review of the record, taking administrative notice of the file of this Claim as maintained by the DWC, and considering there is no evidence of an earlier formal demand in the record, I find that Employer can reasonably be charged with notice of the need for treatment as of the end of January 2010. By then, the DWC had provided three settings for the parties to communicate, after which time it is apparent Employer knew or should have known of the need for treatment, but did not assume control of the medical. Claimant shall bear liability for all treatment[^19] provided through the end of January 2010. Thereafter, Employer is charged with knowledge of the need for, and refusal to provide, treatment for Claimant's injury.

Having established he was free to pick his own provider after January 2010 and have those costs assessed against Employer, Claimant must still establish a sufficient factual basis to receive an award for past medical expenses. Such a basis exists when: (1) the claimant introduces his or her medical bills into evidence; (2) the claimant testifies that the bills are related to and the product of his or her work injury; and (3) "the bills relate to the professional services rendered as shown by the medical records in evidence." *Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. banc 1989), superseded by statute on other grounds by §287.160.3; Maness, 421 S.W.3d at 544.* When these three elements are met, the burden shifts to the employer to prove some reason the award of past medical expenses is inappropriate. *Cook v. Missouri Highway & Transportation Comm'n, 500 S.W.3d 917, 929 (Mo. Ct. App. 2016); see Farmer-Cummings v. Pers. Pool of Platte County, 110 S.W.3d 818, 823 (Mo. banc 2003).*

[^18]: Pursuant to 8 CSR 50-2.010(9)(D), "Attendance at any setting is mandatory."

[^19]: The unauthorized treatment Claimant obtained before January 2010, was conservative in nature, and did not result in prejudice to Employer, who had the opportunity to assume control prior to any surgical procedure.

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Claimant pursued treatment to cure and relieve the effects of his work-related back injury. Dr. Musich established the treatment was reasonable and necessary. Dr. Randolph testified to the contrary. However, I am unconvinced by Dr. Randolph's opinion which is rooted in the proposition Claimant never had radicular symptoms. While that may be true of Dr. Randolph's records, the records of subsequent medical visits, including those arising mere months after Dr. Randolph released him, indicate Claimant was experiencing some sort of leg pain, numbness, or paresthesia. Even though the doctors may have disagreed about the propriety of certain procedures, I find the medical treatment identified below flows from the work injury. Dr. Musich, after reviewing the bills and corresponding medical records, testified the bills were customary, usual, and related to treatment of the work injury. After a careful review and comparison of the medical records, all the testimony, and the bills, I find Employer is responsible for payment of past medical expenses incurred by Claimant to cure and relieve the effects of his injury as follows:

1. Dr. David Parks of Central West Health Care - 5,247.00
2. Dr. Daniel Kitchens at Cardinal Neurosurgery and Spine, Inc. - 7,250.00
3. Missouri Baptist Medical Center - 69.66
4. Frontenac Surgery and Spine Center - 59,280.00
5. Pro-Rehab - 5,503.41
6. SSM St. Mary's Health Center - 1,338.30
7. Dr. Fangxiang Chen - 8,031.09
8. St. Anthony's Medical Center - 53,311.19

Employer is liable for $140,030.65 in medical expenses incurred by Claimant to cure and relieve the effects of his work injury. Although Employer can argue with the benefit of hindsight that not every treatment decision was sound, that does not relieve Employer for assuming responsibility for the treatment which at the time was reasonably necessary and flowed from the injury.

1. FUTURE MEDICAL CARE

Claimant seeks future medical care. "An award of future medical treatment is appropriate if an employee shows a reasonable probability that he or she is in need of additional medical treatment for the work-related injury." *Maness v. City of De Soto*, 421 S.W.3d 532, 543 (Mo. Ct. App. 2014). "An employer will be responsible for future medical benefits only if the evidence establishes to a reasonable degree of medical certainty that the need for future medical care flows from the accident." *Sickmiller v. Timberland Forest Products, Inc.*, 407 S.W.3d 109, 122 (Mo.App.S.D.2013) (quotation omitted).

I find there is a reasonable degree of medical certainty Claimant will require additional medical care that flows from the work accident. His physical condition is one which has required ongoing treatment, mostly in the form of pain relief. At least one expert has mentioned the

20 Some of the medical expenses incurred prior to January 2010, are also disallowed on separate grounds. The Barnes Jewish charges of $1,414.00 were the subject of a medical fee award, and thus are satisfied.

21 As his PCP, Dr. Parks treated Claimant for multiple unrelated medical conditions as well as the work injury. I find Employer is only liable for 5 office visits in 2010 (650), 4 in 2011 (520), 5 in 2012 (650), 8 in 2013 (1,040), 7 in 2014 (987), and 9 in 2015 (1,170). The billed amount on October 4, 2013, is disallowed as there are no medical records to explain the $2,316.00 charge.

22 Charges associated with treatment to the shoulder at St. Anthony's and Metro Imaging are disallowed.

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possibility of a nonunion[^23] which may render Claimant a potential candidate for a revision operation. Dr. Musich also expressed a concern that future treatment may be necessary, especially if Claimant becomes unable to bear his condition. Employer shall assume responsibility for directing and providing such future care.

1. TEMPORARY TOTAL DISABILITY

Claimant seeks to recover temporary total disability benefits beginning in early 2009. The burden of proving entitlement to temporary, total disability benefits is on [Claimant]. *Cooper v. Medical Center of Independence*, 955 S.W.2d 570, 575 (Mo.App.1997). Section 287.020.7, defines "total disability" as the "inability to return to any employment and not merely [the] inability to return to the employment in which the employee was engaged at the time of the accident." *Boyles v. USA Rebar Placement, Inc.*, 26 S.W.3d 418, 424 (Mo. Ct. App. 2000). Compensation is payable until the employee is able to find any reasonable or normal employment or until his medical condition has reached the point where further improvement is not anticipated. *Cooper*, 955 S.W.2d at 575; *Vinson v. Curators of Un. of Missouri*, 822 S.W.2d 504, 508 (Mo.App. 1991); *Phelps v. Jeff Wolk Construction Co.*, 803 S.W.2d 641, 645 (Mo.App. 1991).

While temporary total disability is generally based on a physician's off-work slip or temporary restrictions, a claimant is capable of forming an opinion as to whether [he] is able to work, and [his] testimony alone is sufficient evidence on which to base an award of temporary total disability. *Stevens v. Citizens Mem. Healthcare Found.*, 244 S.W.3d 234, 238 (Mo.App.2008) (quoting *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 249 (Mo. banc 2003)); *Pruett v. Federal Mogul Corp.*, 365 S.W.3d 296, 309 (Mo.App. 2012). There appear to be no off-work slips or doctor's work restrictions, perhaps because Claimant was "unemployed" after his last day of work for Employer. In 2009, the only credible evidence as to Claimant's ability to work was Dr. Randolph's March 2, 2009, opinion Claimant was able to work at full duty. This fact is not contradicted by Claimant's trial testimony because he did not provide adequate detail as to his state of being in 2009. For example, Claimant testified Dr. Parks had him on lifting restrictions "for many years," but did not specify when the restrictions began. Rather, Claimant mainly described his more current limitations at hearing, nearly a decade after the relevant period for TTD.

The first compelling evidence Claimant provided regarding his inability to work came from his treating doctor's records. On May 12, 2010, Claimant saw Dr. Parks with complaints of severe low back pain radiating to the buttocks and legs. Dr. Parks noted Claimant said the pain prevented him from bending or lifting, sitting for prolonged periods, standing, or performing any kind of work. I find this notation in the medical record supports a finding Claimant is unable to work on account of his work injury as of May 12, 2010. Claimant continued to report no improvement of symptoms when he saw Dr. Parks over the following year. Eventually, expert opinions specifically supported Claimant's status as well - in his June 4, 2013, report, Dr. Musich noted Claimant "is not capable of returning to the job duties he was performing as a CNA prior to December 4, 2008 solely due to his ongoing, post-traumatic, work related symptoms." Because treatment continued with the hopes of improving, Claimant shall be entitled to temporary total disability as of May 12, 2010.

[^23]: See Exhibit 12, the disposition/recommendations section of Dr. Crane's undisputed, admissible report.

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1. PERMANENT DISABILITY

Claimant seeks to recover permanent total disability compensation. "Under section 287.020, the term 'total disability' is defined as the 'inability to return to any employment and not merely inability to return to the employment in which the employee was engaged at the time of the accident.'" *Scott v. Treasurer of State-Custodian of Second Injury Fund*, 417 S.W.3d 381, 386 (Mo.App.W.D.2014). "Any employment" means any "reasonable or normal employment or occupation." *Id.* at 387. " 'Total disability' does not require the employee to be completely inactive or inert, rather, it means the inability to return to any reasonable or normal employment." *Id.*

Further, the question of whether a claimant is totally and permanently disabled is "not exclusively a medical question" and the Commission "need not rely exclusively on the testimony of medical experts; rather, it may consider all the evidence and the reasonable inferences drawn from that evidence." *Lewis v. Kansas Univ. Med. Ctr.*, 356 S.W.3d 796, 802 (Mo.App.W.D. 2011). The Commission may even rely on testimony from the claimant [him]self. See *Pavia v. Smitty's Supermarket*, 118 S.W.3d 228, 234 (Mo.App.S.D.2003). "The testimony of ... lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence." *Id.*; see also *Jefferson City Country Club v. Pace*, 500 S.W.3d 305, 322 (Mo. Ct. App. 2016). "The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition." *Lewis v. Kansas Univ. Med. Ctr.*, 356 S.W.3d 796, 800 (Mo. Ct. App. 2011) (citations omitted). Claimant has the burden to establish permanent total disability by introducing evidence to prove his claim. *Id.*; *Id.*; *Clark v. Harts Auto Repair*, 274 S.W.3d 612, 616 (Mo.App.2009).

While the issues in alleged PTD claims are always significant, it gives me particular pause when I am asked to declare a man as young as Claimant to be forever unable to earn a living. Nevertheless, in this case, Claimant has provided compelling evidence he is indeed, permanently and totally disabled. Claimant testified to his many physical limitations. Claimant exhibited pain cues, such as uncontrollable shaking, squirming, grimaces, and slow movements, in a credible manner which made his testimony ring true. Further support for Claimant's allegation he cannot work is in the medical records, where Drs. Parks, Kitchens, Shekhani, Feinberg, and Chen all record symptoms in their contemporaneous treatment records consistent with Claimant's testimony. Moreover, even Employer's vocational expert, Mr. Dolan, concedes Claimant is totally disabled, albeit from an alleged preexisting condition. Mr. Dolan did not identify any appropriate jobs for Claimant, but rather declared him totally disabled due primarily to anxiety.

Dr. Musich provided compelling, well supported testimony establishing Claimant as totally disabled. In his reports and testimony, Dr. Musich asserted it is his medical opinion that Claimant is totally and permanently disabled as a result of the work trauma of December 4, 2008. But for the work-related trauma of December 4, 2008, he felt Claimant would have remained employed as a CNA. Mr. England concluded Claimant demonstrated the inability to perform not just his past work but any type of work on a consistent day-to-day basis. Although he acknowledged Claimant's academic ability limited his options for retraining, and his depressive presentation had a negative impact, he noted that if Claimant had to lie down periodically

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throughout the day, that fact in and of itself would negate his ability to do even sedentary work as a result of the primary injury.

Dr. Randolph provided the counterpoint to the other treating doctors and vocational experts by opining, among other things, Claimant received treatment that was unnecessary, unrelated, and unsuccessful in treating his condition. Dr. Randolph asserted the treatment he provided should have been sufficient, and because Claimant did not have clinical signs of active radicular disease, the surgical treatment he had was not indicated. He limited Claimant's permanent disability to 5% of the body as a whole. I do not find very credible a suggestion that Claimant is employable because he tended bar, managed apartment buildings, or otherwise worked for his partners in their businesses. His partner testified credibly that Claimant occasionally helped out as a friend might, but in no way could he or did he perform the duties of an employee he would hire.

I find the evidence establishing Claimant as permanently and totally disabled to be convincing and compelling. I further find his total disability became permanent as of October 30, 2014, the point at which Dr. Chen changed the focus from his post-surgical lumbar spine to his hip complaints, which are unrelated to the work injury, thus bringing the course of active surgical treatment for the low back to an end.

1. SECOND INJURY FUND LIABILITY

Because the Second Injury Fund is a party, a certain process is necessary to determine the respective liabilities of the parties. "In order to decide whether the Fund has any liability, the first determination is the degree of disability from the last injury considered alone." *Birdsong v. Waste Mgmt.*, 147 S.W.3d 132, 138 (Mo. App. S.D. 2004) (internal citation omitted). "For this reason, pre-existing disabilities are irrelevant until the employer's liability for the last injury is determined." *Id.* (internal citation omitted). "If the employee's last injury in and of itself rendered the employee permanently and totally disabled, the Fund has no liability; the employer is responsible for the entire amount of compensation." *Id.* *see also Maryville R-II Sch. Dist. v. Payton*, 516 S.W.3d 874, 883 (Mo. Ct. App. 2017), *reh'g denied* (May 25, 2017)

The disability attributable to the last injury alone is catastrophic. Claimant has been in pain since 2008, and has sought treatment consistently. The surgeries he hoped would relieve his symptoms have failed to do so. His sleep is poor, his mobility limited, and his ability to even get to work has been compromised. He started drinking after he got hurt as a means of self-medicating.

I find the opinion of Dr. Musich on the issue of total disability compelling. He felt the last injury alone was responsible for Claimant's inability to work. He acknowledged Claimant's poor academic abilities, his anxiety, and his alcoholism, but was able to state with a reasonable degree of medical certainty that Claimant is totally and permanently disabled primarily as a result of the work trauma of December 4, 2008. Mr. England, as a vocational expert, noted Claimant's poor academic abilities and presentation would prevent him from doing the minimal number of jobs the work restrictions might otherwise allow, but if Claimant had to lie down periodically, he would be totally disabled.

Mr. Dolan suggests Claimant is permanently and totally disabled due to his preexisting

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Anxiety, but his conclusion is based on inaccurate evidence. Claimant did not describe a level of anxiety prior to 2008 to anyone but Mr. Dolan. The treatment Mr. Dolan references did not commence until well after the work accident. Mr. Dolan is not an expert in psychiatric conditions. Expert testimony is required to establish the nature and extent of a psychiatric condition because such conditions are outside the realm of lay understanding. See *Bock v. City of Columbia*, 274 S.W.3d 555, 561 (Mo. Ct. App. 2008). Furthermore, there is no documentation the alleged prior disability—rather Mr. Dolan makes assumptions of problems based on a history uncovered during treatment of psychiatric condition. Because Mr. Dolan's information appears unreliable and unsupported, his conclusions are as well.

Employer has asserted, among other defenses, the Second Injury Fund should be responsible for Claimant's permanent total disability. For the Fund to be liable, a claimant must have a permanent partial disability that existed at the time of the primary injury and that was so serious "as to constitute a hindrance or obstacle to employment or re-employment." *Lawrence v. Treasurer of State-Custodian of 2nd Injury Fund*, 470 S.W.3d 6, 13 (Mo. App. 2015), cited in *Glasco v. Treasurer of State-Custodian of Second Injury Fund*, 534 S.W.3d 391, 397-98 (Mo. Ct. App. 2017), transfer denied (Nov. 16, 2017). There is insufficient evidence to establish a viable case against the Second Injury Fund.

Claimant was in perfect health prior to the work accident. He did have a troubled childhood, but there is no credible evidence of measurable psychological, physical or academic disability prior to the work injury. First, there is no documentation. The only document generated before December 2008, was a doctor's record of seasonal allergies. He was in special education, and he left school early, but Claimant testified he knows of no trouble he had getting or holding a job because of his learning disabilities. He was not diagnosed as an alcoholic or as having attention deficit disorder until years after his December 2008, work injury. There is no indication his anxiety preexisted his work injury, or was serious enough to have been a hindrance or obstacle prior to his work injury.

Claimant is permanently and totally disabled as a result of his December 2008 work injury considered in and of itself. Employer shall pay benefits as herein provided. The Second Injury Fund has no liability.

This Award is subject to a lien of 25% in favor of Attorney Thomas E. Fagan for legal services rendered.

I certify that on **4-8-19** I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

**Made by:**

**KARLA OGRODNIK BORESI**

Administrative Law Judge

Division of Workers' Compensation

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