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-evaluati