Claimant offered extensive testimony much of which was unnecessary given the unchallenged treatment record and unrebutted expert medical testimony. He testified about the accidents and treatment underlying each Claim. The SIF demonstrated some inconsistency between his direct testimony at trial and his prior hearing testimony. This coupled with several instances of inexactness elsewhere render his testimony unreliable. (Exhibit Roman Numeral I.) In all events, the nature and extent of his disabilities, current and pre-existing, was necessarily the subject of expert testimony.
Issued by DIVISION OF WORKERS' COMPENSATION
Injury Number: 13-063318
First Case - Hand Cut
Claimant lacerated the lateral aspect of his left hand on February 21, 2013. Claimant lost no time from work. He subsequently settled that case for 2.5 percent PPD of the left hand.
Second Case - Low back Injury
Claimant slipped and fell injuring his low back on August 10, 2013. Claimant testified he treated with Dr. James Coyle. Medical expenses in the amount of $21,907.29 are reflected on the face of Employer's CLSS for the low back, settled at 17.5 percent PPD of the body (Exhibit 1-13).
Significant Pre-Existing Disabilities
In 1994, claimant sustained a low back injury causing him to fall to the ground. His symptoms improved with chiropractic care. He treated low back symptoms in 2008 at Grace Hill and was diagnosed with a lumbar strain and sciatica. In 2011, he was diagnosed with fibromyalgia-like symptoms. By 2013, but pre-accident herein, he was treating low back pain with left leg radicular symptoms into his toes at Logan Chiropractic (see below).
In, 1997, Claimant testified he sustained blunt trauma to the face resulting in surgery with orbital implant. He stated he experiences a severe headache about once a month. He feels pain in severe cold from the implant. The medical records from East Jefferson General Hospital show an admission on May 29, 1997 for "blunt trauma" with surgery with wire to reconstruct the infraorbital rim by Dr. Joseph Creely, Jr. on May 30, 1997, with discharge that same date. (Exhibit 1-12.)
In 2011, Claimant was apparently admitted to hospital with right-sided weakness and foot dragging for a "stroke." A CT scan was reportedly negative.
Claimant had used drugs for decades and continues to fight addiction.
In 2005, Claimant developed a staph infection, subsequently diagnosed as MRSA. Relative to the low back accident herein, both Dr. James Kennedy and Dr. James Coyle considered surgical treatment. However, Dr. Coyle ultimately stated the because of his past MRSA infection, Claimant was at "very high risk for discitis or osteomyelitis if he did have surgery." No surgery was performed to relieve Claimant's symptoms. Dr. Coyle's notes include four other reasons why surgery was contraindicated, including status as a smoker.
Revised Form 31 (3/97)
Page 4
Issued by DIVISION OF WORKERS' COMPENSATION
Injury Number: 13-063318
Exhibit - Objections
At the outset, objections to the admissibility of narrative opinions from two surgeons is discussed. Claimant proffered the opinions of two orthopedic surgeons, Dr. David Kennedy and Dr. James Coyle (Group Exhibits 1-6 and 1-7, respectively). Dr. Kennedy's opinion is comprised of a two and one-half page report dated February 25, 2014 which is described by him as an "Independent Medical Evaluation." In contrast, Dr. Coyle's ongoing opinions are comprised in the 31 page exhibit so identified above. Specifically, the notes and impressions of each visit are memorialized in letter format to the Insurer's adjustor. This is a recognized expedient utilized by many surgeon providers to avoid duplicate dictations of notes and status reports. (See Exhibit 1-7.)
The SIF objected to the admissibility of each of these proffers:
The Second Injury Fund objects to the admission of Group Exhibit 1-6 and Group Exhibit 1-7 and to the extent that they are independent medical evaluations made in specific purpose for trial and under Section 287.210.7 these are not able to be admitted into evidence and overcome the objection of hearsay.
Claimant's attorney defended the admissibility of Dr. Coyle's opinions as certified records. Dr. Kennedy's opinion report was never characterized by Claimant as a certified record.
Further, regarding the opinions of both doctors, response to objection sought to predicate the SIF's proffer of the 2014 trial transcript (Exhibit Roman Numeral I) of the prior hearing (on Temporary Award), at which hearing Claimant asserts "those IME reports were both exhibits properly admitted ...," as a basis to assert the SIF "opened the door to the conclusions contained therein."
As described, the Exhibit is a series of letter reports to the adjustor over a two-year period supplemented with radiological reports, all three of which were ordered by Dr. Coyle. Only the two initial letters, dated November 19, 2013 and December 17, 2013 are expressly characterized as IMEs; neither makes a treatment prescription or treatment recommendation. However, subsequent letters included referral to aquatic therapy, a myelogram, Dr. Doll for injections, and finally, a discussion with Claimant about why surgery was contraindicated. Such interaction is clearly treatment as contemplated by Section 287.140.1 RSMo (2005). These first two letters, less important, are easily redacted, if necessary. The SIF did not request such precise relief. Separately, Dr. Coyle's personal characterization of a letter is not determinative of the legal significance of its content, i.e. "Thank you for referring [Claimant] for an independent medical evaluation."
More importantly, Dr. Coyle's records and Dr. Kennedy's report were reviewed by all experts herein, including SIF's vocational expert, Mr. Benjamin Hughes, without objection on these grounds. Specifically, Mr. Hughes characterized Dr. Coyle as a
Revised Form 31 (3/97)
Page 5
Issued by DIVISION OF WORKERS' COMPENSATION
Injury Number: 13-063318
"treating physician" and his ultimate opinion depends squarely on Dr. Coyle's "Discharge Instructions." The SIF objection to Exhibits 1-6 and 1-7 is deemed waived.
***
Separately, the SIF sought to offer Claimant's 62-page deposition in its entirety, as Exhibit *Roman Numeral II*, even though Claimant testified live at trial. By regular practice the court excluded the deposition but invited the SIF to identify pages/lines to be marked in the exhibit. [Excluded exhibits are, nevertheless, kept part of the record.] Unprepared to do so at trial, the court further allowed the SIF to withdraw the proffered Exhibit in order to identify suc