Mark Hundley v. Con-Agg of MO, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 14-094684**

**Employee:** Mark A. Hundley

**Employer:** Con-Agg of MO, LLC

**Insurer:** Indemnity Ins. Co. of North America

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record¹, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated September 25, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Melodie A. Powell, issued September 25, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 31st day of March 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

CONCURRING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

¹ In his application for review, employee quoted the opinion of a Social Security Administrative Law Judge. We note that such opinion was not part of the record. To that extent, we do not take that opinion into consideration in our decision.

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed with a supplemental decision finding that an accident occurred, but agreeing that employee failed to establish that the accident was the prevailing factor causing employee's medical condition.

Pursuant to § 287.020.2, RSMo,

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

(Emphasis added).

I find employee's testimony credible and corroborated by other testimony that an accident occurred. Employee, his son, and his wife all testified regarding employee's altered mental condition since the alleged accident. Mr. Robert Wells' testimony at the hearing did not specifically deny that employee's helmet was cracked or that employee had a bloody nose, but merely that Mr. Wells did not remember, then Mr. Wells speculated that he would have noticed. Mr. Wells admitted that he did not perform a thorough inspection of the helmet, but that he noticed a broken fitting. Mr. Wells also acknowledged that a broken fitting on the helmet indicated more than normal wear and tear. From this testimony, I find that a traumatic event occurred that produced objective symptoms of an injury.

However, I agree that employee failed to meet his burden to establish that the accident was the prevailing factor causing employee's condition. Even employee's Dr. Syed Shah, who diagnosed employee with traumatic brain injury, could not clearly state that the accident was the prevailing factor causing employee's condition. He stated,

it's really hard to say, because we don't have any prior evaluation, including any neurological evaluation. We don't have any neuropsychological testing. So he - thing would be, he had memory exam, and he has cognitive issues; he has features of traumatic brain injury. Now, it's really hard to pinpoint whether the injury caused that or something happened even prior to that, because we don't have any records there.... So it's hard for me to say, but I will say if there was an injury, that can cause traumatic brain injury for sure and post concussion syndrome.

Transcript, p. 356.

Accordingly, I would affirm the result of the administrative law judge's award denying benefits as supplemented above.

Shalonn K. Curls

Shalonn K. Curls, Member

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of alleged accident or onset of alleged occupational disease: May 7, 2014
5. State location where alleged accident occurred or alleged occupational disease was contracted: Boone County, 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? N/A
8. Did accident or occupational disease arise out of and in the course of the employment? No
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: Employee alleges he hit his head on the roof of his truck cab when the truck went over a curb
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by alleged accident or occupational disease: Alleges injury to his head, neck, nose, vision, and body as a whole
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: $\ 0.00

1. Amount of compensation awarded: None
2. Future requirements awarded: None
3. Second Injury Fund liability: None

On June 16, 2020, the undersigned administrative law judge conducted a final hearing in this matter in Columbia, Missouri. Employee, Mark A. Hundley, appeared personally and by counsel, Ron Netemeyer and Jill Harper. The Employer and Insurer appeared by counsel, Brent Neumeyer. The Second Injury appeared by counsel, Erika Eliason. Parties requested leave to file proposed awards/briefs, and same were received on July 17, 2020. The case was submitted on July 17, 2020.

The parties stipulated as follows:

1. That on/about May 7, 2014, Employee was in the employ of Con Agg of MO, LLC.
2. That both the Employee and Employer were operating under and subject to the terms and provisions of the Missouri Workers' Compensation Act.
3. That Employer's liability was fully insured by Indemnity Insurance Company of North America c/o ESIS, Inc.
4. That a claim for compensation was timely filed.
5. That venue is proper in Boone County, Columbia, Missouri.
6. That no temporary total disability benefits have been paid.
7. That no medical aid has been provided.

1. Whether there was an accident on May 7, 2014, resulting in an injury which arose out of and in the course of employment.
2. Whether the alleged accident on May 7, 2014, was the prevailing factor in Employee's resulting medical condition and disability.
3. Whether Employer/Insurer is responsible for past medical benefits.
4. Whether Employer/Insurer is responsible for future medical benefits.
5. Whether Employer/Insurer is responsible for past temporary total disability benefits.
6. The nature and extent of any permanent disability.
7. Whether the Employee gave proper notice of the alleged accident of May 7, 2014.
8. Liability of the Second Injury Fund.

The following exhibits were offered and admitted into evidence:

1. Dr. Koch Clinic note $-5 / 8 / 14
2. Dr. Koch Work Release -5 / 8 / 14
3. Dr. Shoemaker Clinic Note -5 / 14 / 14
4. Dr. Shoemaker Clinic Note -5 / 16 / 14
5. Dr. Shoemaker Clinic Note -5 / 23 / 14
6. Dr. Koller Clinic note -6 / 9 / 14$
7. Head/Brain CT $-6 / 9 / 14
8. Dr. Shoemaker Letter -6 / 13 / 14
9. Dr. Shoemaker Clinic Note -6 / 13 / 14
10. Dr. Shoemaker Clinic Note 7 / 2 / 14$
11. Dr. Shoemaker Letter to Natalie / Ready Mix $-6 / 13 / 14
12. Dr. Shoemaker Clinic Note -11 / 17 / 14
13. Dr. Komes (UMHC) Clinic Note -4 / 21 / 16
14. Mason Eye: Dr. Shaon Clinic Note 3 / 7 / 17
15. Mason Eye: Dr. Shaon Clinic Note 6 / 6 / 17$
16. MRI of the Brain w/o contrast $12 / 21 / 17$
17. Dr. Shah / Wilhite Clinic Note $1 / 11 / 18
18. Dr. Shah Clinic Note 2 / 12 / 18
19. Dr. Hart Psychological Evaluation -3 / 25 / 18
20. Dr. Shah Clinic Note -1 / 3 / 20
21. Dr. Shoemaker Letter to attorney Jill Harper 5 / 24 / 18$
22. Dr. Shoemaker Deposition
23. Dr. Shah Deposition

A. Deposition transcript and reports of Dr. Todd Silverman (A-2 is the report of $11 / 26 / 18 and A-3 is the report of 4 / 9 / 19$ )

B. Report of Dr. David M. Peeples

C. Cooper County Memorial Hospital Records

I. Deposition transcript of Mark A. Hundley taken May 5, 2020.

All exhibits appear as received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned administrative law judge.

Mark A. Hundley (hereinafter "Employee") testified he attended high school through the $11^{\text {th }}$ grade and does not have a GED. He had vocational education in the form of trucking school and fire school. He described fire school as learning to be a firefighter and receiving training on treating injured people. Employee currently resides with his daughter and her family in New Franklin, Missouri. He has lived there with them since before the alleged accident.

Employee was a volunteer firefighter at the New Franklin Fire Department, during the same time as he was employed by Con Agg. He resigned a year after his alleged work injury, as he was having problems with his train of thought and did not believe he could focus enough to work as a firefighter. Prior to the alleged work accident, Employee worked in the trucking industry and owned his own trucking company for about seven years. He testified his company did general trucking. Employee handled the paperwork involved in running the business and in closing the business down.

Employee was working for Con-Agg of Missouri, LLC (hereinafter "Employer") in 2014. On May 7, 2014, he was delivering concrete to an elementary school. He had been driving the same concrete truck for about a week or two. The seat in the truck was "wobbly", and a seatbelt had been moved and bolted to the side of the seat instead of the floor. Employee testified that this was not anything abnormal. Employee wore a "helmet" when driving at the job site. He testified it was a white helmet made of hard plastic with a harness and a liner to adjust for proper fit. The helmet was provided to him when he started work at Employer.

Employee testified that when he arrived at the elementary school to make his delivery, someone had put a few pieces of lumber down to assist with driving over a curb to where the load was to be delivered. After making the delivery, he went to clean the chutes and then left the job site. The lumber that had been placed on the curb had been moved. Employee testified that when the front of his concrete truck dropped off of the curb, his seat "shot up like a rocket," and he hit his head on the roof of the truck. He testified he was wearing the hard hat helmet and his seatbelt.

Employee testified that when he went to wash the truck at the worksite, he felt a little stunned. He had a nosebleed and his back and neck hurt. He had not had any other nosebleeds that day and has had only three or four nosebleeds in his lifetime. Employee testified his initial symptoms were pain in his neck, back, head, and a headache. The blood from his nose got on his jacket. He noticed his helmet was broken and not fitting right and observed that the helmet had cracks on the side, and that the plastic fingers where the liner fits into the helmet were broken.

Employee drove the truck back to the Employer's business site and spoke with Robert Wells about getting him another helmet. Employee testified he did not know whether he made any other deliveries that day. He stated he did not feel right and felt like he was running out of gas. He called his wife, Kimberly Hundley, and told her that if his son (who also worked at Employer) made it home before him to have him backtrack. He testified this was the last thing he remembered. Employee did not recall whether he returned to work after that day. There was

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Hundley

Injury No. 14-094684

no testimony from Employee about reporting any injury to Employer. Employee testified he did not request medical care from the Employer.

At the hearing, Employee testified that he is alleging a brain injury with memory loss, dizziness, and problems with depth perception. When asked about his vision, he stated that depth perception was the biggest problem. He cannot drive because when he is in a car with someone, he cannot tell where the other vehicles are at. He has a garden two miles from his house and has tried to drive there a few times, but people riding with him do not feel safe. Employee testified at hearing that his dizziness and depth perception problems have not changed. He stated that every morning his wife goes over with him what happened the day before, but added, "I guess it's always been that way." He testified he has not worked in any capacity since May 7, 2014.

Employee testified to several health issues that were present prior to the alleged accident. He has been previously diagnosed with atrial fibrillation, diabetes, high blood pressure, gastroesophageal reflux disease, gout, and chronic obstructive pulmonary disorder. He takes various medications for all those pre-existing conditions. Prior to the alleged work accident, while working as a logger, Employee blew out his left knee, which caused him to be in a brace from his hip to his ankle for 16 weeks. He has not had knee surgery. His knee still aches from that accident. He denied problems with depth perception, dizziness, or memory loss before the alleged May 7, 2014, injury. Employee smokes a pack or more of cigarettes per day and has been a smoker since the age of 13 years old.

Employee testified that he is presently able to ride in a boat while others are fishing, but he cannot fish. He is able to feed a ball into a hitting machine for softball practice. Employee has a garden and is able to do some work in the garden, like hoeing, for short periods of time. Employee uses a computer. He handicaps horses for horse racing on the computer and does other activities with a Facebook account. Employee has a valid drivers' license and spoke with Dr. Shah in January 2020 about returning to commercial driving. None of his doctors have told him not to drive.

Robert Wells testified at trial. Mr. Wells is Employee's first cousin and was employed as a driver at Employer. Mr. Wells testified he worked in the past as a military policeman and a firefighter and received training in recognizing brain injuries in those capacities.

Mr. Wells testified that on May 7, 2014, Employee approached him about an issue with his hard hat. Mr. Wells examined the hard hat, specifically the liner and harness, and noted the harness connector that goes into the helmet was damaged. A fitting was broken, so he gave Employee a new hard hat. He did not recall anything else being damaged on the hard hat. Mr. Wells testified the hard hat was not "shattered," and he did not recall it being cracked or "spidered." The clip for the harness was broken and would need to be replaced. Mr. Wells testified Employee did not appear incoherent, dizzy, or injured when he saw him on May 7, 2014. He did not recall seeing blood on the Employee's jacket and stated he would have noticed if Employee had blood on him. Mr. Wells testified Employee told him he had hit his head, but he did not notice anything unusual about Employee, and Employee did not appear injured. He was with Employee for about 15 to 20 minutes while getting him a new hard hat.

James Hundley, Employee's son, testified on Employee's behalf. James Hundley also

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Employee: Mark Hundley

Injury No. 14-094684

worked at Employer on the alleged date of injury but is presently unemployed. He testified that when Employee arrived home, he was not coherent and was staggering. He had beaten his dad home from work that day despite Employee getting off of work first. He lived with Employee and Employee's daughter at the time. He testified Employee appears dizzy at times and has memory issues.

Employee's wife, Kimberly Hundley, testified on Employee's behalf. Mrs. Hundley was last employed as a housekeeper but has not worked for the past 17 years. She does not drive as she lost her license in an accident more than 10 years ago. Mrs. Hundley testified that when Employee got home on the date of the alleged injury, he was "not with it," had almost wrecked the car, and she had to help him out of the car. She testified he had blood on the front of his jacket, and his clothes were wet. Mrs. Hundley testified that their daughter drove Employee to the emergency room the next day and stayed with him until he was discharged from the emergency room.

On May 8, 2014, Employee was seen at Cooper County Memorial Hospital Emergency Room. (Exh. 1). The records note that he had nausea, vomiting, and diarrhea two weeks prior that lasted 24 hours, but on May 7, 2014, he had nausea with vomiting, muscle cramping, and headache symptoms. He reported his symptoms were made worse after drinking. He denied neck pain and was noted to have a normal physical examination of his neck. He was diagnosed with Influenza A virus, Bronchospasm, Hypokalemia, Hyperglycemia, Nausea, and vomiting, and was advised to see his primary care doctor. There is no mention of a work injury, a head injury, or hitting his head on the roof of his truck cab in any of the emergency room records.

On May 14, 2014, Employee was seen by Dr. Shoemaker, his primary care physician. (Exh. 3). Dr. Shoemaker notes in his record that Employee is obese and appeared "chronically ill." Dr. Shoemaker examined his neck and noted it was normal. There is no mention of any neck complaints in Dr. Shoemaker's record of May 14, 2014. Dr. Shoemaker testified that with the alleged mechanism of injury, he would have expected neck complaints. (Exh. 22, p.33). Dr. Shoemaker noted Employee was seen in the emergency room on May 8, 2014, and was diagnosed with Influenza A. His potassium was 3.1, and his blood sugar was 243. Dr. Shoemaker testified that Employee's potassium was low and his blood sugars were not very well controlled. (Exh. 22, p. 27). It was noted he continued to not feel well and had problems driving and reading due to an inability to follow things with his eyes. (Exh. 3). Dr. Shoemaker noted Employee denied any difficulty thinking and did not have a bad headache. Dr. Shoemaker's record states, "he has not had any head trauma for the past two weeks. At that point, he hit his head on the roof of a dump truck that he was driving when he hit a bump." Dr. Shoemaker noted Employee was wearing a hard hat at the time. Dr. Shoemaker testified that if Employee had told him that the impact cracked his hard hat, he would have put that in the report. (Exh. 22, p. 31).

Dr. Shoemaker testified that when Employee was examined in the emergency room by Dr. Koch, he did not report a head injury or hitting his head. (Exh. 22, p. 28). Dr. Shoemaker testified he knows Dr. Koch well as he is one of his partners, and he knows him to be a thorough doctor who keeps accurate medical records. Dr. Shoemaker testified if Employee had been

**Employee:** Mark Hundley

**Injury No.:** 14-094684

complaining of a head injury at the emergency room, Dr. Koch would have documented that in the records. (Exh. 22, pp. 27-28).

On May 14, 2014, Dr. Shoemaker diagnosed atrial fibrillation, vertigo, hypokalemia, and benign essential hypertension. (Exh. 3). He noted that Employee's mental status was "grossly normal." Dr. Shoemaker testified he did not diagnose a traumatic brain injury or a concussion at the May 14, 2014, visit. (Exh. 22, p. 35).

Employee followed up with Dr. Shoemaker again on May 16, 2014. (Exh. 4). At that visit, Dr. Shoemaker noted Employee did not feel safe to drive, and his wife stated he often asks the same questions over and over and had several falls and near falls. Dr. Shoemaker noted his pain was a 0 out of 10. Employee again denied any neck or head pain, and examination of his head was noted to be "atraumatic." Dr. Shoemaker diagnosed a cardioembolic stroke. Dr. Shoemaker did not diagnose a traumatic brain injury or a concussion at the May 16, 2014, visit.

When Employee followed up again on May 23, 2014, Dr. Shoemaker noted he was feeling better, but became dizzy when his wife was driving, and he had what sounded like significant nystagmus. (Exh. 5). Dr. Shoemaker noted Employee had not been checking his blood sugars regularly. His pain level was still a 0 out of 10; he had a normal neck examination and did not report neck or head pain. Dr. Shoemaker again diagnosed a cardioembolic stroke. Dr. Shoemaker did not diagnose a traumatic brain injury or a concussion at the May 23, 2014, visit. (Exh. 5).

On June 9, 2014, Employee was seen again in the emergency room by Dr. Hermann Koller. (Exh. 6). Dr. Koller's record notes Employee specifically denied any head injury. (Exh. 6). The records note he was experiencing tingling of the left jaw and elevated blood pressure. Dr. Shoemaker would later testify after reviewing this emergency room record that jaw tingling would be an unusual symptom for traumatic brain injury. (Exh. 22, p.48). Dr. Koller examined the neck, which was normal. Dr. Koller examined the head and noted no trauma. Dr. Koller diagnosed left-sided neuropathy. Dr. Koller did not diagnose a head injury, traumatic brain injury, or a concussion at the June 9, 2014, visit. (Exh. 6).

On June 9, 2014, Employee underwent a CT of the head due to "sensory loss of the left face with right headache. Remote history of stroke." (Exh. 7). Employee followed up with Dr. Shoemaker on June 13, 2014, at which point Dr. Shoemaker reviewed the CT scan and noted there was no pathology and no intracranial bleeding. (Exh. 9). Dr. Shoemaker would later testify that intracranial bleeding is a common result of a traumatic brain injury, but was not present on the CT scan. (Exh. 22, p.38). Dr. Shoemaker testified Employee's pain at this visit was a 0 out of 10; his assessment was altered mental status. Examination of the head was noted to be "atraumatic," and examination of his neck was normal. No neck or head pain was noted. Dr. Shoemaker testified he did not diagnose a traumatic brain injury or a concussion at the June 13, 2014, visit. (Exh. 22, p.38).

On June 13, 2014, Dr. Shoemaker drafted a letter addressed to "Natalie," noting that Employee states his symptoms started on May 7 after hitting his head on the roof of his truck while going over a curb. He noted that the next night, he continued to worsen and was taken to

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**Employee:** Mark Hundley

**Injury No.:** 14-094684

The emergency room at Cooper County Memorial Hospital, and Dr. Shoemaker believed he would be out of work for at least a month. (Exh. 8). Employee testified at trial he believed he asked Dr. Shoemaker to write this letter because he was worried about losing his job. Dr. Shoemaker did not express any opinions to a reasonable degree of medical certainty in this letter.

On July 2, 2014, Employee was seen again by Dr. Shoemaker. (Exh. 10). Dr. Shoemaker again noted continued problems with decision making, vision, and occasional weakness. Employee also became fatigued very easily and was noted to have vertigo. He had no complaints of falls recently, but was noted to not be checking his blood sugars. Employee's pain was again noted to be a 0 out of 10. His neck examination was normal, and his head examination was "atraumatic." There was no mention of head or neck complaints. Dr. Shoemaker diagnosed chronic obstructive lung disease and altered mental status. Dr. Shoemaker testified he did not diagnose a traumatic brain injury or a concussion at the July 2, 2014, visit. (Exh. 22, p. 41).

Dr. Shoemaker prepared a July 17, 2014, letter to "Natalie" noting that Employee had a head injury the first week of May. Dr. Shoemaker noted in his letter that it was his "clinical suspicion that he has incurred a stroke due to this injury, however, due to cost constraints (he does not currently have health insurance), we have not been able to prove this definitively with diagnostic imaging." (Exh. 11). Dr. Shoemaker did not express any opinions to a reasonable degree of medical certainty in this letter. No demands for treatment were made after this letter.

On August 13, 2014, Employee was seen by Dr. Peeples, a board-certified neurologist. (Exh. B). Dr. Peeples noted that Employee reported to him his hard hat was cracked when he came off of a curb and hit his head inside the vehicle on May 7, 2014. Employee reported to Dr. Peeples that he was seen in the emergency room and was told he had the flu. Dr. Peeples reviewed the emergency room notes from May 8, 2014, and noted Employee reported no history of recent head injury. Employee reported to Dr. Peeples he thought he had the flu, but retrospectively thinks this was wrong as he never improved. Employee reported to Dr. Peeples that his left hand was "useless" for 30 days after the incident but by August 13, 2014, was better. He reported no previous problems with left-sided weakness. It was noted he had not had an MRI scan of the brain to evaluate for recent or remote stroke, which could be contributory to his symptoms. Dr. Peeples noted he was applying for disability.

Dr. Peeples states in his report that Employee has a past medical history notable for significant vascular risk factors, including atrial fibrillation (for which he is on chronic anticoagulation), hypertension, diabetes (which Employee reported to Dr. Peeples he attributed to his work injury), morbid obesity, chronic cigarette use, and family history of diabetes and heart disease. He also had COPD. On neurologic examination, Dr. Peeples noted Employee was alert, oriented, and related his history with fluent speech, normal response time, no cervical problems with memory, concentration, and flow of thought, or other aspects of higher cortical functioning. Dr. Peeples examined the head and neck and noted both were normal. Dr. Peeples noted there was no nystagmus, facial sensation and strength were normal, and visual fields were full. Employee's gait was also noted to be normal. Finger to nose and rapid alternating movements of the hands and feet were within normal limits and symmetric.

Dr. Peeples noted in his report that there was no documentation that he had post-incident

**Employee:** Mark Hundley

**Injury No.:** 14-094684

Left-sided weakness, which Employee told Dr. Peeples he had. Dr. Peeples noted that Employee's subjective symptoms ostensibly attributed to a post-concussive etiology was unlikely. Dr. Peeples noted Employee sustained a bump on his head while wearing a hard helmet, which did not result in loss of consciousness. He went on to state that "If in fact as he states he had left-sided weakness as a result of a stroke it is far more likely that this was due to an ischemic stroke due to his significant risk factors of hypertension, atrial fibrillation, diabetes, cigarette abuse, obesity, and family history." Dr. Shoemaker would also testify that atrial fibrillation is a leading cause of stroke and that Employee's benign essential hypertension, obesity, and Type 2 diabetes are causes of and risk factors for stroke. (Exh. 22, p. 24, 33).

Dr. Peeples noted that on the basis of objective findings and accurate medical reasoning, it is not reasonable to attribute Employee's reported work incident as the prevailing factor for his subsequent symptoms. Employee had no objective findings of focal neurologic deficits. On an objective basis, Dr. Peeples opined that there was no reason why Employee cannot work as a result of the reported work incident. (Exh. B). Dr. Peeples noted Employee's complaints of new onset diabetes following the incident had no reasonable medical merit. Dr. Peeples placed Employee at maximum medical improvement on August 13, 2014, the date of his examination, noted no work restrictions were needed, and no additional diagnostic testing or treatment was needed.

Employee returned to Dr. Shoemaker on November 17, 2014. (Exh. 12). Dr. Shoemaker noted in his report Employee had been seen by Dr. Peeples. He testified he never received Dr. Peeples' full report, only the first page. Dr. Shoemaker testified that reviewing Dr. Peeples' complete report would have been helpful in reaching his own opinions with regard to medical causation in this case. (Exh. 22, p.42). Dr. Shoemaker testified that on November 17, 2014, Employee was noted to be very short of breath when he ambulates, and that this would not be a symptom of a traumatic brain injury. Dr. Shoemaker testified that at the November 17, 2014, visit, Employee's pain rating was 0 out of 10. Dr. Shoemaker also noted Employee smelled heavily of cigarette smoke and testified he appeared older than his age of 49, which he explained went to his overall state of health. Dr. Shoemaker testified he examined both the head and the neck, and other than his teeth being in very poor repair, the examination was normal. (Exh. 22, p.43). Dr. Shoemaker testified he did not diagnose Employee with a traumatic brain injury at the November 17, 2014, visit. (Exh. 22, p.45).

Dr. Shoemaker testified he saw Employee on eight occasions over the next year and a half: October 29, 2015, March 11, 2016, September 13, 2016, January 16, 2017, January 24, 2017, February 17, 2017, May 16, 2017, and June 5, 2017. He testified that on none of these occasions did he ever diagnose Employee with a traumatic brain injury. (Exh. 22, p.45). The records from these visits were not offered into evidence by Employee at hearing.

On April 21, 2016, Employee was seen by Dr. Komes for a social security evaluation. (Exh. 13). Dr. Komes's report notes Employee had a stroke two years prior and has had difficulty with balance and depth perception. Dr. Komes noted Employee was a longtime smoker, has COPD, and a history of atrial fibrillation prior to his stroke. Dr. Komes notes in his report that Employee's pulmonary function tests indicate 50% predicted value for FEV1 and FVC and that he is short of breath with less than 5 minutes of ambulation or 15 minutes of standing. Dr.

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**Injury No. 14-094684**

Komes assessed stroke by history, atrial fibrillation, hypertension, diabetes, gout, and COPD. Dr. Komes noted Employee may have difficulties due to cardiopulmonary reserves. He may have difficulty walking continuously for more than 10 to 15 minutes but did not require an assistive device to walk. He noted he should have no difficulty standing and would have limited ability to perform sustained lifting or carrying of more than 5-10 pounds as he appears to have some balance deficits. He should have no difficulty handling objects, hearing, or speaking. Traveling may be limited by ambulatory capacity. (Exh. 13). Dr. Komes noted he had difficulty doing recall, but immediate recall was 4 out of 4, and short-term recall was 3 out of 4, and 4 out of 4 with cues. His long-term recall was 4 out of 4.

Dr. Komes's report does not mention a head injury, and Dr. Komes did not diagnose a traumatic brain injury or a concussion. (Exh. 13). There is no history of Employee hitting his head at work on May 7, 2014, in Dr. Komes's report.

On March 7, 2017, and June 6, 2017, Employee was seen at Mason Eye Clinic for a diabetic eye exam. He was prescribed glasses, and diagnosed with visual field defect OS, noting his history of severe head trauma 2014 "(cracked helmet when thrown against ciling)" [sic], type 2 diabetes, and suspected ocular ischemic syndrome with mid-peripheral hemorrhages. (Exh. 14, 15). His primary care doctor was noted to be alerted after his March 2017 visit with concerns and recommendation for a carotid ultrasound. He was also diagnosed with mild NS OU and glaucoma. He was advised to follow up in 4 to 6 months. There are no further records from Mason Eye Clinic.

On December 21, 2017, Employee underwent an MRI of the brain. (Exh. 16). The MRI report indicates it was ordered by Dr. Shoemaker, but no records between November 17, 2014, and December 21, 2017, from Dr. Shoemaker documenting the MRI order were offered into evidence by Employee. The MRI revealed no acute intracranial findings.

On January 11, 2018, Employee was seen by Dr. Syed Shah. (Exh. 17). Dr. Shah is a neurologist. (Exh. 23, p.7). Dr. Shah testified he did not ask to review the treatment records for Employee's treatment to date when he saw him on January 11, 2018. (Exh. 23, p. 34). Dr. Shah testified that he never reviewed the emergency room records from May 8, 2014, the day after the accident. (Exh. 23, p. 35). Dr. Shah was not aware that Employee was diagnosed with Influenza A at the emergency room and testified that his review of those records from the date after the alleged accident could not change his opinions in this case. Dr. Shah testified Employee told him he drove off a curb, the chair of his work truck "ejected," and he hit his head on the ceiling of the truck cab. (Exh. 23, p.11-12). Dr. Shah testified Employee told him, "this impact was so big that it shattered his hard hat." (Exh. 23, pp.11, 12, 31). Dr. Shah notes Employee was unsure if he lost consciousness.

Dr. Shah noted that employee complained of memory impairment and visual disturbance. Employee also complained of left-sided weakness and difficulty focusing and concentrating, both of which had improved over the years. Employee gave a history of his mind going blank and of having to get up and change tasks before resuming what he was previously doing. He also reported nocturnal confusion and nightmares. Employee reported a progressive tremor of his left upper extremity that occurred intermittently with alleviating/provoking factors but now was

**Employee:** Mark Hundley

**Injury No.:** 14-094684

occurring daily for a variable duration of time. (Exh. 17).

Dr. Shah assessed traumatic brain injury, memory impairment, tremor, gait instability, visual disturbance, nocturnal disorientation/confusion, and left hemiparesis. (Exh. 17). Dr. Shah testified that on his examination, Employee had a normal finger-nose-finger exam, (testing for coordination), and a positive bradykinesia exam, which is one of the main signs of Parkinson's disease. (Exh. 23, p. 49). Dr. Shah testified Employee has diabetic neuropathy, and diabetic neuropathy affects the eyes and can cause visual disturbances. (Exh. 23, p.40). Dr. Shah added that the blurred vision could be from the Employee's diabetic neuropathy. Dr. Shah's January 11, 2018, addendum notes Employee had mild Parkinsonian features. (Exh. 17) Dr. Shah testified he ordered a CT scan of the head and neck at the January 11, 2018, visit to do a workup for a stroke, not a traumatic brain injury. (Exh. 23, p. 49-50). He also ordered testing for vitamin deficiency and thyroid issues.

Employee followed up with Dr. Shah on February 12, 2018. (Exh. 18). At this visit, Dr. Shah diagnosed Employee with Parkinson's disease. (Exh. 18, Exh. 23, p. 54). Dr. Shah again noted his history of stroke and recommended a medication for Parkinson's disease, as well as the testing of B12 and TSH, which Dr. Shah testified were for a vitamin deficiency or thyroid issues. (Exh. 23, p. 50). Dr. Shah advised Employee to follow up in 8 weeks.

On March 9, 2018, Employee was evaluated by Dr. Eric Hart, a neuropsychologist, on a referral from Dr. Shah. (Exh. 19). Dr. Hart's report relates that Employee told him he drove off of a curb in his work truck, that his driver's seat was in poor condition, and he was projected into the roof of the vehicle by the impact of driving off of the curb. He reported to Dr. Hart that his head hit the roof of the vehicle so hard that it "shattered" the hard hat he was wearing. Employee told Dr. Hart he was uncertain whether he lost consciousness immediately, that he continued trying to work that day, but then developed a painful headache, blurred vision, and increasingly severe nausea. He reported no memory of the subsequent three weeks. Dr. Hart's report states Employee reported he moved in with his daughter due to financial difficulties resulting from his inability to work following his head injury. (Exh. 19).

Dr. Hart's impression was Employee's overall intellectual functioning was in the average range and generally consistent with his estimated baseline level of functioning. (Exh. 19). Dr. Hart stated Employee's neuropsychological functioning was notable for significant weaknesses in processing speed and attention, which were in the borderline to impaired range. His executive functioning was in the borderline range, and visual perception was impaired. Dr. Hart noted that despite Employee's subjective memory concerns, his visual and verbal memory was a relative strength for both recall and recognition. Dr. Hart noted that his initial learning trials for both visual and verbal memory were lower than expected for his age, but improved with repetition, which likely indicated attentional difficulties. Dr. Hart noted his intact cognitive abilities included working memory and language (object naming and fluency). His grip strength in the left hand was noted to be impaired. Dr. Hart noted that overall, his current test findings indicated Employee had several areas of cognitive strength and well-preserved abilities, but he demonstrated cognitive weaknesses in aspects of processing speed, attention, visual learning, spatial judgment, and executive functioning that were beyond what would be expected given his age. Dr. Hart noted that his cognitive deficits were likely, at least in part, to be related to his

Employee: Mark Hundley

Injury No. 14-094684

history of suspected traumatic brain injury incurred in 2014. He noted that determining the extent to which Employee developed a stroke vs. a traumatic brain injury was beyond the scope of the evaluation. However, Dr. Hart noted he could not rule out the possibility that a stroke preceded the accident. He also noted Employee has a history of multiple risk factors for cerebral vascular disease as well as hypoxemia. Dr. Hart's diagnosis was major neurocognitive disorder with multiple possible etiologies. (Exh. 19).

On May 24, 2018, Dr. Shoemaker drafted a letter to Employee's attorney. (Exh. 21). Dr. Shoemaker stated he had had Employee evaluated by Dr. Shah and had had him undergo neuropsychological testing with Dr. Eric Hart. Dr. Shoemaker goes on to state that based on his examination of Employee as well as review of these specialists' evaluations, he believes Employee's cognitive deficits are consistent with a traumatic brain injury, which occurred in 2014, and did not predate his injury. Dr. Shoemaker testified that the first mention in his records of any traumatic brain injury diagnosis is February 21, 2018. (Exh. 22, p. 45). He then wrote the letter to Employee's attorney in May 2018.

Dr. Shoemaker states in this correspondence that the neuropsychiatric testing was felt to be consistent with a traumatic brain injury rather than a stroke. However, at his deposition, Dr. Shoemaker admitted that upon further review of Dr. Hart's report, Dr. Hart did not rule out a stroke. (Exh. 22, p.55). When asked whether that portion of his May 2018 letter that says explicitly that Dr. Hart's testing was felt to be consistent with a traumatic brain injury rather than a stroke was incorrect, Dr. Shoemaker admitted Dr. Hart "did not put the diagnosis of traumatic brain injury causing this." (Exh. 22, pp.55-56). He also acknowledged that Dr. Hart's diagnosis was major neurocognitive disorder, multiple possible etiologies, which meant that Dr. Hart could not definitively say that the head injury was the cause of the cognitive disorder. (Exh. 22, p. 55)

Dr. Todd Silverman, a board-certified neurologist, examined Employee on April 9, 2019. (Exh. A). Prior to his examination of Employee, Dr. Silverman reviewed medical records and issued a report on November 26, 2018. (Exh. A-2).

In his November 26, 2018, report, Dr. Silverman notes the inconsistencies in the Employee's medical records. He notes Employee presented to the emergency room on May 8, 2014, the day after the alleged injury, with flu-like symptoms, and made no complaint of head injury at the ER visit. Dr. Silverman notes his flu-like symptoms were confirmed by a blood test to be Influenza A virus. Dr. Silverman notes that he would expect any substantial traumatic brain injury to be mentioned at the emergency room, and given the mechanism of injury, one would also expect neck complaints as well. (Exh. A-2). However, these were absent from the emergency room records. Dr. Silverman also noted that on August 13, 2014, Employee told Dr. Peeples that his left hand was useless for 30 days after the incident. Dr. Silverman noted there are no complaints of hand weakness in the emergency room records of May 8, 2014, or when he followed up with Dr. Shoemaker on May 14, 2014. Dr. Silverman also notes Employee reported to Dr. Hart that he had no memory of the three weeks following the alleged head injury, which would suggest substantial anterograde amnesia, yet there were no memory or other cognitive problems documented in either the emergency room records or the subsequent follow-up visits with Dr. Shoemaker during that timeframe. (Exh. A-2).

Dr. Silverman reviewed the December 21, 2017, MRI of the brain, which was normal. Dr.

**Employee:** Mark Hundley

**Injury No.:** 14-094684

Silverman noted that ophthalmologist Dr. Kelli Shaon, Mason Eye Clinic, documented a left visual field defect and attributed that to a traumatic brain injury. Dr. Silverman explained that this would imply a right occipital lobe lesion, but both the CT of the head and the MRI of the brain showed no such finding. Dr. Silverman notes that the MRI of the brain showed no evidence of prior trauma or stroke. Dr. Silverman explained Employee has diabetic retinopathy with a history of retinal hemorrhages that account for his visual disturbances, not a head injury. Dr. Silverman was in full agreement with Dr. Peeples's opinion expressed in his August 13, 2014, report, believed Employee was at maximum medical improvement and that no further treatment or work restrictions were required. He noted Employee was cleared to return to work full duty from a neurological standpoint, but like Dr. Peeples, noted he may be limited by his significant underlying medical problems, including obesity, diabetes, atrial fibrillation, and COPD.

After providing his report of November 16, 2018, Dr. Silverman examined Employee on April 9, 2019. (Exh. A-3). Employee reported to Dr. Silverman he was idling at a low speed when the truck dropped off of a curb, causing him to "shoot up" and hit the top of his head on the roof of the cab. Employee reported to Dr. Silverman that the impact cracked his hard hat. Employee reported to Dr. Silverman he vomited in the driver's lounge and told his supervisor he could not work the rest of the day and was going home.

Dr. Silverman administered testing (the Kokmen Short Test of Mental Status) and performed an examination. He noted Employee appeared unhealthy and had multiple medical problems, including diabetes, hypertension, atrial fibrillation, and emphysema, and he continues to smoke. Dr. Silverman noted he had a non-healing ulcer on his right foot and numbness in a stocking distribution to the knee level bilaterally, which Dr. Silverman noted represented diabetic polyneuropathy. On mental testing, Dr. Silverman noted Employee was fully alert and oriented with normal attention, learning, calculation skills, abstraction, fund of knowledge, visuospatial skill, and short-term memory. Dr. Silverman opined that Employee's current visual symptoms are likely due to diabetic retinopathy. Dr. Silverman believed Employee's poor balance and equilibrium was a consequence of severely diminished feeling in his feet due to advanced diabetic polyneuropathy. Dr. Silverman found no evidence of poor concentration or short-term memory loss. He noted that Employee was quick and accurate with mental calculations, and he found no evidence of weakness to his left arm or leg.

Dr. Silverman concluded Employee had many medical problems and issues, but none were attributable to the alleged head injury on May 7, 2014. Dr. Silverman noted that there was no evidence in the medical records of such an injury, no complaints or findings that could not be explained by other non-traumatic diagnoses, and that the diagnosis of a traumatic brain injury did not reach a reasonable degree of medical certainty.

Dr. Silverman testified that he reviewed both the CT scan from June 9, 2014, and the MRI of December 12, 2017, and both were normal. (Exh. A, p.25-27). Dr. Silverman testified Employee's left-sided visual defect could be caused by his diabetic retinopathy, and there was no evidence he hit his head hard enough to affect his vision. (Exh. A, p. 29). Dr. Silverman explained that "it certainly didn't cause a brain reason for losing the left peripheral vision because that would entail a right occipital brain injury. And there's no evidence of that on CT

**Employee:** Mark Hundley

**Injury No.:** 14-094684

scan or an MRI scan. And that would have shown up at least on the MRI scan. We'd see evidence of scar tissue, old hemorrhage. And that simply wasn't there." (Exh. A, p. 29).

Dr. Silverman testified he could not substantiate Employee having had a work-related injury based on the history and could not find anything that made sense in terms of his neuroanatomy. He found compelling reasons for his complaints that were unrelated to an alleged head injury. (Exh. A, p. 30) He noted with Employee's unsteadiness; he had absent pin prick sensation in a stocking distribution to the knee level bilaterally. He explained he poked him with a safety pin in the toe and up both legs to the knee, and only at the knee did Employee begin to feel anything. Dr. Silverman testified this was present in both legs, and in his 23 years of experience as a neurologist specializing in peripheral neuropathy and nerve and muscle problems, this was, in fact, diabetic neuropathy, and is what makes people feel unsteady. (Exh. A, p. 30).

Dr. Silverman testified he did not believe there was evidence of a head injury that rose to a reasonable degree of medical certainty. (Exh. A, p. 31). Dr. Silverman testified that, in his opinion, Employee was not cognitively impaired based on the testing and examination he performed. Dr. Silverman disagreed with Dr. Shah's findings of notable impairment with memory and delayed recall. (Exh. A, p.41).

On cross-examination regarding Dr. Shah's February 12, 2018, report, Dr. Silverman testified Dr. Shah appeared to be drilling down on Parkinson's disease at that visit. In reviewing Dr. Shah's physical exam findings, Dr. Silverman noted that Employee's strength was normal on the left side at that visit and pointed out that Dr. Shah did not note any cognitive problems. (Exh. A, p. 50). Dr. Silverman testified Employee's statements about having a nosebleed following the alleged accident was not something that would accompany a traumatic brain injury. Dr. Silverman explained that unless there was facial trauma, hitting the top of one's head really hard was not something that would cause a nosebleed. (Exh. A, p. 52).

The next report in evidence from Dr. Shah is dated January 5, 2020, ten months after the evaluation with Dr. Hart, and nearly a year since he had last seen Employee. (Exh. 20). Much of Dr. Shah's report is identical to his prior reports. (Exh. 23, p. 59). At this visit, Dr. Shah noted Employee had full strength. (Exh. 23, p. 60) Dr. Shah diagnosed post-concussion syndrome at this visit for the first time. (Exh. 20). Dr. Shah testified he also diagnosed orthostatic intolerance, which is a condition associated with Parkinson's disease. (Exh. 23, p. 63). Dr. Shah reported Employee wants to drive a semi-truck again, and would therefore need a driving reevaluation and a letter from an ophthalmologist and endocrinologist. (Exh. 20). On cross-examination, Dr. Shah was asked whether he maintained that the [prevailing] factor of Employee's brain injury would be the 2014 injury. (Exh. 23, p.66). Dr. Shah answered,

"it's really hard to say, because we don't have any prior evaluation, including any neurological evaluation....he has features of traumatic brain injury. Now it's really hard to pinpoint whether the injury caused that or something happened even prior to that because we don't have any records....it's hard for me to say that those conditions were there before the injury, after the injury...I will say if there was an injury, that can cause traumatic brain injury...and post concussion

The employee in a workers' compensation case has the burden to prove all the essential elements of the claim. Jefferson City Country Club v. Pace, 500 S.W.3d 305, 313 (Mo.App., W.D. 2016). The employee does not have to establish the elements of the case on the basis of absolute certainty; it is sufficient if the employee shows them by reasonable probability. Moreland v. Eagle Picher Techs., LLC, 362 S.W.3d 491, 504 (Mo.App., S.D. 2012). Probable means founded on reason and experience, which inclines the mind to believe but leaves room for doubt. Id. (citations omitted). All provisions of Chapter 287, RSMo, shall be strictly construed, and the evidence is to be "weighed impartially without giving any party the benefit of the doubt." Miller v. Mo. Highway Transp. Comm'n, 287 S.W.3d 671, 673 (Mo.banc 2009); §287.800 RSMo.

"Accident" is defined in $\S 287.020 .2$, RSMo, as "an unexpected or traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." "Injury" is defined as "an injury which has arisen out of and in the course of employment." $\S 287.020 .3$ RSMo.

Injuries are only deemed to arise out of and in the course of employment if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life.

§287.020.3(2), RSMo.

'The prevailing factor' is defined to be "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." 287.020.3(1) RSMo.

The employee in a worker's compensation case has the burden to prove a causal connection between the injury and the job. Royal v. Advantica Rest. Group, Inc., 194 S.W.3d 371, 376 (Mo. App. W.D. 2006) (citations omitted). "Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause.'" Lingo v. Midwest Block \& Brick, Inc., 307 S.W.3d 233, 236 (Mo. App. W.D. 2010) (quoting Gordon, 268 S.W.3d at 461 ).

Employee: Mark Hundley

Injury No. 14-094684

Employee has not met his burden to prove that an accident occurred, which at the time, produced *objective symptoms* of an injury. I do not find Employee to be credible.

Employee testified at hearing that the seat of his truck "shot up like a rocket," that he hit his head on the ceiling of the truck cab, that he incurred a nosebleed, and that his neck and back hurt. There is no evidence from Employee's testimony or the testimony of Mr. Wells, that Employee mentioned anything to anyone about his seat or having sustained an injury. It is not credible that the seat "shot up like a rocket," and Employee would then fail to mention this to anyone with Employer.

The contemporaneous medical records are devoid of any history of the seat of Employee's truck shooting up and are devoid of any history that he hit his head on the ceiling of the cab so hard that it cracked or shattered the hard hat Employee was wearing.

The Cooper County Memorial Hospital records the day after the alleged accident make no mention of this rather traumatic occurrence with the seat of the truck. Dr. Shoemaker, in his record of May 14, 2014, just mentions Employee hit his head on the roof of the truck but was wearing a hard hat. Dr. Shoemaker testified that if Employee had told him about the seat of the truck shooting up and Employee hitting his head so hard that it cracked or shattered the hard hat, he would have noted it in his records.

In the emergency room records of June 9, 2014, there is no history of any traumatic event with the truck seat.

In August 2014 Employee told Dr. Peeples that his hard hat was cracked when he came off a curb and hit his head on the inside of his vehicle. Dr. Peeples noted there was nothing in the emergency room records of May 8, 2014, documenting any head injury.

Two years later, on April 21, 2016, Employee saw Dr. Komes for a social security disability evaluation. There is no history whatsoever of Employee hitting his head on the ceiling of the truck cab. It is not until 2017 that Employee's accounting of exactly what happened started to appear in the records. He told the Mason Eye Clinic that his helmet was cracked when he was thrown against the ceiling of his truck. In January 2018 Employee told Dr. Shah that the chair of his truck "ejected," he hit his head on the ceiling, and the impact was so big that it "shattered" his hard hat. In March 2019 Employee told a similar story to Dr. Hart. He was "projected" into the roof of the cab, and he hit his head so hard that it "shattered" the hard hat. Finally, in April 2019 Employee tells Dr. Silverman that when the truck went over the curb, it caused him to "shoot up," hit the top of his head on the roof of the cab and crack his hard hat.

At hearing, Employee contradicted all these histories given in the medical records by saying that the hard hat was not shattered; it was only cracked, and the liner was broken. He went on to state that Dr. Shah "misunderstood" him as he did not tell him or the other doctors that the hard hat shattered. Employee's inconsistencies between his testimony at hearing and the histories recorded in the various medical records go to his lack of credibility.

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Employer: Mark Hundley

Injury No. 14-094684

Further complicating the credibility of Employee's medical history versions of the accident is the testimony of Robert Wells, Employee's first cousin and co-worker. Mr. Wells helped Employee obtain another helmet on the day of the alleged accident. He testified that the hard hat harness connector was damaged, that the hard hat was not shattered, and that he did not recall the hard hat being cracked or spidered.

The record contains several other inconsistent or contradictory statements made by Employee.

Employee testified he sustained a nosebleed following this accident, one of only three or four nosebleeds he has ever had in his lifetime. However, there is no mention of a nosebleed in any of the medical records immediately following the alleged accident. Additionally, Mr. Wells testified he did not recall seeing blood on Employee's clothes and testified he believes he would have noticed if Employee had blood on him.

The records of Dr. Hart document that Employee also reported to him that he had to move in with his daughter due to financial difficulties because of his inability to work following his alleged head injury. However, Employee testified at trial that he lived with his daughter and her family even before this accident.

Employee testified about his nosebleed and symptoms following the alleged injury but testified he could not recall whether he made any other deliveries that day. However, he did recall feeling like he was "running out of gas," and recalled calling his wife, and the specific details of that phone call, and his conversation with her about asking his son to "backtrack."

Employee reported to Dr. Silverman at his evaluation in April 2019 that he vomited in the driver's lounge after the alleged accident. No mention of vomiting in the driver's lounge is referenced in any of the medical records, and Employee made no mention of this at trial. Mr. Wells did not testify that Employee was vomiting, but rather indicated he seemed normal and did not appear injured.

The definition of "accident" requires "objective symptoms" of an injury. §287.020.2 (RSMo. 2014). The contemporaneous medical records do not document any objective symptoms of an injury as a result of any accident on May 7, 2014.

Employee testified at trial his initial symptoms were pain in his neck, back, head, and a headache. However, when he was seen at the emergency room the day after the alleged accident, there was no mention in the records of neck or back complaints or a head injury. (Exh.1). Objective lab work at the emergency room confirmed Employee had the flu. At a subsequent visit to the emergency room on June 9, 2014, Employee specifically denied any head injury. No history of any work accident was contained in that record. The CT scan of June 9, 2014, showed no pathology and no intracranial bleeding, which according to Dr. Shoemaker, is a common result of a traumatic brain injury.

When Employee saw Dr. Shoemaker one week later on May 14, 2014, he had a normal neck exam, and there was no mention of any neck complaints. (Exh. 3; Exh. 22, p. 32). Dr.

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Page 18

Injury No. 14-094684

Shoemaker testified that given his alleged mechanism of injury in this case, he would expect neck complaints. Dr. Shoemaker further noted Employee denied any difficulty thinking and did not have what he considered a bad headache. (Exh. 1). Employee saw Dr. Shoemaker on six occasions between May 14, 2014, and November 27, 2014. On each occasion, there were no reports of neck or head problems. Dr. Shoemaker did not diagnose a head injury or traumatic brain injury between May 14, 2014, and November 27, 2014. Dr. Shoemaker saw Employee on eight occasions from October 29, 2015, through June 2017. It is noteworthy that Dr. Shoemaker's medical records from these eight visits were not offered into evidence. I am aware of them only because of the cross-examination of Dr. Shoemaker at his deposition. Dr. Shoemaker admitted that he did not diagnose a traumatic brain injury or any head injury between October 29, 2015, and June 2017.

Employee was seen by a board-certified neurologist, Dr. David Peeples, on August 13, 2014, just two months after the alleged accident. (Exh. B). Dr. Peeples concluded Employee's subjective symptoms were not due to a post-concussive etiology and noted that on the "basis of objective findings and accurate medical reasoning, it is not reasonable to attribute his reported work incident as the prevailing factor for his subsequent symptoms."

When Employee was examined by Dr. Komes for a social security evaluation in April 2016, Dr. Komes also did not diagnose a head injury, traumatic brain injury, or a concussion. (Exh. 13). There is no mention whatsoever of any head injury in Dr. Komes's report.

There is also no objective diagnostic evidence of a head injury. In 2017 Employee underwent an MRI of the brain, which was negative. (Exh. 16). Dr. Silverman testified he reviewed this MRI and it was normal. (Exh. A, p.25-27). Dr. Silverman testified that if Employee had a brain injury causing left peripheral vision loss as alleged, it would have shown up on the MRI scan, "and that simply wasn't there."

Employee relies on the medical opinions of Dr. Shah and Dr. Shoemaker. Employee was not seen by Dr. Shah until January 11, 2018, nearly four years after his alleged accident. Dr. Shah diagnosed blunt force head trauma, among other things (including Parkinson's disease), but Dr. Shah's testimony, in this case, is not persuasive.

Dr. Shah did not examine Employee until four years after the alleged accident. Dr. Shah testified he did not review the emergency room records from the day after the accident and was unaware that Employee was diagnosed with the flu, and that there was no mention of the alleged accident in those records. (Exh. 23, p. 34). Dr. Shah did not review the emergency room note from June 9, 2014, four weeks after the accident, where Employee specifically denied any head injury. (Exh. 6). Dr. Shah testified that reviewing these medical records could not change his opinion one way or the other. Such a conclusion, that records of Employee's symptoms and physical examination findings the day after accident and four weeks later would have no bearing on the opinion he would render four years later calls into question Dr. Shah's credibility and opinions in this case. Dr. Shoemaker admitted Dr. Peeples's examination, four years before Dr. Shah's, would "be more salient the closer that you are to the event." (Exh. 22, p. 59). There is no

Improve: Mark Hundley

Injury No. 14-094684

indication that Dr. Shah ever reviewed Dr. Peeples's report.

Dr. Shah was under the mistaken belief that Employee's hard hat was "shattered" in the impact. (Exh. 23, pp.11, 12, 31). Dr. Shah testified he was told by Employee that "this impact was so big that it shattered his hard hat." However, Employee testified at trial that he never told this to Dr. Shah and that if this was in Dr. Shah's records, he must have misunderstood Employee's statements to him. Mr. Wells also testified that the hard hat was not shattered. This "misunderstanding" on the part of Dr. Shah calls into question his understanding of this alleged injury that occurred nearly four years prior to his first examination of Employee. Dr. Shah's opinion is flawed because it is based on the incorrect assumption, the "misunderstanding," that Employee's hard hat was "shattered" when he allegedly struck his head on May 7, 2014.

Dr. Shah's opinion, in this case, is also not persuasive because it is equivocal. When asked on direct exam whether the prevailing factor of Employee's traumatic brain injury was the work injury in 2014, Dr. Shah testified, "I will say yes". (Exh. 23, p. 25). On cross-examination, when asked if he maintained that the [prevailing] factor of Employee's brain injury would be the 2014 injury, Dr. Shah answers, "Okay. So it's really hard to say because we don't have any prior evaluation." Dr. Shah would go on to testify, "Now it's really hard to pinpoint whether the injury caused that or something happened even prior to that because we don't have any records there...So it's hard for me to say that those conditions were there before the injury, after the injury." Dr. Shah goes on to point out in his testimony the problem with his having evaluated Employee four years later, by stating, "The evaluation was done four years later, right, by me. So it's hard for me to say, but I will say if there was an injury, that can cause traumatic brain injury for sure and post-concussion syndrome." (Exh. 23, pp. 65-66). While Dr. Shah admitted "it's really hard to pinpoint whether the injury caused that or something happened even prior to that because we don't have any records there," he failed to review the medical records of May 8, 2014, and June 9, 2014. Dr. Shah's opinion lacks persuasiveness in this case.

The opinion of Dr. Shoemaker that Employee sustained a traumatic brain injury is equally problematic and lacks persuasiveness. He is a primary care physician, not a neurologist or specialist in the diagnosis and treatment of head injuries. Dr. Shoemaker treated Employee for several years after the alleged accident, beginning on May 14, 2014. Dr. Shoemaker did not diagnose a traumatic brain injury or concussion until he corresponded with Employee's attorney, over four years after the alleged accident. (Exh. 21). This May 2018 letter is the first mention in the records of Dr. Shoemaker of any traumatic brain injury diagnosis. (See Exhibits 3-5, 9-12, and 22 p. 45). Dr. Shoemaker testified that the diagnosis was made in February 2018 but that office note is not in evidence. In any event, the diagnosis was not made until close to four years after the alleged accident.

Dr. Shoemaker also did not have a complete understanding of Employee's evaluations by other physicians. Dr. Shoemaker was asked about his causation letter from May 2018 to Employee's counsel, wherein Dr. Shoemaker states that Dr. Hart's neuropsychiatric testing was felt to be consistent with a traumatic brain injury rather than a stroke. At his deposition, Dr. Shoemaker admitted upon further review of Dr. Hart's note, that Dr. Hart "did not put the diagnosis of traumatic brain injury causing this." (Exh. 22, pp. 55-56). Dr. Shoemaker admitted that Dr. Hart actually concluded he could not say definitively that the head injury was the cause

Employee: Mark Hundley

Injury No. 14-094684

of the cognitive disorder, and agreed that Dr. Hart did not, in fact, diagnose Employee with a traumatic brain injury.

Dr. Shoemaker's opinion, in this case, was based on his admittedly mistaken review of Dr. Hart's records. Additionally, despite treating Employee for several years after the alleged injury, Dr. Shoemaker did not diagnose a traumatic brain injury until four years later. Dr. Shoemaker admitted he never received anything more than the first page of neurologist Dr. Peeples's August 2014 report and that this report would have been helpful in reaching his own opinions in this case. Dr. Shoemaker's opinions, in this case, lack persuasiveness.

Dr. Silverman is a board-certified neurologist who examined Employee on April 9, 2019. Unlike Dr. Shah and Dr. Shoemaker, Dr. Silverman had a complete picture of Employee's medical treatment, and reviewed the records from the emergency room visits, neurologist Dr. Peeples, Dr. Shoemaker, Dr. Shah, Dr. Shaon (Mason Eye Institute), and Dr. Hart. (Exh. A-2; A3). Dr. Silverman noted Employee presented to the emergency room the day after the alleged injury with flu symptoms and was diagnosed with the flu. Dr. Silverman noted there was no complaint of any head or neck pain at this visit and no mention of any head injury in those records. Dr. Silverman noted that given the alleged mechanism of injury, one would expect neck complaints, which were absent from the records immediately following the alleged accident. (Exh. A-2). Dr. Silverman reviewed the diagnostic studies and noted that they were normal. (Exh. A-2). Dr. Silverman also noted that despite Employee telling Dr. Hart (and similar to his testimony at trial) that he had no memory for 3 weeks following the alleged head injury, no memory or cognitive problems were noted in the records of the emergency room or the subsequent follow-up visits with Dr. Shoemaker. (Exh. A-2).

Dr. Silverman noted that the ophthalmology opinion of Dr. Shaon, which documented a left visual field defect and attributed that to a traumatic brain injury, was flawed, in that this would imply a right occipital lobe lesion, which was not present on the diagnostic studies. Both the CT of the head and the MRI of the brain showed no such lesion. Dr. Silverman explained that Employee's diabetic retinopathy and history of retinal hemorrhages account for his visual disturbances, not a head injury. (Exh. A-2).

Unlike Dr. Shah and Dr. Shoemaker, Dr. Silverman also reviewed the report of Dr. Peeples from three months after the alleged accident and advised he was in full agreement with neurologist Dr. Peeples.

Dr. Silverman administered mental testing and noted Employee was fully alert and had normal attention, learning, calculation skills, abstraction, fund of knowledge, visuospatial skill, and short-term memory. (Exh. A-2). Dr. Silverman disagreed with Dr. Shah's findings. (Exh. A, p. 41). Dr. Silverman noted Employee's short-term memory was good, and he did not find poor concentration. (Exh. A p. 14). Dr. Silverman testified he found Employee "to be very quick and accurate with mental mathematics." (Exh. A, p. 15). Dr. Silverman's findings, while at odds with Dr.Shah's testing, are consistent with the report of Dr. Peeples from 2014 and the report of Dr. Komes from 2016 provided in conjunction with Employee's social security evaluation. Dr.

**Employee:** Mark Hundley

**Injury No.:** 14-094684

Komes noted Employee's immediate recall was 4 out of 4, short-term recall was 3 out of 4 and 4 out of 4 with cues, and his long-term recall was 4 out of 4. (Exh. 13).

Dr. Silverman also conducted a physical examination and noted Employee had a non-healing ulcer on his right foot and numbness in his bilateral legs up to his knees which represented diabetic polyneuropathy. Dr. Silverman testified he poked Employee with a safety pin in the toe and up both legs to the knee, and only at the knee did Employee begin to feel anything. (Exh. A, p. 31). Dr. Silverman testified that in his 23 years of experience as a neurologist specializing in neuropathy and nerve and muscle problems, this was obviously diabetic neuropathy and was the cause of Employee's feeling of unsteadiness.

The written opinions of Dr. Peeples and Dr. Silverman, along with Dr. Silverman's testimony are more persuasive than those of Dr. Shoemaker and Dr. Shah. Dr. Peeples and Dr. Silverman both had a complete and accurate understanding of Employee's medical history in that they reviewed the records of his treatment shortly after the alleged accident. Dr. Silverman credibly testified there was no evidence of a head injury that rose to a reasonable degree of medical certainty. (Exh. A, p. 31). He further opined that Employee had no complaints or findings which could not be explained by Employee's other non-traumatic diagnoses. (Exh. A-2).

Having found that Employee failed to meet his burden to prove an accident occurred, producing objective symptoms and resulting in an injury which arose out of and in the course of employment, the remaining issues do not need to be addressed. The Second Injury Fund has no liability.

Employee has not met his burden of proof, therefore, no benefits are awarded.

I certify that on **9-25-20** 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.

By **Melodie A. Powell**

Administrative Law Judge

Division of Workers' Compensation

By **Melodie A. Powell**