FINAL AWARD ALLOWING COMPENSATION - labor.mo.gov

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge

with Supplemental Opinion) Injury No.: 14-102788 Employee: Christopher C. Carewicz Employer: Playcraft Pontoon Company d/b/a Richland Diversified Industries Insurer: Manufacturer’s Alliance Insurance Company This 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, read the briefs, and considered the whole record, we find that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.1 Discussion In a workers’ compensation case, the employee carries the burden of proving all essential elements of the claim.2 The employee in this case appears to suffer from loss of focus, concentration, confusion, and memory loss. He also has a propensity to embellish, for example, testifying to head and neck pain as at a level of “10, if not a thousand”, back pain at a level of from “12 to a million,” and describing his wife’s hours of employment as “24/7.”3 Based on inconsistencies between employee’s deposition and hearing testimony and documented statements, as explained in great detail in the ALJ’s award, we agree that employee’s testimony is so contradictory and conflicting that it lacks probative force and is self-destructive.4 We affirm the ALJ’s ultimate determination that the employee lacks credibility as to the mechanism of injury and body parts injured. As the ALJ notes, “the record provides ample support for a finding that Claimant lacks credibility.”5 In this context, we consider employer/insurer’s Exhibit L, criminal records from 2002 documenting employee’s guilty plea, conviction, sentencing, and probation revocation related to the crime second-degree statutory rape, unnecessary and irrelevant to a determination of the employee’s credibility. Employee’s attorney objected to the admission of employer/insurer’s Exhibit L on the basis that: 1 Page 8 of the ALJ’s award incorrectly recites an excerpt from Dr. Hofer’s records. We substitute the word “bilaterally” for the word “bilateral” on line 7 and “Popeye” for the word “by” in line 9 of the indented quote. See Transcript, p. 1910. 2 Fischer v. Archdiocese of St. Louis-Cardinal Ritter Inst., 793 S.W.2d 195, 198 (Mo. App. 1990), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). 3 Transcript, pp. 95-98. 4 Sita v. Falstaff Brewing Corp., 425 S.W.2d 487, 489, (Mo. App. 1968). 5 Award, p. 18.

Injury No.: 14-102788 Employee: Christopher C. Carewicz

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1) Employee, now fifty-three years old, admitted his felony conviction at age of thirty-two; the evidence included in Exhibit L was unnecessary for purposes of attacking his credibility;

2) The records included in Exhibit L provided no relevant information pertaining to employee’s work accident or injuries;

3) The documents did not meet the statutory requirement of a judicial proceeding.

The ALJ admitted Exhibit L into evidence on grounds it was relevant to employee’s credibility by showing that employee lied to expert witnesses, including vocational expert Ms. Delores Gonzalez, “when he told them he had no history of illegal drug use.”6 She noted that attested judicial records and evidence of prior criminal convictions may be admissible as provided by §§ 490.130 and 491.050 RSMo and found that “A probation revocation action, which culminates in a circuit judge signing an Order sending Claimant to prison for a felony, is a judicial proceeding.”7 We consider employer/insurer’s Exhibit L, documenting the then thirty-two-year-old employee’s admission to unlawful conduct with a sixteen-year-old female, probation revocation for failure of drug testing and noncompliance with unspecified directives of his probation officer8 irrelevant to this appeal. Employee candidly testified to his felony conviction and incarceration for statutory rape from approximately 2002 to 2007. He has been married to his current wife for fourteen years. Employee’s 2002 probation revocation, based on undocumented failure of a drug test and other unspecified conduct contrary to his probation officer’s directives, does not, in and of itself, establish that employee has “a history of illegal drug use.” Employer/insurer produced no evidence that employee committed any drug-related crimes. Because we find that employee’s probation revocation in connection with an offense he committed nearly twenty years ago provides no relevant information pertaining to his 2014 work accident and injury claim, we strike employer/insurer’s Exhibit L from the record. We further consider evidence of employee’s poor memory about his body weight, the birthdates of his children, and the name of his high school9 irrelevant to our determination that the employee lacks credibility regarding the mechanism of injury and body parts injured. As a factual matter, we find the expert medical opinions of Drs. Russell Cantrell and Robert Bernardi, and treating surgeon Dr. Scott Hofer, more credible and persuasive than medical opinions offered by employee’s experts Drs. Robert Poetz, Paul Hinton, and R. Peter Mirkin. We credit vocational expert Mr. Bob Hosutt’s opinion as more persuasive than Ms. Gonzalez’s opinion.

6 Award, p. 19. 7 Id. 8 Transcript, p. 2908. 9 Id., pp. 110-111, 175-176, 182-190.

Injury No.: 14-102788 Employee: Christopher C. Carewicz

-3- Our decision herein does not detract from the ALJ’s otherwise thorough and well-reasoned analysis of the issues involved in this appeal and her fair resolution of the employee’s claim. Award We affirm and adopt the award of the administrative law judge as supplemented herein. The award and decision of Administrative Law Judge Victorine R. Mahon, issued March 2, 2021, is attached and incorporated by this reference. We approve and affirm the administrative law judge’s allowance of attorney’s fee as being fair and reasonable. Given at Jefferson City, State of Missouri, this 4th day of November 2021. LABOR AND INDUSTRIAL RELATIONS COMMISSION Robert W. Cornejo, Chairman Reid K. Forrester, Member Shalonn K. Curls, Member Attest: Secretary

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seal

Issued by MISSOURI DMSION OF WORKERS' COMPENSATION

Claimant:

Dependents:

Employer:

Christopher C. Carewicz

Carrie Carewicz

AWARD

Richland Diversified Industries, dba Play Craft Pontoon, LLC

Additional Party: Not Applicable

Insurer:

Hearing Date:

Manufacturer's Alliance Ins. Co. TP A Gallagher Bassett

December 10, 2020

Injury No. 14 - 102788

Before the DMSION OF WORKERS'

COMPENSATION Department of Labor and Industrial

Relations ofMissouri Jefferson City, Missouri

Checked by: VRM/bh

FINDINGS OF FACT AND RULINGS OF LAW

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: August 4, 2014.

5. State location where accident occurred or occupational disease was contracted: Richland, Pulaski County, Missouri; Venue for hearing stipulated in Springfield, Greene County, Missouri.

6. Was above Claimant 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 "M;thin time required by Law? Yes.

10. Was employer insured by above insurer? Yes.

11. Describe work Claimant was doing and how accident occurred or occupational disease contracted: Claimant and a coworker were lifting a pontoon log when the coworker dropped his end of the log causing injury to Claimant's right arm.

12. Did accident or occupational disease cause death? No. Date of death? NIA.

13. Part(s) of body injured by accident or occupational disease: Right arm and right shoulder.

14. Nature and extent of any permanent disability: 35 percent of the right arm at the 232-week level.

15. Compensation paid to date for temporary disability: $3,140.00.

16. Value necessary medical aid paid to date by employer/insurer? $28,411.99.

Issued by MISSOURI DMSION OF WORKERS' COMPENSATION Claimant: Christopher C. Carewicz

17. Value necessary medical aid not furnished by employer/insurer? None.

18. Claimant's average weekly wages: $326.55.

19. Weekly compensation rate: $217.83 for all purposes.

20. Method wages computation: By stipulation.

COMPENSATION PAYABLE

21. Amount of compensation payable:

For Temporary Total Disability (per Award) From 11/24/2014tbrough 1/17/2015 7 and 5/7 weeks x $217.83 = For Undemayment of Temporary Total Disability (per Stipulation) From 8/4/2014 through 11/23/2014 (16 weeks)

For Temporary Partial Disability (per Stipulation) From 1/18/2015 through 4/7/2015 11 2/7 weeks x $88.09 = For Loss of Teeth 3.75 weeks x $217.83

For Permanent Partial Disability: 35 percent x 232 = 81.20 weeks 81.20 weeks x $217.83 =

22. Second Injury Fund liability: Not applicable.

23. Future requirements awarded: None.

TOTAL:

1bis Award is subject to modification and review as provided by law.

Interest shall apply as provided by law.

InjuryNo. 14-102788

$ 1,680.74

$ 345.38

$ 994.54

$ 816.86

$17,687.80

$21,525.32

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Ronald D. Edelman.

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Issued by MISSOURI DMSION OF WORKERS' COMPENSATION Claimant: Christopher C. Carewicz Injury No. 14-102788

FINDINGS OF FACT and RULINGS OF LAW:

Claimant: Christopher C. Carewicz

Dependents: Carrie Carewicz

Employer: Richland Diversified Industries, dba Play Craft Pontoon, LLC

Additional Party: Not Applicable

Insurer: Manufacturer's Alliance Ins. Co./ Gallagher Bassett (Third Party Administrator)

Hearing Date: December 10, 2020

INTRODUCTION

InjuryNo.14-102788

Before the DIVISION OF WORKERS'

COMPENSATION Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri

Checked by: VRM/bh

The undersigned Administrative Law Judge conducted a final hearing on December 10, 2020. Claimant Christopher C. Carewicz appeared personally and through his attorney Ronald D. Edelman. Constance M. Warn.er appeared on behalf of Richland Diversified Industries, dba Play Craft Pontoon, LLC (Employer), Manufacturer's Alliance Ins. Co. (Insurer), and Gallagher Bassett (TPA).

STIPULATIONS

The parties' stipulations, set forth in Joint Exhibit 25, are summarized as follows:

On August 4, 2014, Claimant was an employee of the fully-insured Employer. Claimant and Employer both were subject to the Missouri Workers' Compensation Law. On August 4, 2014, Claimant sustained a compensable injury from a work-related accident 1bis non-death injury occurred in Richland, Pulaski County, Missouri; however, the parties consented to venue and jurisdiction in Springfield, Greene County, Missouri for purposes of the Final Hearing. Claimant had provided timely notice of the injury. The initial claim for compensation filed March 2, 2015, was timely.

Claimant reached Maximum Medical Improvement (MMI) on March 26, 2015, as to his right shoulder. That is the date Dr. Hofer, the authorized treating physician, released Claimant from his care. Employer/Insurer paid $28,411.99 in medical benefits. On November 12, 2020, Employer/Insurer paid the authorized dental bill of$84.00 from Dr. Wallace.

The average weekly wage (A WW) is $326.55, yielding a compensation rate of $217.83 for all purposes. Employer/Insurer paid $3,140.00 for about 16 weeks in temporary total disability (TTD) for the period of August 4, 2014throughNovember23, 2014. This waspaidattherateof$196.25, based on A WW $294.37. Claimant was underpaid $345.38 in TTD for this same time period. Claimant also is owed $994.54 in temporary partial disability (TPD) for 11 and 2/7 weeks for the period of January 18, 2015, through April 7, 2015, at the weekly rate of$88.09.

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Issued by MISSOURI DMSION OF WORKERS' COMPENSATION Claimant Christopher C. Carewicz

ISSUES

JnjuryNo. 14-102788

1. Is Claimant'_s first amended claim, adding body parts injured, barred by the statute of limitations?

2. What was the mechanism of injury or qow did the accident occur?

3. What body parts were injmed as a result of the work accident August 4, 2014?

4. Are each of Claimant's physical complaints, including his right shoulder, teeth, cervical spine, and lumbar spine, medically and causally related to the August 4, 2014 work injury?

5. What is the nature and extent of Claimant's permanent disability that is medically and causally related to the August 4, 2014 injury?

6. Is Employer/Insurer liable for additional past medical bills in the amount of $4,323.19?

7. Is Employer/Insurer liable for future medical treatment for Claimant's cervical spine, lumbar spine, and additional dental work?

8. Is Employer/Insurer liable for TTD for the period November 24, 2014 through January 17, 2015 (7 5n weeks) at the rate of $217.83 per week and for the period April 7, 2015 through January 22, 2019 (198 weeks) at the rate of $217.83 per week, for a total of $44,809.80?

9. Is January 22, 2019, the date of maximum medical improvement (MMI) for all Claimant's injuries, as opined by Dr. Paul Hinton?

10. If January 22, 2019, is the date of MMI, is Employer/Insurer liable for arrearages of PID owed from that date?

11. Is Employer/Insurer liable for disfigurement attributable to loss of teeth?

12. Claimant reque~ a finding on the dependency of his spouse.

13. · There are a number of evidentiary issues:

a. Claimant requested a ruling on a number of objections in contained in depositions. b. Is Employer/Insurer's Exhibit L properly admitted? c. Was Employer/Insurer's objection to the admission of Exhibit 18 properly sustained?

EVIDENCE PRESENTED1

Except as noted, all exhibits were admitted without further foundation. Employer/Insurer reserved the right to dispute liability for the medical bills.

Claimant's Exhibits

1. Claimant's certified file of the Division of Workers' Compensation 2. Claimant's certified file from Social Security 3. Claimant's requests for statements to Employer 4. Claimant's demands for treatment to Employer

5. Claimant's demands for payment of bills to Employer 6. Deposition - Claimant 7. Deposition, medical report and exhibits - Dr. Paul Hinton

1 At the conclusion of Claimant's testimony, his counsel moved to amend the pleadings to conform to the evidence. Hearing no objection, the AlJ sustained the motion.

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8. Deposition and vocational rehabilitation evaluation - Delores Gonz.alez 9. Medical Report, bill and 60-day letter- Dr. R Peter Mirkin 10. Medical records, bills, report and 60-day letter - Dr. Barton Warren 11. Medical records - Dr. Scott Hofer and Physical Thell-PY 12. Medical records - Crown Dental 13. Medical records, bill and estimate for future care-Dr. Kevin Wallace 14. Medical records and bills - Professional Imaging 15. Medical records and bill - University of Missouri Columbia Hospital Clinic 16. Medical bills summary 17. Withdrawn 18. Pharmacy records (Not Admitted - Objection Sustained) 19. Employer's letter refusing treatment 20. Employer's letter regarding accommodated duty availability 21. Employer letter regarding termination of employment 22. Employer's first Report of Injury or Occupational Illness (ROI) 23. Letter from Employer's attorney regarding payment of Dr. Wallace's bill 24. Supplemental deposition and addendum report- Dr. Paul Hinton 25. Trial stipulations 26. List of Claimant's asserted and restated deposition objections

Employer/Insurer's Exhibits

A. Deposition - Claimant B. Deposition and exhibit- Jessica Chaney C. Deposition and report- Dr. Scott Hofer D. Deposition and report- Dr. Russell Cantrell E. Supplemental deposition and addendum report- Dr. Russell Cantrell F. Deposition and report- Dr. Robert Bernardi G. Deposition and vocational evaluation report- Bob Hosutt H. Certified letter to Claimant from Joe Dorris I. IME report, supplemental report, and 60-day letter- Dr. Robert Poetz J. Certified pay stubs K Withdrawn L. Probation Revocation Report (Admitted Over Objection) M. Withdrawn N. Withdrawn 0. Photos of the Playcra:ft Plant P. - Q. Withdrawn

Live Witness Testimony

Claimant, Claimant's wife, and Joe Dorris, Employer's VP of Operations.

InjuryNo. 14-102788

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FINDINGS OF FACT

lnjuryNo. 14-102788

Claimant is a 53-year-old man with a high school diploma and at least one semester of college. He has welding and HV AC training, but no current certifications. He took courses during his incarceration between

· 2003 and 2007 for a felony conviction. · He bas worked in HV AC and in odd jobs. He twice worked for Employer. The first time was in 2001 before his incarceration. He returned to Employer in 2012. He lives in Richland, Missouri with his wife of 13 years, Carrie Carewicz. They have five children between them, but only Claimant's wife is considered a dependent2

Claimant installed flotation foam and stiffeners in pontoon logs, capped the top of the logs, attached the front runner guides and welded the logs to the pontoon boats. He performed this activity 10 hours per day, 4 days a week. This was heavy work, lifting hundreds of pounds, and pushing, pulling, standing, squatting, twisting, and kneeling. Prior to August 4, 2014, Claimant was physically capable of performing his duties, alleging he could bench press 380 pounds before the work injury of August 4, 2014. Now he claims he cannot work at all.

Work Injury of August 4, 2014

There is no question that Claimant's right shoulder and bicep was injured when a co-worker dropped his end of a heavy pontoon log. The log hit Claimant's left shoulder anteriorly. The aluminum floatation log was about 30 feet long and weighed between 200 and 300 pounds. After the accident, there was blood running from Claimant's shoulder. Employer/Insurer immediately provided authorized medical treatment for the right shoulder, r.n]minating in surgery and rehabilitative physical therapy. For the injury to the right upper extremity, Claimant is entitled to all appropriate benefits under the Missouri Workers' Compensation Law.

Claimant contends, however, that the accident also caused permanent damage to his neck and back which were left untreated despite his continued complaints. He also claims disfigurement for teeth that were lost during surgery. He contends he now is totally disabled. 3 Employer/Insurer deny such allegations. In large part, this case hinges on Claimant's credibility.

Claimant's Hearing Testimony

Claimant and co-worker named Billy (also referenced as William) were lifting and rolling a heavy pontoon log to transfer it to a different jig. Claimant said his co-worker twice dropped his end of the log. Clamant said the first time, the pointed end of the log struck his left side, causing a severe pain in the neck and the center of his back. The second time, the log hit Claimant's right side, causing bleeding down the right shoulder, which was obvious to other workers. Claimant contends he told all authorized medical providers that the accident caused a pain in his neck and back, but because the right shoulder injury was so obvious, attention focused solely on that.

Contemporaneous Medical Records

Central Ozarks Medical Center - Richland Clinic

Immediately following the work accident, Employer authorized medical treatment at the nearby clinic with Dr. Barton Warren. Dr. Warren recorded the following:

2 Claimant's counsel insisted on have a determination as to dependency of Claimant's spouse, Carrie Carewicz. I find her a dependent, but such gratuitous finding has no consequence in this case and will not be further discussed in this A ward.

3 If Claimant is determined to be permanently and totally disabled, there is no added disfigurement benefit. 7


SUBJECTIVE:

lnjuryNo. 14-102788

The patient had an accident at the boat factory lifting a 300-pound log which is very expensive. Somebody on the other end dropped their end and patient could not let this drop but it pulled his right shoulder, arm and hand and his back is now tightening up around his chest. He feels difficult to breathe not because he got congestion but because the muscles around his chest. He has righthand swelling. He has numbness and also feels a lot of pain on any motion of the right shoulder. The patient typically has had no injuries. He takes no medications. He is not allergic to anything.

OBJECTIVE:

Extremities: Swelling of the right-hand compared to the left is noted. There is an abrasion over the volar surface of the right arm just over the bicep head. The strength of the arms is intact bilaterally 5/5 but difficulty lifting the right arm passively in abducted position towards the horizontal. There is also reduced grip strength on the right. There is tenderness in the rotator cuff musculature but also in the infrascapular musculature on the right.

ASSESSMENT:

Right shoulder and arm muscular injury from above accident.

(Ex. 10, pp. 1-3).

While Dr. Warren recorded that Claimant had some back tightening around the chest with difficulty breathing, there is nothing suggesting low back or neck pain. There is nothing indicating that the log first stuck Claimant's left side. There is nothing indicating that Billy, the co-worker, twice dropped his end of the log. There is nothing indicating that Claimant fell to the floor or fell back onto or over the log.

Lake Regional Health System Rehabilitation Services

The same day as the accident, Claimant was referred to Dr. Scott L. Hofer, D.O., of the Lake Regional Medical Group. Dr. Hofer made the following medical record when he first examined Claimant:

He was carrying a 300-pound aluminum log in construction of the pontoon boat doing carry of this with another worker. The other worker had dropped his end, causing Mr. Carewicz to take the whole load. As he was attempting to keep this from falling to the ground and damaging, he felt a popping sensation in the anterior aspect of his right shoulder with pain going down to the right into cubital region and some radiation towards his thumb as well. He describes a burning pain in the anterior aspect of the shoulder down into the biceps and also has some soreness or tightness in the back and pectoral regions bilateral .... He does have some discomfort with the active elevation of the right shoulder above shoulder height. He is developing some early ecchymosis anteriorly by the distal portion of his biceps with an early by deformity noted.

(Ex. 11, pp. 107-108).

Dr. Hofer found no acute distress. He diagnosed shoulder pain, an apparent long head biceps rupture with a visible deformity, and pectoralis muscle and strains. Again, the back soreness or tightness in the back is not referenced as a low back pain. The burning-type pain significantly was in the anterior aspect of the shoulder and not in the back or neck. The popping sensation was limited to the shoulder. There is no description of popping in the back.

At the time of Claimant's follow-up examinations on August 11, 2014, and August 22, 2014, there again is no mention of any low back or neck pain in the medical records. The doctor recorded the addition of left wrist pain, and ordered X-rays. These were negative. Treatment continued for the right shoulder and biceps.

On October 17, 2014, Dr. Hofer performed an arthroscopy of Claimant's right shoulder with arthroscopic debridement of degenerative labrum and rotator cuff, subacromial decompression, distal clavicle resection and mini open subpectoral biceps tenodesis. The post-operative diagnosis was acromioclavicular joint

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Issued by MISSOURI DMSION OF WORKERS' COMPENSATION Claimant: Christopher C. Carewicz InjwyNo. 14-102788

arthritis, biceps tendon tear, high grade, small superior surface articular sided subscapularis tear, degenerative superior labral tear, articular-sided partial supraspinatus tear and subacromion impingement with AC joint arthritis. Dr. Hofer referred Claimant to physical therapy.

Physical Therapy Records

Claimant participated in the physical therapy from October 27, 2014 through December 10, 2014, although he failed to make all of his appointments. Claimant contends he asked the therapist on the first day why no one was treating his back because he had experienced back pain since the August 4, 2014 work injury. Claimant alleges that he continued to complain of back pain throughout therapy.

There is documentation of non-specific back complaints in the physical therapy records. The version of the injurious accident, however, differs from what Claimant told his initial treating physicians and his IME physician ( discussed below). The physical therapist reported:

Patient states about 2 months ago he was at work when someone dropped a toon off a pontoon and he attempted to catch it and hurt his shoulder. patient immediately felt a pop with pain. patient states he had surgery a week ago for biceps repair. patient states is a welder professionally. patient reports some Nff into hand with certain movements. patient states he isn't using his arm much besides showering and dressing. patient is concerned with back injury since it has been aching since injury. patient states he had 1100 pounds fall onto his arm and back while being in a twisted position. patient is also concerned starting PT this early, afraid to injure the repair. patient's right side dominant [emphasis added].

(Ex. 11, p. 46). As if 300 pounds were not enough, the weight of the pontoon log now was described as being nearly three times the weight chronicled in other records, and it now is described as having fallen onto Claimant's arm and back.

On November 4, 2014, Dr. Hofer advised Claimant to continue physical therapy but released Claimant to work light duty with no use of his right upper extremity. There was a misunderstanding between Claimant and his case manager as to the availability of light duty within Dr. Hofer's restrictions (Ex. 11 p. 89-91). Claimant worked light duty between January 18, 2015 and April 7, 2015. His job duties involved standing, walking, bending and light sweeping. He was allowed to sit in the break room at will. In other physical therapy records, Claimant complained that he only could lift a coffee cup and was afraid work will make him lift or use a broom.

On January 20, 2015, Claimant went to the Lake Regional Health Syste~ Emergency Room complaining of right arm pain and right-hand swelling. He was diagnosed with impingement of the right shoulder and postoperative pain. He was advised to remain off work and follow up with Dr. Hofer. On January 22, 2015, Dr. Hofer diagnosed Claimant with acromioclavicular joint arthritis, shoulder pain and biceps tendonitis. Claimant requested a nerve conduction study, which Dr. Hofer did not recommend.

In a therapy visit on February 11, 2015, Claimant alleged his shoulder was worse since returning to work and having to walk on concrete. In the February 26, 2015 record, the physical therapist documented symptom magnification. Dr. Hofer ordered a functional capacity examination (FCE).

The FCE results were as follows:

The overall classification of effort is Invalid due to the client, Christopher Carewicz, performing inconsistently during a repeated measures protocol. Maximum weight achieved to waist height = B 41.38 lbs.; Rt 16.62 lbs.; Lt 30.28 lbs.

The client meets the material handling Medium demand vocation, per the Dictionary of Occupational Titles.

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Issued by MISSOURI DMSION OF WORKERS' COMPENSATION Claimant: Christopher C. Carewicz InjmyNo. 14-102788

The client failed to give maximum voluntary effort dming today's FCE. Therefore, it is undeterminable at this time safe, maximum lifting capabilities and/or other functional capabilities [emphasis in the original].

(Ex. 11, p. 124).

Loss of Job

On March 26, 2015, Claimant told Dr. Hofer he had ongoing right shoulder pain and the light duty work was "screwing up [his] back having to walk on concrete all day." Dr. Hofer placed Claimant at maximum medical improvement (MMI) for his right shoulder and released him to full-duty, as tolerated. Dr. Hofer did not provide disability ratings at this time. Dr. Hofer wrote in his medical report that it had been months since surgery without improvement and he had a "[s]trong suspicion of secondary gain." (Ex. 11 p. 83-84). On April 7, 2015, Claimant told Employer he did not believe he could return to his job duties. Employer notified Claimant that it no longer could accommodate his physical restrictions and the employment ended. (Ex. 21)

Deposition Testimony of October 19, 2016

Approximately 18 months after losing his job, Claimant gave this version of the facts in deposition:

[W]hen we proceeded to roll the log over, Billy failed on his end, which initially drove the nose of the pontoon log into my shoulder and jammed me up against my jig where I felt a real sharp pain in my shoulder. And then my back, right after that, almost immediately after that, I got a real sharp pain in my neck and my lower back. It shut down my spine.

l\1R. EDELMAN: And let the record reflect you're pointing to your right shoulder?

THE WTINESS: Right shoulder.

*** BY MS. WARNER:

Q. When you were doing this and Billy said that he was ready, did he drop the log or did he -what happened?

A. He dropped the log. He literally- it slipped out of his hand and he dropped it. And initially it hit the jig and shoved the log into my body, which like I said before, I got a sharp pain in my shoulder and my back.

Q. We'll get to that. So I'm trying to get a visual that this was pushed into your shoulder.

A. Uh-huh.

Q. Your right shoulder; is that correct?

A. The nose did, yes, ma'am.

Q. When you say the nose -

A. The front of the log, ma'am.

Q. And this hit the front of your shoulder?

A. Yes. My chest and shoulder area right here. Right chest and shoulder area.

(Ex. 6, pp. 20-21).

Nothing in the contemporaneous medical records references an almost immediate pain in the neck and low back, or pain so severe that it shut down the spine. Moreover, in this version of the accident the log was shoved into his shoulder rather falling on his arm and back, as was described to the physical therapist

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Medical Treatment - Teeth

InjuryNo. 14-102788

Claimant was insistent that he did not want any teeth removed and would have declined any surgery if teeth removal was necessary. When Claimant awoke from shoulder/biceps surgery, however, he claims two teeth were gone. The operative report indicates that there was one tooth in the front upper jaw and a molar that were loose (Ex. 11, p. 71). No one on the surgical team pulled or disturbed either of the teeth; however, a molar tooth then was found sitting in the back of the oropharynx, which was removed before intubation. A subsequent radiology report revealed no evidence of an ingested or aspirated tooth. On cross-examination of Dr. Hofer (the treating orthopedic surgeon), Claimant's attorney asked whether Dr. Hofer had obtained consent from Claimant to remove his teeth. Dr. Hofer responded, "I don't think your question adequately reflects the reality that they had fallen out and were in the back of his throat" (Ex. C, p.49).

Employer authorized a dental evaluation. On October 20, 2014, Claimant saw Dr. B.W. Austin DDS at Crown Dental. Dental records indicate that the teeth in question were number three (3) (canine) and number seven (7) (molar). The front teeth were not involved. He recommended extraction of the remaining teeth in Claimant's jaw which already were heavily damaged, extremely mobile, and likely to be lost in the near future. He recommended upper and lower dentures. Because Claimant wanted to keep the remaining lower teeth and requested only an upper denture, Claimant was measured for an upper denture only. Over the course of multiple appointments, Claimant was fitted with an upper plate. On January 22, 2015 Claimant accepted the upper plate. Claimant testified that the plate never fit right and caused him to gag so he never wore it.

Nearly one year later, on February 25, 2016, with Employer's consent, Claimant was evaluated by Dr. Kevin Wallace, DMD and Dr. Stephen Quinn, an oral surgeon. The dental plan was for all upper and lower implants at the cost of $27,745.00. Employer delayed in paying for the dental evaluation. Employer/Insurer now admit that the delay in paying Dr. Wallace's bill extended the statute of limitations. The implant plan was not implemented.

Expert Opinions

Dr. Robert Poetz, D.O.

On November 5, 2015, Dr. Poetz performed an Independent Medical F.xamination (IME). Dr. Poetz, who issued his first report on December 30, 2015, wrote as follows:

Claimant reported he and a coworker were lifting a metal pontoon log weighing approximately 300 lbs. and 23 feet long, when the coworker dropped his end of the log as they were flipping it over onto the jig. The log fell on Claimant's right shoulder and arm.

(Ex. 7, p. 109).

Claimant reported to Dr. Poetz th.at he had limited movement in his right shoulder and atrophy and weakness in his upper arm; constant pain in his right arm, shoulder, neck and back; and increased pain with weather changes. Dr. Poetz found on examination, however, that patient moved his lower extremities with.out deformity. The feet were neurovascularly intact. There is a good range of motion in the cervical, thoracic and lumbar spine without deformity or myospasm. Straight leg raising was negative in seated and supine positions, and there were no radicular signs present. Deep tendon reflexes were intact and no other motor or sensory defect de~cits were noted.

Dr. Poetz diagnosed a high grade right biceps tendon tear, a small superior surface articular sided subscapularis tear, degenerative superior labral tear, articular-sided partial supraspinatus tear, and subacromion impingement with exacerbation of AC joint arthritis and post right shoulder arthroscopy. He concluded that the August 4, 2014 work injury was the substantial and prevailing factor of 40 percent permanent partial disability to Claimant's right shoulder. He said Claimant was temporarily totally disabled

11

Issued by MISSOURI DMSION OF WORKERS' COMPENSATION Claimant: Christopher C. Carewicz InjuryNo. 14-102788

from August 4, 2014 through March 26, 2015. Dr. Poetz restricted Claimant from lifting more than 30 pounds occasionally and no lifting overhead, and limited standing and sitting to 6-8 hours per an 8-hour day.

At Claimant's request, Dr. Poetz subsequently addressed Claimant's complaints related to his teeth, and mid and lower back In a March 9, 2016 addendum, Dr. Poetz recommended conservative treatment, but if that failed then he should receive MR.IS and additional treatment if warranted by the diagnostic studies. As to the teeth, Dr. Poetz said loss of teeth was a complication of the surgery and if Claimant could not tolerate the upper plate, implants were warranted.

Dr. Russell Cantrell, M.D.

On June 6, 2016, Dr. Cantrell, a physical medicine specialist, performed an IME at Employer's request and issued a report Dr. Cantrell wrote that Claimant and his coworker were lifting a pontoon log when the coworker dropped his end causing the log to pull down on Claimant's right arm and strike his right shoulder. Claimant reported to Dr. Cantrell that he had ongoing neck and back pain complaints during his treatment by Dr. Hofer, but was not provided any treatment for them. Dr. Cantrell also noted that Claimant's current complaints were pain and stiffuess in his right shoulder, neck and upper and lower back, as well as recent onset of pain and numbness in his right leg to his foot

Dr. Cantrell's physical examinatfon showed a full range of motion of Claimant's lumbar spine with complaints of pain into extension. Straight leg raising was negative bilaterally and reflex testing in both upper extremities were within normal limits. Dr. Cantrell ordered x-rays of Claimant's cervical and lumbar spine, which showed degenerative disc disease at LS-Sl. Dr. Cantrell opined that the partial biceps tendon tear and the small articular-sided subscapularis tear were due to the August 4, 2014 work injury, and the AC joint arthritis and . impingement were pre-existing. Based upon the history, his examination, and review of the medical records, Dr. Cantrell said Claimant had not sustained an injury to his cervical, thoracic or lumbar spine as a result of the work accident on August 4, 2014. He required no further treatment for the work accident.

Dr. Cantrell determined that Claimant's right shoulder was at :MMI with 10 percent permanent partial disability, of which 2 percent was due to pre-existing AC joint degenerative changes. As Dr. Cantrell emphasized in one of his two depositions, there was never a lumbar pathology diagnosed by Dr. Warren, Dr. Hofer, or Dr. Poetz. Claimant's pain complaints were in the parascapular area, which Dr. Cantrell believed was a part of the shoulder injury. As Dr. Cantrell explained in this first deposition on May 17, 2017:

Q: So doctor, for the sake of this man, who's still suffering, still having these same symptoms, isn't it fair just to take an MRI to rule out pathology and then, if the pathology isn't there, fine, but to rule out because of his ongoing symptoms and complaints?

A:' I find absolutely no indication for doing an MRI of any part of his axil spine because of his work injury.

Q: Okay, despite the fact that on your date you saw him he had pain, numbness, limitation, that's still your opinion?

A: My opinions are based on the fact that he had reported the numbness in his leg was recent in onset and I saw him almost two years after his injury. There has to be some temporal connectedness to that symptom and the injury. The limitation in range of motion of that he had exhibitec;l on my exam in the lumbar extension was-was-there was never a lumbar pathology diagnosed by Dr. Warren, Dr. Hoffer, or Dr. Poetz. Dr. Poetz's examination of his lumbar spine showed normal range of motion, so I wouldn't construe the active limitations on my exam to be related to his work injury. And yes, he had pain complaints to those and those pain complaints that are in the parascapular region I think are part and parcel of the shoulder injury, which I think nobody is arguing was clearly as a resuh of the work injury.

Q: You're not calling him a liar in regard to what he's giving you history of his pain or numbness or complaints are you?

12

Issued by MISSOURI DMSION OF WORKERS' COMPENSATION Claimant Christopher C. Carewicz lnjmyNo. 14-102788

A: No. I think he's very forthcoming in saying the numbness in his right leg was recent in onset and that- tells me it's not temporal temporally related to this injury.

(Ex. B, pp. 44-46).

Return to Dr. Barton Warren

Although Employer/Insurer did not authorize any additional treatment, Claimant saw Dr. Warren on February 1, 2017. The physician noted Claimant's complaints oflack of function in his shoulder, as well as pain in the arm, shoulder, and back. Dr. Warren assessed right sciatic pain, possible radiculopathy, and persistent right shoulder pain after surgery. Dr. Warren recommended imaging tests of Claimant's cervical and lumbar spines, as well as an evaluation by a neurosurgeon.

Dr. Scott Hofer, D.O.

In his March 14, 2018 deposition, Dr. Hofer acknowledged that the August 4, 2014 work accident potentially cpuld cause a spinal injury. He indicated that if CJaimant had a back problem, it would be appropriate to see a spine specialist. The spine specialist would order an MRI if warranted. Dr. Hofer made clear, Claimant did not communicate to him back complaints warranting such referral.

NewMRls

On July 27, 2018, Claimant obtained his own diagnostic MR.Is. The radiologist found:

IMPRESSION: 1) Degenerative disc changes with broad-based more right side disc herniation at LSS 1 which could affect either LS root m the foramen or the right 81 root as it traverses. 2) Smaller disc protrusion at L4-LS across the midline with some flattening and mildforaminal encroachment but no definite root impingement.

IMPRESSION: Small disc bulges or tiny herniations in the mid and lower thoracic levels but without significant impression upon the dura without canal compromise or cord compression.

IMPRESSION: 1) Small broad-based disc herniation at 05-06 but effacing the ventral CSF and extending toward the foramina. Correlation to 06 roots recommended. 2) Question subtle right protrusion at 06-07 toward the right 07 root. There is no definite impingement though correlation maybe of value [emphasis added].

(Ex. 14).

Despite the lack of definitive nerve root or canal impingement in any level of the spine, Dr. Warren referred Claimant to the Neurosurgery Clinic at the University at the Missouri-Columbia (UMC) Hospital.

Laura Besgrove, FNP

In October 2018, Claimant saw Laura Besgrove, FNP, at the UMC Hospital Neurosurgery Clinic. Claimant reported cervical, thoracic and lumbar spine pain, right leg numbness from his thigh to his toes and left leg numbness and weakness from his thigh to his toes that he said was present since an August 4, 2014 work accident. CJaimant also complained that his Employer only provided treatment for his shoulder injury. Ms. Besgrove documented that Claimant was angry with his former employer. And despite Claimant's multiple pain complaints, she observed no abnormal movements or postures. She found normal bulk, muscle tone and strength in all four limbs. She also found normal flexion, dorsiflexion, and extension in the arms, wrists, fingers, hips, knees, feet, and great toe (Ex. 15 p. 2). She developed a multi-faceted plan for conservative measures to address Claimant's complaints of pain, including neuropsychology. She recommended that Claimant speak with his primary care physician about anger issues and to quit smoking. She did not recommend surgery at this time.

13


Return to Dr. Warren

InjuryNo. 14-102788

When Claimant returned to Dr. Warren on November 7, 2018, Claimant expressed dissatisfaction with his experience at the University Clinic. He wanted a referral to someplace else. Among his complaints at that time, was that his left side had given out on him recently when he was stepping over a railroad tie, causing him to fall.

On subsequent visits with Dr. Warren, Claimant voiced a number of peculiar physical concerns. For instance, on January 4, 2019, he complained of 23 palpitations after eating a piece of pizza, and believing he had a hernia. He reported epigastric pain worsened by bending over on the abdomen, which Claimant attributed to a crush injury five years previous. He requested aD imaging test to ensure that he did not have a process that would kill him, including the sac behind his heart, which Claimant believed it could burst causing him to die. On April 14, 2020, Claimant complained of pain in the right flank and kidneys. He wanted labs done to check for hepatitis as he reported having been bitten by an IV drug user a year ago. He wanted to make sure he did not have leprosy.

Reexamination by Dr. Cantrell

Dr. Cantrell re-examined the Claimant on September 24, 2018, four years after the work accident and two years after his first examination. In speaking of the MRI scans of the back in July 2018, Claimant told Dr. Cantrell th.at Dr. Warren, the technician who performed the studies, and his attorney all had advised him that ifhe simply moved the wrong way, he would be paralyzed from the waist down based upon those imaging abnormalities. Dr. Cantrell reviewed the MRI of Claimant's cervical, thoracic and lumbar spine and determined th.at the imaging abnormalities were degenerative in nature. He found, ''with.in a reasonable degree of medical certainty, that there is no diagnosis referable to his cervical, thoracic, or lumbar spine as a result of his August 4, 2014 work injury'' and no further treatment was necessary as a result of the August 4, 2014 work injury. (Ex. E p. 107-108)

Dr. Paul Hinton. M.D

On January 22, 2019, Dr. Hinton performed an IME, in which he described the work accident as follows: .

He stated that one of his fellow colleagues, co-employees, dropped the weight that he was carrying, and it caused the log to fall on his left shoulder, and it kind of rolled over him over his back and neck and onto his right shoulder. It kind of bounced from one side to the other, knocking him to the ground, causing all of the symptoms, the pain in the neck, back, and the shoulder [ emphasis added].

(Ex. 7, p. 16). In his IME report, Dr. Hinton reported the injury as follows:

Claimant reported he and a coworker were transferring a 32-foot-long pontoon log weighing 300 lbs. from one jig to another. The coworker dropped his end of the log when they were lifting it and flipping it from left to right, causing it to fall onto Claimant's left shoulder, arm and neck and then bounce onto his right shoulder. Claimant fell forward over the jig at his lower chest level. Claimant felt 'snaps' in his neck, middle back and lower back [emphasis added].

(Ex. 7, p. 98). There is no reference to "snaps" in the neck or low back in the initial treatment records, nor is th.ere a reference of falling to the ground.

Dr. Hinton said the trauma Claimant described to him was biomecbanically sufficient to cause the diagnosis of a herniated disc that he had included in his report. Dr. Hinton diagnosed: a high grade right biceps tendon tear, small superior surface articular sided subscapularis tear, degenerative superior labral tear, articular-sided partial supraspinatus tear, and subacromion impingement with exacerbation of AC joint arthritis and post right shoulder artbroscopy; cervical strain with CS-6 disc herniation and C6-7 protrusion; and lumbar strain

14

Issued by MISSOURI DMSION OF WORKERS' COMPENSATION Claimant Christopher C. Carewicz lnjuryNo. 14-102788

with LS-Sl disc herniation with exacerbation of disc desiccation L4-5. Dr. Hinton concluded that the diagnostic testing, surgery, and medical care were medically necessary and the medical bills for that treatment were reasonable and customary.

In his November 29, 2020 addendum, Dr. Hinton said that because Claimant did not want surgery for his neck and back symptoms, Claimant was at MMI effective January 22, 2019, which was the result of his last exam. Dr. Hinton did not observe any symptom magnification. He also gave disability ratings of 40 percent PPD of the right shoulder; 20 percent PPD at the cervical spine; and 20 percent PPD at the lumbar spine, all of which resulted in Claimant being permanently and totally disabled as due to the August 4, 2014 work injury. Dr. Hinton imposed a nine pound lifting restriction occasionally. He said Claimant should only rarely bend, squat, or crawl, sit no more than two homs at a time and no more than five hours in an eight-hom day, and stand no more than one hour at a time, and no more than four hours in an eight-hour day.

Dr. R. Peter Mirkin, MD.

On March 4, 2019, Dr. Mirkin, an orthopedic surgery/spinal specialist, performed an IME of Claimant's back and neck at Claimant's request. Dr. Mirkin recorded this version of the facts from Claimant:

[A]pparently they were manipulating a large 38 foot aluminum pontoon and the piece of aluminum struck him in the shoulder, the neck, and bent him over on his back. He claims he developed severe pain in his right shoulder, pain in his neck, pain in his mid back, and pain in his low back. He underwent surgery for his right shoulder but he has had no treatment to his neck or back.

His chief complaint today regarding his neck is pain in the neck, radiating pain to the arms, and numbness and tingling in the hands, particularly the right hand. He also has pain in the mid back that does not radiate and pain in the low back that radiates to the right thigh and foot [ emphasis added].

(Ex. 9, p. 11). In this version of the accident, Claimant was bent over on his back after being struck, as opposed to falling forward over the jig or to the ground, as recorded by Dr. Hinton.

Dr. Mirkin noted that after the August 4, 2014 work accident, Claimant developed severe pain in his right shoulder, pain in his neck, pain in his mid-back and pain in the low back that radiated to his right _thigh and foot. His chief complaint was pain in the neck, radiating to the arms, with numbness and tingling in the hands, particularly the right hand; pain in the mid-back; and pain in the low back that radiates to the right thigh and foot.

Dr. Mirkin reviewed the July 27, 2018 MRis, and agreed with the radiologist's interpretation, including the presence of herniated discs as well as degenerative discs in the cervical and lumbar spine. Dr. Mirkin said Claimant had two options: live with it, or have an outpatient two-level cervical decompression and fusion and possibly a more extensive lumbar decompression, instrumentation and fusion. Dr. Mirkin opined that ''if his history is correct'' (Ex. 9), the work accident caused the herniated discs in Claimant's spine to become symptomatic, resulting in a significant part of his medical condition and disability. If Claimant declined the surgery, then Dr. Mirkin said Claimant had reached :MM!. He imposed physical restrictions of no bending, stooping, squatting, reaching overhead, and no lifting more than 20 pounds.

Dr. Robert Bernardi, M.D.

On May 28, 2019, Dr. Bernardi, a board certified nemosurgeon, performed an IME at Employer's request and issued a report. Dr. Bernardi described the work accident as follows: On August 4, 2014, Claimant and a coworker were handling a 3 8-foot racing log. They were turning it end over end in order to place it in a jig when his coworker lost his grip and Claimant bore all the weight. It fell on his left shoulder and when he managed to lift it back over his head, it subsequently fell on his right shoulder. He noticed immediate pain in his right shoulder, neck, :mid-back and low back. Dr. Bernardi noted that Claimant's description of his work

15


accident as documented in the medical records varied in a way that he found inexplicable. As Dr. Bernardi explained in deposition:

Yeah, that's the thing. I mean that's one of the problems I have with this gentleman's record and his complaints is that his history varied considerably mean over all of these evaluations and examiners saw him, there's never sort of this like well defined m~bauism of what happened.

(Ex. F, p. 20).

Dr. Bernardi testified that he reads 20 to 40 MR.Is per week, noting that degenerative changes in the spine and disc herniations were extremely common in needed to be correlated with the person's history and their physical findings. It was apparent to Dr. Bernardi, that Claimant's complaints of back pain to Dr. Warren and Dr. Hofer on the day of the work accident involved his thoracic area (not lumbar) and were muscular in nature. Dr. Bernardi agreed with Dr. Cantrell's conclusion that the August 4, 2014 work injury was not the prevailing factor in producing any injury to Claimant's spine. He did not believe Claimant was a candidate for surgery.

Vocational Expert Opinions

Delores Gonzalez

On October 19, 2019, Ms. Gonzalez performed a vocational evaluation at Claimant's request, issued a report, and testified by deposition. Ms. Gonzalez determined that Claimant does not have transferable skills due to his significantly reduced residual functional capacity. Ms. Gonzalez concluded that the medical records and Claimant's presentation corroborate continued significant, residual complaints that present a chronic hindrance in his ability to perform basic work functions and some activities of daily living. Ms. Gonzalez opined from a vocational perspective, it would not be reasonable to expect an employer to hire an individual with Claimant's disabilities and conditions over workers who would not have to be accommodated. She said Claimant is not employable on the open labor market. Ms. Gonzalez believed Claimant would not present well in a job interview, noting his lack of teeth and felony conviction brings into question his veracity. This, according to Ms. Gonzalez, is a significant hindrance in finding employment and erodes his already reduced occupational base.

BobHosutt

Mr. HoSlrtt interviewed and evaluated Claimant, issued a report, and testified by deposition. Mr. Hosutt reported a number of negative statements that Claimant allegedly made regarding his medical ~ent and expert evaluations. Mr. HoSlrtt performed a transferable skills analysis using a OASYS computer program which was included in his assessment He also utilized the WR.ATS test performed by Ms. Gonzalez, as well as the work history she obtained. While Mr. Hosutt agreed that Claimant might be unable to return to the physical work of a welder, he had the capacity to work in a number of occupations available in the general labor market. Mr. Hosutt believed Claimant would benefit from appropriate training, skills enhancement, dental assistance, job seeking and interview skills. Mr. HoSlrtt identified several opportunities in his Labor Market Summary.

Mr. HoSlrtt's deposition testimony affirmed the statements and opinions in his report His testimony was subject to multiple objections throughout from counsel for Claimant as to: 1. Lack of foundation to establish the witness as a qualified expert to testify as to vocational disability; 2. Lack of foundation as the report relies on nonrelevant information throughout in order to attempt to impeach Claimant's credibility by nonadmissible collateral issues; 3. Lack of foundation to establish the witness as a medical expert as the report contains statements that are arguably medical opinions; and 4. Lack of foundation as the report relies on an FCE, which is forensic in nature with no scientific basis. Those objections are overruled.

16


Current Complaints

InjuryNo. 14-102788

Claimant testified to ongoing pain in his right arm, right shoulder, neck, and back since the August 4, 2014 work injury. He claims difficulty lifting his right arm overhead. He has headaches, occasional numbness in his arms and legs, difficulty sleeping, fatigue during the day requiring him to nap, and trouble concentrating.

Since the August 4, 2014 work accident, Claimant limits his driving to short local trips. Prior to August 4, 2014, Claimant enjoyed sports. He now limits his lifting to 15-20 lbs. He has not been able obtain employment since April 7, 2015, due to his allegations of ongoing pain, fatigue, his physical presentation, and his criminal record. On January 27, 2020, Claimant received a favorable decision from the Social Security Administration.

Claimant initially requested a Hardship Hearing obtain back and neck smgery. He since has changed his mind and seeks a Final Award to include non-surgical treatment for chronic pain management and sleep therapy.

Medical Bills

Exhibit 16 provides a summary of the expenses Claimant incurred for treatment he sought on his own. The corresponding bills are in evidence. Claimant testified that his visits to the hospital and various doctors were the product of his August 4, 2014 work accident and that the bills he received were the result of those visits. There is expert testimony that the amount of the bills were reasonable and customary for the treatment received. As discussed below, I find that none of the bills were for authorized treatment or for treatment that was medically and causally related to the work accident.

Date of Maximum Medical Improvement

I find Claimant reached MMI on March 26, 2015, as opined by the treating surgeon, Dr. Hofer.

Credibility Findings

An employee's lack of candor with medical and other experts undermines the veracity of evecy opinion on which Claimant relies. Thus, when a claimant has provided medical and other professionals with wildly diverse versions of the injurious events, the Administrative Law Judge has difficulty finding the claimant and his experts' opinions credible. That is precisely what the undersigned faces in the instant case. Here, the volume of inconsistencies between Claimant's deposition testimony, hearing testimony, his statements chronicled in various records, and in expert records and depositions, utterly destroys his trustworthiness as to the mechanism of injucy and body parties injured.

In addition to complaints of pain in his shoulder, hip, neck, back, and thumbs, Claimant told Ms. Gonzalez that he experiences the following: joint stiffuess, weakness in muscles, night sweats, fatigue, blurred vision, chronic sinus problems, hearing loss in left ear and drainage in the right ear and ringing in both ears. He has palpitations, shortness of breath, swelling of the right hand. He has reflux, heartburn and nausea. He experiences lightheadedness, dizziness, numbness and tingling, daily migraine headaches, confusion, insomnia, depression and anxiety. He had difficulty talking due to loss of focus and concentration. In Dr. Cantrell's office visit of September 24, 2018, Claimant denied many of these conditions including: weight gain/loss, night sweats, dizziness, migraine headaches, visual changes, hearing changes, vertigo, chronic lung disease, kidney stones, headaches, memory loss, depression, acid reflux and shortness of breath. 4

4 As discussed infta in the Rulings of Law, the depositions and reports of Ms. Gonzalez indicate that Claimant also had lied about prior drug use.

17

Issued by MISSOURI DMSION OF WORKERS' COMPENSATION Claimant Christopher C. Carewicz InjmyNo. 14-102788

A review of Dr. Warren's records from January 30, 2017 through April 14, 2017, reveals similar contradictions in that he denied: blurred vision, decreased hearing, weight loss, shortness of breath, irregular heartbeat, dizziness, and headaches. Specifically on January 4, 2019, he denied headaches, fatigue, light-headedness,sleep disturbance, weight gain and weightloss. On April 14, 2020, just eight months before Final Hearing, he again denied headaches, fatigue, shortness of breath, dizzinP.ss, palpitations, sciatica, and pain in his shoulder(s) and sleep disturbance. At the Final Hearing, however, he cautioned that he would do his best in testifying because he had managed to obtain only three hours of sleep. 5

Claimant's credibility issues, however, are not limited to medical complaints, or lack thereof. Claimant had a poor recollection of the most basic parts of his personal history. He gave differing information as to where he had lived, for how long, or when. He testified that he graduated from high school in Council Bluffs, Iowa; however, he testified at hearing, and told Ms. Gonzalez, that he graduated from Missouri Valley high school in Missouri Valley. He also told Ms. Gonzalez and Mr. Hosutt that he attended only one semester of college at U. C. Berkley in 1985. Some medical professionals recorded different information.

In short, the volume of inconsistencies in Claim.ant's various accounts is too great for this Administrative Law Judge to discount When these inconsistencies are coupled with Claimant's admitted felony conviction, and misstatements made to Ms. Gonzalez, as discussed below, the record provides ample support for a finding that Claimant lacks credibility. I find the expert medical opinions of Dr. Cantrell and Dr. Bernardi, and the records and testimony of the treating surgeon Dr. Hofer, to be credible and more persuasive than the opposing medical opinions tendered by Claim.ant. I accept the vocational opinion of Mr. Hosutt as more persuasive than the contrary opinion of Ms. Gonzalez.

RULINGS OF LAW

Burden of Proof

Claim.ant bears the burden of proving entitlement to worker's compensation. § 287.808 RSMo.6 An Administrative Law Judge shall weigh the evidence impartially without giving the benefit of the doubt to any one party and construe strictly all provisions of the Workers' Compensation Law. § 287.800 RSMo. An injury by accident is compensable only if the accident was the ''prevailing factor'' in causing both the resulting medical condition and disability, which term is defined as "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." § 287.020.3(1) RSMo.

Statute of Limitations

Employer/Insurer admitted in its brief that the statute of limitations was extended by payment of Dr. Wallace's bill. The issue of the timeliness of the Amended Claim is moot.

Evidentiary Issues

1) Claimant's Asserted and Restated Deposition Obiections (See Exhibit 26)

I have reviewed the plethora of Claim.ant's objections and motions to strike that are delineated in Exhibit 26. Some have been addressed in the Findings of Fact The remaining objections are overruled, with one exception. I sustain the running hearsay objection in Exhibit C, starting on page 16, line 17. This objection pertains to a conversation with Claim.ant's wife regarding Claimant's teeth. The conversation was not made for the purpose of obtaining medical care. The hearsay objection is well taken. The undersigned did not rely on such conversation in making this Award.

5 To accommodate Claimant and counsel who were traveling into Springfield, the hearing was scheduled at 10:00 a.m. 6 Unless otherwise noted, all statutory references are to the provisions in effect on the date of Claimant's work related injmy.

18


2) Employer's Ob;ection to the Pharmacy Bill {Exhibit 18)

InjmyNo. 14-102788

Exhibit 18 is a bill from a pharmacy for CBD cream dated August 31, 2020. Employer objected to the admission of the pharmacy bill because it was not certified. Claimant contends that the business record statute, § 490.680 RSMo, does not apply to medical bills because they do not fall into the category of a record of an act, condition, or event. Claimant contends that it is sufficient that he identifies the bills, relates them to his injury as shown by the medical records in evidence. He cites in support of his argument Martin v. MidAmerica Farmland Inc., 769 S.W.2d 105, 111-112 (Mo. bane 1989). Even assuming arguendo that Claimant was correct in his contention that pharmacy bills do not have to be certified, I have found that Claimant is not a credible witness. His testimony in identifying the bill for CBD cream as necessitated for his work injuries, dated six years post injury, is dubious at best. The ruling sustaining Employer's objection stands. Even if pharmacy bills do not have to be certified, Employer/Insurer is not responsible for the payment of the bills related to CBD cream.

3) Claimant's Obiection to Certified Probation Revocation Records, Conviction. and Sentence

Section 490.130 RSMo, provides that copies from the record of proceedings of any court of this state, attested by the clerk thereof ... shall be received as evidence of the acts or proceedings of such court in any court of this state. Section 491.050 RSMo, provides that that while a person who has been convicted of a crime is a competent witness, any prior criminal convictions may be proved to affect credibility in a civil or criminal case. Claimant contends, however, that the probation revocation records (Exhibit L) are inadmissible because: 1) Claimant admitted his felony conviction and the evidence was unnecessary for purposes of attacking his credibility; 2) the records provide no relevant information pertaining to the work accident or injuries; and 3) the document(s) do not meet the statutory requirement of a judicial proceeding.

In Farmer v. Treasurer of the State of Missouri, 567 S. W.3d 228 (Mo. App. S.D. 2018), the Second Injury Fund (SIF) offered for admission in a workers' compensation case a certified copy of a decision from the Eighth Circuit Court of Appeals that affirmed a claimant's convictions for social security fraud. The claimant in Farmer argued that it was prejudicial and irrelevant since he already had admitted to the conviction. The Fund argued, citing§ 490.130 RSMo, that the records were relevant to credibility, veracity, and were pertinent based on the disability that is being claimed. 567 S.W.3d at 235. The Court agreed, noting that "Claimant's argument fails to appreciate that his credibility was crucial in resolving his claim." (576 S.W.3d at 236).

As in Farmer, the resolution of Claimant Carewicz' case rests largely on his credibility. As Exhibit L documents, Claimant lied to expert witnesses in this case when he told them he had no history of illegal drug use. 7 The State of Missouri sought to revoke Mr. Carewicz' probation for violations that included the prohibition on the use of controlled substances. A probation revocation action, which culminates in a circuit judge signing an Order sending Claimant to prison for a felony, is a 'judicial proceeding." The ruling to admit Exhibit L stands. Claimant's objections are overruled.

Mechanism of Injury/ Medical-Causal Relationship

As also recognized in Farmer v. Treasurer of the State of Missouri, 567 S.W.3d 228 (Mo. App. S.D. 2018), and cases cited therein, the fact finder has reason to reject a medical expert's opinion when it rests on the statements of a Claimant who is a poor historian. Dr. Paul Hinton provided the medical/causal relationship opinion supporting permanent and total disability based the herniated discs in Claimant's spine. Dr.PaulHintonexamined Claimant on January 22, 2019, m.ore1banfouryearsa:fterthe accident. Dr. Hinton's causation opinion is not credible.

1 See e.g., Ms. Gonzalez's deposition (Ex. 8, p. 14). 19

Issued by MISSOURI DMSION OF WORKERS' COMPENSATION Claimant Christopher C. Carewicz InjuryNo. 14-102788

The medical records created prior to Dr. Hinton's examination do not substantiate his theory of causation. Dr. Hinton gives a history of the mechanism of injury that was substantially different from that reported by previous examiners. His description of the accident contradicts the histories obtained by Dr. Warren, Dr. Hofer, Dr. Cantrell, and Dr. Poetz. It also contradicts Claimant's deposition testimony. To accept Dr. Hinton's opinion, it would be necessary to ignore and disregard the histories taken by other practitioners. For an expert's opinion to be probative, it must rest on a correct foundation of facts and not speculation. Seifner v. Treasurer, 362 S.W. 3d 59 (Mo. App. W.D. 2012). Dr. Hinton's opinion is not based on credible facts and is not probative.

Similarly, Dr. Mirkin's opinion is based on Claimant's contention that he had consistently complained of back pain that was never treated. The initial medical records belie such contention. While there was an initial complaint of back stiffuess and compression around to the chest making it difficult to breathe, this was determined to be muscular in nature. There certainly was no complaint of neck or lumber pain in the initial medical records. And as initially found by Claimant's own IME physician - Dr. Poetz - there was no clinical evidence of an injury to the spine. Dr. Poetz found on examination that patient moved his lower extremities without deformity or sensory deficits. There also was a good range of motion in the cervical, thoracic and lumbar spine without deformity or myospasm.

Claimant has failed to prove that his alleged injury to his cervical, thoracic and lumbar spine are medically causally related to the employee's work accident on August 4, 2014. He has established, based on the contemporaneous medical records of Dr. Hofer, that he suffered an injury to the upper right extremity when he co-worker dropped his end of the pontoon log. He also established the loss of two teeth during the subsequent surgery.

Temporary Total Disability

Section 287.149.1 RSMo, provides that "[t]emporary total or temporary partial disability benefits shall be paid through the rehabilitative process." It was not until 2017 that the legislature added the phrase "until the employee reaches maximum medical improvement, unless such benefits are terminated by the employee's return to work .... " "Courts have used various terms to determine when an employee's condition has reached the point where further progress is not expected, including the term maximum medical improvement." Cardwell v. Treasurer, 249 S.W. 3d 902, 910 (Mo. App. E.D. 2008). Claimant seeks TTD for the period of November 24, 2014 through January 17, 2015, for a total of 7 5/7 weeks at the rate of $217.83 per week. Claimant also seeks temporary total disability benefits for the period of April 7 2015th through January 22, 2019 for a period of 198 weeks at the rate of $217.83. The total for all TTD benefits sought is $44,809.80. This is addition to those amounts set forth in the Stipulation of Pacts already reached by the parties.

(November 24, 2014 to January 17, 2015)

The record substantiates that there was some confusion as to whether light duty was available between November 24, 2014 and January 17, 2015. Claimant should not be penalized because there was confusion or miscommunication regarding the availability of light duty work. I find and conclude that Claimant was not able to work during this time period, during which time he still was under doctor's care. He is entitled to TTD in the amount of$1,680.40 (7 5/7 x $217.83).

(April 7, 2015 -January 22, 2019)

Dr. Hofer determined that Claimant was at MMI for his shoulder injury on March 26, 2015, and could return to full duty work as tolerated. Claimant alleges he is owed TTD benefits from the time the employer informed him they were unable to meet this restriction until seen by Dr. Hinton on January 22, 2019. But Dr. Hofer did not place any specific limits or restrictions on Claimant's ability to sit, stand, or walk. A release to full duty as tolerated does not mean Claim.ant is incapable of all work on the open labor

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InjmyNo. 14-102788

market._ Claimant is not credible or believable regarding his self-imposed limitations and subjective complaints. No TID is awarded for this time period.

Past and Future Medical Treatment

Section 287._140 RSMo, requires Employer to provide medical treatment as reasonably may be required to cme and relieve an employee from the effects of the work-related injury. To "cure and relieve" means trea1ment that will give comfort, even though restoration to soundness is beyond avail. Landman v. Ice Cream Specialties, Inc., 107 S. W.3d 240, 249 (Mo. bane 2003).

1) Future Medical

The work injury and disability were isolated to the right shoulder and biceps. There is no credible evidence that Claimant required additional treatment for his work related injuries following his release from care at MMI on March 26, 2015. Future medical benefitsmustflowfromthe accident. See e.g., Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. W.D. 2011). Claimant has not proven that the procedures recommended by Dr. Hinton or Dr. Mirkin for medical treatment flow from the 2014 work accident. I award no future medical treatment.

2) Past Medical Bills

Employer/Insurer authorized none of the medical care for which Claimant now seeks reimbursement The past medical bills, including the l\4Rls, do not relate to trea1ment for the body parts injured in the work accident. The trea1ment does not flow from the work accident.

Claimant contends that Dr. Warren, one of original treating physicians, never had his authorization revoked and any recommendations by Dr. Warren must be authorized. One cannot presume years after he has been released at MMI that he can retum to a doctor for more and more treatment at Employer's expense without the Employer's knowledge. Employer/Insurer is not responsible for these charges.

Nature and Extent of Permanent Disability

"[1]he degree of disability is not solely a medical question." ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. D. 2007). The test for permanent total disability is the claimant's ability to compete in the open labor market." Forshee v. Landmark Excavating and Equip., 165 S.W.3d 533, 537 (Mo. App. D. 2005). ''The critical question is whether an employer could reasonably be expected to hire the claimant, considering his present physical condition, and reasonably expect him to successfully perform the work." Id

Claimant is not credible, based on the multitude of conflicting statements made under oath and to various health care providers and examiners. I have found credible the testimony of the treating surgeon, Employer/Insurer's IME physician, and Employer/Insurer's vocational expert. Based on the credible evidence I have accepted, Claimant is not permanently and totally disabled as a result of the work accident in 2014. Rather, he suffered a permanent and partial disability to the right upper extremity. Given the seriousness of that injury, and ta.king into consideration all ratings, I award 35 percent permanent partial disability 232-week level. Claimant is entitled to 81.2 weeks at the disability rate of $217.83, for a total of $17,687.80.

Teeth

Pursuant to 8 CSR 50-5.010, Claimant's loss of two teeth at the time of surgery does not entitle him to a :full set implants at the cost of more than $27,000. Pursuant to 8 CSR 50-5.010, the schedule for disability for the loss of teeth, the loss of each cutting, eye, or wisdom tooth is entitled is counted as one (1) tooth. Each molar is to be counted as two (2) teeth. Claimant lost none of his front teeth. He lost number three (3) and number seven (7), the latter being a molar. According to the regulatory schedule

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set forth in 8 CSR 50.010, Claimant is entitled to 3.75 weeks of disability as a result of the loss of these teeth. Multiplied by the disability rate of $217.83, Claimant is entitled to $816.86. Disfigurement is awarded only for the loss of the front teeth. 8 CSR 50-50.0.0(2). Claimant did not lose his front two teeth as a result of the surgical procedure.

Statute of Limitations

On March 2, 2015, Claimant filed an original claim for compensation alleging body parts injured as right shoulder, arm and bicep; left wrist and hand; teeth; and back. On October 7, 2020, Claimant filed a first amended claim adding neck to body parts injured and chronic pain and sleep deprivation. Employer/Insurer had asserted that the amended claim is barred by§ 287.430 RSMo. Employer/Insurer subsequently admitted that it paid the last authorized medical expense, Dr. Wallace's bill, on November 12, 2020 thereby extending the time for filing a claim until November 12, 2022. Therefore, this issue is moot.

SUMMARY

• Claimant i_s not credible due to his multiple inconsistent statements regarding the mechanism of injury and his physical complaints.

• Based on the mechanism of injury described in the contemporaneous medical records, Claimant established only that he suffered an injury and disability to the upper right extremity. He also suffered the loss of two teeth as a complication of surgery.

• Claimant reached MMI on March 26, 2015, as opined by the treating surgeon, Dr. Hofer.

• Employer/Insurer has no liability for past medical bills incurred by Claimant.

• Employer/Insurer has no liability for future medical treatment.

• Claimant is not permanently and totally disabled as a result of the work accident of August 4, 2014. Therefore, Employer/Insurer owe no back PTD benefits.

Amount of compensation payable is as follows:

For Temporary Total Disability (_per Award) From 11/24/2014 through 1/17/2015 7 and 5/7 weeks x $217.83 = For Underpayment of Temporary Total Disability (per Stipulation) From 8/4/2014 through 11/23/2014 (16 weeks)

For Temporary Partial Disability (_per Stipulation) From 1/18/2015 through 4/7/2015 11 2/7 weeks x $88.09 = For Loss of Teeth 3.75 weeks x $217.83

For Permanent Partial Disability: 35 percent x 232 = 81.20 weeks 81.20 weeks x $217.83 =

TOTAL:

$ 1,680.74

$ 345.38

$ 994.54

$ 816.86

$17,687.80

$21,525.32 22

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION Claimant: Christopher C. Carewicz lnjuryNo. 14-102788

Claimant's attorney, Ronald D. Edelman, is entitled to a fee of 25 percent of all sums awarded under for necessary legal services rendered to Claimant, which is fair and reasonable and shall constitute a lien on the compensation awarded herein.

This award is subject to review and modifications as provided by law. Interest shall be provided by law as is applicable.

I certify that on 3 -J. -J. I 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 lht Division's case file.

By- M<j41

.£:r-,._?c:rtJ_, ~-Made by: · r l~

Victorine R Mahon Chief Administrative Law Judge

Missouri Division of Workers' Compensation

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FINAL AWARD ALLOWING COMPENSATION - labor.mo.gov

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