Dоris Lacy (Claimant) appeals from a final award entered by the Labor and Industrial Relations Commission (the Commission) denying compensation on claims she filed against her employer, Federal Mogul (Employer); Employer’s insurer, St. Paul Travelers; and the Missouri State Treasurer in his capacity as Custodian of the Second Injury Fund (the Fund). See § 287.220. 1 Claimant contended that she was injured when she fell at work and that this work-related injury, combined with other injuries she previously sustained in a car accident, rendered her totally and permanently disablеd. 2 The Commission denied both claims because Claimant failed to meet her burden of proving that: (1) her fall at work resulted in any compensa-ble injury; and (2) the injuries for which she received treatment were causally related to the fall. On appeal, Claimant challenges the Commission’s reliance on a doctor’s opinion about the cause of Claimant’s injuries and the Commission’s finding that Claimant failed to meet her burden of proof as to causation. Finding no error, this Court affirms.
I. Factual and Procedural Background
Claimant began working for Employer in Octobеr 1987 operating a groover machine, which was used in the manufacture of pistons. Claimant’s job involved bending and lifting pistons out of baskets.
Since the 1970’s, Claimant’s general medical care had been provided by Dr. James Campbell. Prior to March 1999, Dr. Campbell treated Claimant for migraine headaches. Dr. Campbell described these as “recurrent headaches of a severe nature” and treated them with narcotic and analgesic medications. During this time frame, Dr. Campbell also treated Claimant for anxiety and depression.
In March 1999, Claimant’s C-2 vertebra was fractured in a car accident. Her initial treatment was provided by Dr. David Yingling. At first, Claimant’s fracture was stabilized with a halo apparatus. After three months, the halo was replaced with a soft neck collar.
As Claimant’s fracture healed, she developed neck pain and was prescribed medication for that condition by Dr. Campbell. Throughout Claimant’s recovery, she also continued to be treated by Dr. Campbell for migraine headaches, anxiety and deрression. Following the March 1999 accident, Dr. Campbell prescribed a number of different narcotic and analgesic medications, anti-anxiety and anti-depressant medications, migraine treatments and sleep aids for Claimant.
Eventually, Dr. Yingling referred Claimant to Dr. Mohammad Shakil for treatment of her neck pain. In January 2000, Dr. Shakil performed a cervical facet rhi-zotomy. Not long after this procedure, Claimant was able to return to work. She had been off work for ten months because of the injuries she sustained in the car accident.
When Claimant returned to work in January 2000, she was released from Dr. Yin-gling’s care without restrictions. Claimant was able to perform the same job she had been doing before the car accident. Between January 2000 and May 2001, Claimant continued to see Dr. Campbell on a
On or about May 17, 2001, Claimant’s foot slipped out from under her as she was walking through oil and water substances on the plant floor. She landed on her buttocks and felt a sharp pain in her low back and neck. According to Claimant, she initially was concerned that she may have “re-broke” her neck. Co-worker Allen Blume saw Claimant fall and helped her up off the floor. Claimant’s supervisor, Tony Campbell, walked over and asked Claimant if she needed to see a first respоnder or go to the doctor. After taking a moment to recover, Claimant said that she thought she would be okay. Although she hurt, it was just an initial hurt from falling down. She returned to her machine and finished her shift.
Sometime later, Claimant filed an Accident/Incident Investigation Report (the accident report). In that document, Claimant reported the accident had occurred on May 27, 2001. Initially, Claimant had listed the date of the accident as May 15, 2001. That date was crossed out, and the 27th was written instead. She identified the part of the body that wаs injured as “neck, lower back.” When responding to another question asking whether the accident resulted in an injury, however, Claimant wrote “no.” Her answer stated that no first aid was given and that she did not seek any treatment. After the accident, Claimant returned to work as scheduled. During the weeks ending on May 20, May 27 and June 3, she worked 42 hours, 57.5 hours and 53.5 hours, respectively.
On June 4, 2001, Claimant saw Dr. Campbell for the first time since she fell. At that time, Claimant was suffering from an acute migraine headache and had to be examined in the back seat оf her car. According to Dr. Campbell’s notes from that visit, Claimant only sought treatment for her headache. 3 On June 12, 2001, Dr. Campbell refilled Claimant’s prescriptions for the very same medications she had been taking before she fell at work.
On June 6, 2001, Claimant went on medical leave, but she continued to work intermittently through mid-June. 4 On June 13, 2001, Claimant called Dr. Campbell and complained of headaches and neck aches. The doctor prescribed further treatment and medications for headaches, offered to refеr Claimant back to Dr. Yingling and scheduled a magnetic resonance imaging (MRI) scan.
On June 18, 2001, Claimant filled out a short-term disability accident and sickness form. This form showed the date of disability as June 12, 2001, and identified the type of disability as the March 1999 car accident. On June 20, 2001, Dr. Campbell signed a physician’s statement stating that Claimant should not return to work until after she saw Dr. Yingling on June 28, 2001.
On July 3, 2001, Claimant was seen by Dr. Kit Mays at his pain and rehabilitation clinic. Claimant’s chief complaints were neck, shoulder and arm pain. Claimant related that she had suffered a cervical fracture in 1999 and had done reasonably well until mid-June 2001, when she slipped and fell at work. Claimant said that she had been seen by Dr. Campbell the next day. On physical exam, Claimant’s range of motion in her cervical spine was limited in all planes. Dr. Mays determined that Claimant was taking a very large amount of narcotic medications, which was not in her best interest. In Dr. Mays’ opinion, Claimant likely had fibromyalgia that was unrelated to her neck problem. Dr. Mays found no surgically correctable problem in Claimant’s neck. The doctor’s plan was to wean Claimant off of narcotics and get her on more appropriate medications.
On July 16, 2001, Dr. Campbell saw Claimant again. She complained of head and neck pain. According to Dr. Campbell’s notes, it was during this visit that Claimant first mentioned that she had slipped and fallen at work. Dr. Camрbell continued to treat Claimant’s neck pain and migraine headaches with the same course of medications that had been previously prescribed.
On July 16, 2001, Claimant also filled out another short-term disability claim form. This time, she reported the date of disability as May 17, 2001. The cause of her disability was listed as a work-related injury that occurred on May 17. The chief complaint was back pain, and the diagnosis was back pain, lumbar spine and disc trauma. According to Dr. Campbell’s records, however, the first time that Claimant reported any pain in her back was on July 19, 2001.
On August 12, 2001, Claimant went to the emergency room complaining of low back pain. During this visit, Claimant attributed her low back problems to the fall that occurred at work. Claimant stated that housework she had been doing before coming to the hospital had caused her back pain to increase. An MRI performed three days later showed slight bulging discs at L3-L4 and L4-L5 and mild degeneration of the facet joints. There was no evidence of a herniated disc, spinal steno-sis or neurofоramninal narrowing. Dr. Campbell continued to treat Claimant for pain and referred her to physiatrist Dr. Bernard Burns.
Claimant saw Dr. Burns in October 2001. Claimant complained of neck and low back pain. She stated that: (1) her symptoms dated back to the 1999 car accident in which she suffered a C-2 fracture; (2) she had returned to work with occasional neck pain and migraines; and (3) she had fallen in May 2001. Thereafter, her neck and intrascapular pain increased, and she began to have low back pain with radiation down her right leg. Dr. Burns diagnosed Claimant as having myofascial pain secondary to the May 2001 fall, but he stated that Claimant’s mechanical low back pain was only “questionably” related to the
Claimant filed a worker’s compensation claim in October 2001. An amended claim was filed in April 2002. In the amended claim, Claimant alleged that she sustained injury to her neck and low back between May 10-17, 2001 at work, resulting in a permanent and tоtal disability. Claimant alleged that the injury occurred as she was walking across the floor when her foot slipped out from under her, causing her to fall and land on her buttocks. In Employer’s answer, it denied these allegations.
Hearings were held before an administrative law judge (ALJ) in October 2005 and August 2006. The parties stipulated, inter alia, that Employer had not paid any medical expenses or temporary total disability benefits. The issues for resolution included accident or occupational disease, notice, medical сausation, future medical care, the nature and extent of any disability and the Fund’s liability.
Claimant’s evidence included medical testimony from Dr. David Volarich, a retained expert, and Dr. Campbell, Claimant’s treating physician. Employer’s evidence included a medical report and related testimony from Dr. John Wagner, a retained expert. The opinions of Dr. Volarich and Dr. Campbell differed significantly from those of Dr. Wagner concerning whether Claimant was injured as a result of the May 2001 fall and, if so, whether that injury caused the medical conditions for which she was seeking compensation.
Dr. Volarich based his opinions on a medical examination of Claimant and a review of her medical records. Dr. Vola-rich opined that the May 2001 fall jarred her neck and back. This jarring was a substantial contributing factor in causing: (1) a cervical syndrome that included a C4-C5 disc protrusion and aggravation of Claimant’s degenerative disc and joint disease; (2) aggravation of her migraine headaches; (3) a lumbar syndrome that included a bulging L4-L5 disc with intermittent right leg sciatica; and (4) myofas-cial pain syndrome. Dr. Volarich conceded that there were some inconsistencies in Claimant’s medical records. For example, Dr. Volarich acknowledged that, according to Dr. Campbell’s records, Claimant did not immediately report either a work accident or any back injury to that doctor. Such omissions would raise a possible question in Dr. Volarich’s mind as to whether there was a causal relationship between Claimant’s later complaints and the fall at work. Dr. Volarich also admitted that the medications Dr. Campbell prescribed to Claimant in June 2001 were the same strength and frequency as those he previously prescribed.
Claimant’s other medical expert was Dr. Campbell. He opined that Claimant was injured during the May 2001 fall at work. According to Dr. Campbell, this fall exacerbated Claimant’s pre-existing neck injury and also caused her low back problems, which rendered her nearly unable to function. As support for that opinion, Dr. Campbell testified that his records would show Claimant required stronger and more frequent medication after she fell.
Like Dr. Volarich, Dr. Wagner also based his opinions upon a review of Claimant’s medical records and a medical examination of her. The medical records revealed that she had no acute symptoms at the time of the fall, there was a significant delay before she mentioned that event to Dr. Campbell, and Claimant’s complaints remained the same before and after she fell. Dr. Wagner opined that, at most, Claimant may have sustainеd an “extremely mild” sprain injury to her neck and back
In November 2006, the ALJ issued a decision denying compensation. First, the ALJ decided that Claimant failed to meet her burden of proving that she sustained any injury when she fell. The conclusion was supported by the accident report indicating that she did not recеive first aid or seek treatment and by the overtime work that Claimant performed during the two weeks after the fall. Second, the ALJ decided that Claimant failed to prove that the treatment she had received was causally related to the fall. The ALJ relied upon the following facts to support that conclusion:
1. The initial disability form indicated that Claimant’s disability resulted from the March 1999 car accident.
2. Although Claimant said she was concerned that she “re-broke” her neck when she fell, she did not see Dr. Campbell until June 4.
3. During thаt visit, Claimant sought treatment for a migraine headache. She did not mention that she had fallen at work.
4. Claimant did not mention the fall to Dr. Campbell until July 16, which was nearly two months after that event occurred.
5. Claimant did not report back pain to Dr. Campbell until July 19. She did not attribute that pain to the fall until the emergency room visit on August 12, which was nearly three months after her claimed injury.
6. The fall occurred in mid-May. Claimant incorrectly reported the date as late May in the accident report, and she incorrectly reportеd the date as mid-June in the medical histories that she gave to Dr. Yin-gling and Dr. Mays.
7. For several years prior and up to mid-May 2001, Claimant had been undergoing frequent treatment for neck pain and migraine headaches.
8. Contrary to Dr. Campbell’s testimony, his own records revealed that the medication he prescribed to Claimant in the four and one-half months before the fall was very similar in type and amount to the medication Dr. Campbell prescribed after the fall.
9. Claimant was not credible because her testimony was incоnsistent with other evidence in the record.
10. The medical opinions of Drs. Vola-rich, Campbell and Burns were not found to be credible.
11. The medical opinion of Dr. Wagner was found to be credible. His testimony supported the conclusion that Claimant’s fall did not have a significant impact on her headaches, neck and low back problems. The fall also did not cause or accelerate Claimant’s pre-existing degenerative changes in her cervical or lumbar spine.
12. There was insufficient evidence to support a finding that Claimant’s fall was a substantial factor in aggravating her pre-existing injuries or causing any new injuries.
Therefore, the ALJ denied compensation on the claims against Employer and the Fund.
In December 2006, Claimant filed her application for review with the Commission. In September 2007, the Commission adopted the ALJ’s award denying compensation by a two-to-one vote. This appeal followed.
II. Standard of Review
Because the Commission adopted the ALJ’s findings and decision, we will review them in this appeal from the Commissiоn’s final award denying compensation.
Hawthorne v. Lester E. Cox Medical Centers,
Upon appeal no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the award was procured by fraud; (3) That the facts found by the commission do not support the award; (4) That there was not sufficient, competent evidence in the record to warrant the making of the award.
§ 287.495.1. This Court examines the whole record to determine if it contains sufficient, competent and substantial evidence to support the award.
Hampton v. Big Boy Steel Erection,
On appeal, this Court defers to the Commission on issues involving the credibility of witnesses and the weight to be given to their testimony.
Birdsong,
In the case at bar, we also note that Commissioner Ringer cast the deciding vote based on the rule of necessity because the other two commissioners were deadlocked, and no other mechanism exists by which to resolve the claims.
Barker v. Secretary of State’s Office,
III. Discussion and Decision
In Claimant’s first point, she contends the Commission erred in relying upon Dr. Wagner’s opinion to find that Claimant’s injuries were not caused by her fall at work. Claimant argues that Dr. Wagner’s medical testimony was not competent and substantial evidence because it was based upon improper assumptions.
While Claimant’s point purports to challenge the sufficiency of the evidence, the thrust of her argument is that Dr. Wagner’s testimony did not meet the requirements necessary for the admission of еxpert testimony. That was the issue discussed in
McGuire v.
Seltsam,
In Claimant’s second point, she contends the Commission erred in finding the Claimant did not prove that her injuries were caused by the accident because that finding is not supported by sufficient competent and substantial evidence. Claimant argues that the evidence is insufficient because the Commission: (a) improperly held Claimant to a higher standard of proof by adopting the assumptions of Dr. Wagner; (b) made unjustified negative credibility determinations of Claimant and Dr. Campbell; and (c) made an unsupported finding that the accident report did not indicate an injury to her neck and back. Each argument will be addressed in turn.
In Claimant’s first argument, she contends that the Commission’s reliance upon Dr. Wagner’s improper opinion testimony erroneously held Claimant to a higher burden of proof than was legally required. Claimant argues that Dr. Wagner’s testimony erroneously assumed Claimant was not injured in the fall because she was not immediately debilitated. No objection to Dr. Wagner’s testimony on this ground was presented below. Therefore, the admissibility issue is not before us. This argument is simply another attempt to present an unpreserved admissibility argument disguised as a burden-of-proof argument. The first prong of Claimant’s argument has no merit.
In Claimant’s second argument, she contends the Commission made “unjustified negative credibility determinations” of Claimant and Dr. Campbell by relying on Dr. Wagner’s testimony that, if Claimant had told Dr. Campbell about the аccident in early June as they both testified before the ALJ, Dr. Campbell would likely have put it in his office notes. During Dr. Wagner’s deposition, Claimant’s attorney did object to this one exchange as improper expert testimony. That objection appears to have been overruled by the ALJ. On appeal, however, Claimant’s second point only challenges the sufficiency of the evidence to support the Commission’s findings. Therefore, the admissibility issue is not before us and will not be addressed. Claimant’s challenge to the sufficiency of the evidence fails. It is undisputed that none of Dr. Campbell’s office notes prior to July 16, 2001, contain any reference to Claimant falling at work. Dr. Campbell said he remembered being told this information before July, but he could not explain why his earlier notes did not contain that information. The unexplained absence of this information from Dr. Campbell’s medical records raised a legitimate credibility issue, which the Commission resolved adversely to both Claimant and Dr. Campbell. The Commission, as the finder of faсt, “is free to believe or disbelieve any evidence presented.”
Bowers v. Hiland Dairy Co.,
In Claimant’s third argument, she contends that the Commission misread the accident report because that document refers to injuries to Claimant’s neck and lower back. In that document, however, Claimant answered “no” to the question of whether the accident resulted in an injury. Given these conflicting responses, it was up to the Commission to decide what weight to give this document, when considered along with all of the other evidence presented.
Birdsong,
The Commission’s final award denying compensation is affirmed.
Notes
. All references to statutes are to RSMo (2000).
. The Fund "compensates injured employees when a current work-related injury combines with a prior disability to create an increased combined disability.”
Stonecipher v. Poplar Bluff R1 School Dist.,
. At the hearing before the administrative law judge, Claimant testified that she reported her fall аt work to Dr. Campbell on this occasion. Likewise, the doctor testified that he remembered Claimant telling him about the accident around that time. Nevertheless, Dr. Campbell acknowledged that he prided himself on recording good historical information from his patients, and he could not explain why his notes contained no reference to Claimant having fallen at work.
. According to Claimant’s payroll records, she worked 19 hours during the week ending June 10. She worked 17 hours during the week ending June 17. Thereafter, Claimant did not return to work for Employer.
. We note several cases overruled by
Hampton
are cited in this opinion in support of other principles of law not affected by the
Hampton
ruling.
Hampton,