Michelle Soard v. Town and Country Supermarkets

1. Nature of the exhibits to be introduced;
2. Full and accurate statement of the reason the testimony or exhibits reasonably could not have been discovered or produced at the hearing before the administrative law judge;
3. Newly discovered medical evidence shall be supported by a medical report signed by the doctor and attached to the petition, shall contain a synopsis of the doctor's opinion, basis for the opinion and the reason for not submitting same at the hearing before the administrative law judge; and,
4. Tender of merely cumulative evidence or additional medical examinations does not constitute a valid ground for the admission of additional evidence by the commission.

(B) The commission shall consider the motion to submit additional evidence and any answer of opposing parties without oral argument of the parties and enter an order either granting or denying the motion. If the motion is granted, the opposing party(ies) shall be permitted to present rebuttal evidence. As a matter of policy, the commission is opposed to the submission of additional evidence except where it furthers the interests of justice. Therefore, all available evidence shall be introduced at the hearing before the administrative law judge.

Employee seeks to introduce a report issued by Dr. Robert Swarm, dated October 5, 2004. The hearing was held on September 28, 2004. Employee alleges that Dr. Swarm's report was not produced at trial because the appointment occurred after the hearing. Employee further alleges that the evidence is not cumulative because it contains information regarding the need for ongoing medical treatment as well as a conclusion that employee is permanently and totally disabled.

Employer/insurer responds that the medical report of Dr. Swarm should not be admissible because he reaches new conclusions that were not reached or stated in any previous medical records and employer/insurer has not had the opportunity to cross-examine Dr. Swarm or to present its own rebuttal evidence to the opinion that she is permanently and totally disabled from the work accident alone. Employer/insurer further alleges that this report could have been produced at the hearing. Employer/insurer further argues that Dr. Swarm's report is a new report following an additional medical examination, which is specifically inadmissible pursuant to 8 CSR 20-3.030(2)(A)(6).

We deny employee's motion to submit the additional report from Dr. Swarm. We are not persuaded that it could not have been produced at the hearing. Employee knew that she had an appointment scheduled with Dr. Swarm when she testified at the hearing. Employee could have requested to leave the record open at the hearing in order to submit this report. The doctor's deposition could have been scheduled and employer could have had the opportunity to present any rebuttal evidence. This claim was not tried on a temporary or partial basis. If we were to accept this report at this time, the Commission would have to remand for an additional evidentiary hearing, which would ultimately entail both parties needing to secure depositions of various experts. Dr. Swarm also does not give a basis for his opinion that employee is permanently and totally disabled and we note that there are no medical opinions, vocational opinions, or other competent or substantial evidence in the record that would support a finding that she was rendered permanently and totally disabled from the last accident alone. The report is not so material that it would produce a different result from what we find here even if it had been presented at trial. See, Tidwell v. Walker Constr., 151 S.W.3d 127 (Mo. App. 2004). Additionally, we note that employee did not file an Application for Review; thus, did not timely raise as error the administrative law judge's determination of permanent partial disability. Employee's request to submit additional evidence is denied. The doctor's report may support a motion for a change of condition, for which the Commission would consider remanding for an evidentiary hearing regarding whether her condition has physically worsened if we still have jurisdiction.

Having reviewed the evidence, considered the whole record from the final hearing and listened to the arguments presented, the Commission finds that the award of the administrative law judge must be modified. Pursuant to section 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge dated November 17, 2004.

Employee tripped over a water hose at work, injuring her left leg and knee on August 11, 2000. She developed chronic regional pain syndrome (CRPS) as a result of the fall for which she has received extensive treatment. The administrative law judge found that employee sustained 75 % permanent partial disability to the body as a whole, awarded past medical expenses; and awarded future medical care. Employer/insurer filed an Application for Review, alleging that the award of permanent partial disability is excessive; the award of past medical was in error because employee did not show that the treatment was reasonable or necessary or authorized; and, future medical care was not warranted because employee sustained subsequent accidents and continues to smoke against doctors' advice.

We agree that the award of permanent partial disability is excessive and modify the extent of permanent partial disability. We affirm the award of past medical. We further affirm the award of future medical care; however, clarify the award of future medical to specify that employer/insurer shall provide the necessary medical care as directed by Dr. Reisler and/or Dr. Swarm, or such other neurologist and pain management specialist selected by employer/insurer.

After employee tripped over the water hose at work, she finished her shift, and then went to her family physician at the Ripley County Family Clinic. She notified employer that she was going to her doctor. The doctor gave her crutches, took employee off of work and continued to treat her with pain medications. Because employee's left leg would become discolored when she was sitting, the doctor ordered an ultrasound and eventually referred her to Dr. John True, an orthopedic doctor, on August 24, 2000. Dr. True's notes of that date stated that employee exhibited an exaggerated and magnified response to light stimulus. He found nothing objectively wrong with her left knee or ankle. Dr. True ordered physical therapy for one month and continued to keep her off work.

Employee was next referred to Dr. Winters on September 6, 2000, who continued to prescribe physical therapy and pain medications. She was next referred to Dr. Choudary, a neurologist. Dr. Choudary prescribed Neurontin and continued the physical therapy. Dr. Choudary suspected that employee had CRPS. He recommended Botox injections.

Employee was referred to Dr. Nogalski, an orthopedist, on October 9, 2000, who recommended sympathetic blocks with physical therapy. He felt that employee could perform sedentary work. Employee also saw Dr. Yadava on October 24, 2000, who recommended a bone scan. Employee was referred to Dr. Edwin Dunteman on October 25, 2000, who offered to do a lumbar sympathetic block. Dr. Dunteman noted that employee's response was atypical in that she was more focused on needle discomfort rather than pain relief. However, employee agreed to undergo the block. Dr. Dunteman noted that employee's pain response was exaggerated. He noted that she reported numbness, but then reported pain upon light touch. He stated that she did not have a similar reaction when she was distracted. He concluded that employee has an emotional magnifier to her complaints. Employee stated that the sympathetic block did not help.

Employee went to the emergency room at the Ripley County Hospital several times through October, November and December 2000, for complaints of muscle spasms in her left