Gary Lezama v. American Airlines

The above-entitled workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the whole record, the Commission adopts the findings, conclusions award and decision of the administrative law judge to the extent not inconsistent with the modifications herein and finds that the award by the administrative law judge will be affirmed in part and reversed in part as set forth hereinafter: (1) the award of past medical expenses is reversed; (2) the award of future medical expenses is reversed; (3) the denial of temporary total disability (TTD) credit for overpayment is reversed; and (4) the award of permanent partial disability is affirmed as modified herein.

On January 11, 2005, employer, by counsel, filed an Application for Review requesting oral argument with the Commission and requesting reversal of the December 22, 2004 Award issued by the administrative law judge in this case. On July 7, 2005, the request for oral argument was denied. Pursuant to § 286.090 RSMo. the Commission modifies the award of the administrative law judge dated December 22, 2004, as follows:

The administrative law judge ordered employer to pay $\ 60.00 for past expenses for insoles. The only reference to insoles is found in employee’s testimony at the hearing that the insoles were “prescribed” by the physical therapist and cost $\ 9.00 per pair (Tr. 27-28). If such testimony is accompanied by the bills for the purchase of the prescribed item which the employee identifies by testimony as being related to and the product of his injury and when the bills relate to the professional services rendered as shown by the medical records in evidence, a sufficient factual basis exists for the commission to award past medical expense compensation. Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105, 111-112 (Mo. 1989). The record contains no evidence of a prescription for insoles; no bills or receipts for insoles; no documentation as verification of any amount actually paid for insoles. Thus there is not sufficient competent and substantial evidence in the record on which to base an order for such payment by employer. The award for past medical

expenses is reversed.

The administrative law judge ordered payment by employer of $\ 500.00 for possible purchase of insoles in the future, as an "over-the-counter medical item . . . reasonably necessary to relieve employee of the effects of the work related injury . . .." Future medical care may be allowed where employee shows a "reasonable probability" it will be needed. Here, there is no competent and substantial medical evidence in the record to support the conclusion that there is any reasonable probability such care is or will in fact be required or that such insoles are or will be medically necessary for future treatment of or relief from the effects of claimant's workplace injury. There is no evidence in the record at all upon which to base the conclusion that there is any reasonable probability any future medical care for claimant's workplace injury will be needed. Nevertheless, the administrative law judge awarded this specific amount, apparently based solely on speculation, both that future medical care will be required and in the specific amount awarded. Because there is no competent and substantial evidence in the record to support (a) the need for such insoles; (b) the particular amount; or (c) any general requirement for future medical care at all, the awarding of such is reversed.

Temporary Total Disability payments are appropriate to compensate the injured employee during the healing period, to compensate the employee for the loss of ability to earn wages. Williams v. Pillsbury Co., 696 S.W.2d 488, 489 (Mo. App. E. D. 1985). The administrative law judge denied employer's request for credit against the TTD paid for the asserted overpayment of such benefits from February 19, 2003 through March 1, 2003, the date the administrative law judge determined employee was capable of competing for employment in the open market. TTD benefits were actually paid from the date of injury, November 3, 2002 until March 1, 2003. The TTD payments at issue here are those from February 19, 2003 until March 1, 2003.

The medical reports in evidence show that on February 18, 2003, Dr. Kramer released claimant for full occupational duties, with no restrictions (Tr. 59). On March 18, 2003, Dr. Kramer expressly found that employee had reached maximum medical improvement and restated his February 18, 2003 release of claimant for full occupational duties with no restrictions (Tr. 60-61). Temporary disability benefits are payable until the employee cannot expect further improvement of the disabling medical condition or a reasonable employer could be expected to hire claimant. Williams, 694 S.W.2d at 489 (Mo. App. 1985). Therefore, no payments for TTD benefits were required after February 18, 2003 and that portion of the award of the administrative law judge is reversed.

When there is conflicting evidence as to the permanent partial disability of an employee, the issue is peculiarly for the Commission's determination. The Commission is free to deviate from the exact disability percentages given by the medical experts, especially when, as here, there is additional testimony as to the employee's reduced ability to function. Jost v. Big Boys Steel Erection, Inc., 946 S.W.2d 777, 779 (Mo. App. 1997) (reversed on other grounds). Determination of the degree of disability is not solely a medical question. Quinlan v. Incarnate Word Hosp., 714 S.W.2d 237, 238 (Mo. App. 1986); Wiedower v. ACF Industries, Inc., 657 S.W.2d 71, 74 (Mo. App. 1983). After review of the whole record, the Commission determines that there is competent and substantial evidence in the record to support the administrative law judge's determination that employee is 20 % permanently partially disabled, and accordingly, that finding is affirmed.

The award and decision of Administrative Law Judge Matthew D. Vacca, issued December 22, 2004, are attached hereto and incorporated herein by this reference.

The Commission approves and affirms the administrative law judge's allowance of attorney's fee therein as fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 3^{\text {rd }} \qquad$ day of November 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I believe the decision of the administrative law judge should be affirmed.

Employee suffered a crush injury to his right ankle resulting in three fractures. The majority of the Commission denies compensation of $\ 560 to cover some of the cost of over-the-counter insoles for employee's right shoe. Sixty dollars was awarded for past medical expense. Five hundred dollars was awarded as future medical benefits.

Section 287.140.1 entitles the worker to medical treatment as may be reasonably required to cure and relieve from the effects of the injury, meaning treatment that gives comfort or relieves even though restoration to soundness [a cure] is beyond avail. In interpreting the statute, we are mindful that the Workers' Compensation Law is to be liberally construed with a view to the public welfare. Section 287.800.

Bowers v. Hiland Dairy Co., 132 S.W.3d 260, 266 (Mo. App. 2004) (citations omitted).

It is not necessary that a claimant seeking future medical benefits produce conclusive evidence

to support that claim. Sifferman v. Sears, Roebuck \& Co., 906 S.W.2d 823, 828 (Mo. App. 1995). Rather, it is sufficient to show that the need for additional medical treatment by reason of the compensable accident is a "reasonable probability." Id. "'Probable' means founded on reason and experience which inclines the mind to believe but leaves room for doubt." Id.

Mathia v. Contract Freighters, 929 S.W.2d 271, 277 (Mo. App. 1996).

Observations of plantar fascia tenderness and references to plantar fascia taping are scattered throughout the physical therapy records. The records reveal employee's complaints of heel pain. The records also reveal that on January 3, 2003, the physical therapist instructed employee to get a heel cup. On February 16, 2003, employee told the physical therapist he still needed heel cushions. Most importantly, employee testified credibly that the insoles provide him with relief.

Employee's testimony convinces me that the use of the insoles provides him with relief from the effects of his injury. Of course, this result was anticipated by the physical therapist that recommended them. Employee has established not only a reasonable probability that the insoles relieve the effects of the injury, but a certainty that they do. The majority of the Commission errs by denying employee the relief to which he is entitled.

The majority also errs by denying employee temporary total disability benefits for the period February 19, 2003 through March 1, 2003. Employee credibly testified that he was still experiencing pain and swelling in his ankle and was unable to work during this period.

I would affirm award of the administrative law judge. I respectfully dissent from the decision of the majority of the Commission to modify the award of the administrative law judge in this case.

John J. Hickey, Member

Employee: Gari Lezama Injury No.: 02-116428

Dependents:N/A Before the

Division of Workers'

Employer: American Airlines Compensation

Department of Labor and Industrial

Additional Party: Second Injury Fund Relations of Missouri

Jefferson City, Missouri

Insurer: American Home Assurance Company

Hearing Date: November 19, 2004 Checked by: MDV:tr

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes
2. Was there an accident or incident of occupational disease under the Law? Yes
3. Date of accident or onset of occupational disease: November 3, 2002
4. State location where accident occurred or occupational disease was contracted: St. Louis
5. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
6. Did employer receive proper notice? Yes
7. Did accident or occupational disease arise out of and in the course of the employment? Yes
8. Was claim for compensation filed within time required by Law? Yes
9. Was employer insured by above insurer? Yes
10. Describe work employee was doing and how accident occurred or occupational disease contracted: Crushed foot working as baggage handler.
11. Did accident or occupational disease cause death? No Date of death? N/A
12. Part(s) of body injured by accident or occupational disease: Right ankle
13. Nature and extent of any permanent disability: 20 % of right ankle
14. Compensation paid to-date for temporary disability: Not provided
15. Value necessary medical aid paid to date by employer/insurer? Not provided

Employee: Gari Lezama Injury No.:02-116428

1. Value necessary medical aid not furnished by employer/insurer? \60-80.00
2. Employee's average weekly wages: \ 584.31
3. Weekly compensation rate: $\$ 389.54 / \ 340.12
4. Method wages computation: Agreed

COMPENSATION PAYABLE

21.Amount