Alvin Penn v. ANC Rental Corporation (Alamo Rent-A-Car)

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers’ Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 9, 2005. The award and decision of Administrative Law Judge Lisa Meiners, issued June 9, 2005, is attached and incorporated by this reference.

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

Any past due compensation shall bear interest as provided by law. Given at Jefferson City, State of Missouri, this 1 st day of March 2006. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman Alice A. Bartlett, Member SEPARATE OPINION FILED John J. Hickey, Member Attest:

Secretary SEPARATE OPINION CONCURRING IN PART AND DISSENTING IN PART

I join my fellow commissioners in awarding compensation in this claim. However, I must respectfully dissent from

the portions of the award and decision of the majority of the Commission denying past medical expenses, future medical care, and permanent total disability benefits. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified.

The administrative law judge summarily denied employee's claim for many past medical expenses by the following statement: "I do not find these bills were authorized and therefore deny Claimant's request." The expenses for which employee seeks payment are primarily related to pain management treatment. Dr. Alexander recommended pain management for employee. Dr. Varghese recommended that employee continue on his course of pain medications as directed by the pain management specialists. The administrative law judge's summary rejection of employee's claim for past medical expenses is in error.

The administrative law judge also denies employee's request for future medical care based upon her apparent belief that Dr. Hanson asserted that employee did not need further treatment including narcotic prescriptions. The problem with this conclusion is Dr. Hanson did not offer such an opinion.

Section 287.140.1 "entitles the worker to medical treatment as may reasonably be required to cure and relieve from the effects of the injury." Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo.App. 1996). This includes "treatment 'which gives comfort [relieves] even though restoration to soundness [cure] is beyond avail.'" Id., quoting Williams v. A.B. Chance Co., 676 S.W.2d 1, 4 (Mo.App. 1984). Accordingly, a finding of MMI is "not inconsistent with the need for future medical treatment." Id. at 278. The Commission may not deny future medical treatment to relieve a claimant's pain because a claimant may have achieved MMI. Kaderly v. Race Brothers Farm Supply, 993 S.W.2d 512, 517 (Mo.App. 1999).

Ford v. Wal-Mart Assocs., 155 S.W.3d 824, 828-829 (Mo. App. 2005).

It is not necessary that a claimant seeking future medical benefits produce conclusive evidence to support that claim. Rather, it is sufficient to show that the need for additional medical treatment by reason of the compensable accident is a "reasonable probability." "'Probable' means founded on reason and experience which inclines the mind to believe but leaves room for doubt."

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

Dr. Varghese's medical notes reveal he believed that the pain medications were relieving some of employee's pain and he believed the prescription of the pain medications to be reasonable. Dr. Schroeder testified that employee needed narcotic pain medication to manage his pain. The pain experts at the pain management clinic prescribed narcotic pain medications to manage employee's chronic radicular pain. Although Dr. Hanson testified that further treatment would not improve employee's functional capacity, he testified he would not second-guess the doctors at the pain clinic regarding their treatment of employee's pain with narcotic pain medications.

The specialists at the pain clinic are the most qualified to determine whether employee will benefit from pain medication and pain management. Before the 2002 injury, employee managed his back pain and discomfort with a mild analgesic. After the 2002 injury, the pain specialists prescribed narcotic medications to relieve employee's pain and discomfort. Employee has shown by a reasonable probability that he will need future medical treatment in the form of pain medication and pain management.

The administrative law judge found that the employee suffered a preexisting condition that was a hindrance or obstacle to employment and that the condition combined synergistically with the primary injury to cause a greater overall disability than the simple sum of the disabilities. Accordingly, the administrative law judge awarded permanent partial disability against the Second Injury Fund. The administrative law judge erred in not finding that employee was permanently and totally disabled.

[T]he term "total disability" is "defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident." "It does not require that the claimant be completely inactive or inert."

"To determine if claimant is totally disabled, the central question is whether, in the ordinary course of business, any employer would reasonably be expected to hire claimant in his present physical condition."

Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo. App. 2003)(citations omitted).

The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Total disability means the "inability to return to any reasonable or normal employment."

Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 853 (Mo. App. 1995)(citations omitted), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003).

The determination of whether plaintiff was totally and permanently disabled was a question of fact for the Commission. The Commission does not have to make its decision only upon testimony from physicians; it can make its findings from the entire evidence.

Cochran v. Industrial Fuels \& Resources, Inc., 995 S.W.2d 489, 497 (Mo. App. 1999)(citations omitted).

Ms. Titterington, vocational expert, is of the belief that employee cannot compete in the open labor market. Employee testified that he has been unable to find employment in his physical condition. Employee went so far as to apply for the jobs for which Mr. Weimholt thought he could compete but employee was met with rejection. Dr. Schroeder does not believe employee can compete in the open labor market.

I am not persuaded by the opinion of Mr. Weimholt because employee had no success securing the employment upon which Mr. Weimholt based his opinion. Employee's lack of success securing the very jobs Mr. Weimholt thought employee could secure convinces me that no employer would reasonably be expected to hire employee in the ordinary course of business. I find the testimony of employee, Ms. Titterington, and Dr. Schroeder to be the most credible evidence regarding employee's ability to compete in the open labor market.

Based upon my review of all the evidence, I find employee has shown that he is unable to compete in the open labor market and that no employer would reasonably be expected to hire employee in his present physical condition. I conclude that employee is permanently and totally disabled. I find most persuasive the evidence that the last injury alone rendered employee permanently and totally disabled.

Based upon the foregoing, I conclude that the award should be modified to award past medical expenses, future medical care, and permanent total disability against the employer/insurer. I respectfully dissent from the portions of the award and decision of the majority of the Commission to the contrary.

John J. Hickey, Member

Employee: Alvin Penn

Injury No. 02-041727

Employer: ANC Rental Corporation

Alamo Rent-A-Car

Insurers: Insurance Company of the State of Pennsylvania

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

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: April 17, 2002.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while in the course and scope of employment, aggravated his low back picking up luggage.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Low back.
14. Nature and extent of any permanent disability: 12.5 % body as a whole.
15. Compensation paid to date for temporary disability: $\ 128.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 6,617.00
17. Value necessary medical aid not furnished by employer/insurer?
18. Employee's average weekly wages: $\ 422.24
19. Weekly compensation rate: $\ 281.64
20. Method wages computation: By stipulation of parties.

1. Amount of compensation payable: $\ 14,082.00

Unpaid medical expenses: -0-

50 weeks of permanent partial disability from Employer as a result of the April 17, 2002, injury

1. Second Injury Fund liability: $\ 3,098.04

11 weeks of permanent partial disability from Second Injury Fund

TOTAL: $\ 17,180.04

1. Future requirements awarded: No. Future medical is denied.

Said payments to begin upon receipt of Award and to be payable and subject to modification and review as provided by law.

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: Jerry Kenter.

Employee: Alvin Penn

Injury No. 02-041727

Employer: ANC Rental Corporation

Alamo Rent-A-Car

Insurer: Insurance Company of the State of Pennsylvania

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: April 4, 2005

Checked by: LM/abj

The parties stipulated that:

1. Mr. Penn was an employee working subject to t