Robert Stonecipher v. Poplar Bluff R-1 Schools

within twenty (20) days from the date of the award. Review by the Commission results in a modified trial de novo. The Commission has plenary authority to review the decision of the administrative law judge. Where appropriate, the Commission determines the credibility of witnesses and the weight of their testimony, resolves any conflicts in the evidence, and reaches its own conclusions on factual issues independent of the administrative law judge. Upon its own motion or upon the application of any party of interest, the Commission may end, diminish, or increase the compensation awarded by the administrative law judge in the Commission's final award. The Commission is not limited to a review of the errors complained of by the moving party. Waterman v. Chicago Bridge \& Ironworks, 41 S.W.2d 575 (Mo. 1931); Smith v. International Shoe Company, 49 S.W.2d 233 (Mo. App. 1993); Shaw v. Scott, 49 S.W.3d 720 (Mo. App. 2001); and Champ v. Doe Run Co., 84 S.W.3d 493 (Mo. App. 2002).

The ultimate determination of credibility of witnesses rests with the Commission, however, the Commission should take into consideration the credibility determinations made by an administrative law judge. When reviewing an award entered by an administrative law judge the Commission is not bound to yield to his or her findings including those relating to credibility, and is authorized to reach its own conclusions. An administrative law judge is no more qualified than the Commission to weigh expert credibility from a transcript or deposition. Kent v. Goodyear Tire \& Rubber Co., 147 S.W.3d 865 (Mo. App. 2004).

It is the employee's burden to prove the nature and extent of his disability to a reasonable certainty. Davis v. Brezner, 380 S.W.2d 523 (Mo. App. 1964); Matzker v. St. Joseph Minerals, 740 S.W.2d 362 (Mo. App. 1987). The determination of a specific amount or percentage of disability to be awarded an injured employee is a finding of fact within the unique province of the Commission. Landers v. Chrysler, 963 S.W.2d 275 (Mo. App. 1998). In making this determination, the Commission can consider all the evidence in the record and draw all reasonable inferences from that evidence. Id. The Commission is not bound by the percentage estimates of the medical experts and is free to assess a disability either higher or lower of that expressed in the medical or vocational testimony. Id.

Pursuant to Section 287.140 RSMo, an employer is required to furnish such medical treatment as is necessary to cure and relieve the employee from the effects of a work related injury. It is the employee's burden to prove that he is entitled to receive compensation for past medical expenses or future medical care. Sams v. Hayes Adhesive, 216 S.W.2d 815 (Mo. App. 1953). For past medical expenses to be awarded, such medical care and treatment must flow from a work related accident. Modlin v. Sunmark, 699 S.W.2d 5 (Mo. App. 1985). The medical expenses for which reimbursement is sought must be reasonable and necessary to treat a work related injury. Jones v Jefferson City School District, 801 S.W.2d 486 (Mo. App. 1990). For future medical care to be awarded, the medical care must, of necessity, flow from the accident, via evidence of a medical causal connection between the compensable accident and the medical condition for which treatment is sought. Bock v. Broadway Ford, 55 S.W.3d 427 (Mo. App. 2001).

Under Section 287.140 RSMo, an employer is charged with the duty of providing an injured employee with medical care, but the employer is also given control over the selection of the medical provider. Blackwell v. PuritanBennett, 901 S.W.2d 81 (Mo. App. 1995). While an employee has the right to hire his own physician at his own expense, that right does not necessarily carry with it an obligation on the part of the employer to pay that physician. Hawkins v. Emerson Electric, 676 S.W.2d 872 (Mo. App. 1984).

Pursuant to Section 287.170 RSMo, compensation must be paid to an injured employee during the continuance of temporary total disability. The burden of proving entitlement to temporary total disability lies with employee. Boyles v. USA Rebar Placement, 26 S.W.3d 418 (Mo. App. 2000). Workers' compensation benefits for temporary total disability are intended to cover an employee's healing period from a work related injury. Schuster v. Division of Employment Security, 972 S.W.2d 377 (Mo. App. 1998). The act contemplates that temporary total disability is to be paid prior to the time when the employee can return to work, his condition stabilizes, or his condition has reached the point of maximum medical progress. Id.

(A) Permanent Partial Disability Attributable to the Accident Occurring June 7, 2002

The administrative law judge concluded that employee sustained 35\% permanent partial disability of the body as a whole attributable to the accident occurring

June 7, 2002. Of this amount, 30\% permanent partial disability was attributable to employee's lumbar spine injury and 5\% attributable to depression. After reviewing the entire record the Commission finds this amount of compensation payable for permanent partial disability is excessive and modifies the award as follows: 5 % permanent partial disability of the body as a whole referable to the lumbar spine; and 5 % permanent partial disability of the body as a whole referable to aggravation of the employee's preexisting somatoform disorder. Consequently, the amount of compensation payable for residual permanent partial disability attributable to the accident occurring June 7, 2002, is 40 weeks of permanent partial disability or a lump sum amount of $\ 13,176.80 ( 40 weeks $x \ 329.42 per week). Furthermore, as previously determined by the administrative law judge, this amount of permanent partial disability is subject to a $\ 5,000.00 credit in favor of the employer due to its advancement to the employee leaving a net due employee of $\ 8,176.80 for permanent partial disability.

In reaching this conclusion and modification of the permanent partial disability awarded, the Commission has relied on the testimony of Dr. Lange, Dr. Mirkin, Dr. Graham, and Dr. Stillings. The Commission determines that these four medical experts and the respective opinions rendered by each, are the most credible, persuasive, and trustworthy. At the trial no expert testified live and the Commission is well qualified and statutorily authorized to weigh each expert's credibility from their respective deposition testimony.

In summary fashion and as pertains only to the non-psychiatric injury, the testimony of Dr. Lange, Dr. Mirkin, and Dr. Graham convinces the Commission the employee did not sustain any acute pathology on account of the accident occurring June 7, 2002, nor was a severe injury sustained.

Dr. Lange, a board certified orthopedist, was not able to render a particular anatomical diagnosis for the employee, such as a lumbar strain, lumbar sprain, etc. regarding any injury that employee may have sustained from the June 7, 2002, event. During Dr. Lange's examination, employee had aspects to his neurological presentation that could not be explained by any known neurological anatomy; in the opinion of Dr. Lange the employee's diagnostic studies were benign and showed no obvious significant pathology in the lumbar spine; there was no unusual pathology in the lumbar spine specifically at L5-S1 above and beyond congenital anatomy and post-operative scarring; employee's prior fusion was solid and his hardware intact; and since employee's fusion prevented any movement in the disc, the likelihood of any significant injury, such as a herniation, at the lumbosacral junction, would, in the opinion of Dr. Lange, be next to impossible. Dr. Lange did not reach any conclusions concerning permanent disability on account of the accident occurring June 7, 2002. However, in the opinion of Dr. Lange, the employee was able to work at the medium demand level.

Dr. Mirkin concluded that employee sustained a lumbar strain from the June 7, 2002, accident. Dr. Mirkin was of the opinion it was extremely unlikely that employee had sustained a disc protrusion or herniation. The lumbar myelogram that