Tracey Farmer Cummings v. Personnel Pool of Platte County

2003, the Commission issued a second order of remand directing the Division to take evidence on the allegations in employee's motion.

The Supreme Court held that employee is not entitled to recover any portion of the $\ 118,581.99 for which she is no longer personally liable. We have reviewed the transcript of the remand hearing. Based upon the testimony and evidence presented, we conclude that employer has shown by a preponderance of the evidence that the following healthcare providers allowed write-offs and reduction for their own purposes and employee is not legally subject to further liability to the below-mentioned providers.

A. Established through live testimony:

- St. Luke' Health System, including St. Luke's Health System and St. Luke's Northland (Tr. 13)

- Midwest Pulmonary Consultants, PC (Tr. 15)

- Aggarwal Allergy Clinic (Tr. 150)

- Jackson County Pulmonary (Tr. 153),

- Diagnostic Imaging Centers (Tr. 159)

- Drisko Fee \& Parkins (160)

- Dr. Mark Devine (162)

- MAST Ambulance (Tr. 164)

- Dr. Guastello, Dr. Guastello, and Dr. Jernstrom (Tr. 172)

- Cameron Regional Medical Center (Tr. 175)

- Old Westport ENT and Allergy, including Dr. Michael F. Hughes (Tr. 183)

- Dr. John Campobasso and Dr. James Marx (Tr. 187)

- Northland Radiology (Tr. 189)

- Swope Health Services, including Dr. Turner (Tr. 192)

B. Established through business records:

- Dr. Robert Littlejohn (Tr. 194, 611)

- Northland General Surgery (Tr. 198, 615)

- North Kansas City Hospital (Tr. 199, 622)

- Pulmonary Medical Association (Tr. 200, 625)

We conclude that employer/insurer has not established by a preponderance of the evidence that the following healthcare providers allowed write-offs and reduction for their own purposes. Accordingly, we conclude that employer/insurer has not shown that employee is not legally subject to further liability to the below-mentioned providers. Pursuant to the Supreme Court mandate, employee is entitled to recover these as fees and charges pursuant to section 287.140 RSMo.

C. Bill still due provider as established by live testimony:

- Liberty Hospital (Tr. 178) (\$573.69 for 12/1/96)

D. The following providers, though duly served with subpoenas, did not appear at the hearing.

- Truman Medical Center (Tr. 195)

- Dr. Ryan Reynolds (Tr. 199)

At the hearing, employer/insurer requested that the Commission hold these providers in contempt. Employer/insurer did not address this request in its brief and we consider it abandoned.

In addition to the $\ 118,581.99 previously awarded (which amount is now reduced as discussed above), employee asks this Commission to award the additional sum of $\ 24,428.35 as reflected in Claimant's Exhibit No. D. Exhibit D is a Release of Lien from the State of Missouri, Department of Social Services, Division of Medical Services for Medicaid payments made to providers. Employer responds that the amount paid by Medicaid is already included in the $\ 118,581.99 (now reduced).

We have no authority to consider employee's claim for additional past medical expenses. Any such award would be beyond the scope of the Supreme Court mandate.

Section 287.470 RSMo, provides:

Upon its own motion or upon the application of any party in interest on the ground of change of condition, the commission may any time upon a rehearing after due notice to the parties interested review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this chapter, and shall immediately send to the parties and the employer's insurer a copy of the award. No such review shall affect such award as regards any moneys paid.

Below is a summary of what must be shown to establish a change of condition warranting an increase in compensation under section 287.470:

"In order to obtain an increased award upon the grounds of change of condition, the employee must show that since the original award his condition has become substantially worse." "A continued incapacity of the same kind and character for which an award has been made is not a change in condition warranting a modification of the award." Rather, the employee must show "that since the time of the rendition of the original award his condition has become substantially worse, and not that it has in fact always been worse than the commission happened to have found it to be.'"

Pratt v. MFA, Inc., 67 S.W.3d 697, 700-701 (Mo. App. 2002) (citations omitted).

Dr. David Hof, M.D., pulmonary specialist, began treating employee in 1995. During the period Dr. Hof has treated employee, employee's work-related pulmonary condition frequently had to be treated with corticosteroids, because they were the only medications that would sufficiently reduce employee's inflammation. On many occasions, the steroids were necessary to save employee's life. At the time he gave his deposition testimony prior to the 1999 hearing of this claim, Dr. Hof did not believe employee had suffered irreversible damage as a result of the steroids used to treat her work-induced asthma.

During his April 6, 2005, deposition, Dr. Hof explained in great detail why he believes employee has now suffered a severe worsening of her physical condition due to her treatment with steroids. Dr. Hof testified that employee belongs to a sub-population of individuals that have a hypersensitivity to steroids. Dr. Hof testified that by November 1999 employee began developing overt diabetes, which condition worsened over the next year. Dr. Hof explained that steroids interfere with the insulin receptors on the cells, so that insulin does not work very well. As a result, steroids make it difficult to control blood sugars. Employee's weight plummeted from 146 pounds to 100 pounds. By May 2001, employee was insulin-dependent.

Dr. Hof testified within a reasonable degree of medical certainty that the steroid treatment was reasonable and necessary to treat employee's asthma and that the steroid treatment has caused employee to suffer premature diabetes, cataracts, osteoporosis, and demineralization of her bones including her mandible. The osteoporosis and demineralization caused employee's teeth to rot and break exposing nerve endings. The pain limited employee to eating small amounts of soft food. Employee's inability to eat led to poor nutrition. Due to her diabetes combined with her thin stature, employee now suffers from peripheral neuropathy, which Dr. Hof also causally relates to employee's work-related asthma. Dr. Hof believes that employee is permanently and totally disabled from maintaining gainful employment.

Dr. Thomas Beller, M.D., testified on behalf of employer/insurer. Dr. Beller practices in the areas of pulmonary medicine and critical care. Dr. Beller examined employee on July 7, 2005, at which time he performed a physical examination. Dr. Beller's staff performed lung capacity testing and a chest x-ray. Dr. Beller concluded that employee had moderate asthma, as well as, type I diabetes, rhinitis, GRD, peripheral neuropathy, and cataracts. Dr. Beller acknowledged that steroids elevate blood sugar and interfere with diabetes management and that high

steroid use can cause demineralization, cataracts, and diabetes. Dr. Beller believes employee's steroid use caused her cataracts. Dr. Beller believes employee's diabetes probably caused her peripheral neuropathy. Dr. Beller was unaware of employee's dental and vision problems and he had not reviewed any records regarding osteoporosis, demineralization. Dr. Beller assessed employee's pulmonary disability at 40 % of the body as a whole. Dr. Beller did not testify regarding whether employee's condition had worsened since the award in this case.

Dr. Hof has treated employee for over ten years and is intimately familiar with her conditions, diagnoses, treatment, and health over that period. He physically examined employee and observed employee before and after the entry of the award. Dr. Hof is undoubtedly in the best position to know if employee's physical condition has worsened since the entry of the award. Accordingly, Dr. Hof is the most credible medical expert to offer evidence in this matter. Dr. Hof described causally related deterioratio