Joseph Muller v. St. Louis Housing Authority

for Modification asking the Commission to review the case anew applying the amended standard of review found in § 287.800 RSMo (Cum. Supp. 2005).

The Court of Appeals issued its mandate on November 23, 2005. We now issue our final award resolving all disputes in this matter.

On October 19, 2004, the Commission stated it was issuing its final determination on all issues except past medical expenses. We reaffirm our determination herein. We will not revisit issues the Commission has finally determined particularly where, as here, no new evidence has been presented on those issues. SLHA's Motion for Reconsideration is denied.

SLHA's Motion to Strike asserts defenses and objections raised by employer during the two remand hearings. We will address these defenses and objections in the discussion below.

All three members of the Commission have considered the within matter. SLHA's Motion for Full Commission Review is denied as moot.

We decline SLHA's invitation to re-consider the merits of this matter under the amended standard of review set forth in § 287.800 RSMo. SLHA's Motion for Modification is denied.

The administrative law judge awarded past medical expenses in the amount of $\ 187,562.00. The administrative law judge stated that because the award was in the nature of a temporary award, the parties may seek further relief to identify which past medical expenses are compensable. The administrative law judge erred by this statement. The administrative law judge did not enter a temporary award. Claimant had the burden at trial to prove his entitlement to an award for past medical expenses. The award of future medical treatment does not alter Claimant's obligation to prove past medical expenses.

Claimant's burden regarding past medical expenses is clear: Where an employee identifies medical bills and testifies that the bills relate to and are a product of his injury, and the bills relate to the services provided as demonstrated by the medical records, there is a sufficient factual basis to award past medical benefits. Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. banc 1989). The employer can then challenge the reasonableness or fairness of the bills, or their relationship to the injury. Id. at 112.

Claimant argues that SLHA waived objection to all medical expenses listed in Claimant's Exhibit R by not objecting to the exhibit. Claimant's Exhibit R contains the deposition of Dr. Margherita and attachments to the deposition. One of the attachments is Deposition Exhibit C (hereinafter referred to as "Exhibit R-C"), which purports to be a summary of Claimant's medical expenses. Exhibit R-C is four pages long. Midway through page three is the identifier "Total" next to which is the figure $\ 110,027.02. The last entry on page four is "Total with additional bills" next to which $\ 187,562.00 is listed.

SLHA alleges that Exhibit R-C is not the same document as the expense summary shown to Dr. Margherita during his deposition. We have reviewed Dr. Margherita's deposition. He identified the expense summary he was referencing by the total expense amount of "110,171," which matches no total appearing on Exhibit R-C. We find

that the expense summary Dr. Margherita reviewed is not the same document as Exhibit R-C included in Exhibit R.

It was improper for Claimant to substitute Exhibit R-C for the expense summary presented to Dr. Margherita at his deposition. SLHA's determination not to object to the Exhibit R was based upon the assurance of Claimant's counsel that Exhibit R contained the deposition and the original attachments to the deposition. We will consider all objections to Exhibit R-C because SLHA's decision not to object at trial was elicited by the erroneous exhibit identification of Claimant's counsel.

We remanded the matter to the Division of Workers' Compensation (Division) to hold a hearing regarding the bills and treatment related to the February 11, 2002, surgery so we could accurately determine which, if any, expenses from that surgery were properly allowable. Claimant offered the medical bill of Barnes-Jewish Hospital under the cover of an affidavit of the custodian of bills of Barnes-Jewish Hospital. The custodian did not appear to testify regarding the bill. SLHA's counsel objected to the bill on the basis that it is hearsay not subject to the business record exception of $\S 490.692$ RSMo. We agree. Section 492.692 requires the admission of business records offered in accord with that section. However, no party shall be permitted to offer business records pursuant to § 492.692 unless all other parties to the action have been served with copies of the records and the affidavit at least seven days prior to the day upon which trial of the cause commences. The custodian executed the affidavit just five days before the remand hearing. SLHA's objection to Exhibit U is sustained.

Claimant also offered Exhibit V containing medical records from Barnes-Jewish Hospital pertaining to services provided in February 2002. SLHA objected on the grounds that the records exceed the scope of the Commission's remand order. To the extent Exhibit V may assist the Commission in ensuring that medical expenses have not been awarded twice, Exhibit V does not exceed the scope of the remand order. Exhibit V is admitted solely for the purpose of determining whether expenses identified on Exhibit R-C were duplicative.

As to evidentiary objections not discussed herein, we adopt the provisional evidentiary rulings made by the administrative law judge during the hearing of May 24, 2004, as the rulings of the Commission.

Claimant identified the medical expenses summarized on the Exhibit R-C and the medical bills attached thereto. Claimant testified that the expenses were related to his neck injury of August 27, 1997. We have compared the expenses listed on Exhibit R-C with the medical bills and medical records admitted into the record. Claimant has shown the expenses listed on Exhibit R-C should be awarded, except as modified in the following discussion.

SLHA raises objection to the following expenses alleging they are not supported by the record:

Exhibit R-C contains itemized charges for office visits on July 2, 1998, (\$50.00) and July 21, 1998, (\$72.00) for which there are no supporting medical records. We can find no medical record to substantiate this service. These expenses total $\ 122.00.

Exhibit R-C contains itemized charges for X-rays on February 19, 1998, (\$189.00) and April 30, 1998, (\$113.00) for which there are no supporting medical records. We can find no medical record to substantiate this service. These expenses total $\ 302.00.

Exhibit R-C contains itemized charges on February 11, 2002, of $\ 664.00 and $\ 1,300.00. The medical bill for these charges confirm that they are included in the $\ 4,211.00 itemized amount listed on Exhibit R-C.

Exhibit R-C contains itemized charges for a CT scan on December 8, 2000, (\$214.00) and an MRI on

December 13, 2000 (\$447.00). SLHA alleges that these expenses were for services related to Claimant's cancer treatment. Other than a reference in the referral of Dr. Riew, we can find no medical record to substantiate these services.

These unsupported and duplicate expenses total \$2,625.00.

Exhibit R-C contains itemized charges for an X-ray on December 11, 1997, (\$189.00) and surgery on October 17, 1997 (\$8,146.91). These charges also appear in the itemized expenses for Unity Medical Group South. A comparison of the Unity Medical and St. Luke's bills confirm that the listed expenses are duplicative. These unsupported duplicate expenses total $\ 8,335.91.

Exhibit R-C contains itemized charges on October 17, 1997, for anesthesia services by Comprehensive Anesthesia Care (\$986.00). SLHA alleges that there is no medical record to substantiate these services. We disagree. The operative report of Dr. Marchowsky is in the record confirming Claimant received anesthesia services on that date. The expense is properly proven.

Exhibit R-C contains itemized charges on February 11, 2002, for anesthesia services by Dr. Kras (\$2,170.00). SLHA alleges that there is no medical record to substantiate these services. We disagree. The operative report of Dr. Riew is in the record confirming Claimant received anesthesia services on that date. The expense for Dr. Kras' services is properly proven.

Exhibit R-C contains itemized charges for February 7, 2002, EKG (\$32.00). We can find no medical record to substantiate this service. This unsupported expense totals $\ 32.00.

During Claimant's testimony, Claimant's counsel asked Claimant to testify regarding a bill in the