Johnnie Saunders v. Model Cities Health Corporation

The instant appeal does not present a novel issue to the Commission. The issue is: which party presented the more credible, believable and trustworthy factual evidence?

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. Bresner, 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 of 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 than 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).

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).

Temporary disability awards provided by workers' compensation law sections 287.170 RSMo and 287.180 RSMo, are not designed as unemployment compensation. Williams v. Pillsbury Company, 694 S.W.2d 488 (Mo. App. 1985).

Temporary total disability payments are intended to cover healing periods and are unwarranted beyond point at which employee is capable of returning to work. Temporary total disability awards are not intended to compensate employee after the condition has reached a point where further progress is not expected. Brookman v. Henry Transportation, 924 S.W.2d 286 (Mo. App. 1996). 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 a point of maximum medical progress. Schuster v. Division of Employment Security, 972 S.W.2d 377 (Mo. App. 1998).

An injury is only compensable if it is clearly work related. Cahall v. Cahall, 963 S.W.2d 368 (Mo. App. 1998). An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition. Section 287.020.2 RSMo. Employee must show a causal connection between the injury complained of and the job or accident. Williams v. DePaul Health Center, 996 S.W.2d 619 (Mo. App. 1999).

III. Summary of Facts

At the outset, the Commission notes the facts were recounted in the award issued by the administrative law judge and will not be repeated by the Commission except when special emphasis necessitates.

In summary fashion, employee testified as follows: date of birth February 2, 1937; she has been a nurse since 1958; and she described an injury due to an accident occurring at work on February 2, 2002.

Prior to the accident occurring February 2, 2002, employee denied the existence of any physical limitation concerning her knees; denied any prior difficultly walking because of pain or swelling in her knees; denied any prior swelling in her knees; denied ever experiencing any back pain; denied any prior problems concerning stiffness or limitations in her low back; denied any prior problems concerning her neck; denied any prior problems concerning headaches; and denied experiencing any ear problems, hearing loss problems or any ringing in her ears.

Employee described the injury/accident occurring in the following fashion: she was sitting on a stool with rollers taking vital signs of a child; a stethoscope was in her ears; the child pulled the stethoscope forward, in turn, pulling employee forward; and when employee went forward the stool flipped over and employee landed on the floor. Employee testified that her knees struck the floor and her head struck a metal door facing.

Employee testified that Dr. Golfinopolous, employed by the employer, came to her aide and checked her vital signs; her only complaint of pain was her right knee. After checking employee's vital signs, Dr. Golfinopolous prescribed pain medication, Vioxx. Employee continued working the remainder of her shift, and continued her employment with employer through October 17, 2002. Employee has not attempted to work since October 17, 2002.

Post-accident, employee's medical treatment and medical evaluations, for the most part, chronologically transpired as follows: Dr. Mertz; Dr. LaPietra; Dr. Bonar; Baptist Lutheran Medical Center; Dr. Frevert; Dr. Zarr; Dr. Zipper; Dr. Weed; Dr. Chaplick; Dr. Luallin; Dr. Zimmerman; and Dr. Hood.

On February 6, 2002, employee consulted Janet S. Mertz, M.D., an otolaryngologist. Employee's history and complaints were as follows: fell and hit head Saturday; occipital area; saw stars; did not lose consciousness; now aware of some ringing in ears but also acknowledged she had ringing in her ears in the past. Dr. Mertz administered an audiogram, which showed employee's hearing to be within normal limits with good symmetry. There was a slight high tone loss that could cause tinnitus. The diagnosis of Dr. Mertz was tinnitus and recent head trauma without loss of consciousness. Employee did not register any additional complaints to Dr. Mertz.

Employee presented to Dr. Mertz due to the fact she was experiencing headaches and ringing in her ears. On direct examination employee testified that she had experienced ringing in her ears a long time ago when she had an infection.

The medical records of Dr. Latkovich/Dr. LaPietra, dated January 23, 2002, indicate the following: she (employee) presents today with very unusual feelings in her head and her ears; she (employee) has a feeling that her ears are closer together than they were before, and she (employee) has a mild decrease in hearing in her left ear; this is all relatively recently; and she (employee) complains of some mild ringing in her ears and no other symptoms. The assessment of Dr. Latkovich was decreased hearing, ringing in ears and a referral to an ENT for evaluation. Also, Dr. Latkovich desired employee to follow-up with Dr. LaPietra after her evaluation by an otolaryngologist.

When employee presented to Dr. Mertz on February 6, 2002, the intake sheet indicates that the office of Dr. LaPietra referred employee to Dr. Mertz.

The medical records of Dr. Mertz dated November 4, 1997, reveal that employee consulted Dr. Mertz on that date.

Her complaints given Dr. Mertz consisted of earaches and ringing in both ears. The assessment of Dr. Mertz was ringing in the ears possibly due to a high frequency hearing loss. Since February 6, 2002, employee has had little if any medical professional follow-up for these type complaints.

On April 9, 2002, employee followed up with her primary care physician, Dr. LaPietra. Employee registered right knee complaints only with Dr. LaPietra at this visit. Employee did not register any complaints concerning ringing in her ears, low bac