Jackie Stallings v. Corbitt Manufacturing Company

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 September 22, 2006. The award and decision of Administrative Law Judge John Howard Percy, issued September 22, 2006, 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 $5^{\text {th }}$ day of April 2007. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

Alice A. Bartlett, Member John J. Hickey, Member Attest:

Secretary

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: May 1 \& June 7, 2001
5. State location where accident occurred or occupational disease was contracted: St. Louis City, Mo.
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:

Two episodes of lifting of heavy objects at work 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: 5 % permanent partial disability of the body referable to the low back 15. Compensation paid to-date for temporary disability: $\$ 6,076.84+\ 2,937.12 (per temporary award) 16. Value necessary medical aid paid to date by employer/insurer? $\$ 2,161.93+\ 1,430.80 (per temporary award)

Employee: Jackie Stallings Injury No. 01-095113 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $\ 379.80 19. Weekly compensation rate: $\ 253.20 PTD/TTD/PPD 20. Method wages computation: Stipulation

1. Amount of compensation payable:

For Medical Aid: per temporary award $\ 1,430.00 (Paid)

1. Second Injury Fund liability: No

TOTAL: $5,064.00

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be 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% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Harry Nichols

This case was originally heard on November 7, 2003. This claim was heard with two other related claims: Injury Nos. 01-095116 and 01-095117. A Temporary Award was issued in this claim on February 20, 2004. The parties now request that Final Awards be issued in this and the other two claims. The hearing of all three claims continued on June 8, 2006. The record was left open for 30 days for the submission of additional evidence. None was submitted. The record was closed on July 10, 2006.

All of the stipulations, findings of facts, conclusions of law, set forth in the Temporary Award of February 20, 2004 are restated and incorporated into this Final Award by this reference. The Temporary Award is an integral part of this Final Award. Many of the findings in this award are based on findings and conclusions made in the Temporary Award which have only been summarized in this Final Award.

The parties stipulated that:

1. additional compensation has been paid in compliance with the Temporary Award issued herein in the amount of $2,937.12 representing 11-3/5 weeks of benefits covering the period from April 11, 2002 through July 2, 2002; and
2. employer/insurer have paid $1,430.00 in additional medical expenses in compliance with the Temporary Award issued herein.

The additional issues to be resolved in this proceeding are:

1. whether employee is entitled pursuant to Section 287.140 Mo. Rev. Stat. (2000) to be reimbursed for any medical expenses, which he may have incurred in obtaining treatment for the injury;
2. whether employee should be provided with any future medical treatment for the injury;
3. whether and to what extent employee sustained any permanent disability which would entitle him to an award of compensation; and
4. whether and to what extent employee has sustained any additional permanent partial/total disability for which the Second Injury Fund would be liable as a result of the combination of any preexisting disabilities with the primary injury.

At the beginning of the hearing Claimant indicated that he was seeking reimbursement for additional medical bills not included in the temporary award. The record was left open 30 days for additional exhibits.

I previously found in the temporary award that claimant was entitled to reimbursement of medical bills from St. Mary's Hospital (Claimant's Exhibit A, Page 25), Barnes Hospital (Claimant's Exhibit D), and Washington University School of Medicine (Claimant's Exhibit E), totaling \$1,430.00. The parties stipulated at the final hearing that the foregoing amount was paid by employer/insurer in compliance with the temporary award.

As no additional medical bills were offered into evidence at the final hearing, I find that claimant is not entitled to reimbursement of any additional medical bills.

Employee is requesting an award of future medical care for his low back.

Section287.140 Mo. Rev. Stat. (2000) requires that the employer/insurer provide "such medical, surgical, chiropractic, and hospital treatment ... as may reasonably be required ... to cure and relieve [the employee] from the effects of the injury." Future medical care can be awarded even though claimant has reached maximum medical improvement. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 278 (Mo. App. 1996). It can be awarded even where permanent partial disability is determined. The employee must prove beyond speculation and by competent and substantial evidence that his or her work-related injury is in need of treatment. Williams v. A.B. Chance Co., 676 S.W.2d 1 (Mo. App. 1984). Conclusive evidence is not required. However, evidence which shows only a mere possibility of the need for future treatment will not support an award. It is sufficient if claimant shows by reasonable probability that he or she will need future medical treatment. Dean v. St. Luke's Hospital, 936 S.W.2d 601, 603 (Mo. App. 1997); Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo. App. 1996); Sifferman v. Sears, Roebuck and Co., 906 S.W.2d 823, 828 (Mo. App. 1995). "Probable means founded on reason and experience which inclines the mind to believe but leaves room to doubt." Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo. App. 1986); Sifferman at 828.

Where the sole medical expert believes that it is "very likely" that the claimant will need future medical treatment, but is unable to say whether it is more likely than not that the claimant will need such treatment, that opinion, when combined with credible testimony from the claimant and the medical records in evidence, can be sufficient to support an award which leaves the future treatment issue open. This is particularly true where the medical expert states that the need for treatment will depend largely on the claimant's pain level in the future and how well the claimant tolerates that pain. Dean, supra at 604-06.

The amount of the award for future medical expenses may be indefinite. Section 287.140 .1 does not require that the medical evidence identify particular procedures or treatments to be performed or administered. Dean, supra at 604; Talley v. Runny Meade Estates, Ltd., 831 S.W.2d 692, 695 (Mo. App. 1992); Bradshaw v. Brown Shoe Co., 660 S.W.2d 390, 393-394 (Mo. App. 1983). The award may extend for the duration of an employee's life. P.M. v. Metromedia Steakhouses Co., Inc., 931 S.W.2d 846, 849 (Mo. App. 1996). The award may require the employer to provide future medical treatment which the claimant may require to relieve the effects of an injury or occupational disease. Polavarapu v. General Motors Corporation, 897 S.W.2d 63 (Mo. App. 1995). It is not necessary that such treatment has been prescribed or recommended as of the date of the hearing. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo. App. 1996). Where future medical care and treatment is awarded, such care and treatment "must flow from the accident before the employer is to be held responsible." Modlin v. Sun Mark, Inc., 699 S.W.2d 5, 7 (Mo. App. 1985); Talley v. Runny Meade Estates, Ltd. at 694. The employer/insurer may be ordered to provide medical and hospital treatment to cure and relieve the employee from the effects of the injury even though some of such treatment may also give relief from pain caused by a preexisting condition. Hall v.

Spot Martin, 304 S.W.2d 844, 854-55 (Mo. 1957). However, where preexisting conditions also require future medical care, the medical experts must testify to a reasonable medical certainty as to what treatment is required for the injuries attributable to the last accident. O'Donnell v. Guarantee Elec. Co., 690 S.W.2d 190, 191 (Mo. App. 1985).

Claimant testified at the final hearing that his back complaints were worse than they were in November of 2003. He complained of reduced inability to forward bend and increased giving way of his leg.

I previously found in the temporary award that claimant had preexisting spondylolisthesis of L5 on S1, narrowing of the L5-S1 disk space, and degenerative spurring at L5 and S1, that he sustained an injury to his low back on