Vivian Houston v. Normandy Nursing Center

Workers' Compensation Law, I believe the decision of the administrative law judge should be modified to award employee past medical expenses.

I agree with the administrative law judge's finding that employee is entitled to compensation in this claim. However, I disagree with the administrative law judge's finding that employee is not entitled to an award of past medical expenses.

The administrative law judge erred in finding that employee was not entitled to past medical expenses due to the fact that her treatment was not authorized. Employee sought treatment from, Dr. Andrew Wayne, a workers' compensation doctor approved by employer on August 30, 2004. At that time Dr. Wayne opined that employee was at maximum medical improvement with regard to her injury; but more importantly he concluded that her injury was not work-related and required no further treatment. According to employee's testimony, Dr. Wayne, told her not to come back. Dr. Wayne's records confirm that he did not believe there was a need for a follow up visit.

Therefore, it is unreasonable to penalize employee for seeking treatment on her own, especially when the doctor she was referred to by employer not only believed that employee did not suffer a work-related injury, but was not interested in treating her. Once Dr. Wayne had formulated his opinion with regard to employee's injury and treatment, it is illogical to think that he would have a change of mind. Dr. Wayne maintained that employee did not suffer a work-related injury even after she underwent shoulder surgery. Employee was given no choice other than to seek the advice and care of her own doctor as employer did not offer any other alternative.

Furthermore, a sufficient factual basis to award past medical expenses exists when employee identifies all of the medical bills as being related to and the product of the work-related injury and the medical bills are shown to relate to the professional services rendered by medical records in evidence. Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105 (Mo.banc 1989). Employee satisfied her burden of proof as she properly offered into evidence all medical bills pertaining to treatment for her work-related injury and testified that such medical bills and treatment were related to and the product of that injury. Additionally, Dr. Berkin testified that these medical bills were reasonable, necessary and related to the employee's accident on August 29, 2003.

Based upon my review of all the evidence, I find employee met her burden of proof showing the past medical expenses were related to and the product of her work-related injury. Accordingly, I would modify the decision of the administrative law judge and award past medical expenses.

For the foregoing reasons, I respectfully dissent from the portion of the majority's decision denying an award of past medical expenses.

John J. Hickey, Member AWARD

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes
2. Date of accident or onset of occupational disease: August 29, 2003
3. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
4. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
5. Did employer receive proper notice? Yes
6. Did accident or occupational disease arise out of and in the course of the employment? Yes
7. Was claim for compensation filed within time required by Law? Yes
8. Was employer insured by above insurer? Yes
9. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee was working in the laundry room doing laundry when she slipped and fell.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Right wrist, body as a whole referable to the cervical spine and right shoulder
3. Nature and extent of any permanent disability: 21 / 2 % PPD to right wrist; 5\% PPD body as a whole (cervical spine) and 20\% PPD of the right shoulder
4. Compensation paid to-date for temporary disability: -0 -
5. Value necessary medical aid paid to date by employer/insurer? -0 -

Employee: Vivian Houston Injury No.: 03-088949

1. Value necessary medical aid not furnished by employer/insurer? -0 -
2. Employee's average weekly wages: Unknown
3. Weekly compensation rate: $\ 80.50 for TTD benefits and $\ 115.00 for PPD benefits
4. Method wages computation: Stipulation

1. Amount of compensation payable:

70.775 weeks of permanent partial disability from Employer $\ 8,139.13

1. Second Injury Fund liability: Open

TOTAL:

$\ 8,139.13

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:

A hearing was held on December 5, 2006, at the Division of Workers' Compensation in the city of St. Louis. Ms. Vivian Houston (Claimant) was represented by Mr. Jeff Swaney. Normandy Nursing Center and its Insurer, Health Care Facilities Management Trust c/o Sedgwick James, were represented by Mr. Christopher Archer. Although the Second Injury Fund is a party to this case, pursuant to the agreement of the parties, the claim against the Second Injury Fund shall remain open, and the Fund did not participate in the hearing of this matter. Mr. Swaney requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about August 29, 2003, Claimant was an employee of Employer; venue is proper in the city of St. Louis; and the claim was timely filed. The parties further stipulated that Claimant's rates are $\ 80.50 for total disability benefits and $\ 115.00 for permanent partial disability benefits. Employer has paid no benefits. The issues for resolution by hearing are: whether Claimant sustained an accident arising out of and in the course of her employment on or about August 29, 2003; medical causation; liability of Employer for past medical benefits; liability of Employer for past TTD benefits; nature and extent of permanent partial disability sustained by Claimant; whether Claimant is permanently and totally disabled; and notice of injury with respect to Claimant's right shoulder injury.

Claimant worked for Employer from August 5, 2003, until September 7, 2003. Claimant worked in the laundry department, washing, drying, folding, and passing out laundry. Claimant testified that between 4:15 and 4:30 p.m. on August 29, 2003, she was pushing a laundry basket on a wet floor when she slipped and fell.

Claimant testified that her left hand was on the basket and she used her right arm to break her fall. Claimant testified that following her fall she had a sore throat, and her right hand and thumb hurt. After her accident, Claimant asked her supervisor, Ms. Farmer, if she could go home because she had a sore throat. Ms. Farmer would not let her leave and she didn't want to tell Ms. Farmer about her fall because she didn't want to tell her about a back and leg problem she has dating back to 1992.

Claimant testified that she finished her shift that day and remained off work until September 2. When she returned to work on September 2, her back, neck, hand, and thumb hurt, and her arm was burning. The pain went up to her elbow. Performing her work aggravated her condition. Claimant testified that September 7, 2003, is the last day she has worked in any capacity.

Claimant testified that she went to the emergency room on September 3, 2003, where she was given a shot in her back and was allowed to rest. Claimant testified that she returned to the emergency room on the $27^{\text {th }}$ where they gave her medications, a brace, and instructions on how to treat her arm. Eventually Claimant came under the care of Concentra and was subsequently referred to Dr. Wayne. Claimant had an MRI of her shoulder on March 2, 2004.

Claimant went to the Meacham Park Clinic where they gave her medications, injections, therapy, and surgery. Dr. Odegard did surgery on June 29, 2005, on her right arm. Following her surgery, she underwent physical therapy.

Currently, Claimant has discomfort when raising her right arm, her hand swells, and she has occasional pain and discomfort. She still gets shooting pains. She has a burning sensation in her right hand and forearm, and in her thumb up to her forearm. She also has a tingling in the back of her hand. She has constant pain in her neck. Claimant testified she never had trouble with her right shoulder before the work injury. She now has difficulty taking care of her hair, getting dressed,