Susan Gierer v. Bank of America

2003 injury. I believe the award should be modified to increase the award of permanent partial disability to 20\%.

The extent and percentage of a disability is a finding of fact within the special province of the Commission. Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo.App. W.D. 2000) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo.banc 2003). The Commission may consider all of the evidence, including the employee's testimony, and draw reasonable inferences in arriving at the percentage of disability. Id.

I believe the evidence supports that employee is entitled to a greater percentage of disability than awarded by the majority. Employee testified as to her limitations as a result of her back injury as well as to the persistent pain associated with her condition. She testified that she suffered from pain radiating into her right shoulder, neck, and right lower extremity. She testified that it was extremely difficult to perform daily activities and chores and that she was no longer able to engage in activities such as gardening and golfing. There is no indication that employee was magnifying her symptoms. Employee did not complain of any lumbar or thoracic pain prior to her accident on October 22, 2003.

The administrative law judge seemed to give great credence to the opinion of Dr. Lange who last saw employee on January 13, 2004. Dr. Lange completed his report in 2006 without further examination of employee, only reviewing her records before completing his report. Even so, the medical records from the doctors who evaluated employee showed that employee's condition continued to deteriorate. In contrast to Dr. Lange, Dr. Feinberg was able to evaluate and examine employee on multiple occasions in 2004 as well as in 2005 and 2006. Dr. Feinberg opined that employee suffered a permanent partial disability of 27 % of the body of the whole referable to the lumbar spine and 10 % of the body as a whole referable to the thoracic spine related to the injury on October 22, 2003. I believe the evidence supports a permanent partial disability of 20 % to the body of a whole referable to the low back as a result of her October 22, 2003 accident.

The administrative law judge erred in finding that employee was not entitled to past medical expenses due to the fact that she failed to seek additional medical treatment from employer. The administrative law judge's finding is not supported by the record, but even if true does not preclude an award of past medical expenses. Employee was referred to Dr. Lange, an orthopedist, who examined her and ordered physical therapy. Employee underwent physical therapy and was later released by Dr. Lange. On January 22, 2004, employee requested additional treatment from Dr. Lange which was denied. Employee continued to experience leg numbness and severe pain. Employee sought treatment from Dr. Barry Feinberg in February of 2004. Dr. Feinberg prescribed physical therapy and provided a right facet joint injection which offered employee minimal relief. Dr. Feinberg released employee and referred her to Dr. Scodary for a neurosurgical consult. Employee went on to seek treatment from Drs. Magner, Gahn, Bailey, Utech, and Guarino. Employee sought this additional treatment because her symptoms persisted and she was denied treatment from Dr. Lange who opined that she was in need of no further medical treatment after January 22, 2004. It is clear from the record that employee continued to suffer from symptoms well after January 22, 2004. Therefore, it is unreasonable to penalize employee for seeking treatment on her own, given the doctor she was referred to by employer neither provided her additional treatment, nor referred her for further treatment.

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.

John J. Hickey, Member

Injury No.: 03-136772

Before the **Division of Workers’ Compensation** Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

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: October 22, 2003
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

1. Describe work employee was doing and how accident occurred or occupational disease contracted: While carrying a file drawer, Claimant dropped it and bent over to retrieve it; injuring her back.
2. Did accident or occupational disease cause death? No Date of death? N/A
3. Part(s) of body injured by accident or occupational disease: Low back
4. Nature and extent of any permanent disability: 12.5 % referable to the low back
5. Compensation paid to-date for temporary disability: -0 -
6. Value necessary medical aid paid to date by employer/insurer? $\ 1,976.09

Employee: Susan Gierer Injury No.: 03-136772

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient to reach maximum rates of compensation
3. Weekly compensation rate: $\$ 662.55 / \ 347.05
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\quad-0-

weeks of temporary total disability (or temporary partial disability) \quad-0-

50 weeks of permanent partial disability from Employer \ 17,352.50

1. Second Injury Fund liability: No

TOTAL:

1. Future requirements awarded: None

Said payments to begin 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:

Mark Akers

The parties have stipulated that on or about October 22, 2003:

1. Claimant was employed by Employer.
2. Claimant sustained an injury by accident arising out of and in the course of employment.
3. The injury occurred in St. Louis City, Missouri.
4. Employer and Claimant were operat