Brenda Patterson v. SDS Builders

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, heard oral argument, read the briefs, 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 July 3, 2007, as supplemented herein.

The administrative law judge concluded that employee was permanently and totally disabled as a result of her back condition. Employer/Insurer filed a timely Application for Review with the Commission alleging that the administrative law judge erred in finding that employer was responsible for 1) temporary total disability benefits; 2) permanent total disability benefits; and 3) future medical benefits. Employee filed a timely Application for Review, as well, alleging that the administrative law judge erred in refusing to award reimbursement of past medical expenses. We disagree and affirm the benefits awarded by the administrative law judge.

The Commission would like to further address the issue of past medical benefits. 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 has the burden of proving that the medical treatment sought is reasonably required to cure and relieve him from the effects of the work injury. Section 287.140.1 RSMo (2000); Bowers v. Highland Dairy Company, 132 S.W.3d 260, 266 (Mo.App. S.D. 2004). The need for the medical treatment need not be established as a certainty, but it must be established as being reasonably probable through competent, medical testimony. Bowers, 132 S.W.3d at 270.

Employee failed to meet her burden in this case as the treatment she received from Dr. McQueary was not only unauthorized by employer, but it was not necessary and reasonable to cure and relieve her from the

effects of her work injury. In the temporary award, the administrative law judge found that the treatment employee sought on her own was not authorized by employer and was not medically necessary based upon the medical record, including the testimony of Dr. Woodward and Dr. Mace. The administrative law judge remained consistent in her final award denying past medical benefits on that basis.

On June 6, 2002, a hardship hearing was held before the administrative law judge. Among the issues stipulated at hearing was whether employer should be obligated to pay for past medical expenses and/or provide future medical care. A temporary award was issued on October 30, 2002. After the hardship hearing on June 6, 2002 and prior to the award being issued on October 30, 2002, employee sought additional unauthorized treatment from Dr. McQueary. It is unclear why employee chose to forego waiting to receive the award prior to undergoing an invasive surgical procedure on September 6, 2002, when she specifically sought the hardship hearing to determine whether such treatment would be deemed necessary, and consequently the responsibility of employer.

In the temporary award, the administrative law judge found with regard to the issue of past medical benefits that:

the treatment claimant was receiving from Dr. McQueary and the pain clinic was unauthorized and she was pursing this through her private insurance. The employer was providing treatment through Dr. Woodward and was not authorizing Dr. McQueary. The notes of Dr. McQueary reflect that the claimant was well aware of this and was treating with him on her own. Therefore, the employer is not obligated to pay for these past unauthorized medical bills.

The administrative law judge went on to find that sufficient medical evidence supported a denial of future medical treatment; and based on the testimony of Dr. Woodward and Dr. Mace, found that additional medical treatment, including surgery, was not appropriate.

At the time of the temporary hearing, based on the evidence in the medical record, employee was not in need of additional medical care and was not a surgical candidate. Multiple doctors testified to that fact. Dr. Mace, neurosurgeon, opined that he did not feel that there was any role for surgical treatment in employee's case. Dr. Woodward opined that employee was "not a candidate for any invasive lumbar procedure including discogram or lumbar fusion procedure due to multiple level degenerative disc abnormality and significant pre-existing psychological disorder, which is known to [lead to a] poor lumbar surgical outcome." In addition, Dr. Woodward testified that based on the patient's pain and functional outcome that the surgical procedure employee received, including the spinal cord stimulator, provided no significant physical or pain benefit to employee.

We must emphasize the fact that employee sought the temporary hearing to address in part the issue of the unauthorized treatment she was seeking on her own, including that with Dr. McQueary. However, rather than waiting for an award on the issue, she continued to seek unauthorized treatment. Employee not only sought treatment, but underwent a major medical procedure, a L5-S1 laminectomy, on September 6, 2002. Employee was well aware that this treatment was not authorized by employer and that a temporary hearing on that very issue was held and the award would temporarily decide that matter. Employee showed a disregard for the administrative law judge's impending award by continuing treatment on her own.

The Commission agrees with the ultimate conclusion reached by the administrative law judge, that 1) employee is permanently and totally disabled as a result of her back condition; 2) employee is entitled to future medical care in the form of pain management to cure and relieve her from the effects of her injury; and 3) employer is not obligated to pay for past medical expenses as the treatment sought by employee on her own was neither medically necessary nor authorized by the employer.

The Commission agrees that appropriate workers' compensation benefits were awarded employee.

The award and decision of Administrative Law Judge Margaret Ellis Holden, issued July 3, 2007, 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 3rd day of March 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

After a review of the entire record as a whole, and consideration of the relevant provisions of the Missouri 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 was referred to Dr. Woodward, a workers' compensation doctor, approved by employer. In January of 2002, Dr. Woodward opined that employee was at maximum medical improvement with regard to her work injury on November 3, 2000. In March of 2002, employer sent employee to a consult with Dr. Mace, a neurosurgeon, at which time he opined that employee was not in need of surgery. After reviewing Dr. Mace's records, Dr. Woodward opined that employee was not in need of additional treatment, including surgery.

Therefore, it is unreasonable to penalize employee for seeking treatment on her own, especially when the doctors she was referred to by employer believed that there was no need for additional treatment.

Employer's doctors, both Drs. Mace and Woodward, gave their opinions with regard to employee's need for additional treatment. Once employer's doctors determined that employee was not in need of treatment, it is highly unlikely that they would change their opinion. Employee requested that employer provide treatment on multiple occasions which was denied by employer. Employer failed to provide treatment and therefore lost its right to direct treatment. Employee was given no choice other than to seek the advice and care of her own doctor, Dr. McQueary, as employer did not offer any other alternative.

Dr. McQueary, employee's treating surgeon, initially provided employee with conservative treatment. However, after extensive conservative treatment failed, Dr. McQueary believed that employee would benefit from surgery. Therefore, employee underwent a laminectomy on September 6, 2002. The surgery was successful in alleviating some of employee's symptoms. Dr. McQueary, noted in employee's office visit on October 15, 2002 that employee showed a 60\% improvement in her condition. Employee testified that the treatment, including the laminectomy and spinal cord stimulator, helped to relieve some of her symptoms related to her work accident. Employee testified that her ability to walk was improved and her overall pain level decreased as a result of her treatment. Dr. McQueary testified that the treatment he provided employee was related to the employee's accident on November 3, 2000; and that the treatment was both reasonable and necessary to cure and relieve employee from the effects of her injury.

Dr. McQueary's opinion was supported by Dr. Evenson, employee's pain management specialist. Dr. Evenson opined that the treatment employee sought on her own was necessary to cure and relieve her from the effects of her injury. In addition, Dr. Volarich opined that the treatment, including the laminectomy, was reasonable and necessary to cure and relieve employee from the effects of her work injury.

Employee established that the treatment she sought on her own was necessary and reasonable to cure and relieve her from the effects of her injury. Employee also 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.

Based upon my review of all the evidence, I find employee met her burden 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

Employee: Brenda Patterson

Injury No. 00-143709

Dependents: N/A

Employer: SDS Builders

Additional Party: Treasurer of Missouri, as the Custodian of the Second Inju