Robert Hampson v. ABC Atlas Van Lines

Injury No. 02-069157

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

Checked by: JHP

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: June 19, 2002
5. State location where accident occurred or occupational disease was contracted St. Louis City, Missouri
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? Self-insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While helping a co-worker back up employer's truck, employee was struck by a pickup truck.
12. Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: low back, neck, right shoulder

- Nature and extent of any permanent disability: 60\% permanent partial disability of the body referable to the low back

1. Compensation paid to-date for temporary disability: $\ 71,990.46
2. Value necessary medical aid paid to date by employer/insurer? $\ 132,501.20

Employee: | Robert Hampson |

1. Value necessary medical aid not furnished by employer/insurer? None

- Employee's average weekly wages: $\ 522.03

1. Weekly compensation rate: $\ 348.02 TTD/PTD $\ 329.42 PPD
2. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable:

Subrogation reimbursement due Employer: <\$61,978.72>

240 weeks of permanent partial disability from Employer \79,060.80

1. Second Injury Fund liability: No

Total: \ 17,082.08

1. Future requirements awarded: See Award

Said payments to begin retroactive to June 19, 2006 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 the net amount awarded in favor of the following attorney for necessary legal services rendered to the claimant:

Stephen T. Hamby

A temporary award finding that Robert Hampson, employee herein, was entitled to further medical care to cure and relieve him of the effects of a work-related injury on June 19, 2002 to his low back was issued in this case on April 18, 2005 by ALJ Cornelius T. Lane. The principal issue tried by Judge Lane was whether a proposed second back surgery was reasonable and necessary treatment for an employee, who had undergone a laminotomy at L4 and L5 on the left and microdiscectomy at L5-S1 on the left on October 29, 2002. Based on the medical opinion of Dr. John E. Krettek, a neurosurgeon, who had performed the first surgery, and the credible testimony of employee, Judge Lane determined that further surgery was necessary to help relieve and cure employee’s injuries. Judge Lane further found that claimant was temporarily and totally disabled from September 13, 2004 to April 18, 2005 and ordered employer to pay future temporary total disability compensation until it was determined that employee was no longer temporarily disabled.

A hearing in this proceeding was held on June 21 and 22, 2007. Both parties are seeking a final award. Both parties submitted proposed awards on August 9, 2007.

I decline to make any findings with respect to the facts or issues determined by Judge Lane, except only those findings which are required for a determination of the issues in this award. This award assumes the correctness of the findings in the Temporary Award dated April 18, 2005.

The parties stipulated that on or about June 19, 2002:

1. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. the employer's liability was self-insured;
3. the employee's average weekly wage was $\ 522.03;
4. the rate of compensation for temporary total disability was $\ 348.02 and the rate of compensation for permanent partial disability was $\ 329.42; and
5. the employee sustained an injury as a result of an accident arising out of and in the course of employee's employment occurring in St. Louis City, Missouri.

The parties further stipulated that:

1. the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law;
2. compensation has been paid in the amount of $\ 71,990.46 representing 207-4/7 weeks of benefits covering the period from June 22, 2002 to June 19, 2006;
3. employer has paid $\ 132,501.20 in medical expenses; and
4. employee reached maximum medical improvement and a state of permanency with respect to the work-related injuries on June 19, 2006.

The issues to be resolved in this proceeding are:

1. whether the employee should be provided with any future medical treatment for the work-related injuries June 19, 2002;
2. the nature and extent of any permanent disability sustained by the employee as a result of the workrelated injuries of June 19, 2002; and
3. the extent of any subrogation credit due the employer pursuant to Section 287.150.3 Mo. Rev. Stat. (2000).

Employee is requesting an award of future medical care for his low back, neck and right shoulder.

Section 287.140 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