Darline Reeks v. Blue Bayou Motor Inn

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 March 5, 2008. The award and decision of Chief Administrative Law Judge L. Timothy Wilson, issued March 5, 2008, 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 31st day of July 2008. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman Alice A. Bartlett, Member John J. Hickey, Member

Employee: Darline Reeks

Injury No. 05-021162

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Blue Bayou Motor Inn

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Ace Property and Casualty Insurance Company

Hearing Date: January 11, 2008

Checked by: LTW

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: 02/16/05
5. State location where accident occurred or occupational disease was contracted: TANEY COUNTY, 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: The Employee moved a dresser with a co-worker, while performing housekeeping duties.
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: LOW BACK

- Nature and extent of any permanent disability: 5\%

1. Compensation paid to-date for temporary disability: -0-
2. Value necessary medical aid paid to date by employer/insurer? \$16,084.50
3. Value necessary medical aid not furnished by employer/insurer? -0 -
4. Employee's average weekly wages:

1. Weekly compensation rate: $\ 140.01

- Method wages computation: STIPULATED

1. Amount of compensation payable:

Unpaid medical expenses: -0 -

N/A weeks of temporary total disability (or temporary partial disability)

20 weeks of permanent partial disability from Employer

N/A weeks of disfigurement from Employer

1. Second Injury Fund liability: NO

Total: $\ 2,800.20

1. Future requirements awarded:

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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

ATTORNEY LIEN IN FAVOR OF JOHN WISE: \$1,074.20

Employee: Darline Reeks

Injury No. 05-021162

Dependents: N/A

Employer: Blue Bayou Motor Inn

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Ace Property and Casualty Insurance Company

Hearing Date: January 11, 2008

Checked by: LTW

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on January 11, 2008. The employee appeared personally, pro se. The employer and insurer appeared through their attorney, Patricia L. Musick, Esq.

The employee seeks a temporary or partial award. The employer and insurer seek a final award.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about February 16, 2005 Blue Bayou Motor Inn was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Ace Property \& Casualty Insurance Company.

(2) On the alleged injury date of February 16, 2005 Darline Reeks was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about February 16, 2005 the employee sustained an accident, which arose out of and in the course and scope of her employment with the employer.

(4) The above-referenced employment and accident occurred in Taney County, Missouri. Venue is proper.

(5) The employee notified the employer of her injury as required by Section, 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the claimed accident the employee's average weekly wage was sufficient to allow a compensation rate of $\ 140.01 for both temporary and permanent disability compensation.

(8) Temporary disability benefits have not been provided to the employee.

- The employer and insurer have provided medical treatment to the employee, having paid $\ 16,084.50 in medical expenses.

- An attorney's lien has been filed in this case by John Wise, Esq., who asserts a lien for attorney's fees in the amount of $\ 1,750.00 and expenses in the amount of $\ 824.20.

The sole issues to be resolved by hearing include:

(1) Whether the accident of February 16, 2008 caused the injuries and disabilities for which benefits are now being claimed?

- Whether the employer and insurer are obligated to pay for certain past medical care and expenses?

- Whether the employee has sustained injuries that will require additional medical care in order to cure and relieve the claimant of the effects of the injuries?

- Whether the employee sustained any permanent disability as a consequence of` the February 16, 2005 accident; and, if so, what is the nature and extent of the disability?

The employee testified at the hearing in support of her claim. Also, the employee presented at the hearing of this case the testimony of her husband, Simon Peter Reeks. In addition, the employee offered for admission the following exhibits:

Exhibit A Medical Bills from North Arkansas Regional Medical Center Exhibit B Medical Records from Ozark Counseling Services

Exhibit C Medical Records from Mahlon O. Maris, M.D.

The employer and insurer objected to the admission of Exhibit A, noting that the exhibit lacked proper certification and constituted inadmissible hearsay. The objection was sustained, resulting in the undersigned receiving but denying admission of Exhibit A. Exhibits B and C were received and admitted into evidence without objection.

The employer and insurer did not present any witnesses at the hearing of this case. The employer and insurer, however, offered for admission the following exhibit:

Exhibit 1

Complete Medical Report from Paul M. Olive, M.D.

The exhibit was received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took official or judicial notice of the documents contained in the Legal File, which include:

- Minute Entries

- Notice of Hearing (January 11, 2008)

- Notice of Hearing (October 19, 2007)

- Request for Hearing-Final Award

- Lien for Attorney's Lien

- Answer of Employer and Insurer to Claim for Compensation

- Claim for Compensation

- Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The employee, Darline Reeks, is 44 years of age, having been born on November 28, 1963. She resides with her husband, Simon Peter Reeks, in Harrison, Arkansas.

At the hearing, Ms. Reeks did not discuss the nature of, and facts associated with, the accident she sustained on February 16, 2005. Yet, the parties stipulated that, on or about February 16, 2005, Ms. Reeks engaged in employment with Blue Bayou Motor Inn as a housekeeper. The parties further stipulated that, on February 16, 2005, Ms. Reeks sustained an accident, which arose out of and in the course of her employment with Blue Bayou Motor Inn. In addition, the medical records admitted at the hearing provide a medical history, which identifies the nature and

scope of the accident, and the subsequent treatment received by Ms. Reeks. A summary of the pertinent facts is set forth below.

In her employment with Blue Bayou Motor Inn, which is located in Branson, Missouri, Ms. Reeks’ worked as a housekeeper. In this employment, Ms. Reeks performed general cleaning. However, in preparation for the busy season associated with spring and summer, Ms. Reeks performed "deep cleaning," which is described as being more than usual cleaning that takes place on a day-to-day basis. While engaged in this "deep cleaning" on February 16, 2005, Ms. Reeks attempted to move a dresser with a co-worker. As she bent over to move the dresser, with one hand in an open drawer and the other hand on the back of the dresser, and while attempting to scoot the dresser away from the wall, the co-worker jerked the dresser. The jerking of the dresser caused Ms. Reeks to experience a jerk. This medical history reveals Ms. Reeks reporting a sudden pop and immediate back pain in the midline of her low back, referable to the level of L4-L5.

Subsequent to suffering the lifting incident, on February 16, 2005, Ms.Reeks reported the incident to her employer. However, the manager was not on the property, and Ms. Reeks did not receive an immediate referral for treatment. Consequently, on that date, Ms. Reeks sought and obtained a medical evaluation through her own health care provider, Linn Mayo, a nurse practitioner, associated with Mahlon O. Maris, M.D. in Harrison, Arkansas. This examination, which reflected Ms. Reeks presenting with complaints of low back pain but no radicular pain or tingling and numbness, resulted in a diagnosis of low back strain, and a receipt of prescription medication that included Ibuprofen and Flexeril.

On or about March 4, 2005 Ms. Reeks followed-up with additional treatment, with Ms. Reeks exhibiting tenderness to her back but no radicular symptoms, and straight leg testing being negative. A subsequent diagnosis in the nature of an MRI revealed an annular fissure at the level of L4-L5, but no evidence of a herniated nucleus pulposus or spinal stenosis. Ms. Reeks continued to work, but on light duty, as she performed general cleaning that did not involve lifting or pulling. Ms. Reeks did not obtain follow-up treatment, apparently because of financial constraints and the lack of a referral to health care provider by the employer and insurer.

Eventually, the employer and insurer referred Ms. Reeks to Ted Lennard, M.D., who is a physician practicing in physical medicine and affiliated with Springfield Neurological \& Spine Institute. In light of this referral, on or about August 9, 2005, Ms. Reeks presented to Dr. Lennard with continuing complaints of low back pain, without lower extremity pain or numbness. In light of his examination and evaluation of Ms. Reeks, Dr. Lennard offered an impression that Ms. Reeks suffered an injury in the nature of "low back pain-questionable L4-5 annular tear." Further, finding the injury to be causally related to the February 16, 2005 lifting incident, Dr. Lennard initiated a course of physical therapy and prescription medication that included Lodine. In addition, Dr. Reeks released Ms. Reeks to return to work full time, modified duty, which included no lifting more than 20 pounds.

On August 10, 2005, Ms. Reeks experienced an event that resulted in her securing an ambulance and being transported from her home in Harrison, Arkansas to the North Arkansas Regional Medical Center. The attending physician in the emergency room noted Ms. Reeks to be neurologically intact with no specific sensory findings. However, in light of the complaints of pain, the attending physician diagnosed Ms. Reeks with low back pain and admitted her to the medical floor for further observation and pain control.

While in the hospital, Marlon Maris, M.D. treated Ms. Reeks with analgesics IV and, prescribed physical therapy. Additionally, Dr. Maris requested an orthopedic consultation for Ms. Reeks. In light of this referral, Charles Ledbetter, M.D., who is an orthopedic surgeon, performed an examination and evaluation of Ms. Reeks on or about August 11, 2005. Based on this examination, Dr. Ledbetter diagnosed Ms. Reeks with a mild back strain, and initiated a course of physical therapy and use of a TENS unit. Ms. Reeks remained in the hospital, until being released on August 15, 2005 with a discharge diagnosis of acute back strain, degenerative disk disease, and depression. Additionally, Ms. Reeks received instructions not to do any heavy lifting and to continue her home exercises.

On or about August 22, 2005, Ms. Reeks followed-up with Dr. Mayo. This exam revealed normal motor system, normal sensory exam to vibration, pinwheel, light touch, and normal reflexes.

Follow-up treatment provided by Dr. Lennard included diagnostic studies in the nature of an MRI of the lumbar spine and EMG/NCS studies of the lower extremities. Notably, the MRI study revealed a "left paracentral disk protrusion at L1-2 with mild vertebral canal stenosis" and "a "broad-based disk protrusion and right paracentral annular tear." On August 30, 2005, Dr. Lennard took Ms. Reeks off work, and remained off work by his prescription until September 6, 2005.

On or about September 6, 2005, Dr. Lennard permitted Ms. Reeks to return to work full time, but with limitations and restrictions that included no more than 5 pounds of lifting, pushing, and pulling, limiting more than occasional bending until recheck visit in two weeks. Additionally, he scheduled follow-up treatment, which included use of a TENS unit, and consideration of epidural injections. Thereafter, Ms. Reeks began using a TENS unit, which provided some relief. However, Ms. Reeks never received any epidural injections, and ceased treating with Dr. Lennard in or around October 31, 2005, apparently at the direction of the employer and insurer who appear to have declined to offer the recommended medical treatment.

In or around April 2006 the employer and insurer requested Dr. Lennard to review certain medical records and to render an opinion relative to consideration of whether Ms. Reeks' low back pain is causally related to the February 16, 2005 accident. Responding to this inquiry, on or about May 1, 2006, Dr. Lennard propounded the following opinion:

It appears based on the patient's history and review of records that her low back pain and what appears to be an annular tear at the L4-5 level can be attributed to her work accident on 02-16-05 and would be considered a substantial factor.

On or about May 18, 2006, through an appointment secured by her former attorney, Ms. Reeks presented to Shane L. Bennoch, M.D., who is a physician practicing in the specialty of disability evaluations, for an independent medical examination and evaluation. At the time of this examination, Dr. Bennoch took a history from Ms. Reeks, reviewed various medical records, and performed a physical examination of her. In light of his examination and evaluation of Ms. Reeks, Dr. Bennoch opined that, on or about February 16, 2005, Ms. Reeks sustained a traumatic injury to the low back in the nature of an L4-L5 annular fissure, with left sacroiliac joint pain. Dr. Bennoch further opined that, at the time of his examination, Ms. Reeks was not at maximum medical improvement, and thus in need of further diagnostic workup and consultation by a neurosurgeon.

On or about September 5, 2006, through an appointment secured by the employer and insurer, Dr. Reeks presented to Paul M. Olive, M.D., who is an orthopedic surgeon, for an independent medical examination and evaluation. At the time of this examination, Dr. Olive took a history from Ms. Reeks, reviewed various medical records, and performed a physical examination of her. In light of his examination and evaluation of Ms. Reeks, Dr. Olive opined that, on or about February 16, 2005, while moving a dresser, Ms. Reeks sustained an injury in the nature of a lumbar strain. Dr. Olive further opined that, relative to the February 16, 2005 low back injury, Ms. Reeks is at maximum medical improvement; and, she sustained a permanent partial impairment of 5 percent to the body as a whole, referable to the low back. Additionally, Dr. Olive opined that, relative to the February 16, 2005 accident,Ms. Reeks did not need any additional medical treatment or therapy.

Preeminently, Dr. Olive notes and opines that, while Ms. Reeks presents with chronic and severe back pain, the presentation of pain by Ms. Reeks is "related to a significant amount of symptom amplification and psychological overlay." Notably, in this regard, Dr. Olive states, "When I lightly touched the skin over her lumbar spine, she exhibited signs of severe discomfort. When I gently pressed down on the top of her head, she started crying and had to sit down for several minutes before she could even resume cooperating with the physical examination."

Ms. Reeks' amplification of pain is not supported by the diagnostic studies, or the neurological evaluation and examination performed by the physicians, including the exam performed by Dr. Olive. For example, in recording his

neurologic examination of Ms. Reeks, Dr. Olives notes,

This patient states she has no sensation when her legs are being touched or stuck with a pin from the waist down. This involves the anterior thigh, posterior thigh, the entire leg and dorsum of the feet, as well as the plantar aspect of the feet. When I stick the plantar aspect of the feet, her toes withdraw. However, she states she has no sensation that I am doing that.

In light of the examination and evaluation of Ms. Reeks by Dr. Olive, the employer and insurer appear to have taken the position that Ms. Reeks was at maximum medical improvement and not in need of additional medical care.

In or around May 2007 Ms. Reeks' former attorney, John Wise, withdrew from representation of Ms. Reeks, asserting a fee for attorney's fees in the amount of $\ 1,750.00 and expenses in the amount of $\ 824.20.

The Workers' Compensation Law for the State of Missouri underwent substantial change on or about August 28, 2005. However, in light of the underlying workers' compensation case involving an accident occurring on February 16, 2005, the legislative changes occurring in August 2005 enjoy only limited application to this case. The legislation in effect on February 16, 2005, which is substantive in nature, and not procedural, governs the adjudication of this case. Accordingly, in this context, several familiar principles bear reprise.

The fundamental purpose of The Workers' Compensation Law for the State of Missouri is to place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment. The law is to be broadly and liberally interpreted and is intended to extend its benefits to the largest possible class. Any question as to the right of an employee to compensation must be resolved in favor of the injured employee. Cherry v. Powdered Coatings, 897 S.W. 2d 664 (Mo. App., E.D. 1995); Wolfgeher v. Wagner Cartage Services, Inc., 646 S.W.2d 781, 783 (Mo. Banc 1983). Yet, a liberal construction cannot be applied in order to excuse an element lacking in the claim. Johnson v. City of Kirksville, 855 S.W.2d 396 (Mo. App., W.D. 1993).

The party claiming benefits under The Workers' Compensation Law for the State of Missouri bears the burden of proving all material elements of his or her claim. Duncan v. Springfield R-12 School District, 897 S.W.2d 108, 114 (Mo. App. S.D. 1995), citing Meilves v. Morris, 442 S.W.2d 335, 339 (Mo. 1968); Bruflat v. Mister Guy, Inc. 933 S.W.2d 829, 835 (Mo. App. W.D. 1996); and Decker v. Square D Co. 974 S.W.2d 667, 670 (Mo. App. W.D. 1998). Where several events, only one being compensable, contribute to the alleged disability, it is the employee's burden to prove the nature and extent of disability attributable to the job-related injury.

Yet, the employee need not establish the elements of the case based on absolute certainty. It is sufficient if the employee shows them to be a reasonable probability. "Probable", for the purpose of determining whether a worker's compensation the employee has shown the elements of a case by reasonable probability, means founded on reason and experience, which inclines the mind to believe, but leaves room for doubt. See, Cook v. St. Mary's Hospital, 939 S.W.2d 934 (Mo. App., W.D. 1997); White v. Henderson Implement Co., 879 S.W.2d 575,577 (Mo. App., W.D. 1994); and Downing v. Williamette Industries, Inc., 895 S.W.2d 650 (Mo. App., W.D. 1995). All doubts must be resolved in favor of the employee and in favor of coverage. Johnson v. City of Kirksville, 855 S.W.2d 396, 398 (Mo. App. W.D. 1993).

I.

Accident \& Injury

The evidence is supportive of a finding, and, I find and conclude, that, on or about February 16,

2005, the employee Darline Reeks sustained an injury by accident, which arose out of and in the course of her employment with Blue Bayou Motor Inn. The injury occurred as Ms. Reeks engaged in the lifting and moving of a dresser with a co-worker, while performing "deep cleaning" as a housekeeper. I further find and conclude that this incident caused Ms. Reeks to sustain an injury in the nature of a lumbar strain and an annular tear at the level of L4-L5.

Ms. Reeks argues implicitly that she is not at maximum medical improvement. In asserting this argument, Ms. Reeks states that she is continuing to experience chronic and severe disabling pain, and is in need of additional medical care. At the hearing, Ms. Reeks exhibited significant pain behavior, and was emotional and in tears while testifying in support of her case. Ms. Reeks, however, failed to offer any medical evidence to support her claim for additional medical care.

Although Dr. Bennoch opined that Ms. Reeks was not at maximum medical improvement, he premised his opinion on the belief that Ms. Reeks needed a surgical consultation, as he is not a surgeon. Responding to Dr. Bennoch, the employer and insurer provided Ms. Reeks with a surgical consultation by Dr. Olive, who opines that, while Ms. Reeks sustained an injury to her low back, the condition is now permanent, and Ms. Reeks is at maximum medical improvement. Additionally, Dr. Olive opines that Ms. Reeks is not in need of future medical care. Further, in recognizing the dramatic pain behavior exhibited by Ms. Reeks, which he considered being inconsistent with his examination and findings, Dr. Olive concluded that Ms. Reeks is exhibiting symptom amplification and psychological overlay.

After consideration and review of the evidence, and to the extent there is a difference in medical opinion, I resolve the differences in medical opinion in favor of Dr. Olive, who I find to be credible. I further find and conclude that Ms. Reeks' pain behavior is out of proportion to her injury, and is reflective of a person exhibiting symptom amplification. Similarly, I find and conclude that Ms. Reeks is at maximum medical improvement. Further, in concurring with Dr. Olive, I find and conclude that Ms. Reeks is not in need of future medical care.

Ms. Reeks requests an award for additional medical care. The evidence presented at the hearing is not supportive of a claim for additional or future medical care. The only evidence presented by Ms. Reeks relative to this issue is that she wishes "to get better." However, she presented no evidence regarding what, or if any, medical treatment was necessary. She also failed to show that any such treatment, to a reasonable degree of medical certainty, arises from her alleged injury. Ms. Reeks failed to sustain her burden of proof. Accordingly, in light of the aforementioned findings, and for the foregoing reasons, Ms. Reeks' request for future medical care is denied.

In addition, Ms. Reeks seeks payment for past medical care and expenses. The employer and insurer are not liable for payment of past medical care, insofar as Ms. Reeks failed to present any evidence of medical care that was not paid. As previously noted, the employee bears the burden of proof regarding all elements of his or her claim. Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789, 793 (Mo.App. 1992). Pursuant to the workers' compensation statutes, the employee receives, and the employer provides, medical treatment as may be reasonably required to cure or relieve the effects of the injury. Section 287.140, RSMo.

In this case, Ms. Reeks presented no evidence regarding any past medical expenses that were not paid by the employer and insurer and that were reasonably required to cure or relieve her from the effects of the February 16, 2005 injury. There are no bills or expenses in the record that Ms. Reeks has alleged were unpaid. Therefore, the employee's claim for past medical care and expenses is denied.

I find and conclude that, as a consequence of the February 16, 2005, accident, Ms. Reeks sustained an injury in the nature of a low back strain, and an annular tear at the level of L4-L5. Although Ms. Reeks says she cannot work, and suffers severe disabling pain, I do not find her testimony credible or believable. Persuaded by the testimony and opinions of Dr. Olive, I find and conclude that Ms. Reeks exhibits pain behavior inconsistent with the objective findings and out of proportion to the injury.

After consideration and review of the evidence, and relying principally upon the medical opinion of Dr. Olive, I find and conclude that, as a consequence of the accident of February 16, 2005, Ms. Reeks sustained a permanent partial disability of 5 percent to the body as a whole ( 20 weeks). Further, I find and conclude that Ms. Reeks is employable in the open and competitive labor market. Therefore, the employer and insurer are ordered to pay to the employee the sum of $\ 2,800.20, which represents 20 weeks of permanent partial disability compensation, payable at the applicable compensation rate of $\ 140.01 per week.

The employee's former attorney, John Wise, filed a lien for attorney's fees in the amount of $\ 1,750.00 and expenses in the amount of $\ 824.20. Mr. Wise did not appear for the hearing, and his lien does not identify the contract he might have entered into with Ms. Reeks, or the services he provided in behalf of her. The evidence, however, does reveal that he secured an independent medical examination for Ms. Reeks by Dr. Bennoch, and undoubtedly incurred certain expenses for such an evaluation. Additionally, Mr. Wise appeared and participated in mediation for Ms. Reeks.

Accordingly, Attorney John Wise is awarded attorney's fees in the amount of $\ 250.00, together with expenses in the amount of $\ 824.20, relative to the costs he incurred in the course of representing Ms. Reeks. Therefore, the payment of $\ 2,800.20 shall be reduced by the payment of the aforementioned attorney's fees and expenses.

The award is subject to modifications as provided by law.

Date: $\qquad March 5, 2008 \qquad Made by: \qquad$ /s/ L. Timothy Wilson $\qquad$ L. Timothy Wilson Chief Administrative Law Judge Division of Workers' Compensation (signed February 29, 2008)

A true copy: Attest:

$\qquad$ /s/ Jeffrey W. Buker $\qquad$

Jeffrey W. Buker

Director

Division of Workers' Compensation

.