Jennifer Leavitt v. Borders Group, Inc.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs of the parties, heard oral arguments and considered the relevant portions of the record. Pursuant to $\S 286.090$ RSMo, the Commission reverses the award and decision of the administrative law judge dated May 9, 2008, and issues this temporary award of compensation.

The issues in question at the February 4, 2008, hearing before the administrative law judge were medical causation, past medical expenses in the amount of $\ 527.15 and future medical care. The hearing was scheduled to be for a determination of whether employee needed further treatment. However, employer/insurer made nature and extent of permanent partial disability an issue prior to the hearing.

The administrative law judge denied employee further treatment based on the evidence of employer/insurer's expert medical witness Dr. Chabot. The administrative law judge also denied past medical expenses and future medical treatment. The administrative law judge determined that employee suffered a lumbrosacral strain with sacroiliitis as a result of her July 16, 2005, work injury, and reached maximum medical improvement from that injury in November 2005. Based on these findings, the administrative law judge issued a final award, awarding employee 12.5% permanent partial disability benefits of the body as a whole due to her back injury.

Employee filed an Application for Review with the Commission alleging the administrative law judge erred in the following ways:

- By finding employee's need for further medical treatment was not medically causally related to the July 16, 2005, work injury;

- By finding Dr. Chabot's opinion more credible than that of Dr. Graven's;

- By finding that employee was not entitled to past medical expense; and

- By rendering a final award when the scheduled hearing was only a hardship hearing.

As discussed below, the Commission finds that employee is entitled to further medical treatment as a result of her July 16, 2005, work injury. The Commission also finds that employee is entitled to past medical expenses totaling $\ 527.15. Consequently, the administrative law judge's award is reversed.

The claimant in a workers' compensation case has the burden to prove all essential elements of her claim. Cook v. St. Mary's Hosp., 939 S.W.2d 934, 940 (Mo.App. 1997), overruled on other grounds by Hampton v. Bigboy Steel Erection, 121 S.W.3d 220, 226 (Mo. 2003). This includes showing "a causal connection between the injury and the job[.]" Williams v. DePaul Health Ctr., 996 S.W.2d 619, 631 (Mo.App. 1999), overruled on other grounds by Hampton, 121 S.W.3d at 226.

"An injury is compensable if it is clearly work related." Section 287.020.2 RSMo. 2000. "An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability." Id. An injury is not compensable merely because work was a triggering or precipitating factor. Id.

"Determinations with regard to causation and work-relatedness are questions of fact to be ruled upon by the Commission . . ." Bloss v. Plastic Enter., 32 S.W.3d 666, 671 (Mo.App. 2000) overruled on other grounds by Hampton, 121 S.W.3d at 226. Furthermore, in making such determinations, the Commission is the judge of the credibility of witnesses and has discretion to determine the weight to be given opinions. Id. When reviewing an award entered by an administrative law judge the Commission is not bound to yield to his or her findings including those relating to credibility, and is authorized to reach its own conclusions. An administrative law judge is no more qualified than the Commission to weigh expert credibility from a transcript or deposition. Kent v. Goodyear Tire \& Rubber Co., 147 S.W.3d 865 (Mo.App. 2004).

"Section 287.140.1 clearly provides that 'the employee shall receive and the employer shall provide' medical treatment for his work-related injury. Likewise, $\S 287.140 .10$ clearly provides that '[t]he employer shall have the right to select' the medical providers for an employee's treatment." Meyers v. Wildcat, Inc., 258 S.W.3d 77, 81 (Mo.App. 2008).

An employer is charged with the duty of providing the injured employee with medical care, but the employer is given control over the selection of a medical provider. It is only when the employer fails to do so that the employee is free to pick his own provider and assess those costs against his employer. Therefore, the employer is held liable for medical treatment procured by the employee only when the employer has notice that the employee needs treatment, or a demand is made on the employer to furnish medical treatment, and the employer refuses or fails to provide the needed treatment. Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81 (Mo.App. 1995)(citing Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 880 (Mo.App. 1984)).

Id. at 80. "[W]here the employee identifies medical bills and testifies that the bills relate to and are a product of her injury, and the bills relate to the services provided as demonstrated by the medical records, there is a sufficient factual basis for the Commission to award compensation for past medical benefits." Martin v. MidAm. Farm Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. banc 1989).

III. Findings of Fact and Conclusions of Law

The Commission believes the expert medical evidence provided by Dr. Graven is more persuasive than that of Dr. Chabot. Dr. Graven first saw employee on July 19, 2005, at the request of employer. He initially diagnosed employee with sacroiliac dysfunction and lumbar sprain/strain. He opined at that time that employee's work injury was a substantial factor in causing her injury and need for further treatment. Dr. Graven recommended employee undergo physical therapy.

On August 30, 2005, Dr. Graven recommended that employee have an MRI performed. The MRI was performed on September 16, 2005, and revealed a disc protrusion at L5-S1. Dr. Graven changed his diagnosis at that time to lumbar disc protrusion and lumbar radiculopathy. Employee's condition improved between that time and November 8, 2005, when Dr. Graven found her to be at maximum medical improvement. Dr. Graven testified that as of that date he did not feel employee's condition would drastically improve. His diagnosis as of November 8, 2005, was herniated nucleus pulposus of the lumbar spine and radiculopathy. Dr. Graven gave employee a permanent partial disability rating at that time based on her continued pain, aggravation and decreased activity.

Dr. Graven next saw employee on September 26, 2006. Employee's flexibility had decreased and Dr. Graven felt her condition had worsened. He ordered another MRI to be performed. The MRI was performed on October 26, 2006. It showed that the L5-S1 disc protrusion was larger and protruded farther. Dr. Graven opined that it was within medical probability that the worsening of employee's lumbar injury was a result of the July 16, 2005, work accident. Dr. Graven also testified that he still believed the work accident was a substantial cause of her lumbar injury and need for further treatment. This was because the symptoms in 2006 were not substantially different that those in 2005.

On cross-examination, Dr. Graven was asked whether it was his opinion that the MRI and condition he examined employee for in 2006 was not caused by employee's 2005 injury. He responded that that was not his opinion. Dr. Graven testified that it was medically possible that employee's injury worsened during that time. On redirect, counsel pointed out to Dr. Graven that earlier he had testified that it was medically probable employee's current condition was due to the work accident. Dr. Graven acknowledged as much, and attempted to clarify his opinion by stating that it was his best medical presumption that the worsening of employee's lumbar condition was due to the July 16, 2005, work accident.

Employee went to the emergency room at Barnes-Jewish St. Peters Hospital on February 5, 2007, due to stabbing low back pain. The hospital records show that employee had been having low back pain and numbness in her right leg for approximately two weeks. The charges for her visit totaled $\ 527.15.

The evidence in the record demonstrates that employee was not allowed to see Dr. Graven after November 2006 and that employer/insurer told employee she was not allowed to see any other doctors unless prescribed by them. Employee testified that it was still two or three weeks prior to her scheduled appointment with Dr. Chabot. However, the pain in her lower back and right hip was so bad she could not stand it. As such, she made the decision to go to the emergency room on February 5, 2007, to seek treatment. At the hospital, employee filled out a Workers' Compensation Form indicating that the treatment she sought was due to her work injury.

Based on the above, the Commission finds that employee's past medical expense of $\ 527.15 from her emergency room visit to Barnes-Jewish St. Peters Hospital is a product of and related to her work injury. Therefore, the Commission finds that employer/insurer is liable to employee for $\ 527.15 in past medical

expenses.

The Commission determines and concludes that employee's July 16, 2005, work accident was a substantial cause of the worsening of employee's L5-S1 disc herniation. As such, employee has not reached maximum medical improvement for her injury and is entitled to further medical treatment to cure and relieve the effects of that injury. The Commission also finds that employee is entitled to past medical expenses of $\ 527.15. As such, the Commission reverses the administrative law judge's final award dated May 9, 2008, and directs employer to provide further treatment to employee for her injury. Based on the findings above, we need not discuss the remaining issues of nature and extent of disability and future medical care at this time.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

This award is subject to a lien in favor of Colleen Vetter, Attorney at Law, in the amount of 25 % for necessary legal services rendered.

Given at Jefferson City, State of Missouri, this 1st day of October 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Jennifer Leavitt

Injury No. 05-065639

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ---

Employer: Borders Group Inc.