| Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION |
| FINAL AWARD ALLOWING COMPENSATION(Affirming Award and Decision of Administrative Law Judge) |
| Employee: | Michael Huller |
| Employer: | VIP Property Management Company |
| Insurer: | Missouri Employers Mutual Insurance Company |
| The above-entitled workers' compensation case is submitted to the Labor and Industrial RelationsCommission (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 July 18, 2008. The award and decision of Chief Administrative Law Judge L. Timothy Wilson, issued July 18, 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 11th day of March 2009.LABOR AND INDUSTRIAL RELATIONS COMMISSION |
| William F. Ringer, Chairman |
| Alice A. Bartlett, Member |
| DISSENTING OPINION FILED |
| John J. Hickey, Member |
| Attest: |
| ***_******_******_***____ |
| Secretary |
| DISSENTING OPINION |
I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge (ALJ) should be reversed and future medical benefits should be awarded.
First, there is no question that employee's May 6, 2004 accident is compensable under the Missouri Workers' Compensation law. However, it is my opinion, based upon the medical records and testimony provided that employee should be awarded future medical benefits in addition to the permanent partial disability benefits awarded by the administrative law judge.
The authority for awarding future medical benefits is provided in §287.140.1 RSMo (2004), which states:
"In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury...."
The burden of proof that must be satisfied by a claimant seeking future medical benefits is provided in Landers v. Chrysler Corporation, 963 S.W.2d 275 (Mo.App. 1997) (citations omitted). In Landers, the court stated that a claimant is not required to present evidence on the specific medical treatment which will be necessary in the future, but must show by a "reasonable probability" that he or she is in need of additional medical treatment for said treatment to be awarded. Id. at 283.
Employee's spine required a surgical repair which involved a T12 to L2 fixation for the L1 burst fracture, and a fusion and fixation of the lumbar spine at the level of L4 to S1 for the L5 burst fracture. Dr. Robert Strang is the doctor that performed said surgical repair. Dr. Strang continued to see employee in follow-up after the surgery, and when he determined that he had no further treatment recommendations, he requested that employee be seen by Dr. Jeffrey Woodward.
Dr. Woodward determined that employee had reached MMI, was 18\% permanently partially impaired at the body as a whole and that no future medical treatment was required.
Employee was then sent to Dr. Brent Koprivica for the purpose of obtaining an independent medical evaluation. Dr. Koprivica determined employee was 30\% permanently partially disabled at the body as a whole and "that it is a likely probability due to the severity of trauma and the fusions necessary based on that severe trauma that [employee] will require medical care and treatment in the future."
Dr. Woodward was then asked to review Dr. Koprivica's report and provide an update to his previous records. Dr. Woodward stated in his special report that in his opinion, "the patient remains at MMI as indicated in my last office note with no change to work status or disability rating opinion. Also, as indicated previously, the patient requires no future or additional work injury medical treatments or evaluation."
At the final hearing, employee testified and listed his current complaints, which he believes are the direct result of his work-related accident as follows: 1) Not being able to bend as far as he used to; 2) Constant pain, which is exacerbated by repetitive movements; 3) Decreased strength; and 4) His legs fall asleep on occasion. Employee stated that he treats his pain with over-the-counter pain medications.
Based on the above, I believe that employee has carried his burden that there is a "reasonable probability"
that he is in need of future medical treatment. He sustained a very serious work-related injury which required extensive surgical repairs and subsequent therapy. Dr. Koprivica's report specifically stated that he was of the opinion that there is a "likely probability" that additional medical treatment and care will be needed. Dr. Koprivica's report satisfied employee's burden as to future medical benefits. Although Dr. Woodward reviewed Dr. Koprivica's report and reiterated his previous assessment that employee requires no future or additional work injury medical treatments or evaluation, his special report did nothing to rebut the burden that Dr. Koprivica's report had already satisfied.
The ALJ overstated Dr. Woodward's opinion in the award. He refers to Dr. Woodward on numerous occasions as a "treating physician" when Dr. Woodward only saw employee on one occasion; the same amount of times Dr. Koprivica saw employee. The ALJ also improperly stated that Dr. Strang was of the same opinion of Dr. Woodward as to employee not needing any future medical treatment. Dr. Strang never specifically addressed the need or lack thereof of future medical treatment in his records. The absence of a statement by Dr. Strang that future medical is required should not be interpreted as an opinion that future medical will not be required.
For the foregoing reasons, employee is entitled to future medical benefits. As such, I would reverse the award of the administrative law judge merely awarding employee permanent partial disability benefits and additionally award employee future medical benefits.
For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.
John J. Hickey, Member