John Hoff v. St. Clair R-XIII School District

temporary total and permanent total disability benefits previously paid to November 12, 2009; (4) employer/insurer are liable for future medical care consistent with the life care plan projections of Dr. Katz; (5) employer/insurer are liable for spousal nursing care at the rate of $11.00 per hour from November 23, 2009, and continuing for four hours per day for so long as the need for spousal nursing care continues to exist, subject to further modification; (6) employer/insurer are liable for a total of $266,479.90 for past medical expenses as detailed in the Final Award's "Index of Compensable Past Medical Expense" and for other past medical expenses found compensable in the Final Award and not previously paid by employer/insurer; (7) employer/insurer failed to establish that any of the adjustments showing on employee's medical bills extinguish the liability of employee for the related expenses, and that employer/insurer is not entitled to a credit or to otherwise reduce its liability for past medical expenses paid by employee's wife's insurer; (8) none of the medical expense associated with the care by Dr. Thanawalla is compensable; (9) employee needed 4 hours of spousal nursing care from August 3, 2007, to the date of hearing, and into the present for so long as the condition of paraplegia continues; (10) employee needed 2 hours of spousal nursing care per day from January 1, 2004 until August 3, 2007, and that employer/insurer are liable for the difference between this amount and amounts previously paid by employer/insurer for spousal nursing care; (11) employer/insurer are liable for an additional 391.1 hours of spousal nursing care from August 4, 2007 through October 8, 2007, at the rate of 9.50 per hour; (12) employer's liability for van modification is 24,661.00 and employer/insurer are not liable for van modifications over and above the $25,000.00 previously paid to employee; (13) employer/insurer are liable for interest on past due temporary total disability benefits from May 15, 2005 to February 26, 2007, at the rate of ten percent per annum, and spousal nursing for the same time period, at the rate of nine percent per annum; (14) employer/insurer are liable for interest on all awarded past medical expenses that were actually paid by employee at the rate of nine percent per annum; (15) employer is entitled to a credit of $15,523.02 for interest that was previously paid on May 18, 2007; (16) employee is not entitled to a doubling of any portion of the Temporary Award under § 287.510 RSMo; and (17) employee is not entitled to costs under § 287.560 RSMo.

Employer filed a timely Application for Review with this Commission, alleging that the administrative law judge erred in the following ways: (1) in ruling employee was permanently and totally disabled due to the consequences of the work injury considered alone; (2) in granting future spousal nursing care at the rate of $11.00 per hour for 4 hours per day from November 23, 2009; (3) in ruling that employee was in need of 2 hours of spousal nursing care a day and that employer was liable for the difference between the amount previously paid by employer/insurer for the period January 1, 2004 through August 2, 2007; (4) in ruling that employee's wife provided a total of 319.1 compensable hours of spousal nursing care on 57 separate dates during the interval from August 4, 2007 through October 8, 2007, over and above the 4 hours of spousal nursing care a day previously paid for by employer; (5) in ruling employee was entitled to recover $266,479.90 for past medical expenses; (6) in holding employer liable for the increased cost in sales tax incurred by the employee in purchasing a modified van; and (7) in ruling the employer was obligated to pay additional amounts to employee for interest. Employer's Application for Review also identifies numerous additional sub-

points of contention, in which employer challenges many of the administrative law judge's findings which were part of or ancillary to the disputed issues.

Employee also filed a timely Application for Review with this Commission, alleging that the administrative law judge erred in the following ways: (1) in concluding he had no jurisdiction to award a penalty under the provisions of $\S 287.510$ RSMo; (2) in finding there was no evidence upon which to conclude that home repairs could have been completed any time before the hearing on final award; (3) in concluding he had no discretion to award a penalty on the cost of van modifications; (4) in finding the cost of medical supplies to be speculative; (5) in concluding employee is not entitled to a doubling of the award of past medical expenses; (6) in concluding employee is not entitled to interest on the award of past medical expenses where employee did not personally pay the related medical bills; (7) in concluding that employee is not entitled to costs under $\S 287.560$ RSMo; (8) in making an award of attorney's fees that does not specify whether the attorney's lien applies to sums paid or ordered to be paid for spousal nursing care after May 1, 2007; and (9) in concluding employee is not entitled to interest for weekly benefits that were paid for the period May 9, 2001 to February 26, 2007.

On September 21, 2010, the day before oral arguments in this matter, employee also filed with this Commission a Petition To Consider Additional Evidence. Employee's Petition To Consider Additional Evidence is denied because employee offers the evidence as support for employee's claim of constitutional error, an issue over which this Commission has no jurisdiction.

We have considered each of the parties' allegations of error as set forth above. The Commission affirms the award of the administrative law judge as supplemented and modified herein.

Is employee entitled to an award of spousal nursing care for the period January 1, 2004 to August 3, 2007, over the 3.5 hours per week granted in the Temporary Award? The parties agree that employee is entitled to spousal nursing care for this period; employer previously paid compensation to employee at a rate consistent with the 3.5 hours per week of spousal nursing care granted in the Temporary Award. In the Final Award, the administrative law judge increased the amount of compensation to 2 hours per day for the time period at issue.

We have carefully considered the record and agree with employer that there is insufficient evidence to warrant the increase of spousal nursing compensation for this time period.

Employee's wife, Ms. Hoff, provided very limited testimony on the subject. Ms. Hoff had difficulty answering questions about the care she provided during specific time periods; she forthrightly confessed she did not keep records of her spousal nursing activities. Ms. Hoff testified that she thought on bad days she averaged about 2 to 4 hours of caring for employee up until he broke his hip on August 3, 2007, but admitted that it was hard to say, because she did not keep track of her time on a daily basis. Ms. Hoff did

Injury No.: 00-081801

Employee: John Hoff

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not provide any indication as to whether bad days were a common occurrence or otherwise. Nor did Ms. Hoff identify any specific task of spousal nursing that she performed during this time period or indicate how much time she spent on any such task, other than the task of getting employee up in the morning and helping him to bed at night, which she estimated at a half hour per day. We note that Ms. Hoff did provide an in-depth description of a "good day" and "bad day" of providing care for employee, but it appears to us that she was describing the type of care she performed at the time of hearing, rather than the specific period from January 1, 2004 to August 3, 2007.

We find the expert testimony to be similarly lacking in probative value as to this issue. Dr. Katz estimated that employee needed 2 hours of care per day in 2004: "I think it would be fair to just say that he needed two hours of care in '04 and four hours of care in '09" (Tr. 369). Dr. Katz's opinion strikes us as too speculative to support an increase in the spousal nursing award for the time period at issue: Dr. Katz literally opined as to what he thought was fair, rather than provide an opinion based on the specific tasks he believed employee would need to have performed, and the time that these tasks would take to perform. Dr. Katz's testimony was also not directed to the time period at issue with sufficient focus to aid our analysis. Likewise, Ms. Klosterman's testimony and report are of no assistance as to the specific time period in issue; Ms. Klosterman "ventures to say" employee needed 4 hours of care per day "in the month before August 3, 2007" (Tr. 128), without elaboration or explanation.

While we are sympathetic to employee's condition an