Melissa Donnell v. Trans States Airlines

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying and supplementing the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

Employee makes a claim for costs and sanctions in this matter on three different theories: (1) the statutory award of costs to the prevailing party in a hearing brought pursuant to § 287.203 RSMo; (2) doubling of the temporary award as a result of employer’s failure to comply with it pursuant to § 287.510 RSMo; and (3) the whole cost of the proceedings because employer defended this case without reasonable grounds pursuant to § 287.560 RSMo. The administrative law judge summarily denied all of the costs and sanctions sought by employee on the rationale that employer paid $\ 65,453.17 in temporary total and permanent total disability benefits and $\ 157,649.34 in medical bills.

Employee filed an Application for Review alleging the administrative law judge erred in declining to award her costs and sanctions. As to her reasonable cost of recovery under § 287.203, we agree with employee and modify the award of the administrative law judge. As to the other claims for costs and sanctions, we provide the supplemental analysis herein.

Employee’s claim for costs under § 287.203 RSMo The applicable version of § 287.203 RSMo provides, as follows:

Whenever the employer has provided compensation under section 287.170, 287.180 or 287.200, and terminates such compensation, the employer shall notify the employee of such termination and shall advise the employee of the reason for such termination. If the employee disputes the termination of such benefits, the employee may request a hearing before the division and the division shall set the matter for hearing within sixty days of such request and the division shall hear the matter on the date of hearing and no continuances or delays may be granted except upon a showing of good cause or by consent of the parties. The division shall render a decision within thirty days of the date of hearing. Reasonable cost of recovery shall be awarded to the prevailing party.

Here, employee requested a hearing under the foregoing section when employer denied her request to get ankle surgery. Employer’s position at the hearing was that employee didn’t need surgery as a result of the work injury and that she had reached maximum

Improvee: Melissa Donnell

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medical improvement and should return to work. On September 20, 2005, the administrative law judge issued a temporary award granting employee's request and ordering employer to pay for the surgery and to resume temporary total disability benefits thereafter. Nevertheless, employer argues employee didn't really "prevail" because the administrative law judge deferred the issue of past temporary total disability benefits to the final award. We note that when the administrative law judge did address the issue in his final award, he ultimately ruled this issue in employee's favor.

Employer appears to be arguing that employee cannot be considered the "prevailing party" under § 287.203 where the administrative law judge awarded her everything she requested but deferred a ruling on one of the issues. We are not persuaded. The undeniable result of the hearing was that the administrative law judge accepted employee's argument that she was entitled to further treatment and rejected employer's argument that she was at maximum medical improvement. The administrative law judge did not say, in his award, why he deferred the issue of temporary total disability benefits, but there is no suggestion that it was the result of any failure of proof on employee's part. We are convinced employee was the prevailing party.

As evidence of her reasonable cost of recovery, employee provides her Exhibit LLL, which suggests the amount of $4,834.85. Employer did not provide any evidence that would suggest the amount reflected in Exhibit LLL is either inaccurate or unreasonable.

We find that the amount employee expended for the hardship hearing was $4,834.85. We further find this was a reasonable amount. We conclude that employee was the prevailing party for purposes of § 287.203, and that, as a result, she is entitled to her reasonable cost of recovery in the amount of $4,834.85.

Employee's claims for costs under § 287.510 RSMo

Employee also seeks doubling of the temporary award in this matter under § 287.510 RSMo, which provides:

In any case a temporary or partial award of compensation may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made, and if the same be not complied with, the amount equal to the value of compensation ordered and unpaid may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award.

Under the September 20, 2005, temporary award, employer was ordered to "provide the treatment and surgery recommended by Dr. Clare and to pay temporary total disability after surgery until [employee] reaches maximum medical improvement." Employee argues employer failed to comply with this mandate. The contemporary treatment notes suggest considerable miscommunication and delay in getting authorization from the employer for certain treatments. For example, aquatherapy was initially denied, and insurer's adjuster denied the second in a series of lumbar sympathetic block injections for unclear reasons, with the result that employee had to start the series over again. Employee also took a deposition of the adjuster who handled this case for employer/insurer. This witness suggested she would have been better able to do her job if employer's counsel had timely

Improvee: Melissa Donnell

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provided her a letter from employee's counsel suggesting that the insurer had improperly terminated benefits.

But despite this evidence of considerable hassle and delay on employer's part, the courts have clarified that the remedy under § 287.510 is only applicable to an amount of compensation that is "ordered and unpaid" at the time of the final award. *Ball-Sawyers v. Blue Springs Sch. Dist.*, 286 S.W.3d 247, 257 (Mo. App. 2009). The temporary award ordered employer to "provide the treatment and surgery recommended by Dr. Clare and to pay temporary total disability after surgery until [employee] reache[d] maximum medical improvement." In identifying her grievances as to the way employer directed her medical treatment after the issuance of the temporary award, employee does not identify any evidence that employer's actions ultimately prevented her from receiving either (1) treatments and surgery recommended by Dr. Clare, or (2) temporary total disability benefits after surgery. Nor has employee identified any amount of compensation that was "ordered and unpaid" at the time of the final award. We note that employer actually provided more in temporary total disability benefits than ordered in the temporary award, in that it began paying those benefits before employee underwent her ankle surgery, where the temporary award provided such benefits should commence "after surgery."

Ultimately, we acknowledge the significant frustration employee endured in securing her benefits under the temporary award in this case, but must conclude employee failed to meet her burden on this issue. We find that employer did not fail to comply with the temporary award of compensation dated September 20, 2005.

Accordingly, employee's claim, for costs under § 287.510, is denied.

Finally, employee seeks recovery of the whole cost of the proceedings under § 287.560, which provide, in relevant part, as follows:

All costs under this section shall be approved by the division and paid out of the state treasury from the fund for the support of the Missouri division of workers' compensation; provided, however, that if the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them.

The foregoing section authorizes this Commission to award the whole cost of the proceedings against any party who brings, prosecutes, or defends proceedings without reasonable grounds. The courts have instructed that our authority to award the costs contemplated in the foregoing section is to be exercised "with great caution and only when the case for costs is clear and the offense egregious." *Wilson v. C.C. Southern, Inc.*, 140 S.W.3d 115, 120 (Mo. App. 2004).

Employee's case for costs rests on the theory that employer acted egregiously in hiring experts to contest the opinions of its own authorized treating doctors. Employee argues employer should have accepted the opinions from its treating doctors (namely, that employee has reflex sympathetic dystrophy (RSD) and that it is work related), and

Injury No.: 02-143782

Employee: Melissa Donnell

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should not have been allowed to have her evaluated by independent medical experts. But especially where medical causation of a complex and little-understood condition like RSD is at issue, we are not convinced that employer defended this case without reasonable grounds when it sought second opinions from evaluating doctors.

It was employee's burden to prove all of the elements of her workers' compensation claim, and employer was entitled to challenge her ability to do so. Employer provided expert medical testimony supporting its position. The record fails to disclose evidence sufficient to support a finding that employer acted with the type of "egregious and outrageous conduct" exemplified in cases such as Monroe v. Wal-Mart Assocs., 163 S.W.3d 501, 506 (Mo. App. 2005) and Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 250 (Mo. 2003). When we compare the facts involved in Monroe and Landman to those at issue here, we are not persuaded that employer engaged in the type of conduct that $\S 287.560$ is designed to prevent.

We conclude employer did not defend this case without reasonable ground. Accordingly, employee's claim for the whole cost of the proceedings under $\S 287.560$ is denied.

We modify the award of the administrative law judge on the issue of costs under § 287.203 RSMo. Employee is entitled to, and employer is obligated to pay, her reasonable cost of recovery under that section in the amount of $\ 4,834.85.

We supplement the analysis of the administrative law judge on the issue of employee's claims for costs and sanctions under $\S \S 287.510$ and 287.560 RSMo. In all other respects, we affirm the award of the administrative law judge.

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.

The award and decision of Administrative Law Judge Cornelius T. Lane is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $21^{\text {st }}$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

DISSENTING OPINION FILED

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

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 am convinced that the administrative law judge (and the majority) err in finding that employee is permanently and totally disabled. I am convinced that employee suffered only a sprained ankle as a result of the work injury on December 20, 2002. I would modify the award of the administrative law judge accordingly.

On the basis of a tenuous thread of medical causation that is (at least to me) wholly unconvincing, this case has gone from presenting a relatively minor sprained ankle injury to employee now claiming that she is entitled to permanent total disability benefits from the employer. I am not persuaded. Employee's claim for compensation in this matter stems from an accident on December 20, 2002. Employee was working as a flight attendant for employer and sprained her ankle when the plane jolted while taxiing toward takeoff. Employee claims this minor injury resulted in "ankle instability," despite the fact that the treating physicians Dr. Kostman, Dr. Gueramy, Dr. Garcia, Dr. Perkins, and the occupational medicine expert Dr. Cochran evaluated employee and found no instability on physical exam or x-ray. In fact, the record reveals there was no diagnosis or complaint of ankle instability until employee saw Dr. Clare about 10 months after the date of injury. I find Dr. Clare lacking credibility. I find that employee did not suffer any ankle instability as a result of spraining her ankle in December 2002.

Employee also claims she suffered reflex sympathetic dystrophy (RSD) as a result of the accident, which results in chronic pain and psychological impairment. Dr. Cochran explained there are a number of objective signs that one looks for when evaluating whether a patient has RSD, such as atrophy, shininess of skin, loss of hair, and excessive sweating. On physical examination, Dr. Cochran found no objective signs whatsoever that employee had RSD. Dr. Cochran pointed out the past medical records show employee did not consistently exhibit the objective signs of RSD. Dr. Cochran concluded the RSD diagnosis was inappropriate. Dr. Kostman also opined that employee did not develop RSD secondary to the work injury. Employee's experts Dr. Wills and Dr. Desai both admitted that their diagnosis of RSD relied solely upon the history employee provided them and that they did not review any of the medical records to determine the accuracy of employee's statements. I find the opinions from these doctors lacking credibility. I credit Drs. Cochran and Kostman. I find that employee did not develop RSD as a result of spraining her ankle in December 2002.

No doctor or vocational expert suggests that employee is permanently and totally disabled as a result of the minor sprained ankle injury she sustained in December 2002 alone or in combination with any preexisting condition. All of the restrictions and opinions suggesting employee is limited from working rest on the premise that employee's ankle instability and RSD were caused by the December 2002 work injury. Dr. Phillips released employee at maximum medical improvement on June 11, 2003, and opined that she was capable of working without restriction and that she sustained a 7 % permanent partial disability of the right foot as a result of the work injury. I find Dr. Phillips credible. I find

Employee sustained a 7\% permanent partial disability of the ankle as a result of the work injury on that date.

Finally, I wish to note that even if one accepts that employee's ankle instability, RSD, chronic pain, and psychological impairment actually stem from her spraining her ankle on December 20, 2002, the evidence is overwhelming that she is not permanently and totally disabled. It's clear employee believes she can't work. But employee's subjective opinion of her own limitations are not borne out by the objective evidence in the medical treatment record. Employee underwent functional capacity evaluations in 2006 and 2011. Both showed that she can do extensive work at the sedentary level. Employee's own vocational expert, Mr. Lalk, commented that employee did not appear to exhibit any symptoms of extreme pain and noted that employee has the skills to do many sedentary jobs. Both Dr. McCabe and Dr. Lepore opined that employee perceives herself as being disabled when she has any subjective discomfort.

The test for permanent total disability is not whether an employee thinks she can't work because she has some subjective discomfort, but rather "whether, given the employee's situation and condition, [she] is competent to compete in the open labor market. ... The central question is whether any employer in the usual course of business would reasonably be expected to employ the employee in his present physical condition." Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789, 792 (Mo. App. 1992) (citations omitted) (emphasis added).

I am convinced employee failed to show that she is unable to compete in the open labor market as a result of her minor sprained ankle injury on December 20, 2002. Accordingly, I would modify the award of the administrative law judge and enter an award consistent with the above findings and conclusions.

Because the majority has determined otherwise, I respectfully dissent from the decision of the Commission.

James Avery, Member

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: December 20, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis 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: Claimant was working as a flight attendant for the Employer when the airplane made a movement causing Claimant's right foot injuries.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right foot
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: $\ 59,453.17
16. Value necessary medical aid paid to date by employer/insurer? \$157,649.34

Employee: Melissa Donnell Injury No.: 02-143782

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 417.27
3. Weekly compensation rate: $\$ 278.19 / \ 278.19
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Employer/Insurer to pay $\ 51,822.83 TTD to Claimant $\ 51,822.83

Employer/Insurer owes Claimant permanent total disability benefits of $\ 278.19 per week beginning 400 weeks from December 27, 2002

Employer previously paid \$6,000.00 for TTD/PPD thus Employer is given $\ 6,000.00 credit for PTD awarded

1. Second Injury Fund liability:

weeks of permanent partial disability from Second Injury Fund

TOTAL:

1. Future requirements awarded:

Claimant is awarded all future medical treatment necessary to relieve the effects of her RSD or CRPS and Claimant is awarded future medical necessary for future medical treatment for the right ankle.

Said payments to begin 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 all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: James Hoffmann

Employee: Melissa Donnell

Dependents: N/A

Employer: Trans States Airlines

Additional Party: None

Insurer: Insurance Company of the State Pennsylvania c/o AIG Claim Services

Injury No.: 02-143782

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: CTL

A hearing was held in the above-mentioned matter on May 31, 2011. The Claimant was represented by Attorney James Hoffmann. The Employer/Insurer was represented by Attorney Ralph Levy.

1. Employee's average weekly wage was $\ 417.27. Compensation rate for temporary total disability $\ 278.19. Compensation rate for permanent partial disability $\ 278.19.
2. Employer paid a total of $\ 65,453.17, of which $\ 59,453.17 was for temporary total disability and $\ 6,000 was for advances on permanent total disability or permanent partial disability benefits.
3. Employer has paid a total of $\ 157,649.34 in medical bills.

1. Employer liability for temporary total disability benefits.
2. Medical causation and nature and extent of permanent partial disability or permanent total disability.
3. Future medical benefits.
4. Sanctions against Employer.

Claimant has admitted Exhibits A through LLL.

Employer admitted Exhibits 1 through 20.

1. At the time of hearing, the Claimant was 39 years of age, who has three children. Claimant has a high school degree and $11 / 2$ years of college.
2. On December 20, 2002, the Claimant who was working as a flight attendant for the Employer was standing in the airplane while the plane was taxiing to a runway when plane's movement caused Claimant to move forward onto her right foot causing immediate pain in her right ankle.
3. Claimant went to St. John's Mercy Medical Center on December 25, 2002, because she was having problems with her right ankle. The medical records show that Claimant sustained a right ankle strain and she was given an Aircast.
4. On December 26, Claimant went to Concentra Medical Center and was treated there from December 26, 2002, through February 11, 2003. Said treatment was directed by the Employer/Insurer. Claimant was treated for her ankle problems. On February 11, 2003, the Claimant was referred to a physiatrist.
5. In March of 2003, Claimant moved from St. Louis to Omaha, Nebraska. Claimant continued to have problems with her right ankle and the Employer/Insurer referred her to Dr. Phillips who continued to treat her through June 11, 2003, for an ankle sprain with residual tendonitis. Dr. Phillips referred the Claimant to Excel Physical Therapy. Claimant went to Excel Physical Therapy and the records note Claimant had an increase of pain in the right ankle causing tingling in her heels and toes.
6. Dr. Clare, an orthopedic surgeon, began treating the Claimant on October 22, 2003. Claimant was having continuing pain in the ankle. Dr. Clare was of the opinion that the Claimant, as a result of her work accident, had an ankle sprain and the doctor started her on physical therapy and desensitization type exercises. Dr. Clare scheduled surgery for the Claimant for December 31, 2003, but said surgery was postponed because workers' compensation had not told the doctor that it would be covered. Dr. Clare was of the opinion that Claimant's work accident of December 20, 2002, caused Claimant's injury and need for treatment, and he felt that Claimant was unemployable at the time because of the problems she was having with the ankle as well as the pain. The ankle surgery date was continued because Claimant was pregnant and, therefore, her surgery was postponed. Dr. Clare also felt that Claimant had instability and that she continued to have RSD type symptoms about her ankle.

1. Claimant began treatment with Dr. Gueramy in November 2005 and the doctor recommended she undergo ankle reconstruction surgery. Dr. Gueramy felt that a delay in the surgery to Claimant's right ankle caused the RSD. Dr. Gueramy was of the opinion that the Claimant had many problems because of the RSD and also crank lateral ligament instability. He recommended treatment by Dr. Desai, a pain management physician. Claimant treated with Dr. Desai for RSD and then went back to see Dr. Gueramy on February 4, 2009, after suffering an ankle fracture. Claimant's ankle instability is a factor in the fracture. Dr. Gueramy performed surgery on the Claimant's ankle and found that the ligaments were torn and the tears were a result of the fall that Claimant sustained on December 2002. The records show that after Claimant's surgery for the ankle fracture, which took place on March 5, 2009, Claimant felt increased pain and medically it was found as a result of the RSD, as well as the fracture. The doctor wanted Claimant to see a pain management physician and he let the Employer/Insurer know that Claimant should be seen by a pain management physician. Employer/Insurer did not authorize the physical therapy until May 27, 2009, about a month after it was requested. Dr. Gueramy also did the orthopedic work for Claimant's ankle and he was transferring to another physician because of her RSD problem. The doctor was also of the opinion that if Claimant needs additional surgery, it would entail removing the hardware and Claimant could possibly need either an ankle fusion or ankle replacement.
2. In December of 2005, Employer sent the Claimant to see a pain management specialist by the name of Dr. Desai. The doctor was of the opinion that Claimant's injury to the right foot, her pain and lack of motion of the right ankle and the discoloration were reasonably the result of the December 2002 work injury. The doctor made a report to the Insurer in April of 2007 essentially saying because of her right ankle problem Claimant was unable to do her regular occupation since the injury of December 2002 and that Claimant should still be off work. Claimant was treated by the doctor and was given lumbar sympathetic block, physical therapy and aqua therapy, exercise programs, medications and psychological evaluations. Dr. Desai in deposition felt that the Claimant was possibly totally disabled subject to whether or not her condition actually improves in the future.
3. Dr. McVey, a psychologist, was hired by the Employer/Insurer for psychological services. Dr. McVey was of the opinion that Claimant had the possibility of having a depressive disorder as a result of her reactions to the problems she was having relating to her injury. The doctor's records show that Claimant was so frustrated, aggravated and distressed by some trouble she reported with getting paid by the workers' compensation carrier on a timely basis and different problems she was having with the workers' compensation adjustor because she felt she was getting better because of the aquatic therapy, which seemed to help her, but it had been cancelled by the workers' compensation adjustor.
4. Claimant came under the treatment of physical therapist Mia McKee in October 2006 and continued treating with her through January 3, 2007, who was treating the Claimant for RSD. Ms. McKee saw the swelling in the Claimant's ankle area and cool and shiny, bluish-toned skin, increased muscle stiffness and weakness and felt that the RSD was spreading to her knee.

1. Employer/Insurer hired Wendy Chelette, an occupational therapist, to perform a functional capacity evaluation on January 18, 2011. Ms. Chelette found that the Claimant had severe pain in the right foot and lower leg and that during the course of her evaluation the pain level became very high. Ms. Chelette felt that the Claimant demonstrated abilities in the sedentary category; she may have difficulty sustaining gainful employment even on a part-time basis due to varying pain levels and limited tolerance for sustained activity beyond two to three hours.
2. Employer/Insurer referred Claimant to Dr. Wills for evaluation and treatment. Dr. Wills was of the opinion that the Claimant was not going to be able to go back to work with her leg pain and psychological emotion aspects of her condition. Dr. Wills testified that Claimant is permanently disabled and will require future medical treatment including medicines and injections, etc.
3. Dr. Guarino, Dr. Stillings and Dr. Volarich testified on behalf of the Claimant. I find that the Claimant's doctors are most credible.

a) Dr. Guarino is a board certified physician in anesthesia and pain management at Barnes West County Hospital. The doctor performed an IME on Claimant on November 27, 2007. Dr. Guarino states that the Claimant had CRPS and suffers from depression. The doctor testified that CRPS is a byproduct of the dysfunction within the nervous system and it was his opinion that Claimant will never be cured of the CRPS problems. The doctor also felt after having examined the Claimant that her medical problem with her right ankle and other mental problems will require medical treatment in the future.

b) On March 22, 2010, Dr. David Volarich did an IME on Claimant at the request of Claimant's attorney and testified very credibly that the pain Claimant has in her right ankle would increase in severity when doing things such as walking on uneven terrain, the weather would affect her pain and the Claimant is not able to bend, squat, stoop or kneel. He was of the opinion that because of the RSD problems that the Claimant would have extreme pain and decrease in the strength and range of motion of her right lower leg and foot. Dr. Volarich was of the opinion that Claimant's injury of December 20, 2002, caused Claimant's right ankle instability and that it required surgery and that as a result of the Claimant's injury she developed RSD. The doctor was of the opinion that Claimant's injury of December 20, 2002, caused a 75 % permanent partial disability of the right lower extremity and 35 % permanent partial disability of the body as a whole rated at the lumbar spine/pelvis because of the problems the Claimant has with her right lower leg. Dr. Volarich was of the opinion that Claimant is unable to engage in any substantial gainful activities nor can she be expected to perform in any ongoing work capacity in the future and that she cannot be expected to perform on an ongoing basis eight hours per day, five days a week. Dr. Volarich recommended that Claimant undergo vocational evaluation and he further testified that in the vocational assessment there is a finding that she is unable to identify a job for which she is suited, then it is the opinion that she was permanently and totally disabled as a result of the work-related injury of December 20, 2002.

c) Dr. Stillings, a physician and psychiatrist, saw the Claimant on February 26, 2008. It was Dr. Stillings' opinion that the work injury of December 20, 2002, caused Claimant to experience a mood disorder, depression and pain. It was also the doctor's opinion that Claimant is disabled from gainful employment in the open labor market and that she will

remain that way in the future unless there is some significant change in her RSD problems. Essentially, it was Dr. Stillings' opinion that Claimant is unemployable.

1. The Claimant's attorney had Timothy Lalk, a vocational rehabilitation counselor, examine the Claimant and express his opinion as to whether the Claimant would be employable. Mr. Lalk in interviewing the Claimant said she has constant pain in her right ankle which can change with the weather, weight bearing and emotional stress. Claimant told Mr. Lalk that water therapy, heat, decreased stress and good weather can help decrease her pain. Based upon the medical records of the Claimant's treating physician Dr. Desai, as well as Claimant's complaints causing her activities to decrease, he thought that the Claimant would be unable to maintain employment in a competitive position. Mr. Lalk, after having reviewed various medical opinions and interviewing Claimant, was of the opinion that Claimant would not be able to maintain employment in a competitive position due to her symptoms of pain.
2. I believe that the Claimant's experts Dr. Guarino, Dr. Stillings, Dr. Volarich and Mr. Lalk are very credible in view of the Claimant's complaints, her treatment and her inability to work.
3. Claimant's treating physicians Dr. Gueramy and Dr. Wills are both of the opinion that the work injury caused Claimant's right ankle problems and the subsequent ankle fracture, surgery and RSD. The doctors are of the opinion that Claimant may need future medical treatment for RSD and further treatment for her right ankle.
4. With regard to Claimant's temporary total disabilities, the Employer paid benefits for a period from December 27, 2002, to February 19, 2003, for a total of \$2,185.71. Claimant has not worked since she first went for treatment at Concentra on December 27, 2002. The reason the Employer terminated her temporary total disability as of February 19, 2003, was because the Claimant had moved out of the state. Claimant has been unable to work since her injury and Dr. Wills stated that Claimant reached MMI on April 7, 2011. Her temporary total disability benefits in that period of time is in excess of 400 weeks, which is the cap on temporary total disability benefits to be payable by the Employer. Claimant's temporary total disability benefits for the 400 weeks total $\ 111,276 and the Employer has paid $\ 65,453.17, which included $\ 6,000 paid by Employer for an advance on the permanent partial disability or permanent total disability benefits to be awarded. Thus, the Employer is liable to Claimant for the amount of $\ 51,822.83 for temporary total disability benefits.
5. With regard to the issue of whether Claimant sustained a permanent partial disability or permanent total disability as a result of her injury of December 20, 2002, I find from all the medical evidence and the doctors' evidence that I found credible that Claimant is permanently and totally disabled and that Dr. Wills would have put her at MMI on April 7, 2011. Therefore, Employer is liable for permanent total disability in the amount of $\ 278.19 per week.
6. With regard to the Claimant's request for sanctions, the Claimant is seeking liabilities for penalties and costs pursuant to $\S 287.560 and \S 287.203$. With regard to Claimant's claim

against the Employer for refusing to provide surgery to the Claimant, in view of all the medical, I do not feel that the refusal to provide surgery was unlawful. I think the

Employer had reasonable grounds to have the surgery continued in light of all the medical evidence.

1. I do not feel the evidence was sufficient to awards costs under $\S 287.203$ because of the medical evidence which Employer could take into account with regard to stopping the temporary total disability. I do not feel from all the evidence the Employer/Insurer failed to comply with the temporary award.

1. Claimant is awarded temporary total disability for the period of December 27, 2002, through April 7, 2011. Claimant's temporary total disability benefits are capped at 400 weeks. Therefore, Claimant's temporary total disability benefits total $\ 111,276 and Employer has paid a total of $\ 59,453.17 for temporary total disability benefits and $\ 6,000 paid by the Employer as an advance on permanent partial disability or permanent total disability benefits. Therefore, Employer owes a balance of $\ 51,822.83 for temporary total disability.
2. I find from all of the evidence Claimant is permanently and totally disabled directly as a result of her injury of December 20, 2002. The law provides 400 weeks of temporary benefits. At the end of that 400 weeks, Claimant was permanently and totally disabled. Employer/Insurer owes Claimant permanent total disability benefits of $\ 278.19 beginning 400 weeks from December 27, 2002.
3. From all the medical evidence of medical experts and authorized treating physicians, I find that Claimant shall be awarded all future medical treatment necessary to relieve the effects of her RSD or CRPS and Claimant is awarded future medical necessary for future orthopedic medical treatment for the right ankle.
4. With regard to the sanctions requested by the Claimant, I feel that the Employer/Insurer had the right to defend against Claimant's allegations and I think all the evidence shows that the Employer having paid $\ 65,453.17 in temporary total disability and advance for permanent total disability as well as paying $\ 157,649.34 in medical bills shows that the Employer/Insurer did not defend without reasonable grounds.
5. Employer/Insurer's objections to Claimant's Exhibits S through LLL are overruled.

Made by: $\qquad$

CORNELIUS T. LANE

Administrative Law Judge

Division of Workers' Compensation