Glen Nickelson v. Washington County

(Modifying Amended Award and Decision of Administrative Law Judge)

Injury No.: 04-136988

Employee: Glen Nickelson

Employer: Washington County

Insurer: Missouri Association of Counties

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs, heard oral argument, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we issue this final award and decision modifying the June 22, 2011, amended award and decision of the administrative law judge (ALJ). We adopt the findings, conclusions, decision, and amended award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

We find that the ALJ erred in concluding that employer waived its right to choose employee's medical providers for his future medical care.

In pertinent part, § 287.140.1 states that '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.' ... As a general rule, the employer is given control over the selection of the employee's medical providers. Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85 (Mo. App. 1995). This principle, however, is subject to an important caveat. If the employer is on notice that the employee needs treatment and fails or refuses to provide it, the employee may select his or her own medical provider and hold the employer liable for the costs thereof. Jones v. Dan D. Services, L.L.C., 91 S.W.3d 214, 220-21 (Mo. App. 2002); Sheehan v. Springfield Seed and Floral, Inc., 733 S.W.2d 795, 798 (Mo. App. 1987); Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 880 (Mo. App. 1984).

Martin v. Town \& Country Supermarkets, 220 S.W.3d 836, 848 (Mo. App. 2007).

In this case, employee requested additional medical treatment based on the opinions of Dr. Volarich. Employer refused to provide said treatment to employee, as employee's treating physicians had previously released him from their care. In accordance with the provisions listed above, employee was then free to select his own medical provider and attempt to hold employer liable for the costs of that specific treatment. In essence,

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2003 unless otherwise indicated.

employer was waiving its right to select employee's medical provider as to that specific treatment. However, going forward, employer maintains its right to direct all of employee's medical treatment.

Based upon the aforementioned, we agree with the ALJ's award of future medical care, but find that the ALJ erred in concluding that employer waived its right to select employee's medical providers for employee's future medical care. We find that employer shall be in control of the selection of employee's medical providers.

The amended award and decision of Administrative Law Judge Carl Strange, as modified herein, is attached and incorporated by 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 $23^{\text {rd }}$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Glen Nickelson

Injury No. 04-136988

Dependents: N/A

Employer: Washington County

Additional Party: Second Injury Fund

Insurer: Missouri Association of Counties

(TPA: Gallagher Bassett Services)

Hearing Date: February 7, 2011

Checked by: CS/rf

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? August 3, 2004
5. State location where accident occurred or occupational disease contracted: Washington County, Missouri.
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 happened or occupational disease contracted: Employee was driving down the road when he was broadsided by another driver who ran a stop sign which caused injury to his low back.

1. Did accident or occupational disease cause death? N/A
2. Parts of body injured by accident or occupational disease: Low Back.
3. Nature and extent of any permanent disability: (See Findings).
4. Compensation paid to date for temporary total disability: 7,333.50
5. Value necessary medical aid paid to date by employer-insurer: 45,905.44
6. Value necessary medical aid not furnished by employer-insurer: Denied (See Findings).
7. Employee's average weekly wage: 556.75
8. Weekly compensation rate: 371.16 for temporary total disability and permanent total disability; and $354.05 for permanent partial disability.
9. Method wages computation: By Agreement.
10. Amount of compensation payable: a. Employee awarded permanent partial disability from the employer-insurer in the amount of $17,702.50 (See Findings). b. Employee’s awarded permanent partial disability benefits from Second Injury Fund in the amount of $7,437.53 (See Findings).
11. Second Injury Fund liability: Yes (See Findings).
12. Future requirements awarded: Employer-insurer directed to pay future medical aid pursuant to Section 287.140 RSMo (See Findings).

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Kenneth Seufert

On February 7, 2011, the employee, Glen Nickelson, appeared in person and by his attorney, Kenneth Seufert, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, David Weidner. The Second Injury Fund was represented at the hearing by Assistant Attorney General Jonathan Linter. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows.

1. On or about August 3, 2004, Washington County was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by Missouri Association of Counties with a third party administrator of Gallagher Bassett Services.
2. On or about August 3, 2004, the employee was an employee of Washington County and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about August 3, 2004, the employee sustained an accident during the course of his employment.
4. The employer had notice of employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 556.75, his rate for temporary total disability and permanent total disability is $\ 371.16, and his rate for permanent partial disability is $\ 354.05.
7. The employee's injury is medically causally related to the work injury on or about August 3, 2004.
8. The employer has furnished $\ 45,905.44 in medical aid to employee.
9. The employer has paid temporary total disability benefits at a rate of $\ 371.16 per week for a total of $\ 7,333.50.
10. The employee reached maximum medical improvement on March 11, 2008, so employer and Second Injury Fund liability, if any, for permanent total disability benefits will begin on March 12, 2008.

1. Previously Incurred Medical Aid.
2. Future Medical Aid.
3. Nature and Extent of Disability.
4. Liability of the Second Injury Fund.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Report of Dr. David Volarich dated July 6, 2009;

B. Curriculum Vitae of Dr. David Volarich;

C. Letter to Dr. David Volarich from Employee Attorney;

D. Claim for Compensations from 04-120274, 04-076814, 04-136988, and 06-059192 along with Reports of Injury from 04-076814 and 04-136988;

E. Medical Records from 04-120274, 04-076814, 04-136988, and 06-059192;

F. Medical Records of St. Louis University Hospital related to 2000 amputation of the left ring finger;

G. Medical Records of St. John's Mercy Medical Center related to 1989 injuries to head, neck, and right shoulder;

H. Records of the Division of Workers' Compensation;

I. Pharmacy Records;

J. Work History;

K. Education History;

L. Report of James M. England of November 16, 2009;

M. Curriculum Vitae of James M. England;

N. Deposition of Dr. David Volarich;

O. Deposition of James M. England;

P. Prescription Printout from Pharmax Pharmacy; and

Q. Correspondence between Parties concerning Pain Management and Further Treatment.

1. Deposition of Dr. James Coyle;
2. Deposition of Dr. David Fagan; and
3. Deposition of Dr. Anthony Sudekum.

Based on the testimony of Glen Nickelson ("Employee") and the medical records and reports admitted, I find as follows:

At the time of the hearing, Employee was 60 years old and currently living in Washington County, Missouri. In 1970, Employee graduated from Potosi High School and has only received on the job training since that time (Employee Exhibit K). Prior to beginning work for Washington County, Missouri ("Employer") in 1993, Employee worked making meat hooks, assembling steering columns, performed maintenance work, operated heavy equipment, welded, worked as a foreman, drove a truck, and ran a drag line down the river (Employee Exhibit J). On August 3, 2004, Employee was driving down the road when he was broadsided by another driver

who ran a stop sign which caused injury to his low back. An MRI taken on May 11, 2005 indicated that there was a central disc bulge at L3-4 causing mild effacement of the thecal sac, a right paracentral focal disc protrusion and bulge causing mild effacement of the thecal sac at L45, and a disc bulge to the left with bilateral neural forminal stenosis at L5-S1 secondary to a combination of bulge and degenerative facet disease (Employee Exhibit E). Dr. David Volarich examined Employee and opined that Employee suffered a 25% permanent partial disability of the body as a whole referable to his lumbosacral spine (Employee Exhibits A & N).

Prior to his primary injury of August 3, 2004, Employee had pre-existing injuries to his left wrist, right wrist, left hand, neck, low back, and right shoulder. On July 26, 2004, Employee underwent a nerve conduction study that indicated he had bilateral carpal tunnel syndrome and bilateral ulnar tunnel syndrome (Employee Exhibit E). On February 15, 2005, Dr. Sudekum performed a right open carpal tunnel release and a right open ulnar tunnel release on Employee. On March 1, 2005, Dr. Sudekum performed a left open carpal tunnel release and a left ulnar tunnel release on Employee. In 1989, Employee was in a crane accident and injured his neck, low back and right shoulder (Employee Exhibit G). Employee se