Barbara Shupe v. St. Johns Mercy Health Systems

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 09-080095

Employee: Barbara Shupe

Employer: St. Johns Mercy Health Systems

Insurer: Mercy Hospitals East Communities

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

This 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 parties' briefs, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge with this supplemental opinion. The Commission adopts the findings, conclusions, decision, and award of the administrative law judge to the extent they are not inconsistent with the supplemental opinion set forth below.

Employer appeals the issue of past medical expenses. Employer argues that because employee never asked it to pay for her medical treatment following the work injury, and because that treatment was not authorized by employer, employer cannot be held liable for her past medical expenses.

As a general rule, the employer is given control over the selection of the employee's medical providers. 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.

Martin v. Town \& Country Supermarkets, 220 S.W.3d 836, 844 (Mo. App. 2007) (citations omitted).

Employee reported the September 15, 2009, accident to employer. Employer was unquestionably aware of employee's need for medical treatment, as employee's doctor practices at employer's hospital, and employee kept her supervisors apprised of her need for treatment and time off work. Employer never offered to provide medical treatment, and employee never asked for it, because she didn't know she could, and also was afraid for her job after her supervisors made clear that they would prefer she not pursue workers' compensation benefits. Employee credibly testified that her supervisors cornered her in a private meeting, told her employer wasn't going to pay workers' compensation benefits, and pressured her into signing something. Because employee did not specifically identify the timeframe in which this meeting occurred, and

whether it was before or after she obtained her self-directed treatment, there is insufficient evidence that employer made an outright refusal to provide employee's medical treatment. But employer's notice of employee's need for treatment and subsequent failure to provide it is sufficient under Martin.

We conclude employer was on notice that employee needed treatment after the September 15, 2009, accident, and that employer failed to provide it. Employer is liable for past medical expenses.

Employer appeals the issue of temporary total disability. Section 287.170 RSMo provides for temporary total disability benefits to cover the employee's healing period following a compensable work injury. The test for temporary total disability is whether, given employee's physical condition, an employer in the usual course of business would reasonably be expected to employ her during the time period claimed. Cooper v. Medical Ctr. of Independence, 955 S.W.2d 570, 575 (Mo. App. 1997). Accordingly, we look to the evidence of employee's physical condition in the six weeks she was off work following the work injury.

At the hearing, employee testified the pain she experienced following the September 15, 2009, accident was so severe that it was difficult to do everyday activities, and that all she did was lie around during the time she was off work. The administrative law judge found employee testified credibly regarding her injury and resulting problems she experienced with her low back. Employer identifies no reason why we should disbelieve this testimony from employee. Instead, employer argues that because the experts did not address the issue of temporary total disability, employee failed to meet her burden.

Employer's argument fails. "A claimant is capable of forming an opinion as to whether she is able to work, and her testimony alone is sufficient evidence on which to base an award of temporary total disability." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. 2003). We conclude that, given employee's unbearable low back pain following the work injury, no employer in the usual course of business would reasonably be expected to employ her during the weeks claimed. Employer is liable for temporary total disability benefits.

We noted some clerical errors in the administrative law judge's award. We hereby correct them as follows.

On page 5 of the award, in the last paragraph, second sentence, the administrative law judge states: "Dr. Musich found that Employee sustained an acute lumbar trauma on August 21, 2009, which resulted in chronic residual symptoms of pain in her low back, and radicular symptoms into Employee's right leg." We correct the foregoing sentence to read as follows: "Dr. Musich found that Employee sustained an acute lumbar trauma on August 31, 2009, which resulted in chronic residual symptoms of pain in her low back, and radicular symptoms into Employee's right leg."

On page 7 of the award, in the first full sentence, the administrative law judge states: "Permanent partial disability can be awarded even if the injured worker returns to her same employment, as long as her injury impairs his ability to efficiently pursue the ordinary activities of life." We correct the foregoing sentence to read as follows: "Permanent partial disability can be awarded even if the injured worker returns to her same employment, as long as her injury impairs her ability to efficiently pursue the ordinary activities of life."

Also on page 7 of the award, in the last sentence of the first paragraph, the administrative law judge states: "In the present case, I find that Employee did sustain a work-related injury that resulted in permanent partial disability." We delete the foregoing sentence, because the administrative law judge did not find any permanent partial disability resulting from the September 15, 2009, accident, and we have adopted that finding.

The Commission supplements the award and decision of the administrative law judge with our own analysis herein.

The award and decision of Administrative Law Judge Lee B. Schaefer, issued February 6, 2012, is affirmed and is attached hereto and incorporated herein to the extent it is not inconsistent with this supplemental opinion.

We approve and affirm 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 $10^{\text {th }}$ day of October 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

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: September 15, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis 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 occurred or occupational disease contracted: While putting away supplies from a tote of medical supplies, and twisting and reaching to place them in a closet, Employee injured her back.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 0 % of the body as a whole
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Barbara Shupe

Injury No.: 09-080095

Dependents: N/A

Employer: St. Johns Mercy Medical Center

Additional Party: Second Injury Fund

Insurer: Mercy Hospitals East Communities

Hearing date: November 10, 2011

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

An evidentiary hearing was held in the above-referenced matter on November 10, 2011. This matter was tried jointly with Injury Number 09-080077; a separate Award will be issued in that case. Barbara Shupe ("Employee"), appeared in person and was represented by her counsel, Mark Haywood. St. Johns Mercy Health Systems ("Employer"), and its insurer, Mercy Hospitals East Communities ("Insurer"), were represented by counsel, Maurice Early. The Second Injury Fund was left open, and therefore, was not present at the time of the Hearing. However, Employee and the Second Injury Fund have entered a Stipulation as to the liability of the Second Injury Fund should the primary injury reach threshold. If the primary injury fails to reach threshold, the claim against the Second Injury Fund will be dismissed.

The parties stipulated to the following facts:

1. Employee and Employer were operating under and subject to the provisions on the Missouri Workers' Compensation Law;
2. On September 15, 2009, Employee allegedly sustained an injury to her low backwhile putting away supplies from a tote of medical supplies, and twisting and reaching to place them in a closet;.
3. while lifting a tote of medical supplies, and twisting and reaching to place it in a closet;
4. Employer was provided proper notice of Employee's injury;
5. Employee filed her Claim for Compensation in a timely manner;
6. Employer has not paid any benefits in this matter;
7. Venue for the Hearing in this matter is proper at the St. Louis Office of the Missouri Division of Workers' Compensation.

The issues to be resolved at this Hearing are as follows:

1. Whether Employee su