Jennifer Thomas v. Forsyth Care Center

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.

The Ball-Sawyers court interpreted the words "ordered and unpaid" in the foregoing section as providing the Commission with discretion to double only the amount of compensation that is ordered in a temporary award and which remains unpaid by the employer as of the date of a final hearing. 286 S.W.3d at 256-57. Clearly then, under Ball-Sawyers, we cannot double the amounts that employer paid to employee, nor can we double any amount that was not ordered by the administrative law judge, such as temporary total ${ }^{1}$ or permanent total disability benefits. Rather, the only amount in this case subject to doubling under Ball-Sawyers and the amended version of $\S 287.510$ is the value of the medical care that the administrative law judge ordered and that the employer has refused to provide as of the date of the final hearing.

We would be inclined to order such a doubling in this case. But we are unable to do so on this record, because employee failed to prove the value of compensation ordered and unpaid. Employee failed to put any of her medical bills into evidence, or any other evidence (such as testimony from her medical experts) to establish the dollar value of the medical treatments which she was unable to obtain owing to employer's conduct. Absent such evidence, there is no basis for this Commission to calculate the appropriate amount of the penalty under $\S 287.510$.

With that said, we condemn employer's refusal to comply with the administrative law judge's temporary award. We note that employer offers no explanation, in its brief filed with this Commission, for its failure to authorize the treatments recommended by Dr. Cornelison. Employer asserts that it provided a neurosurgical consultation for employee with Dr. Reintjes on May 15, 2008. But employer fails to explain why it did not authorize the nerve blocks, epidural injections, physical therapy, a repeat CT myelogram, aquatherapy, and pain medications, all of which were recommended by Dr. Cornelison as necessary in connection with employee's work injury, and all of which fell inarguably within employer's obligations under the temporary award. From December 10, 2007, the date of the administrative law judge's temporary award, until Dr. Cornelison last saw employee on May 12, 2009, employer failed to authorize any of these treatments, and even stopped authorizing the medications Dr. Cornelison prescribed for employee's intractable low back pain. Employer advances no explanation for what appears from this record to be an attitude of brazen indifference toward its obligations to employee under the administrative law judge's award.

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[^0]: ${ }^{1}$ In his temporary award, the administrative law judge did not find employee was temporarily and totally disabled, nor did he order employer to pay temporary total disability benefits to employee, but instead merely noted a stipulation by the parties that employer was paying temporary total disability benefits as of the date of hearing. Section 287.510 only permits doubling of "compensation ordered and unpaid" (emphasis added).

Of course, "employer's reasons for nonpayment are irrelevant," Shaw v. Scott, 49 S.W.3d 720, 726 (Mo. App. 2001), and we would award a doubling of the unpaid past medical expenses regardless of employer's reasons-if this record provided evidence sufficient to permit us to do so. Because it does not, we must reluctantly deny employee's request for a doubling under $\S 287.510$ of her unpaid past medical expenses.

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge L. Timothy Wilson, issued November 26, 2012, is attached and incorporated by this reference.

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 $17^{\text {th }}$ day of May 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Jennifer Thomas

Injury No. 05-080783

Dependents: N/A

Employer: Forsyth Care Center

Insurer: Missouri Nursing Home Insurance

Additional Party: N/A

Hearing Date: August 8, 2012 (Evidentiary Record Closed September 7, 2012)

Checked by: LTW

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 8, 2005
5. State location where accident occurred or occupational disease was contracted: Taney County, Missouri (The parties agreed to venue lying in Greene 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 engaged in her employment with Employer and attempting to get a patient up off the floor by lifting the chair with its arms and turning to assist the patient, Employee tripped on a floor mat, which caused her to twist her back. As a consequence of this incident, Employee sustained an injury to her low back.
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: Low Back
14. Nature and extent of any permanent disability: PTD
15. Compensation paid to-date for temporary disability: $\ 43,777.80
16. Value necessary medical aid paid to date by employer/insurer? $\ 15,642.08
17. Value necessary medical aid not furnished by employer/insurer? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jennifer Thomas

1. Employee's average weekly wages: $\ 397.98
2. Weekly compensation rate: $\ 265.32 (TTD / PTD / PPD)
3. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: ..... N/A

$311 / 7 weeks of temporary total disability compensation: ..... \ 8,262.82

Weeks of disfigurement from Employer: ..... N/A

Permanent total disability benefits from Employer \& Insurer beginning May 12, 2009, for Employee's lifetime.

1. Second Injury Fund liability: N/A

TOTAL: $\ 8,262.82, plus $\ 265.32 per week beginning May 12, 2009, for Employee's lifetime.

1. Future requirements awarded: Yes (See Award)

Said payments to begin IMMEDIATELY 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 per cent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: William E. Lawrence, Esq.

Employee: Jennifer Thomas

Injury No. 05-080783

Dependents: N/A

Employer: Forsyth Care Center

Insurer: Missouri Nursing Home Insurance

Additional Party: N/A

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on August 8, 2012. The record was left open for 30 days in order to afford the parties opportunity to submit additional evidence, which resulted in the evidentiary record being closed on or about September 7, 2012. Further, the parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about September 12, 2012.

The employee appeared personally and through her attorney, William E. Lawrence, Esq. The employer and insurer appeared through their attorney, Patrick M. Reidy, Esq.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about August 8, 2005, Forsyth Care Center was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Missouri Nursing Home Insurance.

(2) On the alleged injury date of August 8, 2005, Jennifer Thomas was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about August 8, 2005, the employee sustained an accident, which arose out of and in the course of her employment with the employer.

(4) The above-referenced e