Sandra Rainbolt v. Audrain Medical Center

the time employee started seeing Dr. Brockman. We conclude, therefore, that employer is not liable for the $\ 280.00 in charges incurred for treatment with Dr. Brockman, because when employee sought treatment with Dr. Brockman, she selected her own physician at her own expense.

The administrative law judge rendered the following conclusion with regard to future medical care: "Employer is hereby ordered to provide such medical treatment as Dr. Brockman or any physician to whom the Claimant is referred by Dr. Brockman which is medically reasonable in order to cure and relieve the effects of the injury Claimant suffered on January 18, 2009." Award, page 16. Crucially, the foregoing statement does not make clear whether the administrative law judge intended merely to award treatment "as recommended by" Dr. Brockman, or if the administrative law judge meant to order treatment "as directed or provided by" Dr. Brockman. The reference to doctors to whom Dr. Brockman might refer employee seems to indicate that the administrative law judge intended to order that employee's treatment be provided or directed by Dr. Brockman. We believe that such an award would be in contravention of $\S 287.140 .10$ RSMo, which provides, in relevant part, as follows:

The employer shall have the right to select the licensed treating physician, surgeon, chiropractic physician, or other health care provider; provided, however, that such physicians, surgeons or other health care providers shall offer only those services authorized within the scope of their licenses. For the purpose of this subsection, subsection 2 of section 287.030 shall not apply.

The parties asked the administrative law judge to consider the issue "whether [employee] has sustained injuries that will require future medical care in order to cure and relieve [employee] of the effects of the injuries." Transcript, page 4. The parties did not identify any specific future medical procedure, such as a disputed surgery, that is the subject of the dispute over future medical treatment. Compare Conrad v. Jack Cooper Transp. Co., 273 S.W.3d 49, 54 (Mo. App. 2008). Instead, employee is claiming that she has a generalized need for future treatment to cure and relieve the effects of her work injury. The issue thus turns on whether employee has established a reasonable probability that, as a result of the work injury, she is in need of future medical care. Pennewell v. Hannibal Reg'l Hosp., 390 S.W.3d 919, 926 (Mo. App. 2013).

We agree with the administrative law judge's implied finding that Dr. Brockman's credible testimony on the topic of future medical care establishes a reasonable probability that employee will need future psychiatric treatment as a result of the work injury. But we are not permitted to order future medical care to be directed or provided by a specific physician, unless an issue is presented under $\S 287.140 .2$ RSMo as to whether employee's life, health, or recovery is endangered such that an administrative law judge or this Commission may order a change in the physician, surgeon, hospital, etc. See, e.g., Noel v. ABB Combustion Eng'g, 383 S.W.3d 480, 485 (Mo. App. 2012). Because the parties have not presented any issue implicating $\S 287.140 .2$, an award of future medical care "as directed by" or "as provided by" Dr. Brockman would be inappropriate, as it would contravene employer's statutory right to direct treatment.

Accordingly, we modify the administrative law judge's award of future medical treatment as follows. We conclude that employer is obligated to provide future medical treatment that may reasonably be required to cure and relieve the effects of the work injury, to include, but not to be limited to, those psychiatric treatments recommended by Dr. Brockman. We conclude that employer has the right to direct such future medical treatment.

In the $6^{\text {th }}$ paragraph on page 12 of his award, the administrative law judge states:

"Dr. Brockman opined that Claimant had suffered permanent disabilities as a result of the January 18, 2009, injuries of 30 % of the body as a whole as a result of the major depressive disorder aggravation, and 100\% permanent disability to the body as a whole as a result of the preexisting major depressive disorder." This is an apparent typographical error. We correct the foregoing to read instead as follows: "Dr. Brockman opined that Claimant had suffered permanent disabilities as a result of the January 18, 2009, injuries of 30\% of the body as a whole as a result of the major depressive disorder aggravation, and 10\% permanent disability to the body as a whole as a result of the preexisting major depressive disorder."

We modify the award of the administrative law judge. Employer is not obligated to pay employee's unpaid past medical expenses in the amount of $\ 280.00 from treatment with Dr. Brockman. Employee is entitled to such future medical treatment as may reasonably be required to cure and relieve from the effects of the work injury; employer is entitled to direct that treatment.

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 David L. Zerrer, issued January 10, 2013, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $\qquad 23^{\text {rd }}$ day of August 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Sandra Rainbolt

Additional Party: Second Injury Fund

Insurer: Hospital Administration Trust, T/P/A Cannon Cochran Management

Hearing Date: October 2, 2012/October 24, 2012

Injury No. 09-002662

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

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: January 18, 2009
5. State location where accident occurred or occupational disease was contracted: Mexico, Audrain 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? Self-insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was assaulted by patient of Employer
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: Upper extremity; body as a whole
14. Nature and extent of any permanent disability: 35 % at the 222 -week level; 18 % body as a whole
15. Compensation paid to-date for temporary disability: $\ 11,036.13
16. Value necessary medical aid paid to date by employer/insurer? $\ 12,070.25

Employee: Sandra Rainbolt Injury No. 09-002662

1. Value necessary medical aid not furnished by employer/insurer? $\ 280.00
2. Employee's average weekly wages:
3. Weekly compensation rate: $\$ 772.53 / \ 404.66
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 280.00

149.7 weeks of permanent partial disability from Employer $\ 60,577.60

6 weeks of disfigurement from Employer $\ 2,427.96

1. Second Injury Fund liability: Yes X No Open

46.16 weeks of permanent partial disability from Second Injury Fund $\ 18,679.11

TOTAL: $\ 81,964.67

1. Future requirements awarded: Open

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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Frank Niesen

Employee: Sandra Rainbolt

Employee: Sandra Rainbolt

Insurer: Hospital Administration Trust, T/P/A Cannon Cochran Management

Checked by: DLZ

On the $2^{\text {nd }}$ day of October, 2012, the parties appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and by her attorney, Frank Niesen. The Employer appeared by its attorney, Daniel Doyle. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General Adam Sandberg.

The parties entered into a stipulation as to certain facts which are not at issue in this claim as follows, to wit: On or about