Joan Bush-Glasby v. City of St. Louis

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have read the briefs, reviewed the evidence, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify 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 claims $187,007.90 in past medical expenses incurred from June 1, 2011, through September 1, 2011. Employer argues that it has already paid these past medical expenses, and that employee has no further liability on the bills. Section 287.140.1 RSMo provides, as follows:

In addition to all other compensation paid to the employee under this section, 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.

The courts have indicated that an award of past medical expenses is supported when the employee provides (1) the bills themselves; (2) the medical records reflecting the treatment giving rise to the bill; and (3) testimony sufficient to identify the bills as incurred during the course of treatment for the work-related injury. Martin v. MidAmerica Farm Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. 1989). Here, employee provided her bills, medical records, and testimony that we deem sufficient to identify the bills as incurred during the course of her treatment for this work-related injury. The burden thus shifts to employer to prove employee has no further liability for the bills. Farmer-Cummings v. Pers. Pool of Platte County, 110 S.W.3d 818, 822-23 (Mo. 2003).

Employee: Joan Bush-Glasby

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Employer provided testimony from Jacquelyn Morris, the claims adjuster who handled this case on behalf of employer's insurer. Ms. Morris identified a document (attached to the transcript of her deposition as Exhibit K) that includes a list of charges employer had paid on employee's claim for medical expenses as of July 12, 2012. Ms. Morris provided credible testimony explaining how to read this document, and also credibly explained that many of the payments reflected in the document differ from the charges in the bills themselves because employer's insurer was able to negotiate discounts on the bills.

We note that employee testified, at the hearing before the administrative law judge, that she stopped receiving collection notices in connection with her medical bills when employer began paying them. We note also that employee did not provide any testimony that would suggest she is still liable to pay her medical providers $187,007.90 (or any other amount), or that would otherwise contradict the testimony from Ms. Morris on this issue. In her brief, employee points to indications in employer's documentation that certain payments to the providers were "denied," such as $3,600.00 in charges from South County Anesthesia. But these very same entries list the charges in a column marked "discount," suggesting that these charges were waived as a result of the negotiated discounts identified by Ms. Morris. See, e.g., Transcript, pages 987-88. More importantly, employee has not provided any evidence to show that she still owes South County Anesthesia $3,600.00, or any other amount.

Given Ms. Morris's credible testimony and the documentation provided by employer, combined with the absence of any testimony or other evidence suggesting that employee nevertheless remains liable for certain amounts despite employer's payments, we find that employer has satisfied all of the bills and charges incurred in the course of employee's past medical treatment for this work injury.

We do note, however, that the bills reflect that employee paid co-pays when she received certain treatments. Specifically, the bills from SSM Physical Therapy suggest employee paid 120.00 in co-pays, and the bills from ProRehab suggest employee paid 210.00 in co-pays. The bills from South County Anesthesia contain certain notations that we cannot readily interpret that suggest employee may or may not have paid $56.28; employee did not provide any testimony to establish what she paid out-of-pocket for services rendered by South County Anesthesia, and therefore we decline to make any findings referable to these notations. Instead, we find that employee paid a total of $330.00 in co-pays. Employer did not provide any evidence suggesting that employee was ever reimbursed for her out-of-pocket expenses. Accordingly, we find that employee incurred $330.00 in out-of-pocket expenses during the course of her medical treatment, and that employer has not reimbursed her this amount.

We discern employee's additional arguments concerning the manner in which employer's insurer paid the bills (directly to the providers even after receiving correspondence from employee's attorney indicating a claim for past medical expenses) to constitute a request that this Commission enforce a fee lien in favor of her attorney. Employee points to months of financial hardship that she endured, the considerable efforts of her attorney in securing benefits, and the fact that employer initially denied this claim without adequately

Injury No.: 11-032049

Employee: Joan Bush-Glasby

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investigating employee's accident. But these factors are not strictly relevant to our analysis under $\S 287.140$ where the evidence shows that employee's bills have been paid. We note that the parties did not identify any issue with respect to costs under $\S 287.560$ RSMo at the hearing before the administrative law judge.

It is axiomatic that the Commission does not have authority to enforce an award. See, e.g., Stonecipher v. Treasurer of Mo., 250 S.W.3d 450, 452 (Mo. App. 2008). We acknowledge the importance of fair and reasonable attorney's fees in ensuring public access to effective legal representation, but we are aware of no statutory provision that would authorize us to order an employer to pay an employee's past medical expenses twice for the purpose of ensuring that her attorney will receive 25 % of the amounts.

We affirm the administrative law judge's conclusion that employee is not entitled to the claimed $\ 187,007.90 in past medical expenses. Rather, employer is liable for the $\ 330.00 in co-pays and out-of-pocket medical expenses that employee paid in the course of her treatment.

As the Second Injury Fund conceded in correspondence received by the Commission on July 3, 2013, the administrative law judge's award contains a clerical error with regard to the compensation rate for permanent total disability. On pages 2, 12, and 13 of the award, the administrative law judge states that the Second Injury Fund is liable for benefits at the differential rate of $\ 132.08 for 140 weeks beginning December 17, 2011, and thereafter weekly payments of $\ 418.58 per week. The latter figure represents the stipulated rate for permanent partial rather than permanent total disability benefits.

Accordingly, we hereby correct the award as follows. The Second Injury Fund is liable for benefits at the differential rate of $\ 132.08 for 140 weeks beginning December 17, 2011, and thereafter weekly payments of $\ 550.66.

We modify the award of the administrative law judge as to the issues of past medical expenses and the rate of compensation at which the Second Injury Fund will pay permanent total disability benefits.

Employer is ordered to pay employee $\ 330.00 in out-of-pocket past medical expenses.

The Second Injury Fund is ordered to pay employee permanent total disability benefits at the differential rate of $\ 132.08 for 140 weeks beginning December 17, 2011, and thereafter $\ 550.66 per week. The weekly payments shall continue thereafter for employee's lifetime, or until modified by law.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued June 7, 2013, is attached and incorporated by this reference to the extent it is not inconsistent with our modifications and supplemental findings and conclusions herein.

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 $14^{\text {th }}$ day of January 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Joan Bush Glasby

Departments: Gary Glasby

Employer: City of St. Louis

Additional Party: Second Injury Fund (SIF)

Insurer: Self c/o CCMI

Hearing Date: March 20, 2013

Injury No.: 11-032049

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

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: April 18, 2011
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 injured her low back when she lifted a cooler in the course and scope of her employment.
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: body as a whole referable to the low back
14. Nature and extent of any permanent disability: 35 % body as a whole referable to the low back and permanent and total disability benefits from the SIF as a result of the combination of the primary injury and prior disabilities.
15. Compensation paid to-date for temporary disability: $\ 8,707.02
16. Value necessary medical aid paid to date by employer/insurer? $\ 115,914.19

Employee: Joan Bush Glasby Injury No.: 11-032049

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 550.66 / \ 418.58
4. Method wages computation: Stipulation

1. Amount of compensation payable:

$51 / 7 weeks of temporary total disability (or temporary partial disability) \ 2,831.96

140 weeks of permanent partial disability from Employer $\ 58,601.20

1. Second Injury Fund liability: Yes

to be determined

Permanent total disability benefits from Second Injury Fund:

weekly differential $\ 132.08 payable by SIF for 140 weeks beginning

December 17, 2011, and, thereafter, $\ 418.58 weekly as provided by law

TOTAL:

TO BE DETERMINED

1. Future requirements awarded: 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 % of all payments hereunder in favor of the following attorney for necessary legal serv