Carl Greer v. Sysco Food Services of St. Louis, LLC

Improvement; (3) in awarding future medical expenses; (4) in not reducing employee's benefits by 50 % and in not providing employer a credit in connection with the safety penalty for benefits already paid.

For the reasons stated below, we modify the award of the administrative law judge referable to the issues of: (1) temporary total disability; (2) past medical expenses; and (3) reduction of employee's compensation under § 287.120.5 RSMo.

While the administrative law judge awarded employee's expenses for a left foot surgery performed by Drs. Johnson and MacKinnon on June 22, 2010, he also denied employee's claim for additional temporary total disability benefits based on a finding that employee reached maximum medical improvement on April 23, 2007. This was despite uncontested testimony from employer's expert Dr. Schmidt that one would lose time from work after the type of surgery performed by Drs. Johnson and MacKinnon. In reaching this result, the administrative law judge relied on case law suggesting that " $[t]$ emporary total disability awards are owed until the claimant can find employment or the condition has reached the point of maximum medical progress." Pruett v. Fed. Mogul Corp., 365 S.W.3d 296, 308 (Mo. App. 2012).

The phrase "maximum medical improvement" is not found in § 287.170 RSMo, the section authorizing an award of temporary total disability benefits, nor is that phrase defined or found anywhere in Chapter 287. Of course, the concept of maximum medical improvement is helpful to the extent it permits the fact-finder to identify the point at which the question of permanent disability becomes ripe for determination. See Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008). But in a case such as this one where the employee's condition does not appreciably improve (or even worsens) despite further surgeries, applying a per se rule that temporary total disability benefits cannot be awarded after the date of maximum medical improvement works an absurd result. This is especially true here, where such a rule would require us to ignore the uncontested expert medical testimony on the issue.

When we consider the admonition under $\S 287.800$ RSMo that we are to strictly construe the provisions of the Missouri Workers' Compensation Law, we find nothing in the actual language of Chapter 287 that would preclude an award of temporary total disability benefits to cover an employee's healing period and inability to work following surgery simply because the employee does not ultimately experience any additional medical improvement from the surgery. With that said, we are not persuaded by employee's argument that he was unable to compete for work in the open labor market from the date of his release by employer's authorized physicians in April 2007 all the way up until his release by Dr. Johnson following the June 2010 surgery. This is because employee has failed to direct us to any evidence that would support such a finding. Rather, employee advances testimony from his experts Dr. Berkin and Mr. Dolan, who each opined that employee ultimately was permanently and totally disabled, but who did not specifically speak to the time period between April 2007 and June 2010. We, like the administrative law judge, are not persuaded by those ultimate opinions from Dr. Berkin and Mr. Dolan.

We discern no basis on this record, however, for disregarding the uncontested expert testimony from Dr. Schmidt that one would be expected to lose a significant amount of time from work following the surgery performed by Drs. Johnson and MacKinnon. We credit, therefore, Dr. Schmidt's opinion on this point, and conclude that employee was temporarily and totally disabled from the date of surgery on June 22, 2010, to the date Dr. Johnson released him on February 4, 2011. We conclude employer is liable for 32 and $3 / 7 weeks of temporary total disability benefits at the stipulated rate of \ 583.23, for a total of $\ 18,913.32.

The administrative law judge determined that employee met his burden of proving his entitlement under $\S 287.140$ RSMo to his past medical expenses; we agree. The administrative law judge, however, did not award employee's past medical expenses incurred with certain providers based on a finding that the billing statements were not included in the exhibits. Specifically, the administrative law judge found that employee failed to provide bills from the following providers: Missouri Baptist Medical Center, Scott Radiological Group, Inc., and Forest Park Emergency Physicians. See Award, page 14.

Employee, in his brief, provided specific page citations to the bills in question, and after a review of the record, we were able to locate them. For unknown reasons, these bills (along with corresponding affidavits certifying the bills) appear in Employee's Exhibit Z rather than in the exhibits containing the associated medical records; the administrative law judge's confusion on this point is thus wholly understandable.

Because the bills were in fact received in evidence, and because we agree with the administrative law judge's determination that employee is entitled to his past medical expenses, we must modify the administrative law judge's award on this point. We conclude that, in addition to the amount of $\ 49,475.14 awarded by the administrative law judge, employee is entitled to his past medical expenses incurred with Missouri Baptist Medical Center in the amount of $\ 1039.04, Scott Radiological Group, Inc., in the amount of $\ 96.00, and Forest Park Emergency Physicians, in the amount of $\ 365.00, for an additional total of $\ 1,500.04.

The courts have enumerated the following four elements that the employer must prove in order to justify a reduction of compensation under $\S 287.120 .5$ :

1. [T]hat the employer adopted a reasonable rule for the safety of employees;
2. that the injury was caused by the failure of the employee to obey the safety rule;
3. that the employee had actual knowledge of the rule; and
4. that prior to the injury the employer had made a reasonable effort to cause his or her employees to obey the safety rule.

Carver v. Delta Innovative Servs., 379 S.W.3d 865, 869 (Mo. App. 2012).

All issues are addressed in the following sections.

At issue is employer's rule requiring employees traveling in equipment to keep all body parts within the running lines of the equipment. The administrative law judge found that employee had actual knowledge of this rule based on employee's testimony that he received a written copy of the rule in an employer document entitled "SYSCO Safe Preferred Work Methods." Implicit in the administrative law judge's analysis is the premise that receipt of a written policy necessarily confers actual knowledge of the application or meaning of such policy. We disagree with this premise and with the administrative law judge's finding that employee had actual knowledge of the rule for the following reasons.

The document entitled "SYSCO Safe Preferred Work Methods" provides various rules applicable to warehouse employees. The rules are divided into sections with titles such as "Operator and Equipment Pre-Trip," "Traveling," and "Turning." The rule in question is listed under the section entitled "Traveling." As one would expect, this section includes rules that speak to the circumstance of an employee operating equipment that is traveling from one place to another. Examples include rules proscribing excess speeds of travel, a prohibition against passengers riding on equipment, and instructions as to who has the "right-of-way" in various situations. See Transcript, page 2568.

It is undisputed that at the time employee sustained his injury, his forklift was not in motion, but was stationary. Employee testified that he was aware of the rule requiring him to keep all body parts inside the running lines of his forklift, but that he believed this rule only applied when the forklift was in motion. Employee explained that he came to this belief based on the rule's use of the word "traveling." Employer asks us to find this testimony lacking credibility based on employee's signing a counseling form presented to him on March 7, 2006. We are not persuaded for a number of reasons. First, the counseling form, on its face, does not contain any specific admission by employee that he was aware that the rule applied when his forklift was stationary; rather, it simply provides a supervisor's personal opinion that employee's injury could have been prevented if he had followed the rule. Second, we are reluctant to confer much significance to a counseling form presented to employee in the days following a serious and disabling work injury; as employee credibly explained, he wasn't re