Sharon Barnhart v. Eldon Nursing and Rehabilitation Center

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

Injury No.: 11-072406

Employee: Sharon Barnhart

Employer: Eldon Nursing and Rehabilitation Center

Insurer: Missouri Nursing Home Insurance

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The parties asked the administrative law judge to resolve the issue whether employer is obligated to provide employee with future medical treatment to cure and relieve the effects of employee's work injury. The administrative law judge concluded that employer is liable for future medical expenses for treatment including but not limited to (1) ongoing appointments with Dr. Bernabe or another physician pertaining to employee's low back pain and radicular symptoms into the legs, (2) prescriptions for pain medications such as Hydrocodone or Soma pertaining to low back pain and radicular symptoms into the legs as prescribed by Dr. Bernabe or another physician, and (3) those treatments recommended by Dr. Volarich, including but not limited to treatment at a pain clinic, epidural steroid injections, foraminal nerve blocks, trigger point injections, and radiofrequency ablation procedures. Employer appeals, arguing that the administrative law judge is not authorized to order employer to provide certain, specified medical treatments and procedures, because the determination which treatment is appropriate should be left to the discretion of the medical professionals selected by employer.

In general, a conclusion by the fact finder that an employee is entitled to future medical treatment under $\S 287.140$ RSMo does not result in an award of specific treatment modalities, because such an award would require the fact finder to speculate as to what treatments may reasonably be required in an unknown future. Here, however, the administrative law judge specifically relied on the expert medical opinion of Dr. Volarich, who opined that employee will require ongoing care for her low back injury using modalities including but not limited to narcotics and non-narcotic medications, muscle relaxants, physical therapy, and similar treatments, as well as treatment at a pain clinic including epidural steroid injections, foraminal nerve blocks, trigger point injections, and radiofrequency ablation. Given this testimony from Dr. Volarich, we are of the opinion that there was sufficient evidence to warrant the administrative law judge's (implied) finding that there is a reasonable probability that these treatments may reasonably be

required to cure and relieve the effects of employee's work injuries, and for this reason we affirm the award as written.

Practically speaking, we do not anticipate that employer will be required to provide all of the modalities identified by Dr. Volarich, but we do believe that employee is entitled to any or all of them that she chooses to pursue and that any doctor contemporaneously recommends. To conclude otherwise would be to permit employer to avoid its liability under the award simply by selecting a treating physician who, contrary to the findings of Dr. Volarich as adopted by the administrative law judge, determines that such treatments are not reasonable or required. We will not endorse such a result.

We affirm and adopt the award of the administrative law judge with this supplemental opinion.

The award and decision of Administrative Law Judge Vicky Ruth, issued February 11, 2014, is attached and incorporated by this reference.

The Commission approves and affirms as fair and reasonable the administrative law judge's allowance of a 25 % lien in favor of employee's attorney on compensation awarded herein.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $6^{\text {th }}$ day of May 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., 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 11, 2011.
5. State location where accident occurred or occupational disease was contracted: Eldon, Miller County, Missouri.
6. Was above employee in the employ of above employer at the time of the 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 felt pain in her low back while attempting to lift a heavy patient from the toilet.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: lumbar spine.
14. Nature and extent of any permanent disability: 20 % of the body as a whole referable to the lumbar spine.
15. Compensation paid to-date for temporary disability: $\ 22,665.69.
16. Value necessary medical aid paid to date by employer/insurer? $\ 12,963.63.
17. Value necessary medical aid not furnished by employer/insurer? $\ 796.44.

1. Employee's average weekly wages: $\ 331.53.
2. Weekly compensation rate: $\ 221.02.
3. Method of wages computation: By agreement.

1. Amount of compensation payable from employer:

Unpaid medical expenses: $\quad \ 796.44

80 weeks PPD x $\$ 221.02= \ 17,681.60

Subtotal: $\ 18,478.04

Minus credit for TTD overpayment: $\quad \$ \quad 1,768.16

TOTAL DUE: \quad \ 16,709.88

1. Second Injury Fund liability: N/A.
2. Future medical awarded: Yes.

Said payments to begin immediately and to be payable and 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: Timothy McDuffey.

Employee: Sharon Barnhart

Injury No. 11-072406

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Eldon Nursing and Rehabilitation Center

Additional Party: N/A

Insurer: Missouri Nursing Home Insurance c/o Maxim Insurance Solutions, LLC.

Hearing Date: November 12, 2013

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On November 12, 2013, Sharon Barnhart (the claimant), Eldon Nursing and Rehabilitation Center, and Missouri Nursing Home Insurance, in care of Maxim Insurance Solutions, LLC (the employer/insurer), appeared in Jefferson City, Missouri, for a final award hearing. Claimant was represented by attorney Timothy McDuffey. The employer/insurer was represented by attorney Patrick Reidy. Claimant testified in person at the hearing. The parties submitted briefs on December 6, 2013, and the record closed at that time.

The parties stipulated to the following:

1. On or about September 11, 2011, Sharon Barnhart (the claimant) was an employee of Eldon Nursing and Rehabilitation Center (the employer) when she sustained an injury by accident to her lumbar spine. The accident occurred while Claimant was acting in the course and scope of her employment with the employer.
2. The employer was operating subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was insured by Missouri Nursing Home Insurance, in care of Maxim Insurance Solutions, LLC.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Miller County is proper. For trial purposes, venue is also proper in Jefferson City, Missouri.
5. Notice is not an issue.
6. Claimant filed a Claim for Compensation within the time prescribed by law.
7. Claimant's average weekly wage is $\ 331.53, yielding a weekly compensation rate of $\ 221.02 for permanent partial disability benefits.
8. The employer/insurer paid temporary total disability (TTD) benefits in the amount of $\ 22,665.69, representing 102.57 weeks of wages, for the periods from September 13, 2011 to September 14, 2011, and October 6, 2011 to May 27, 2013.

1. The parties agree that the employer/insurer is entitled to a credit for an overpayment of TTD benefits in the amount of $\ 1,768.16, representing 8 weeks, for the period of April 1, 2013 to May 27, 2013.
2. The employer/insurer paid medical benefits in the amount of $\ 12,963.63.
3. The parties agree that the employer/insurer should be ordered to pay unpaid medical bills (prescription costs) in the amount of $\ 796.44.

The parties agreed that the following issues were to be resolved in this proceeding:

1. Nature and extent of permanent partial disability.
2. Liability for future medical aid.
3. Liability for unpaid medical treatment in the amount of $\ 796.44.
4. Liability for an overpayment of temporary total disability benefits in the amount of $\ 1,768.16.

On behalf of the claimant, the following exhibits were entered into evidence without objection:

Exhibit A Medical records from Lake Regional Hospital.

Exhibit B Medical records from LLRM-Eldon.

Exhibit C Medical records from LLRM-Eldon.

Exhibit D Medical records from Spine Midwest.

Exhibit E Medical records from Dr. Norregaard.

Exhibit F Medical records from Lake Regional Clinic-Eldon.

Exhibit G Medical records from Eldon Rehabilitation Therapy.

Exhibit H Functional Capacity Evaluation from Eldon Rehabilitation.

Exhibit I Medical report of Dr. Volarich.

Exhibit J Pharmacy bills (Gerbes).

Exhibit K Medical records from Lake Regional Clinic-Eldon.

Exhibit L Prescription receipt.

Exhibit M Prescription receipt.

The employer/insurer did not offer any exhibits.

The parties jointly requested that that Administrative Law Judge take judicial notice of the Claim for Compensation, the Answer, and the Temporary Award (from the hearing held in March 2012). The Administrative Law Judge agreed to do so.

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings:

1. Claimant was born on March 30, 1956. She was 57 years old at the time of the hearing. Claimant testified that she did not finish high school and made it through the eighth grade. Claimant testified that she is a certified nurse's assistant.
2. Claimant testified that she has worked for Employer for the three years leading up to her injury. Claimant worked as a certified nurse's assistant and earned $\ 7.60 per hour.
3. Her job duties included assisting patients with their activities of daily living, including personal care, a