William Wagner v. City of Maryland Heights

(Modifying Award and Decision of Administrative Law Judge)

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, 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.

Temporary total disability benefits

In its Application for Review and brief filed with the Commission, employer argues that even if employee's work injury is found to be compensable, the administrative law judge awarded an incorrect amount of temporary total disability benefits. Employer suggests various alternative time periods and amounts.

Yet, on page 2 of the transcript, the parties acceded to the following statement by the administrative law judge: "The third issue, nature and extent of temporary total disability for a stipulated period of June 16, 2011, through August 21, 2012, of which period equates to a total TTD lump sum of $\ 49,656.70." From the context of this and other statements, it's clear the parties intended that, in the event the administrative law judge ruled this claim to be compensable, employer's liability for temporary total disability benefits would be $\ 49,656.70 for the period from June 16, 2011, through August 21, 2012. The administrative law judge ultimately found for the employee, and awarded $\ 49,656.70 in temporary total disability benefits, giving effect to the parties' stipulation.

The rules of the Department of Labor and Industrial Relations, in particular, 8 CSR 50-2.010(14), provide: " ... Prior to hearing, the parties shall stipulate uncontested facts and present evidence only on contested issues." Therefore, the ALJ should confine the evidence during the hearing to the stated contested issues. Stipulations are controlling and conclusive, and the courts are bound to enforce them. A stipulation should be interpreted in view of the result, which the parties were attempting to accomplish. In Lawson, our colleagues in the Southern

Improvee: William Wagner

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District concluded that the Commission acted in excess of its powers in making its award on grounds not in issue. *Lawson v. Emerson Electric Company*, 809 S.W.2d at 126.

*Boyer v. Nat'l Express Co.*, 49 S.W.3d 700, 705 (Mo. App. 2001).

In arguing different periods and amounts of temporary total disability from those stipulated at trial, employer invites this Commission to make an award on grounds not at issue in this matter. We decline to disturb the administrative law judge's award on this point.

On page 7 of his award, the administrative law judge states as follows: "On March 26, 2012, Dr. Volarich reviewed the medical records and bills from Dr. David Robson, MedTronic, Depuy Spine, Integra Orthobiologics, and St. Louis Spine Center and was the [sic] opinion that the charges were fair, reasonable, and customary and the treatments were necessary to cure and relieve the ill effects of Claimant's work injury of June 6, 2011." Employer argues that no such opinion from Dr. Volarich is found in the record; employee concedes that this is the case. Employee has attached to his brief a purported report from Dr. Volarich, alleging that it was inadvertently excluded from the transcript. For obvious reasons, this purported report does not constitute evidence, nor can we consider it now.

Because the above-quoted statement by the administrative law judge is not supported by the record, we must disclaim it. Having said that, we agree with the administrative law judge's ultimate determination that employee met his burden of proving employer's liability for his unpaid past medical expenses. Ample evidence on the record supports this result, including employee's testimony, which we deem credible, that the bills set forth in his Exhibits C and D remain outstanding as well as the records from the treating physician, Dr. Robson, whose opinions in this matter we deem to be persuasive.

We do, however, perceive a need to correct the administrative law judge's calculation of employer's liability for unpaid medical expenses. Employee's medical bills set forth on pages 93, 94, 157-58, and 164-65 of the transcript reveal a total amount of 132,002.60, rather than the 132,228.15 amount found by the administrative law judge. We hereby correct any references in the award to the latter amount.

We modify the award of the administrative law judge as to the issue of employer's liability for past medical expenses. Employer is liable for $132,002.60 in past medical expenses.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued March 5, 2014, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

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.

Enployee: William Wagner

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

Given at Jefferson City, State of Missouri, this 18th day of June 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: June 6, 2011
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Employee sustained injury while lifting a tree branch off the ground.
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, psychiatric injury
14. Nature and extent of any permanent disability: 30 % PPD of body for spine; 10 % of body for psychiatric PPD.
15. Compensation paid to-date for temporary disability: $\ 799.11
16. Value necessary medical aid paid to date by employer/insurer? $\ 24,386.06

1. Value necessary medical aid not furnished by employer/insurer? $\ 132,228.15
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\$ 799.11 / \ 418.58 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

160 weeks of permanent partial disability from Employer $\ 66,972.80

temporary total disability benefits (per stipulated TTD calendar/amount) 49,656.70

Unpaid medical expenses 132,228.15

1. Second Injury Fund liability: Open

TOTAL:

$\ 248,857.65

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to 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 Claimant:

James J. Sievers

Employee: William Wagner

Departments: N/A

Employer: City of Maryland Heights

Additional Party: Second Injury Fund (open)

Insurer: St. Louis Area Insurance Trust

Hearing Date: November 26, 2013

Injury No.: 11-048436

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves a low back and psychological injury to Claimant on the reported accident date of June 6, 2011. Employer admits Claimant was employed on said date and their liability is fully insured. The Second Injury Fund is a party to this claim but remains open for determination of liability, if any, at a future date. Both parties are represented by counsel.

1. Nature and extent of permanent partial disability;
2. Medical causation of the low back injury;
3. Liability for temporary total disability (stipulated period/amount: June 6, 2011 through August 21, 2012, in the amount of $\ 49,656.70; and
4. Unpaid medical bills and necessity of treatment.

1. Claimant, age 64, worked for Employer for approximately 25 years prior to the reported accident. Claimant was employed on a full time basis and had never missed any work.
2. On the reported accident date Claimant was working with a crew to clean up storm debris. He was picking up logs and limbs and placing them in a shredder. He had been doing this when he bent over to pick up some debris and felt immediate pain in his low back with pain down his right leg.
3. Claimant fell to the ground and was unable to get up. He was transported to Missouri Baptist Medical Center where he was evaluated and treated with x-rays and an MRI which showed lateralizing focal disc protrusion.
4. Claimant was discharged from the hospital with a diagnosis of low back strain on June 10, 2011. Dr. David Kitchen diagnosed an acute lumbar strain on June 8, 2011. Claimant was given medications that included Norco and Diazepan.

1. Dr. David Robson, an orthopedic surgeon, performed an IME on August 11, 2011 and recommended a CT myelogram. Claimant was re-evaluated by Dr. Kitchen on September 1, 2011. Dr. Kitchen noted ongoing low back pain that radiated into his right buttock down his leg to his foot. Dr. Kitchen diagnosed degenerative disc disease and offered no further treatment.
2. The CT myelogram was performed on October 20, 2011 and subsequently reviewed by Dr. Robson who noted spondylolisthesis with instability at L3-4 and bulging disc which caused spinal stenosis. He recommended injections and surgery.
3. On December 20, 2011, Dr. Robson performed a lateral discectomy at L3-4 with a lateral interbody fusion with bone morphogenic protein at L3-4. Dr. Robson completed the second stage of the surgery on December 22, 2011, which was a posterior spinal fusion with local autograft and bone morphemic protein at L3-4 with Expedium instrumentation at L3-4.
4. Dr. Robson continued to treat Claimant until his release on August 21, 2012. It was Dr. Robson's opinion that the injury of June 6, 2011, necessitated the treatment and surgical intervention.
5. Dr. Daniel Kitchen, a neurologist, evaluated Claimant on three separate occasions: June 8, 2011, a second time on September 1, 2011, and the final time on March 6, 2013.
6. Dr. Kitchen testified via deposition on September 20, 2011, that Claimant suffered a low back strain and would not benefit from additional treatment or surgery. He also testified during cross-examination that he did not review medical records prior to his preparation of his September 1, 2011, report.
7. Dr. Kitchen, in his March 6, 2013, report reviewed various medical records and reiterated his opinion that Claimant suffered from a lumbar strain superimposed on degenerative disc disease and further stated that he disagreed with Dr. Robson and there was no independent confirmation of spondylolisthesis or instability with flexion and extension films. He attributed a one percent permanent partial disability as a result of the work accident.
8. Claimant offered the was evaluated by Dr. David Volarich on four occasions. Dr. Volarich reviewed all the medical records and opined that the work related accident of June 6, 2011, necessitated the surgeries performed by Dr. Robson on December 20 and 22, 2011. He also attributed, within a reasonable degree of medical certainty, a fifty percent permanent partial disability of the body as a whole due to the lumbar right leg radiculopathy secondary to disc bulging with canal stenosis and segmental instability at the L3-4 level that required posterolateral discectomy and fusion followed up with a posterior fusion with instrumentations at the L3-4 level.
9. Claimant offered the opinion of Dr. Wayne Stillings, a psychiatrist, who examined Claimant on September 17, 2012. He provided addendum opinions on June 3, 2012, and August 8, 2013. Dr. Stillings reviewed the medical records. He also conducted an independent interview with claimant's wife, Kathy Wagner. Dr. Stillings administered the MMPI-II, the

MCMI-III and SIMS tests in addition a mental status examination, and personal evaluation of Claimant.

1. Dr. Stillings opined within a reasonable degree of medical/psychiatric certainty that Claimant had a pain disorder with an associated twelve and one-half percent psychiatric permanent partial disability of the body as a whole as well as a mood disorder aggravation with an additional twelve and one-half percent psychiatric permanent partial disability of the body as a whole. (He assigned substantial pre-existing permanent partial disability for major depressive disorder and personality disorder.)
2. Dr. Stillings provided two follow-up addendums in which he did not change his opinion. Dr. Stillings reiterated that Mr. Wagner clearly demonstrates a personality disorder.
3. Claimant was seen by Dr. Michael Jarvis, a psychiatrist, at the request of the Employer. Dr. Jarvis reviewed various medical records including the report of Dr. Wayne Stillings. He found major depressive disorder unrelated to the reported injury. Dr. Jarvis opined within a reasonable degree of medical certainty that the reported injury caused no permanent partial psychiatric disability. He disputed the existence of a personality disorder. He also noted that Claimant would not be in need of any medical treatment as a result of the June 6, 2011, work accident, but found him to be psychiatrically disabled due to his major depression; however, the back injury is not the prevailing factor and therefore he has no permanent and partial disability as a result of the reported injury.
4. Claimant did not receive temporary total disability from June 16, 2011 through August 21, 2012, which period equates to $\ 49,656.70 at the stipulated rate.
5. Claimant has outstanding medical bills in the amount of $\ 132,228.15 for the treatment he received from Dr. Robson (Exhibit F).
6. Claimant has chronic pain, stiffness, disrupted sleep, and that he is forgetful, is unable to do much socially or around the home and difficulty driving his car distances due to his low back problems.
7. Claimant reported that since the surgery, the pain is less intense and there are no longer the constant paresthesias.
8. Claimant testified that he lost his step daughter in 1998 and a son in 2010. His step daughter was involved in a motor vehicle accident and was in a coma for eleven years before she died. Two years later, Claimant's son was injured when he fell through a dock at the Lake of the Ozarks. He died from post-surgical complications. He was very close to both of them and their deaths caused him a great deal of grief and depression.
9. Claimant testified in a direct and forthright manner. His testimony was unimpeached and easily reconciled with the medical treatment record and medical bills.

In a Workers' Compensation case, it is Claimant's burden to prove "not only causation between the accident and the injury but also that a disability resulted and the extent of such disability". Griggs v. A. B. Chance Co., 503 S.W.2d 697, 703 (Mo.App.W.D. 1973); Moriarty v. Treasurer of the State of Missouri, 141 S.W.3d 69, 73 (Mo.App.E. D. 2004). Here, Claimant has presented objective medical evidence showing a causal connection between the work accident of June 6, 2011, and the resulting permanent partial disabilities. Claimant credibly testified and the medical record shows consistent medical treatment for Claimant's low back injuries following the work accident. MRI findings on June 6, 2011, as well as the CT Myelogram of October 20, 2011, revealed objective findings as well. Claimant's history regarding the mechanism of injury has been consistent to all medical providers.

Dr. Volarich, who had all of claimant's medical records in his possession, found the accident of June 6, 2011, to be the substantial contributing factor as well as prevailing or primary factor causing the need for surgical intervention and additional treatment. Dr. Robson treated Claimant and performed the surgery. He, too, was of the opinion that the reported injury was the prevailing factor in the need for medical treatment and surgery.

Dr. Kitchen was unable to explain the ongoing low back pain, the shooting pain that radiated down claimant's right leg, and why symptoms began immediately after claimant lifted debris while working. The opinions of Dr. Volarich and Dr. Robson are more persuasive than that of Dr. Kitchen.

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.

Claimant bears the burden of proving unpaid medical expenses are work related. Sutton v. Vee Jay Cement Contracting, 37 S.W.3d 803,808 (Mo. App. E.D. 2000). The employer has the right to authorize treatment and select the treating physician at the employer's cost. Section 287.140.10 RSMo. If the employer refuses to provide treatment, the employee is free to seek treatment on his or her own and assess the costs to the employer. Blackwell v. Puritan-Bennett Corp., 901 S.W. 2d 81, 84-85 (Mo. App. E.D. 1995). In order to assess the costs against the employer, Claimant must show that the costs were necessary, reasonable and related to the accident. Martin v. Mid-America Farm Lines, 769 S.W. 2d. 105, 111-12 (Mo. 1989).

This is initially shown by the testimony of Claimant and the medical records. Dr. David Volarich testified on July 7, 2011, that the work accident occurred when Claimant was lifting logs and felt back pain that began to radiate down his right leg; and that the work accident was both the prevailing and primary factor in causing the lumbar right leg radicular syndrome which had not been completely evaluated at the time of his initial report. Dr. Volarich did recommend epidural steroid injections and a Myelogram CT scan of the lumbar spine. On August 11, 2011, Dr. David Robson opined that claimant needed ongoing treatment as well as additional imaging studies. This opinion was again documented in Dr. Robson's November 10, 2011, note. Conservative measures failed and in Dr. Robson's December 7, 2011, note he recommended surgery.

On March 26, 2012, Dr. Volarich reviewed the medical records and bills from Dr. David Robson, MedTronic, Depuy Spine, Integra Orthobiologics, and St. Louis Spine Center and was the opinion that the charges were fair, reasonable, and customary and the treatments were necessary to cure and relieve the ill effects of Claimant's work injury of June 6, 2011. Claimant has more than met his burden here.

The courts have made clear that "once it is determined that there has been a compensable accident, a claimant need only provide that the need for treatment and medical flow from the work injury. The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant. Tillotson v. St. Joseph Med. Ctr., 347 S.W. 3d 511, 519 (Mo.App. 2011). I find that the unpaid medical bills were necessary, reasonable and related to the June 6, 2011 accident. I find the opinions of Dr. Volarich and Dr. Robson persuasive.

Section 287.170 RSMo provides for temporary total disability benefits to cover the employee's healing period following a compensable work injury. The test for temporary total disability is whether, given employee's physical condition, an employer in the usual course of business would reasonably be expended to employ him during the time period claimed. Cooper v. Medical Center of Independence, 955 S.W.2d 570, 575 (Mo.App. 1997).

The parties stipulated the period of lost time and amount of TTD payable in the event the claim was found compensasble. Claimant was injured on June 6, 2011 and had ongoing treatment until his surgeries of December 20 and 22, 2011. He was not released to return to work until August 21, 2012. As discussed above, Dr. Robson recommended these surgeries. Consistent with the finding that the injury and subsequent treatment are work related, therefore, Employer is liable for temporary total disability benefits in the stipulated amount of $\ 49,656.70.

Claimant's testimony was consistent with the medical record. Claimant sustained injuries to his low back as well as psychiatric injuries as a result of the June 6, 2011 accident. A review of Claimant's testimony and the medical records reveals no evidence of a pre-existing permanent partial disability of the low back. Claimant continues to have complaints of low back pain.

Claimant's expert, Dr. Volaraich, articulated a permanent partial disability model that is easily reconciled with the balance of the record. Employer's expert failed to render opinions that were reconcilable with the fact of no pre-existing permanent partial disability, no prior treatment record and the fact of surgery with long term recovery. These deficits and together with Dr. Volarich's opinions are the bases for a finding of substantial permanent disability. Dr. Stillings was more persuasive than Dr. Jarvis for similar reasons. In addition, Dr. Jarvis admitted the existence of very serious psychiatric diagnoses. Indeed, Dr. Jarvis found Claimant reliable. The evidence suggests Claimant sustained a thirty percent permanent partial disability of the low back and a ten percent permanent partial disability of the body as a whole referable to psychiatric disability.

Accordingly, on the basis of substantial and competent evidence contained within the whole record, Claimant is found to have sustained a thirty percent permanent partial disability of the low back and ten percent permanent partial disability due to psychiatric disability as a result of the reported injury. Claimant is entitled to 160 weeks permanent partial disability from Employer. In addition, employer is ordered to pay temporary total disability benefits in the stipulated amount of $\ 49,656.70 and past medical expenses in the amount of $\ 132,228.15 per Exhibit F.

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