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