BillieJo Christy v. Missouri Department of Higher Education/Southwest Missouri State University

(Modifying the Award of the Administrative Law Judge)

Injury No.: 06-004801

Employee: BillieJo Christy

Employer: Missouri Department of Higher Education/

Southwest Missouri State University

Insurer: C A R O

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Dismissed)

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, heard the parties' arguments, reviewed the evidence, and considered the whole record. We find that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law, except as modified herein. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying 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.

We agree with the administrative law judge's ruling that employee is not permanently and totally disabled but we wish to clarify that employee's return to work for employer is but one factor to consider in a permanent total disability analysis. The administrative law judge reasoned:

[Employee]'s continued work after her 2006 surgeries is evidence of her ability to be employed, even with the permanent effects of the work injury...Employee returned to her regular employment, competing in the open labor market with an employer in the State of Missouri. Her employer had reasonable expectations she could do the job, and she did, in fact, satisfactorily perform her job for more than a year.

Award p. 15.

We disagree with the characterization of employee's job as "in the open labor market." Employee's position was not in the open labor market - employee occupied the job. Certainly employee's return to her job is evidence of employee's ability to perform some services in employment, but her return is not proof that employee could then compete in the open labor market. "Compete," means, "to seek or strive for something (as a position, possession, reward) for which others are also contending." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 463 (2002). Employee last competed for her position in 1995 when she was hired.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2005, unless otherwise indicated.

An employer deciding whether to bring its injured worker back to work may be motivated by different factors than an employer filling a vacant position in the open labor market, such as to reward past loyalty or to avoid training costs. ${ }^{2}$ Thus, employee's return to work for employer does not necessarily mean that employee is not permanently and totally disabled or that employer would have hired her after she recovered from her injury given her then-existing physical condition. ${ }^{3}$

With that explanation, we affirm the administrative law judge's conclusion that employee is not permanently and totally disabled.

The administrative law judge found employee is not entitled to future medical care to cure and relieve her of the effects of her injuries. We disagree.

The Missouri Workers' Compensation Law includes an allowance for future medical treatment for injured workers, "as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." Section 287.140.1. In order to receive future medical benefits, an employee need not present "conclusive evidence" that future medical treatment is needed. Instead, the employee needs only to show a reasonable probability that the future treatment is necessary because of his work-related injury. The employee is not required to present evidence of the specific medical care that will be needed, but must establish through competent medical evidence that the care requested flows from the accident. ${ }^{4}$

Employee presented the credible testimony of Dr. Lennard that employee has residual symptoms due to her work-related flexor tendonitis, including well-documented sensory changes in her wrists. Dr. Lennard explained that a wrist splint helps alleviate such symptoms because the splint holds the wrist in a neutral position and increases the diameter of the carpal tunnel. Dr. Lennard opined that employee needs ongoing medical care for her wrists in the form of ibuprofen and splints. Dr. Bennoch also believed employee would benefit from the ongoing use of splints. Dr. Meystrik prescribed wrap-around type neoprene splints for employee's bilateral wrists/thumbs and recommended to employee a "neoprene splint-wearing program." Based upon the foregoing, we find that employee has shown a reasonable probability that wrist splints and anti-inflammatory medications will relieve her of the effects of her work injuries. An award of such future medical care is appropriate even if the splints and medications also relieve employee of symptoms related to other conditions such as her degenerative joint disease which is not work-related. ${ }^{5}$

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[^0]: ${ }^{2} Brashers v. Treasurer, No. SD32872 (Mo. App. S.D., July 22, 2014).

{ }^{3}$ Id., at *16.

${ }^{4}$ Null v. New Haven Care Ctr., Inc., 425 S.W.3d 172, 180 (Mo. App. 2014)(citations omitted).

${ }^{5}$ Bowers v. Hiland Dairy Co., 132 S.W.3d 260, 268 (Mo. App. 2004).

We reverse the administrative law judge's conclusion regarding employee's entitlement to future medical care. We award from employer to employee future medical care to cure and relieve employee of the effects of her work injury, including anti-inflammatory medication and wrist splints.

In all other respects, and as clarified herein, we affirm the administrative law judge's award.

We further 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.

The October 18, 2013, award and decision of Administrative Law Judge Victorine R. Mahon is attached and incorporated by this reference except as modified herein.

Given at Jefferson City, State of Missouri, this $31^{\text {st }}$ day of July 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: BillieJo Christy Injury No.: 06-004801

1. Nature and extent of any permanent disability: 17.5 percent permanent partial disability to each arm at the 200-week level, plus 10 percent enhancement due to the bilateral nature of the injuries.
2. Compensation paid to-date for temporary disability: $\ 3,398.90; with a $\ 1,132.53 underpayment.
3. Value necessary medical aid paid to date by employer/insurer? $\ 19,942.59.
4. Value necessary medical aid not furnished by employer/insurer? None.
5. Average weekly wage: $\ 580.31.
6. Weekly compensation rate: $\ 386.83 (PTD) / $\ 365.08 (PPD).
7. Method wages computation: Stipulation.

1. Amount of compensation payable:

17.5 percent of each arm at the 200 -week level $(200 \times 17.5 \% \times 2)=70 weeks 10 percent multiplicity due to the bilateral injuries ( 70 weeks \times 10 \%)=7$ weeks 70 weeks +7 weeks $=77 weeks at the rate of \$ 365.08=

TOTAL: \mathbf{\$ 2 8 , 1 1 1 . 1 6 .}$

1. Second Injury Fund liability: N/A.
2. Future requirements awarded: None.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Paul F. Reichert.

Employee: BillieJo Christy

Injury No. 06-004801

Dependents: N/A

Employer: Missouri Department of Higher Education/ Missouri State University

Insurer: Self/Central Accident Reporting Office

Hearing Date: August 30, 2013 \& September 24, 2013

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

The undersigned Administrative Law Judge conducted a final hearing in this case which began on August 30, 2013, in Springfield, Missouri. BillieJo Christy (Claimant) appeared in person and with her attorney, Paul F. Reichert. Claimant's employer, the Missouri Department of Higher Education/Missouri State University, is a self-insured entity using the Central Accident Reporting Office for the administration of claims. Employer appeared by Assistant Attorney General Cara Harris. Claimant dismissed the Second Injury Fund.

After the hearing closed, but within 30 days, Claimant moved to reopen the record for the receipt of additional evidence. Claimant argued that portions of her personnel file were relevant on the issue of notice. Employer voiced no objection. Claimant's motion was sustained. The additional evidence, marked as Exhibit S, was received in a short proceeding on September 24, 2013. The record again closed. Claimant and Employer stipulated to the following:

1. Claimant suffered an injury that arose out of and in the course of her employment at Missouri State University on or about January 14, 2006.
2. Claimant's employer, the Missouri Department of Higher Education/Missouri State University, is fully self-insured. Both Claimant and Employer were subject to the Missouri Workers' Compensation Law on the date of the injury.
3. Claimant developed carpal tunnel syndrome and trigger finger within the scope and course of her employment. Employer disputes the cause of any other injuries.
4. Venue and jurisdiction is proper in Springfield, Missouri with the Missouri Division of Workers' Compensation.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: BillieJo Christy

Injury No.: 06-004801

1. The Claim for Compensation is timely.
2. Claimant's average weekly wage was $\ 580.31, yielding a temporary total and permanent total disability rat