David Horne v. Price Gregory (Quanta)

Improvement and TTD vs. PTD

Improvement and TTD vs. PTD

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inadmissible because it is irrelevant to any issue involved in these proceedings. Otherwise, however, we modify the administrative law judge's rulings as follows.

We hereby overrule each of the parties' evidentiary objections. All exhibits (save Employer's Exhibit 5) are hereby admitted into evidence. Those portions of the exhibits that amount to hearsay will be given the evidentiary weight to which they are entitled.

The parties asked the administrative law judge to resolve the issue of medical causation regarding employee's claimed right arm injury. On page 30 of his award, the administrative law judge resolved the issue as follows: "I find the right arm symptoms are directly related to the motor vehicle accident." Employer, in its application for review, does not challenge this determination by the administrative law judge, and for this reason we will not disturb it on appeal. We do, however, wish to note that the test for medical causation applicable to this claim is set forth in § 287.020.3(1) RSMo, which provides, in relevant part, as follows:

> An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

In light of the foregoing statutory test, we must supplement the findings and conclusions of the administrative law judge on this point as follows. We conclude that the accident was the prevailing factor in causing employee to suffer the resulting medical condition of right arm pain, numbness, and related symptoms, and associated disability.

The administrative law judge determined that employee reached maximum medical improvement on April 29, 2010, and that employer was liable for weekly permanent total disability benefits as of that date. Based on this finding, the administrative law judge rejected employer's claim that it is entitled to a credit under § 287.170.3 RSMo because it paid temporary total disability benefits to employee during periods that he applied for and received unemployment compensation. While we agree with the ultimate result reached by the administrative law judge as to this issue, we discern a need to provide some supplemental findings and analysis.

We note that the administrative law judge stated, at page 31 of his award, that "[a]ll of the evidence establishes that Mr. Horne reached maximum medical improvement on April 29, 2010." This statement is somewhat inaccurate, in that the record contains a number of different dates of maximum medical improvement from various practitioners and from various medical standpoints. For example, the treating psychologist Dr. Lisa Goulden opined that employee reached maximum medical improvement from a psychological standpoint as of February 16, 2012; employer's evaluating physician Dr. Steven Hendler opined in December 2012 that employee's last active treatment in June 2012 would be the date of maximum medical improvement; and the treating pain management physician Dr. Andrew Revelis opined that employee was at maximum medical improvement from a pain management standpoint on July 6, 2012.

**Injury No. 09-106524**

After careful consideration, however, we find most persuasive the opinions from Dr. Wilson and Dr. Koprivica that employee reached maximum medical improvement on April 29, 2010. This is because it does not appear to us that employee achieved any improvement in his level of permanent disability as a result of any medical care he received after April 29, 2010, and that further pain management and psychiatric treatment, while reasonable and necessary as a result of the work injury, were more in the nature of palliative rather than curative measures. It follows that any weekly benefits that employer paid to employee after April 29, 2010, are properly characterized as permanent total disability benefits. See *Cardwell v. Treasurer of Mo.*, 249 S.W.3d 902, 910 (Mo. App. 2008). The administrative law judge correctly notes that the Missouri Workers' Compensation Law, which we must strictly construe by operation of § 287.800.1 RSMo, does not contain any provision disqualifying injured employees from receiving permanent total disability benefits while receiving unemployment compensation.

Employer's claim for a credit under § 287.170.3 additionally fails because employer failed to prove that it paid disability benefits (whether these are characterized as temporary or permanent total disability benefits) to employee for any week that he received unemployment compensation. The parties stipulated that employer paid employee weekly disability benefits at the rate of $807.48 from October 8, 2009, through April 22, 2010, and from November 11, 2011, through July 12, 2013. Because employer's claim for a credit amounts to a defense based on a factual proposition, employer had the burden under § 287.808 RSMo of proving that employee applied for and received unemployment compensation during these time periods.

The only evidence employer presented to prove when employee received unemployment compensation is a single page that appears to be a screenshot of an electronic document. See *Transcript*, page 2687. Employer did not present any testimony to explain this document, and even if we credited it, the only findings we could derive therefrom would be that employee received unemployment compensation during the third and fourth quarters of 2010 in the amount of $8,580.00. But consistent with the parties' stipulations recited above, employer did not pay any weekly disability benefits to employee during the third and fourth quarters of 2010, so this evidence is not supportive of employer's claim for a credit under § 287.170.3.

Employee testified that he claimed and received unemployment compensation after he was released by Dr. Wilson in April 2010, and that he stopped claiming unemployment compensation when employer resumed the payment of disability benefits in November 2011. See *Transcript*, page 55-6. Employee's testimony thus does not support a finding that he applied for and received unemployment compensation during any time period that employer paid him weekly disability benefits. Given employer's failure of proof as to this issue, we find that employee did not apply for or receive unemployment compensation during any week that employer paid him weekly disability benefits.

For the foregoing reasons, we affirm the administrative law judge's determination that employee reached maximum medical improvement on April 29, 2010, and that employee is not disqualified from the receipt of temporary total disability benefits during any time period.

Improve: David M. Horne

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(nor is employer entitled to any credit associated therewith) for purposes of § 287.170.3 RSMo.

15% increase under § 287.120.4 RSMo

The administrative law judge concluded, on page 38 of his award, that employee's accident was caused by employer's violation of § 307.400 RSMo and Department of Transportation regulations, and awarded a 15% increase in the amount of employee's compensation under the provisions of § 287.120.4 RSMo. We disagree with this result for the following reasons.

As admitted in its brief, employer violated § 307.400 RSMo when it permitted employee to drive in excess of the maximum hours permitted under 49 C.F.R. 395. In order to satisfy § 287.120.4, however, employee must show that his injuries were caused by employer's violation of that provision.

Employee remembers very little about the motor vehicle accident of October 7, 2009. Asked to identify a reason for the accident, employee testified that it was either the load shifting or the fact that he was tired from working and his reaction time was slow. Employee's testimony as to the potential cause of the accident thus strikes us as speculative, and we do not find it sufficient to support a finding that employee's injuries were caused by employer's violation of § 307.400 RSMo.

The administrative law judge cited testimony from employee's vocational expert, Terry Cordray, on the topic of the relationship between employee fatigue and workplace accidents. But Mr. Cordray did not offer any opinion that employee's fatigue caused this accident, nor is it clear to us what value such opinion might have where Mr. Cordray's expertise is on the topic of one's employability (or lack thereof) rather than the issue of what caused employee's accident. We do not find Mr. Cordray's testimony in this matter supportive of a finding that employee's injuries were caused by employer's violation of § 307.400 RSMo.

The administrative law judge also cited testimony from employer's safety manager at the time of the accident, Michael Ezzell, whose investigation report cited employee's heavy work schedule as a potential contributing factor causing the accident. But Mr. Ezzell testified that he didn't ultimately believe that fatigue was an issue, and also indicated that the investigation report itself included information from hearsay sources and involved unspecified input from v