Donnie Burk v. Wilcorp Industries

prior to the hearing to all parties and shall provide reasonable opportunity to all parties to obtain cross-examination testimony of the physician by deposition. The notice shall include a copy of the report and all the clinical and treatment records of the physician including copies of all records and reports received by the physician from other health care providers. The party offering the report must make the physician available for cross-examination testimony by deposition not later than seven days before the matter is set for hearing, and each cross-examiner shall compensate the physician for the portion of testimony obtained in an amount not to exceed a rate of reasonable compensation taking into consideration the specialty practiced by the physician. Cross-examination testimony shall not bind the cross-examining party. Any testimony obtained by the offering party shall be at that party's expense on a proportional basis, including the deposition fee of the physician. Upon request of any party, the party offering a complete medical report in evidence must also make available copies of X rays or other diagnostic studies obtained by or relied upon by the physician. Within ten days after receipt of such notice a party shall dispute whether a report meets the requirements of a complete medical report by providing written objections to the offering party stating the grounds for the dispute, and at the request of any party, the administrative law judge shall rule upon such objections upon pretrial hearing whether the report meets the requirements of a complete medical report and upon the admissibility of the report or portions thereof. If no objections are filed the report is admissible, and any objections thereto are deemed waived. Nothing herein shall prevent the parties from agreeing to admit medical reports or records by consent.

Prior to a legislative amendment which took effect on January 1, 2014, the foregoing language included this caveat: "The provisions of this subsection shall not apply to claims against the second injury fund." At the May 7, 2014, hearing before the administrative law judge in this matter, employee offered her Exhibit H, setting forth reports from her medical expert, Dr. Koprivica. The Second Injury Fund objected to employee's Exhibit H, arguing that because § 287.210.7 did not "apply to claims against the second injury fund" before January 1, 2014, the administrative law judge was prohibited from accepting employee's Exhibit H into evidence.

The Second Injury Fund did not raise any other evidentiary objection, such as that employee's Exhibit H amounts to hearsay or lacks foundation. Nor does the Second Injury Fund allege that it was surprised or in any way prejudiced by employee's offer of Exhibit H. Notably, the Second Injury Fund did not request a continuance of the hearing for the purpose of obtaining cross-examination of Dr. Koprivica.

It is uncontested that on October 14, 2011, and on December 5, 2011, employee provided notice to the Second Injury Fund of her intent to submit at hearing Dr. Koprivica's opinions via a complete medical report. Those notices included copies of Dr. Koprivica's original report, an addendum report, and copies of the records Dr. Koprivica reviewed in reaching his opinions. The Second Injury Fund identifies no substantive objection to the form of

these notices. Nor does the Second Injury Fund argue that it was without opportunity or otherwise prevented from obtaining cross-examination of Dr. Koprivica. Rather, the Second Injury Fund relies solely on the argument that employee's Exhibit H is inadmissible because employee did not resend her notices on or after January 1, 2014, rendering them "ineffective" against the Second Injury Fund for purposes of § 287.210.7.

We agree with the Second Injury Fund to the extent that we are convinced that it had no obligation to dispute via written objection, within ten days of its receipt of employee's notices, whether the notices met the elements of a complete medical report, because as of October 14, 2011, and December 5, 2011, those provisions of § 287.210 .7 did not apply to employee's claim against the Second Injury Fund. (Nor would we impose an obligation upon the Second Injury Fund to provide written objections as of or within ten days after January 1, 2014.) We also agree that we are not required by the language of § 287.210 .7 to admit employee's Exhibit H based on her compliance with the provisions of that subsection because, once again, the language of that subsection did not apply to employee's claim against the Second Injury Fund at the time that she provided her notices.

However, we discern no language in § 287.210 .7 that would specifically preclude our admitting employee's Exhibit H into the record given the particular circumstances involved in this case. The Missouri courts have long made clear that "[u]nder the [Missouri Workers' Compensation Law], substantial rights are to be enforced at the sacrifice of procedural rights," Parsons v. Steelman Transp., Inc., 335 S.W.3d 6, 18 (Mo. App. 2011), and § 287.550 RSMo provides that "[a]ll proceedings before the commission or any commissioner shall be simple, informal, and summary, and without regard to the technical rules of evidence." As noted above, the Second Injury Fund identifies no other objection to the form of employee's Exhibit H, and makes no claim that it was without opportunity to obtain cross-examination of Dr. Koprivica if it so desired.

Given these circumstances, the Second Injury Fund's objection is overruled, and employee's Exhibit H is hereby received into evidence.

The administrative law judge determined that the Second Injury Fund is liable for 9.28 weeks of enhanced permanent partial disability benefits. In calculating this amount, the administrative law judge did not consider any permanent partial disability referable to a May 5, 2010, accident wherein employee bent over to pick up an empty can of Dippity Doo and suffered a back injury. The administrative law judge reasoned that employee did not reach maximum medical improvement for the May 2010 back injury until Dr. Woodward sent a report to employer on December 14, 2010, a date after employee suffered the primary injury.

We disagree. Employee's last actual in-person treatment with Dr. Woodward referable to the May 2010 back injury appears to have taken place on November 22, 2010. On that date, Dr. Woodward performed an examination of the employee, noted his impression of her continued back problems, and recommended employee discontinue physical therapy. Dr. Woodward also ordered a home TENS unit for employee and reviewed lifting and postural recommendations. That same day, Dr. Woodward issued

a report to employer indicating employee could return to full-time work with a 30 pound continuous lift restriction.

Thereafter, Dr. Woodward issued orders on November 30, 2010, instructing that employee continue use of her at-home TENS unit for 6 months, then discontinue all treatment. It does not appear from Dr. Woodward's note of December 14, 2010, that he examined employee or provided any actual treatment on that date in reference to the May 2010 injury; rather, it appears Dr. Woodward's only action was to send a report to employer setting forth his opinion with respect to maximum medical improvement and the degree of employee's permanent disability and restrictions. There is no evidence to suggest that employee's physical condition referable to the May 2010 back injury actually improved after her last inperson treatment with Dr. Woodward on November 22, 2010, nor is there any evidence to indicate that Dr. Woodward's action of issuing a report to employer on December 14, 2010, had any effect on employee's physical condition. To the extent that the Second Injury Fund argues that we are not permitted to find that employee reached maximum medical improvement until Dr. Woodward sent a letter to employer including those specific words, we are not persuaded. The Missouri courts have long held that there is nothing "talismanic" about a doctor's use of particular words and phrases; rather, we are permitted to resolve factual issues by reference to the actual evidence. Mayfield v. Brown Shoe Co., 941 S.W.2d 31, 36 (Mo. App. 1997).

We find that employee reached maximum medical improvement on November 22, 2010, when Dr. Woodward provided his last in-person treatment, discontinued her physical therapy, ordered an at-home TENS unit, and returned employee to full-time work.

Based on the foregoing, we conclude that it is appropriate to include employee's permanent partial disability referable to the May 2010 injury in the calculation of Second Injury Fund liability for enhanced permanent partial disability benefits. We find that employee suffered a 12.5 % permanent partial disability of the body as a whole as a result of the May 2010 work injury. We otherwise defer to the administrative law judge's ratings with respect to the nature and extent of permanent partial disability referable to employee's preexisting conditions of ill-being and the primary injury. This brings the total preexisting permanent partial disability and disability referable to the primary injury to 142.8 weeks. Applying a 10\% load factor and the stipulated $\ 211.24 rate for permanent partial disability benefits, the Second Injury Fund is liable for 14.28 weeks of enhanced permanent partial disability, or $\ 3,016.51.

We modify the award of the ad