Richard Hertzing v. Beck Motors, Inc.

Injury No. 09-025872

Employee: Richard L. Hertzing

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significant medical treatment for the work injury, including a left hip replacement surgery on May 19, 2011.

Courts have used various terms to determine when an employee's condition has reached the point where further progress is not expected, including the term maximum medical improvement. *Vinson v. Curators of the University of Missouri*, 822 S.W.2d 504, 508 (Mo. App. E.D. 1991) (interpreting a doctor's testimony of employee's maximum treatment potential to mean maximum medical improvement); *Cooper*, 955 S.W.2d at 575 (using the term maximum medical progress to define the point where no further progress is expected for an employee's condition).

After reaching the point where no further progress is expected, it can be determined whether there is either permanent partial or permanent total disability and benefits may be awarded based on that determination. One cannot determine the level of permanent disability associated with an injury until it reaches a point where it will no longer improve with medical treatment.

Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent and thus, when payments for permanent partial or permanent total disability should be calculated.

*Cardwell v. Treasurer of Mo.*, 249 S.W.3d 902, 910 (Mo. App. 2008).

The treating surgeon Dr. Sonny Bal opined that employee reached maximum medical improvement following his left hip surgery as of August 9, 2011. We find Dr. Bal's opinion on this point to be persuasive, and we find that employee was permanently and totally disabled as of that date from the effects of the work injury considered alone. Accordingly, we must modify the award of the administrative law judge regarding the date of commencement of permanent total disability benefits. Employer is liable for permanent total disability benefits beginning August 9, 2011.

Section 287.180 RSMo provides for an award of temporary partial disability benefits where an employee's earning capacity is diminished by the effects of a work injury. The administrative law judge found that employee was only able to work 20 hours per week between October 8, 2009, and March 29, 2010, and again between June 28, 2010, and November 5, 2010, and awarded temporary partial disability benefits consistent with this finding.

Employer argues employee's testimony was insufficient to support the administrative law judge's findings, and suggests employee was required to provide additional evidence to more specifically establish his actual earnings during the relevant time periods. But the Missouri Supreme Court has specifically held that "[t]he ultimate issue

Improvee: Richard L. Hertzing

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... remains earning capacity, not actual earnings" when calculating temporary partial disability benefits under § 287.180. *Minnick v. South Metro Fire Protection Dist.*, 926 S.W.2d 906, 911 (Mo. App. 1996). Accordingly, employee was not required to prove his actual earnings during the relevant time periods, but could meet his burden of proof by providing evidence of the nature and extent of his work injury and of his ability to compete in the open labor market.

Turning to employee's testimony, we note that he specifically testified that he was able to work a maximum of 4 hours per day during the relevant time periods. Employee's testimony on this point is corroborated by the medical treatment records, including those from the contemporary treating physician Dr. Krautmann suggesting employee was working "half days" during the time periods at issue. Employer did not present any contradictory evidence, such as payroll records or timesheets, to rebut employee's evidence regarding his earning capacity. To the extent employee's testimony on this point was nonspecific, in that he suggested he occasionally worked less than 4 hours per day, the administrative law judge's finding that employee was able to work 20 hours per week would appear to favor the employer.

We find employee's testimony on this point to be credible and sufficient to support the administrative law judge's factual finding that employee was capable of working 20 hours per week during the relevant time periods. We do note, however, that the administrative law judge incorrectly found that employee quit his job with employer on November 5, 2010. Instead, the testimony from both employee and his vocational expert, Mr. Eldred, suggests (and we so find) that the date employee quit his job was November 1, 2010.¹ Accordingly, we must modify the administrative law judge's calculation of employer's liability for temporary partial disability benefits as follows.

Employee is entitled to 18 weeks of temporary partial disability benefits for the period June 28, 2010, to November 1, 2010. Combined with the 24 and 4/7 weeks of temporary partial disability benefits to which employee is entitled for the period from October 8, 2009, to March 29, 2010, employee is entitled to the sum of 42 and 4/7 weeks of temporary partial disability benefits at the rate of $167.25 per week. Employer's total liability for unpaid temporary partial disability benefits is thus $7,120.07.

*Employer's request for a 50% reduction in benefits under § 287.120.6(1) RSMo*

Employer argues that employee's compensation should be subject to a 50% reduction under § 287.120.6(1) RSMo, which provides, as follows:

Where the employee fails to obey any rule or policy adopted by the employer relating to a drug-free workplace or the use of alcohol or nonprescribed controlled drugs in the workplace, the compensation and death benefit provided for herein shall be reduced fifty percent if the injury

¹ We note also that throughout her award, the administrative law judge stated that employee quit work owing to pain. But employee in fact testified (and we so find) that he resigned because he learned he would be receiving Social Security Disability benefits. We must accordingly disclaim the incorrect statements on pages 7, 10, and 27 of the administrative law judge's award suggesting employee quit on November 5, 2010, due to pain.

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was sustained in conjunction with the use of alcohol or nonprescribed controlled drugs.

To make its case that employee's work injury was sustained in conjunction with the use of non-prescribed controlled drugs, employer points to medical records from St. Mary's Health Center suggesting that an April 16, 2009, urine drug screen of employee was positive for cocaine metabolites, and testimony from its expert toxicologist, Dr. John Vasiliades. Employee, on the other hand, denied using cocaine while he was at work or in the few days leading up to the work injury.

Employer's documentation suggests the urine sample of April 16, 2009, was subject to initial "screening" at St. Mary's Health Center, and then sent for "confirmation" by Quest Diagnostics. It is uncontested, however, that the urine sample was not subject to any additional confirmation testing by a second laboratory. The screening from St. Mary's Health Center indicates: "Testing for above analytes was performed only for medical purposes on urine using screening methodology. Occasional false positives and negatives due to interfering substances can occur. Confirmation testing is available by request." Transcript, pages 1788-89. The subsequent report from Quest Diagnostics indicates:

These results are for medical treatment only

Analysis was performed as non-forensic testing

Transcript, page 3307.

The Quest Diagnostics report also suggests that there were "no" chain of custody protocols performed in the handling of the urine specimen employee provided. Id. Dr. Vasiliades acknowledged that the drug testing at issue in this case was non-forensic, meaning that the "chain of custody is not as tight as when we do forensic work." Transcript, page 3206. Employer did not present firsthand testimony from a medical review officer or any other personnel involved in the handling or testing of the urine sample employee provided.

Our legal dictionary defines "forensic" as follows: "used in or suitable to courts of law or public debate." Black's Law Dictionary, 764 (10 th ed. 2014). Especially in light of Dr. Vasiliades's concession that the chain of custody was not as tight with respect to the urine sample employee provided, and in the absence of any firsthand testimony from a medical review officer or other personnel who actually handled and tested the urine sample employee provided, we are not persuaded to credit the non-forensic drug test results from St. Mary's Health Center or Quest Diagnostics over employee's sworn and cross-examined testimony. Rather, we credit employee's testimony and find that he did not use cocaine at work or in the few days prior to the work injury. We find that employee did not have cocaine in his system at the time of the work accident on April 14, 2009, and conclude that employee's work injury was not sustained in conjunction with the use of non-pr