Ronald Gamble v. Chester Bross Construction Company, Inc.

Improve: Ronald Gamble

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after an accident. In other words, Dr. Brown relied on the absence of acute findings on an MRI that he admits was taken too late to show any acute findings.

In light of these considerations, we find more persuasive Dr. Schlafly's opinion regarding medical causation of employee's right lateral epicondylitis and right olecranon bursitis. We find that the accident of September 19, 2008, was the prevailing factor causing employee to suffer the resulting medical conditions of right lateral epicondylitis and right olecranon bursitis, as well as permanent disability referable to those conditions.

The administrative law judge found that the ulnar shortening procedure performed by Dr. David Strege on January 21, 2010, was reasonable and necessary to cure and relieve employee from the effects of his TFCC tear sustained in the work injury, and awarded employee his past medical expenses for this surgery. Employer challenges this finding on appeal. We ultimately agree with the administrative law judge's findings, but once again, we wish to specifically identify the expert opinions upon which we rely in order to fulfill the requirements of § 286.090 RSMo.

Employer has not appealed the administrative law judge's determination that the accident of September 19, 2008, caused employee to suffer a TFCC tear. Dr. Schlafly opined that an ulnar shortening procedure is an accepted surgical treatment of a TFCC tear, and pointed out that the symptoms referable to employee's TFCC tear persisted after the initial wrist arthroscopy. Dr. Schlafly opined that the ulnar shortening procedure was not only reasonable but, in his experience, would provide employee a more predictably beneficial result. Dr. Brown, meanwhile, characterized ulnar shortening as a very aggressive treatment option that is more reserved for a diagnosis of ulnar impaction syndrome. Dr. Brown did acknowledge, however, that the initial wrist arthroscopy failed to resolve employee's ulnar-sided wrist complaints referable to the TFCC tear, and that ulnar shortening is an accepted surgical treatment for a TFCC tear.

After careful consideration, we find Dr. Schlafly's opinion on this point to be persuasive. We find that the ulnar shortening procedure was reasonable and necessary to cure and relieve the effects of employee's injuries sustained in the September 2008 accident. We conclude, therefore, that employee is entitled to his past medical expenses incurred for this procedure.

Employer additionally argues it is not liable for the past medical expenses awarded by the administrative law judge because employee is not entitled to those expenses where his health insurance with employer paid some of the costs of his treatment. Employer acknowledges § 287.270 RSMo, but argues that the evidence shows that it paid 100% of the costs of employee's health insurance, with the effect that this insurance should be deemed to be a "benefit derived from the employer" for purposes of that provision. Employer points to the testimony from its witness Sherry Drew, an 8-year employee of employer's human resources department.

Ms. Drew testified that, historically, after an employee's third year with employer, employer would pay 100% of the employee's premiums for health insurance. But Ms. Drew did not address the question of who bears other costs typically associated with health insurance, such as copays or coinsurance, or the amount of any deductible. Ms. Drew also admitted

them. The most important thing to consider is that significant changes have gone into effect that she believes make employees once again liable for a portion of the premiums. (Ms. Drew was unable to identify when this occurred or whether it may have affected employee.) Ms. Drew further testified the group health insurer probably has a subrogation interest or reimbursement provision requiring repayment in the event medical bills are determined to be work-related; Ms. Drew was unable to specifically testify whether employee's insurance with employer works this way, although she speculated employee would have to pay the insurer back in the event his medical expenses were deemed compensable under workers' compensation.

For obvious reasons, the foregoing testimony does not persuade us to make a finding that employee's health insurance was fully subsidized by employer, so we need not address the question whether payments from a fully subsidized health insurance plan may be deemed "benefits derived from the employer" for purposes of $\S 287.270$. And especially in light of Ms. Drew's concession regarding the group health insurer's likely subrogation interest, we are not persuaded to make any finding that employee's liability for expenses he incurred for past medical care in connection with the work injury has been extinguished in any amount. See Farmer-Cummings v. Pers. Pool of Platte County, 110 S.W.3d 818 (Mo. 2003). Accordingly, we affirm the administrative law judge's conclusion employer is liable to employee for $\ 34,323.53 in past medical expenses.

The administrative law judge determined that employer is liable for temporary total disability benefits from August 31, 2009, through August 24, 2010, and from March 15, 2011, through September 12, 2011. Employer challenges this determination on appeal, pointing to employee's sporadic history of working odd jobs during the relevant time periods.

It is well-settling in Missouri that " $[t]$ he ultimate issue ... remains earning capacity, not actual earnings" when considering whether an employee is entitled to temporary disability benefits. Minnick v. South Metro Fire Protection Dist., 926 S.W.2d 906, 911 (Mo. App. 1996). In Minnick, the court found that an employee's sporadic history of doing maintenance work for a friend's carwash and assisting his wife in managing an apartment complex would not preclude the Commission from awarding temporary total disability benefits, because of the long-standing principle in Missouri that "neither the worker's ability to engage in occasional or light duty work nor the worker's good fortune in obtaining work other than through competition on the open labor market should disqualify the worker from receiving such total disability benefits." Id.

Similarly here, employee credibly testified (and we so find) that all of his odd jobs during the relevant time periods came from his acquaintance, Kelley Nogles, a person whom employee knew could find work for him. It follows (and we so find) that employee did not obtain this work through competition in the open labor market. We also credit employee's testimony (and so find) that he was only capable of making an average of $\ 300 per week on such jobs during the relevant time periods, that such jobs were few and far between, and that during most weeks, employee earned nothing. Finally, we credit employee's testimony (and so find) that 90 % of this work involved employee instructing or supervising other workers on how to perform the jobs. In light of these facts derived from employee's credible testimony, we decline to disturb the administrative law judge's award of temporary total disability benefits.

The administrative law judge found that because employee has retained surgical hardware in his right wrist as a result of the work injury, employer is liable to provide employee with future removal or revision of that surgical hardware to the extent that such may become both reasonable and necessary. We agree, for the following reasons. Section 287.140.8 RSMo provides, in relevant part, as follows:

The employer may be required by the division or the commission to furnish an injured employee with artificial legs, arms, hands, surgical orthopedic joints, or eyes, or braces, as needed, for life whenever the division or the commission shall find that the injured employee may be partially or wholly relieved of the effects of a permanent injury by the use thereof.

(emphasis added).

Our dictionary defines "brace" as follows: "something that transmits, directs, resists, or supports weight or pressure ... an appliance that gives support to moveable parts (as a joint or a fractured bone)." Webster's Third New International Dictionary, 264 (2002). Pursuant to $\S 287.140 .8$, employer is liable to furnish to employee that future medical treatment that may be reasonably required to cure and relieve the effects of the surgical hardware in his right wrist.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued May 15, 2014, is attached and incorporated by this reference.

We approve and affirm the administrative law judge's allowance of attorney's