Carolyn Law-Clark v. McLeod USA, Inc.

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No. 05-087823

Employee: Carolyn Law-Clark

Employer: McLeod USA, Inc.

Insurer: American Home Assurance

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having read the briefs, reviewed the evidence, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

We agree with the administrative law judge's determination that employer/insurer are required pursuant to $\S 287.140$ RSMo to provide employee with that future medical treatment that may reasonably be required to cure and relieve the effects of her carpal tunnel syndrome and resultant conversion disorder, because employee proved that there is a reasonable probability that she has a need for such care flowing from the work injuries she suffered. See Conrad v. Jack Cooper Transp. Co., 273 S.W.3d 49, 51-4 (Mo. App. 2008). We also agree with the administrative law judge's determination that employee did not persuasively demonstrate a reasonable probability that she has a need at this time for specific future treatment in the form of nursing services.

Having said that, we wish to make clear that the future medical portion of the award will remain open and subject to modification by this Commission. See State ex rel. ISP Minerals, Inc. v. Labor \& Indus. Rels. Comm'n, 465 S.W.3d 471 (Mo. 2015). Our award today, therefore, should not be read as preclusive of the possibility that employee may be able to demonstrate, at some point in the future, a need for nursing care substantiated by persuasive evidence.

In White v. Univ. of Mo., 375 S.W.3d 908 (Mo. App. 2012), the court held that the Commission exceeded its powers in declaring that a dependent's claim for permanent total disability benefits "qualifies for application of the Schoemehl case," because the employee was still living at the time the Commission issued its award. Id. at 910, 913. Contrary to the administrative law judge's statement on page 19 of her award that "the fact that [employee] is not yet deceased makes no difference," the White decision makes clear that the Commission is limited to making a finding of dependency where the employee is still living. Pursuant to White, we must clarify the award of the administrative law judge as to the issue whether employee's husband and daughter will be entitled to receive her permanent total disability benefits under Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo. 2007). We

affirm the administrative law judge's (implied) finding that John Clark and Sahara Truly were employee's "dependents," as that term is defined in § 287.240(4) RSMo, at the relevant time for purposes of Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo. 2007). But because employee is still living, the right of John Clark and Sahara Truly to receive benefits pursuant to Schoemehl "remains contingent, and cannot be adjudicated at this time." White, 375 S.W.3d at 912.

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

The award and decision of Administrative Law Judge Victorine Mahon, issued March 23, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We 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.

Given at Jefferson City, State of Missouri, this $6^{\text {th }}$ day of November 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Carolyn Law-Clark

Injury No. 05-087823

Dependents: John Clark (spouse) and Sahara Law (daughter)

Employer: McLeod USA, Inc.

Additional Party: None

Insurer: American Home Assurance

Hearing Date: January 6 and January 7, 2015

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: VRM/db

The undersigned Administrative Law Judge conducted a final hearing in this case to determine the liability of Employer and its Insurer. Attorney John Wise represented Claimant Carolyn LawClark. He seeks a 25 percent fee of any amounts awarded. Attorney William C. Love appeared on behalf of the employer McLeod USA, Inc., and its insurer, American Home Assurance. The parties stipulated to the following facts and issues.

1. On or about June 8, 2005, Carolyn Law-Clark (Claimant) sustained an occupational disease by repetitive trauma. This injury arose out of and in the course of Claimant's employment with McLeod USA, Inc.

2 At the time of this injury, Claimant was an employee of McLeod USA, Inc., a Missouri employer fully insured with American Home Assurance. Both Claimant and Employer were subject to the provisions of the Missouri Workers' Compensation Law.

1. The injury occurred in Greene County, Missouri. Venue and jurisdiction is proper in Springfield, Greene County, Missouri.
2. There is no challenge to the statute of limitations or notice.
3. Claimant's average week wage was $\ 494.88, yielding a compensation rate of $\ 329.92 for all purposes.
4. Employer/Insurer paid $\ 10,219.53 in temporary total disability until May 14, 2006.
5. Employer/Insurer agree to satisfy outstanding medical liens if the Fact Finder determines that Claimant has suffered complications resulting in work-related reflex sympathetic dystrophy or complex regional pain syndrome (RSD/CRPS).

1. Other than the bilateral carpal tunnel syndrome which Employer/Insurer have acknowledged as compensable, did Claimant sustain complications from the bilateral carpal tunnel syndrome and related surgeries?
2. If Claimant has Conversion Disorder, is it medically and causally related to the work injury?
3. What is the nature and extent of Claimant's permanent disability?
4. What is the date of maximum medical improvement?
5. If Claimant reached maximum medical improvement after May 14, 2006, what, if any, temporary total disability is due?
6. Are Employer/Insurer liable for payment of any liens?
7. Are Employer/Insurer liable for any future medical treatment?
8. Are Claimant's spouse and daughter entitled to continuing benefits as dependents, pursuant to Schoemehl v. Treasurer, 217 S.W.3d 900 (Mo. banc 2007)?
9. What, if any, attorney's fee is due? Attorney Wise has agreed to satisfy the outstanding lien of Attorney Robert Beezley in the amount of \$2,575.47.

Claimant offered the following exhibits, which were admitted:

A. Ozark Family Clinic - Medical Records

B. Cox Health - Medical Records

C. Boyd Crockett, M.D. - Medical Records

D. Boyd Crockett, M.D. - Report

E. Humana Letter

F. Anthem Letter

G. Boyd Crockett, M.D. - Deposition (2/20/2008)

H. Boyd Crockett, M.D. - Deposition (10/19/2011)

I. Wayne Wallender, D. O. - Deposition

J. Robert Paul, M.D. - Deposition

K. Phillip Eldred - Deposition

L. Nursing Services Chart

M. Layla Ziaee, M.D. - Deposition

Employer/Insurer offered the following exhibits, which were admitted:

1. William Charles Parsons, M.D. - Deposition
2. Tim Frederick, M.D. - Deposition
3. Barbara Radovanovich, Ph.D. - Deposition
4. Carolyn Law-Clark - Deposition
5. John Clark - Deposition
6. Website Statement - RSD Angels

7 - 9. Drawings from Website

1. Curriculum Vitae - Carolyn E. Inniss, M.D.

Also admitted were four volumes of medical records submitted as Joint Exhibits Volumes I through IV. The parties stipulated that any reference to a report by Dr. Schlafly within these Joint Exhibits is to be stricken.

Claimant Carolyn Law- Clark

Dr. Carolyn E. Inniss

Carolyn Law-Clark is an articulate woman with three years of college education having majored in psychology.