Paul Brown v. Domino's Pizza/MBR Management Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 12-052588

Employee: Paul Brown

Employer: Domino's Pizza/MBR Management Corporation

Insurer: American Family Mutual Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 15, 2016. The award and decision of Administrative Law Judge John K. Ottenad, issued August 15, 2016, is attached and incorporated by this reference.

The Commission further approves and affirms 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 $\qquad 15^{\text {th }} \qquad$ day of December 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Paul Brown

Injury No.: 12-052588

Dependents: N/A

Employer: Domino's Pizza/MBR Management Corporation

Additional Party: Second Injury Fund

Insurer: American Family Mutual Insurance Company

Hearing Date: February 18, 2016

Record Closed on March 19, 2016

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: July 8, 2012
5. State location where accident occurred or occupational disease was contracted: Lincoln County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant worked as a general manager for Employer at one of their pizza stores and injured his body as a whole, as a result of heat exhaustion from the excessive temperatures in the pizza shop.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Body as a Whole
14. Nature and extent of any permanent disability: 8.75 % of the Body as a Whole
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 8,906.59

Employee: Paul Brown Injury No.: 12-052588

1. Value necessary medical aid not furnished by employer/insurer? $\ 32,457.90
2. Employee's average weekly wages: $\ 525.00
3. Weekly compensation rate: $\ 350.00 for TTD/ $\ 350.00 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Past medical expenses $\ 32,457.90

35 weeks of permanent partial disability $\ 12,250.00

1. Second Injury Fund liability:

Voluntarily dismissed by Claimant on the record at the time of the hearing

TOTAL: $\mathbf{\$ 4 4 , 7 0 7 . 9 0}$

1. Future requirements awarded: N/A

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Andrew H. Marty.

Employee: Paul Brown

Injury No.: 12-052588

Dependents: N/A

Employer: Domino's Pizza/MBR Management Corporation

Additional Party: Second Injury Fund

Insurer: American Family Mutual Insurance Company

Checked by: JKO

On February 18, 2016, the employee, Paul Brown (Claimant), appeared in person and by his attorney, Mr. Andrew H. Marty, for a hearing for a final award on his claim against the employer, Domino's Pizza/MBR Management Corporation (Employer), and its insurer, American Family Mutual Insurance Company. The employer, Domino's Pizza/MBR Management Corporation, and its insurer, American Family Mutual Insurance Company, were represented at the hearing by their attorney, Ms. Peggy Hecht. The Second Injury Fund is a party to this case and was dismissed voluntarily by Claimant on the record at the time of the hearing.

To allow the parties time to prepare and file their proposed awards or briefs in this matter, the record did not technically close until March 19, 2016. Although we did not go back on the record or take any additional evidence in this matter, the record was, then, closed on March 19, 2016 and the briefs were submitted by the parties by April 1, 2016, after an additional request for an extension of time was filed by the parties and granted.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about July 8, 2012, Paul Brown (Claimant) sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant.

2) Claimant was an employee of Domino's Pizza/MBR Management Corporation (Employer).

3) Venue is proper in the City of St. Louis by agreement.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage of $\ 525.00, resulting in applicable rates of compensation of $\ 350.00 for total disability benefits and $\ 350.00 for permanent partial disability benefits.

7) Employer paid no temporary total disability benefits to date.

8) Employer paid medical benefits totaling $\ 8,906.59.

1) Are Claimant's complaints and diagnoses, that led to the treatment he secured during the second hospitalization, medically causally connected to his accident at work for Employer on July 8, 2012?

2) Is Employer liable for past medical benefits in the stipulated amount of $\ 32,457.90 ?

3) What is the nature and extent of Claimant's permanent partial disability attributable to this injury?

The following exhibits were admitted into evidence:

1. Certified medical treatment records of Dr. Pedro Padilla
2. Medical treatment records of St. Joseph Hospital West
3. Deposition of Dr. David Volarich, with attachments, dated October 30, 2015

A. Medical report of Dr. Marcos Rothstein

B. Correspondence from the attorney for St. Joseph Hospital West to the attorney for Employer/Insurer dated January 6, 2016

Note: Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on February 18, 2016.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinion, the medical treatment records and bills, and the other documentary evidence in this matter, as well as based on my personal observations of Claimant at hearing, I find:

1) Claimant is a 39-year-old man, who was employed by Domino's Pizza/MBR Management Corporation (Employer) as a general manager at their store in Troy, Missouri at or about the time of his accident on July 8, 2012. He had worked for Employer for 2 to $21 / 2$ years prior, answering phones, making pizzas and delivering them. As the general manager, he was responsible for scheduling, making/cutting pizzas, doing paperwork and supervising the route drivers. He generally worked five days a week from 9:30 a.m. to 7:00 or 8:00 p.m., and, then, Sunday from 4:00 p.m. until 1:00 or 2:00 a.m. Based on his prior experience working in the pizza making/delivering industry, he said that he wanted to make sure the store he worked at had an air conditioner that worked, because some stores had none and the temperatures would top 100 degrees in the summer between the heat outside and the heat coming from the pizza ovens. He testified that the store in Troy, Missouri, where he worked, had an air conditioner, but it was not working very well.

2) Claimant explained that the heat was greatest by the pizza ovens and the temperature by the ovens was always higher than what showed on the thermostat that was hanging by the office. He testified that there was a conveyor oven (top and bottom) for baking two pizzas at a time, which were set to 490 degrees. During the summer of 2012, at or around the time of his injury, Claimant testified that the temperature outside was in the mid-100 degrees, and inside, 95 degrees was the lowest he saw on the thermostat.

3) Claimant noted that he had asked his boss many times to fix the air conditioning in the store before July 8,2012 , but he was told that it was not a high priority for his boss because there were other stores that did not have any air conditioning at all. He said that he often worked with cold rags on his neck or he would step into the cooler to try to cool off from the excessive heat in the store.

4) Claimant testified that 2012 was a really hot summer. By July 8, 2012, he had been working all week in the excessive heat in the store and progressively felt worse as the week continued. He said he felt dizzy, nauseous, weak and lightheaded. He called his supervisor to report his complaints and the supervisor told him to go to the hospital, so he went to St. Joseph Hospital West.

5) Medical treatment records from St. Joseph Hospital West (Exhibit 2) document Claimant's admission to that facility on July 8, 2012 for complaints of general malaise, dizziness, nausea, being very tired and having worked in 97-degree temperatures for four days. He was diagnosed and treated for heat exhaustion, as well as acute renal failure and dehydration. He was also found to have iron deficiency anemia, so he received a battery of tests, including a colonoscopy and upper endoscopy. He was discharged from the hospital on July 11, 2012. Among the

secondary diagnoses listed on the summary sheet from the hospital are, "Accident caused by excessive heat due to weather conditions" and "Injury or poisoning occurring at/in public building." These secondary diagnoses suggest to me that the doctors treating Claimant at the hospital related the need for his admission and treatment to the heat exhaustion and heat exposure he had been exposed to at work for the days leading up to July 8, 2012.

6) Claimant testified that after his hospital admission, he took the rest of the week off and returned to work for Employer the following Monday. He admitted that his kidney function had returned to normal when he was released from the hospital the first time. He said that on Monday and Tuesday when he worked, he noticed that the heat was decreased in the store and the air conditioning was working better, but it was still hot, with the thermostat in the 80s. He took off Wednesday because he started progressively feeling bad again (nauseous and lightheaded), and, then, he went back to the hospital, as he was told to do at discharge, if he started feeling bad again.

7) Medical treatment records from St. Joseph Hospital West (Exhibit 2) document his second admission on July 19, 2012 for a diagnosis of acute renal failure, which the doctor characterized as a "similar issue" to what he was treated for at the hospital on July 11, 2012. A CT scan of the abdomen and pelvis showed bilateral nephrolithiasis, with kidney stones obstructing the left and right ureter. It also showed hepatosplenomegaly with a nodular liver (suggestive of cirrhosis), and further tests for the liver were recommended. Claimant had a GI consult in the hospital, where the doctor noted the liver condition from the CT scan, but also noted Claimant had normal liver function tests and no other signs suggestive of liver cirrhosis. Dr. Pedro Padilla (Exhibit 1) performed a cystoscopy with bilateral ureteroscopy, with laser lithotripsy, stone basketing and bilateral ureter stent insertion, to treat the kidney stones and acute renal failure on July 20, 2012. He remained hospitalized through July 23, 2012. As with the last hospitalization, there is a note in the assessment that reads, "Acute renal failure (due to dehydration/heat exposure/bilateral uretral stones)."

8) Claimant returned to see Dr. Padilla (Exhibit 1) on July 26, 2012, at which point the stents were removed without complication. He was to follow up with the doctor in another three months with a notation that he has minor kidney stones that are still in the kidney.

9) Correspondence from the attorney for St. Joseph Hospital West dated January 6, 2016 (Exhibit B) confirms that Employer paid all the costs associated with the first hospitalization of July 8-12, 2012. It further notes that there is an outstanding balance for the second hospitalization from July 19-23, 2012 of $\ 32,457.90, which the parties agree to have me address in this award, as to whether Employer also has responsibility for that bill.

10) In terms of past medical history, Claimant admitted that he had been treated for kidney stones approximately $31 / 2$ to 4 years before this work accident. He said that he received shock wave treatment and placement of a stent at that time, but had no other

continuing treatment, nor any problems, following his release up through the time of this work injury.

11) He also admitted to a prior diagnosis and treatment for heat exhaustion approximately 10 years prior to this accident. He said that he was working for a temp agency outdoors and was not wearing correct clothing or eating or drinking correctly. He was treated with an IV of saline solution and released. Again, he reported no ongoing sensitivity to heat or any other continued problems from the time of his release from this treatment up until his work accident in this case. He admitted that he was more careful when in the heat, drinking more water and Gatorade, but he did not have to avoid activities in the heat at that time.

12) Claimant testified that he left Employer because of stress, personal issues and the continued issues with heat in the store over the summer. He said that he just could not take it anymore. He now works an indoor job for U-Gas, where exposure to the heat is not an issue for him.

13) Claimant admitted to having one subsequent problem with kidney stones a few months after his last hospitalization, but nothing since then. He suggested that the third hospitalization may have been as a result of not passing all the stones that were discovered during the second hospitalization on July 19, 2012.

14) The deposition of Dr. David Volarich (Exhibit 3) was taken on October 30, 2015 by Claimant to make his opinions in this case admissible at trial. Dr. Volarich is an osteopathic physician, who is board certified in nuclear medicine, occupational medicine and as an independent medical examiner. He examined Claimant on one occasion, May 15, 2013, for the purpose of an independent medical examination at the request of Claimant's attorney and he provided no treatment. He issued his initial medical report in this case on that same date, after his review of the medical treatment records and after performing a physical examination of Claimant. Dr. Volarich took a consistent history of the injury at work on or about July 8, 2012 and of Claimant's medical treatment and complaints following that injury, as well as of Claimant's prior episode of heat exhaustion. His physical examination of Claimant revealed generally normal objective findings on all aspects of the examination. Dr. Volarich opined that the injury on or about July 8, 2012 (working in excessive heat in the store) was the substantial contributing factor, as well as the prevailing or primary factor in causing Claimant's diagnosed heat exhaustion and dehydration, which in turn caused the transient acute renal failure. He rated Claimant as having 12.5 % permanent partial disability of the body as a whole, due to the heat exhaustion, dehydration and transient acute renal failure that required medical care. He opined that Claimant had no prior disability attributable to the pre-existing episode of heat exhaustion, since his symptoms had resolved and he was asymptomatic leading up to July 8, 2012. Dr. Volarich noted that additional disability may exist referable to the kidney stones, but he deferred to urology for that assessment.

15) Employer submitted into evidence the medical report of Dr. Marcos Rothstein (Exhibit A) dated February 6, 2014. His deposition was not taken so we have no

further explanation or enumeration on his opinions beyond what is contained in the report. Dr. Rothstein is a Professor of Medicine at Washington University and Medical Director of the Barnes-Jewish Dialysis Center. He apparently never examined Claimant, but instead, performed a records review and issued his opinions based on that review. He diagnosed Claimant as having hepatic cirrhosis and recurrent nephrolithiasis with bilateral obstructive uropathy. He opined that the heat exposure at work on July 8, 2012 was not the prevailing factor in either of these diagnoses. Focusing mostly on the cirrhosis diagnosis, which even Claimant does not try to relate to the work injury, Dr. Rothstein points out that blood tests prior to July 8, 2012 show evidence of a chronic cirrhosis condition, which, he adds, will aggravate and enhance the effects of heat in an individual. Dr. Rothstein describes the fabrication, growth and passage of kidney stones as a "chronic condition," but he admits that, "Acute dehydration may facilitate the dislodgement and obstructive nature of lithiasis, but will not be an acute causative etiology over a short period." Dr. Rothstein further admitted that the acute renal failure on July 8, 2012 "could have been precipitated by the heat exhaustion," but he also thought the pre-existing cirrhosis and kidney stones played an important role in the clinical picture, too.

16) Dr. Rothstein believed that the medical expenses for the first hospitalization were "directly related" to the episode of heat exposure on July 8, 2012, but he did not clearly or directly address the charges for the second hospitalization. Finally, he opined that Claimant did not have any permanent partial disability related to the July 8,2012 episode, since the acute heat exposure "only unmasked his proclivity to react in a heightened manner to heat exposure." He thought any disability Claimant might have would be pre-existing.

17) Subsequent to his issuing this initial report, Dr. Volarich was asked for a follow-up report to address the opinions offered by Dr. Rothstein, as well as to address the issue of the subsequent hospitalization for the kidney stones and whether that treatment was related to the July 8, 2012 work injury. Dr. Volarich issued an addendum report dated October 27, 2014, in which he opined that the medical bills for the treatment of Claimant's kidney stones from July 19-23, 2012, were fair, reasonable, customary and the treatments were necessary to cure and relieve Claimant of the effects of the work injury on or about July 8, 2012. He explained in detail how kidney stones develop from a super saturated solution of calcium oxalate (uric acid most commonly), which is present, and when the tipping point is reached, the crystals begin to form. He equated the process to making rock candy, when you have a super saturated solution of sugar and water, but the candy crystals do not begin to form until the string is placed in the water. In Claimant's case, Dr. Volarich believed the tipping point was the dehydration related to the heat exhaustion on July 8, 2012, which started the kidney stones growing, ultimately making them large enough to become symptomatic and needing the treatment to remove them during the second hospitalization.

18) Dr. Volarich testified consistent with the opinions contained in his reports, as described above. He explained, in great detail, the connection between heat exhaustion causing a loss of fluid and salt, which leads to dehydration and a decreased volume of fluid intravascularly, which leads to kidney failure from the kidneys not

getting perfused properly. He also explained how the dehydration and not having enough water in your system makes someone more prone to developing kidney stones. He admitted that stones do not develop overnight, but over a few weeks, which he believed was what happened in this case, between the time of the heat exhaustion and the hospitalization for the kidney stone removal.

19) On cross and/or redirect examination, Dr. Volarich also explained that once you have an episode of heat exhaustion, you are more prone to have a recurrence and problems with heat intolerance in the future. Similarly, he opined that once a person has kidney stones, it is possible that they could get them again, especially if you get dehydrated again and do not have the fluid necessary to flush out the kidneys appropriately. Dr. Volarich was also asked about his opinion that the heat exposure on July 8, 2012 was the tipping point in causing the kidney stones to form. He was asked if "tipping" was synonymous with "triggering" and he denied that it was because kidney stones take time to develop, but was then asked if it was synonymous with "precipitating" and he agreed that that was correct.

20) Regarding any continuing complaints that Claimant associates with this work injury on July 8, 2012, Claimant testified that he is not able to stay out in the heat for any length of time anymore. He is basically unable to attend baseball games in the summer and cannot enjoy outdoor activities such as Renaissance Faires or Six Flags amusement park for any length of time. He described one occasion when he had to attend a Cardinals baseball game with his employer and he felt bad during the game because of the heat, even though it was an evening game. He said that he has to watch for the heat and stay hydrated and in air conditioning as much as possible. He is also now unable to mow the grass in the summer because of his heat sensitivity.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinion, the medical treatment records and bills, and the other documentary evidence in this matter, as well as based on my personal observations of Claimant at hearing, and based on the applicable statutes of the State of Missouri, I find:

There is no dispute and the parties have stipulated that Claimant sustained a compensable accidental injury arising out of and in the course of his employment for Employer on July 8, 2012. I find that he was working as a general manager for Employer at one of their pizza stores and injured his body as a whole, as a result of heat exhaustion from the excessive temperatures in the pizza shop. I, further, can find no real dispute in the record of evidence that Claimant's heat exhaustion, dehydration and acute renal failure, for which he received treatment at St. Joseph Hospital West starting on July 8, 2012, was medically causally related to the injury at work (excessive heat exposure) on that same date. This finding is supported by the medical treatment records from the hospital and the opinions and testimony of Claimant's examining physician, Dr. David Volarich. Additionally, I find that this conclusion is supported by the medical opinion of Employer's doctor, Dr. Marcos Rothstein, who opined that the acute renal failure on July 8, 2012

"could have been precipitated by the heat exhaustion," while he also opined that the medical expenses for the first hospitalization were "directly related" to the episode of heat exposure on July 8, 2012. Therefore, taking the totality of his report and opinions into account, though he used the term "precipitated" instead of "prevailing," it is clear to me that if he directly relates the medical bills from the hospitalization to the heat exposure as a part of this case, then the heat exhaustion, dehydration and acute renal failure that were treated in that hospitalization must also be similarly related. Further, Employer does not dispute the appropriateness of their having paid for that medical treatment for those conditions as a part of this case.

However, that is the point at which any agreement between the parties on this case comes to an end. Having stipulated to the presence of an accidental injury that arose out of and in the course of employment, as well as to the fact that the medical treatment during the first hospitalization was reasonable and necessary to cure and relieve the effects of the work injury, Employer, then, denies that the second hospitalization and the treatment contained therein was related to the work injury on July 8, 2012.

Considering the date of the injury, it is important to note the statutory provisions that are in effect, including Mo. Rev. Stat. § 287.800 (2005), which mandates that the Court "shall construe the provisions of this chapter strictly" and that "the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts." Additionally, Mo. Rev. Stat. § 287.808 (2005) establishes the burden of proof that must be met to maintain a claim under this chapter. That section states, "In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true."

Claimant bears the burden of proof on all essential elements of his Workers' Compensation case. Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195 (Mo. App. E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. Id. at 199.

As the first two issues in this matter are inter-related, I will address both of them in the same section of the Award.

Issue 1: Are Claimant's complaints and diagnoses, that led to the treatment he secured during the second hospitalization, medically causally connected to his accident at work for Employer on July 8, 2012?

Issue 2: Is Employer liable for past medical benefits in the stipulated amount of $\ 32,457.90 ?

Under Mo. Rev. Stat. § 287.120.1 (2005), every employer subject to the Workers' Compensation Act shall furnish compensation for the personal injury of the employee by accident arising out of and in the course of employee's employment. According to Mo. Rev.

Stat. § 287.020.2 (2005), accident is defined as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." Further, under Mo. Rev. Stat. § 287.020.3 (1) (2005), "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." Finally, under Mo. Rev. Stat. § 287.020.3 (2) (2005), an injury is deemed to arise out of and in the course of the employment only if the accident is the prevailing factor in causing the injury and it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment.

Under Mo. Rev. Stat. § 287.140.1 (2005), "the employee shall receive and the employer shall provide such medical, surgical, chiropractic and hospital treatment...as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." Mo. Rev. Stat. § 287.140.3 (2005) also states, "All fees and charges under this chapter shall be fair and reasonable..." Claimant bears the burden of proving these elements of the claim.

The Court in Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. W.D. 2011), addressed the interplay under the statute between the medical causation of an injury and the reasonableness and necessity of medical treatment needed to cure and relieve the effects of any such injury. The Court in that case held that Section 287.120.1 "requires two independent inquiries. First, it must be determined whether an employee has suffered a compensable injury 'by accident arising out of and in the course of employee's employment.' Second, if a compensable injury has been sustained by an employee, the appropriate compensation to be furnished must be determined." Id. at 517. If that compensation includes medical benefits, the Court ruled that the only relevant standard under Section 287.140.1, is whether the treatment is reasonably required to cure and relieve the effects of the injury. There is no reference to a prevailing factor test for the payment of medical treatment benefits, nor can one be added by virtue of our mandate to strictly construe the statute before us in the determination of benefits.

In the case at bar, the parties have stipulated that Claimant sustained an accidental injury arising out of and in the course of his employment for Employer on July 8, 2012. In reaching that stipulation, pursuant to Section 287.020.3, and based on the evidence in the record, I find that the parties have also essentially agreed that the accidental injury on July 8, 2012 is the prevailing factor in causing the heat exhaustion, dehydration and acute renal failure. Employer, however, disputes that the kidney stones that ultimately necessitated the second hospitalization are medically causally related to the July 8, 2012 work injury, and, further, asserts that the medical bills for that second hospitalization were, therefore, not reasonably required to cure and relieve the effects of the injury.

In support for Employer's position, they offer the report of Dr. Marcos Rothstein, who, by title, is a Professor of Medicine at Washington University and Medical Director for the BarnesJewish Dialysis Center. In that position, I would presume that he has experience diagnosing and treating kidney conditions, but I am unsure of his experience, training and/or job duties in this regard, because other than his one-page report, there is no curriculum vitae or other information on his education, background, experience or training. I would also note, in the way of trying to

assess the weight, credibility and reliability to be attached to his opinions, that his report is based solely on a review of records, without any examination or other personal contact with Claimant. Further, even though he did not examine Claimant, it is also unclear if he had any statements or testimony from Claimant, such as a deposition, that he may have reviewed, as that is not referenced clearly in the report. In that respect, it is also unclear to me exactly which records he may have reviewed, as there is no such listing or delineation of the information he had in front of him that formed the basis for his opinions, other than a few references in the narrative answers to blood test results and the treatment Claimant received at St. Joseph Hospital West. Therefore, other than knowing he had some records to review that formed the basis of his report and opinions, I have no clear understanding of exactly which records he reviewed that formed the basis for the opinions he offered in this case.

Upon review of the totality of the opinions contained in his report, I find that Dr. Rothstein does not believe the kidney stones are medically causally related to the work injury on July 8, 2012, describing them, instead, as a "chronic process." However, he provides no extensive explanation for why he believes that to be the case, nor was there any further discussion or explanation elsewhere in the record, since the report was entered without any deposition testimony. In the paragraph discussing "prevailing factor," he spends most, if not all, of that paragraph discussing hepatic cirrhosis, which Claimant has not even alleged as a part of this case, and detailing some blood test results (without explanation for what those results might really mean in the context of his opinion), without any real direct reference to the kidney stones. Despite his opinion that the kidney stones were not related to the July 8, 2012 accident, I found interesting his admission that, "Acute dehydration may facilitate the dislodgement and obstructive nature of lithiasis, but will not be an acute causative etiology over a short period."

On the other hand, Claimant offered the opinions and testimony of Dr. David Volarich, who medically causally related the kidney stones to the July 8, 2012 work injury and believed the treatment he received in the second hospitalization was needed to cure and relieve Claimant of the effects of the work injury. Unlike Dr. Rothstein, he explained, in detail, how kidney stones develop from a super saturated solution of calcium oxalate (uric acid most commonly), which is present, and when the tipping point is reached, the crystals begin to form. He equated the process to making rock candy, when you have a super saturated solution of sugar and water, but the candy crystals do not begin to form until the string is placed in the water. In Claimant's case, Dr. Volarich believed the tipping point was the dehydration related to the heat exhaustion on July 8, 2012, which started the kidney stones growing, ultimately making them large enough to become symptomatic and needing the treatment to remove them during the second hospitalization. I find Dr. Volarich's clear and thorough explanation makes sense in light of the timeline of the events in this case, and is supported by, and consistent with, the medical treatment records in evidence.

Therefore, in comparing the two doctors' opinions, I find that for Dr. Rothstein, I have no clear understanding of his background or experience, no clear understanding of the basis or foundation of his opinions, no explanation for how he reached the opinions and conclusions he did, and all of this without any physical examination of Claimant or any understanding of what Claimant's testimony might be in the matter. Conversely, I find that for Dr. Volarich, I have a clear understanding of his background/experience, as well as the foundation and basis for his opinions, in addition to clear and thorough explanations of his opinions, all based on a physical examination of Claimant. For all of these reasons, I find the opinions, explanations and

testimony of Dr. Volarich, more competent, credible, reliable and persuasive, than those of Dr. Rothstein in this case.

Based on Claimant's credible testimony, the medical treatment records and the credible, reliable and persuasive medical opinion of Dr. Volarich, I find that Claimant has met his burden of proving that the kidney stones, and, thus, the second hospitalization, are medically causally related to the July 8, 2012 work injury. I find that the injury at work on July 8, 2012 is the prevailing factor in causing the kidney stones and the need for treatment for that condition.

Employer argues that even if I find Dr. Volarich more credible and persuasive than Dr. Rothstein, Claimant still cannot prevail on this issue because Claimant has failed to meet his burden of proof by virtue of Dr. Volarich testifying that when he used the word "tipping" he equated that to "precipitating." And, since "triggering" or "precipitating" is not enough under the statute to meet the "prevailing factor" standard, then Claimant has not met the appropriate standard to make this a compensable case. I disagree. The Missouri Supreme Court, in the recent case of Malam v. State of Missouri, Department of Corrections, 2016 WL 3553059 (June 28, 2016), dealt with this exact issue of using "precipitating" as part of a medical causation finding in a Workers' Compensation case. The Court ruled that in reviewing and evaluating medical expert testimony, it is important to not only look at the exact words they use, but also the overall intent and "impression such witness wishes to impart." Id. The Court instructs that it is necessary to read the words in context with the rest of the opinions or impressions of the witness to give effect to the totality of the opinion, not just parse out or be overly technical with one word out of the whole opinion.

Applying the directive of the Supreme Court in this context, I find that Dr. Volarich lays out a clear explanation and chain of causation that reaches from the heat exhaustion exposure and dehydration on July 8, 2012, to the development of the kidney stones and their need to be removed during the second hospitalization later that same July. As a part of that explanation, I find that he uses the term "tipping" in the context of an event occurring that begins the crystals (stones) forming in the kidneys. In this case, that "tipping" event was the heat exhaustion, dehydration and acute renal failure that is admittedly referable to the July 8, 2012 heat exposure. I have no doubt that Claimant would have had the super saturated solution of calcium oxalate (uric acid most commonly) already in his kidneys, and that is clearly not caused by the work injury. But I find the reason the stones formed when they did, consistent with Dr. Volarich's testimony, was precisely because of the heat exhaustion, dehydration and acute renal failure that was the direct result of the work injury. Most importantly, there is no other reasonable explanation in the record of evidence but for the heat exhaustion, dehydration and acute renal failure as the reason for why the stones formed when they did and resulted in the blockages, requiring their removal. Even Dr. Rothstein agreed that, "Acute dehydration may facilitate the dislodgement and obstructive nature of lithiasis," which means to me that while the materials for forming the stones were already there and not caused by the injury, the fact that they became symptomatic and needed to be removed when they did, certainly was the result of the acute dehydration from the heat exposure on July 8, 2012. It is also clear to me in Dr. Volarich's testimony, that as defense counsel was searching for words to equate to "tipping," Dr. Volarich was not comfortable with "triggering" and explained why. That explanation helps clarify for me even though he ultimately agreed with "precipitating," he was not using it in the same legal context so as to frustrate a finding of compensability on this part of the case.

Having found that the kidney stones, and, thus, the second hospitalization, are medically causally related to the July 8,2012 work injury, the next part of the inquiry shifts to a determination of the appropriate compensation to be furnished, including medical treatment benefits. As noted earlier, the relevant standard for this part of the inquiry is what treatment is reasonably required to cure and relieve the effects of the injury. Pursuant to the credible, reliable and persuasive medical opinions and testimony of Dr. Volarich, I find that the medical treatment Claimant received during his second hospitalization at St. Joseph Hospital West from July 19-23, 2012, was reasonably required to cure and relieve him of the effects of the July 8,2012 work injury. Therefore, I find that Employer is responsible for the payment of those medical bills as a part of this case.

The parties stipulated at the outset of the hearing in this case that the amount of the bills, if I should find them related to the work injury, was $\ 32,457.90. In that regard, I find that it is not necessary, then, for me to review the bills in detail and provide a precise calculation for the amount of medical bills to be awarded. Since Claimant met his burden of proving that the kidney stones are medically causally related to the July 8,2012 work injury, as well as that the medical treatment at St. Joseph Hospital West was needed to cure and relieve him of the effects of the injury, I find that Claimant is entitled to receive $\ 32,457.90 from Employer in past medical benefits for these unpaid medical bills to St. Joseph Hospital West for this treatment.

Accordingly, Employer is directed to pay Claimant $\ 32,457.90 for these past medical expenses related to the work accident on July 8, 2012.

Under Mo. Rev. Stat. § 287.190.6 (1) (2005), "'permanent partial disability' means a disability that is permanent in nature and partial in degree..." The claimant bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 703 (Mo. App. 1973). Expert testimony may be required when there are complicated medical issues. Id. at 704. Extent and percentage of disability is a finding of fact within the special province of the [fact finding body, which] is not bound by the medical testimony but may consider all the evidence, including the testimony of the Claimant, and draw all reasonable inferences from other testimony in arriving at the percentage of disability. Fogelsong v. Banquet Foods Corp., 526 S.W.2d 886, 892 (Mo. App. 1975)(citations omitted).

Additionally, under the 2005 amendments to the Workers' Compensation Law, the Legislature added further provisions that have an impact on the determination of the nature and extent of permanent partial disability. Mo. Rev. Stat. § 287.190.6 (2) (2005) states,

Permanent partial disability... shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.

Therefore, according to the terms of this statute, it is incumbent upon the claimant to have a medical opinion from a physician that demonstrates and certifies claimant's permanent partial disability within a reasonable degree of medical certainty. Further, if there are conflicting opinions from physicians in a given case, then objective medical findings must prevail over subjective findings.

In awarding permanent partial disability for this injury under these statutory provisions, it is, thus, necessary to deal with each of these sections. Considering the evidence listed above, I find that the medical opinion from Dr. Volarich demonstrates and certifies, within a reasonable degree of medical certainty, that Claimant sustained permanent partial disability as a result of the work-related injury on July 8, 2012.

Accordingly, I find that Claimant has successfully met his burden of proof to show that Employer is responsible for the payment of permanent partial disability related to the July 8, 2012 injury.

Following this 2012 injury, based on Claimant's credible testimony, I find that Claimant has sensitivity to heat that impacts his ability to participate in activities outside, especially in summer. Lest Employer argue that this merely has an impact on social activities, Claimant testified to difficulty with attending a Cardinals baseball game which his employer expected him and all their employees to attend. Although Claimant had had a prior episode of heat exhaustion, I find that he was able to credibly describe the difference between how that minimally impacted his activities, versus the significant impact this more recent injury and episode of heat exhaustion has had on him. However, in assessing permanent partial disability in this case, I am also cognizant of the fact that his physical examination is basically objectively normal, having recovered from the dehydration, acute renal failure and kidney stones. It is also noted that he is back working full duty and he has no restrictions from any doctor on his ability to work on account of the injury, but he did change jobs to have an indoor working environment in air conditioning where he does not come in contact with excessive heat.

Employer argues that in the absence of any objective abnormalities on the physical examination, and given that the precautions with heat that Claimant describes are no different than anyone in heat should do, Claimant is not entitled to any permanent partial disability. Employer points to Dr. Rothstein's opinion to serve as a basis for that position. I am not persuaded. For the same reasons described above, I find Dr. Rothstein's opinions are not as credible and persuasive as those of Dr. Volarich. Specifically, Dr. Rothstein did not even meet with or examine Claimant to hear what problems and complaints he has in reaching his opinion that there is no disability. Dr. Rothstein has no findings on physical examination, objective or otherwise, because he never examined Claimant. Further, the statute does not require that we

totally ignore or discount Claimant's subjective complaints or problems from an injury, just that the objective factors be weighed more heavily than subjective factors when determining compensability and disability with conflicting medical opinions. However, in the context of this statute, I find that in order to have "conflicting medical opinions," the statute presumes two otherwise equally credible, reliable and persuasive opinions, with objective findings prevailing over subjective findings for determining which opinion will carry the most weight. That is not the case here. As has been detailed above, I have found a clear difference in the credibility, reliability and persuasiveness of the two opinions based on the lack of foundation, lack of contact with Claimant and lack of explanation for the opinions offered by Dr. Rothstein. Therefore, I find that it is clearly consistent with the statute in this respect, to rely on the opinions of Dr. Volarich for the purpose of assessing permanent partial disability in this case.

Based on all of this evidence, I find that Claimant has 8.75 % permanent partial disability of the body as a whole on account of the residual effects of the heat exhaustion, related to his compensable work injury of July 8, 2012. Therefore, I find that Employer is responsible for the payment of 35 weeks of permanent partial disability benefits, related to this compensable accident at work on July 8, 2012.

Claimant sustained a compensable accidental injury at work for Employer on July 8, 2012, arising out of and in the course of his employment. He was working as a general manager for Employer at one of their pizza stores and injured his body as a whole, as a result of heat exhaustion from the excessive temperatures in the pizza shop. Medically causally related to the July 8,2012 work injury, Claimant sustained heat exhaustion, dehydration and acute renal failure, as well as kidney stones, which all required two separate hospitalizations at St. Joseph Hospital West to cure and relieve him of the effects of the work injury on July 8, 2012. The injury at work on July 8,2012 is the prevailing factor in causing the heat exhaustion, dehydration, acute renal failure and kidney stones, as well as the need for treatment for those conditions.

Since Claimant met his burden of proving that the kidney stones are medically causally related to the July 8,2012 work injury, as well as that the medical treatment at St. Joseph Hospital West was needed to cure and relieve him of the effects of the injury, Claimant is entitled to receive $\ 32,457.90 from Employer in past medical benefits for these unpaid medical bills to St. Joseph Hospital West for this treatment. Employer is directed to pay Claimant $\ 32,457.90 for these past medical expenses related to the work accident on July 8, 2012.

Employer is also responsible for the payment of 8.75 % permanent partial disability of the body as a whole related to his compensable work injury of July 8, 2012. Compensation awarded is subject to a lien in the amount of 25 % of all payments in favor of Mr. Andrew H. Marty for necessary legal services.

Made by:

JOHN K. OTTENAD

Administrative Law Judge

Division of Workers' Compensation