Gary Gerlemann v. Missouri Department of Transportation

partial disability of the cervical spine, because the rating should have been higher; and (3) in declining to award employee's travel expenses. ${ }^{1}$

For the reasons stated below, we modify the award of the administrative law judge referable to the issue of past medical expenses.

Section 287.140.1 RSMo controls our determination with respect to the issue of past medical expenses, and provides, in relevant part, as follows:

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

On appeal, employee asks us to award the past medical expenses he incurred after employer denied his requests for additional medical treatment. The disputed treatment includes physical therapy, diagnostic studies, and follow-up visits with Dr. Anthony Margherita from February to June 2014.

The administrative law judge denied employee's claim for these medical expenses, in part, based on a finding that "the medical treatment provided by Dr. Margherita was not related to the injuries Claimant sustained as a result of the May 24, 2012 motor vehicle accident, and did not arise out of and in the course of Claimant's employment." Award, page 15. The Missouri courts have clarified, however, that the statutory requirements under § 287.020.3 RSMo for proving an injury arising out of and in the course of employment are not applicable to claims for past medical expenses under § 287.140.1. Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511 (Mo. Ct. App. 2011). Instead, we must determine whether the need for additional treatment "flows" from the effects of the work injury. Id. at 519-20. After careful consideration, we are persuaded that employee has met his burden of proof with respect to this issue.

The Missouri courts have long instructed that "[a]n employer's duty to provide statutorilyrequired medical aid to an employee is absolute and unqualified." Martin v. Town \& Country Supermarkets, 220 S.W.3d 836, 844 (Mo. App. 2007). Employer's authorized treating physician, Dr. David Lange, specifically endorsed employee's recurrent pain in October 2013 as related to the work injury, thus undermining the theory from employer's evaluating expert, Dr. Nathan Mall, that any symptoms or limitations referable to employee's cervical strain injury should be deemed to have finally resolved within 4 to 6 weeks following the May 24, 2012, accident at work. In contrast, the treating physician Dr. Lange believed, as of October 2013, that employee "will have at least some symptoms going forward with perhaps flare ups." Transcript, page 142. Dr. Lange's

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[^0]: ${ }^{1}$ In a subsequent correspondence of September 12, 2016, included with employee's petitioner's brief to the Commission, employee indicated that he wished to waive that portion of his application for review pertaining to mileage expenses.

assessment stands for the proposition (which we deem reasonable and persuasive) that employee experiences ongoing, chronic symptoms referable to the work injury, and that these symptoms may wax and wane over time. In our view, employer had a continuing obligation to provide treatment reasonably required to cure and relieve the effects of those chronic symptoms whenever they manifested, despite the fact employee had been released from treatment.

In fact, Dr. Lange did recommend an additional course of physical therapy in October 2013 (despite having earlier released employee), and employer authorized and paid for this treatment. We discern no compelling basis for distinguishing employee's subsequent treatment overseen by Dr. Margherita in early 2014. There is no evidence whatsoever on this record that employee had ever complained of neck or upper extremity symptoms, or received treatment for same, prior to the occurrence of the work injury. Nor is there any evidence on this record to suggest employee sustained an intervening injury that might be seen as prompting his need for further treatment in early 2014. As the medical records from both Dr. Margherita and St. Louis Physical Therapy make clear, this additional course of treatment was effective in relieving employee's symptoms referable to the work injury, which symptoms had clearly "flared up" since employee's last course of physical therapy in October 2013. We are additionally persuaded by the testimony from employee (and we so find) that the disputed treatment provided significant relief for the symptoms employee experienced referable to the work injury.

For the foregoing reasons, we find that the disputed treatment flowed from the effects of the compensable injuries employee sustained in the work-related motor vehicle accident of May 24, 2012. We conclude that the disputed treatment was reasonably required to cure and relieve the effects of the work injury for purposes of § 287.140.1. Our own review of the bills suggests employee incurred the following charges:

The courts have consistently held that an award of past medical expenses is supported when the record includes (1) the bills themselves; (2) the medical records reflecting the treatment giving rise to the bills; and (3) testimony from the employee establishing the relationship between the bills and the disputed treatment. See Martin, 769 S.W.2d at 111-12. Here, employee provided his bills, the medical records reflecting the treatment giving rise to the bills, and testimony identifying the bills and establishing that he

Enployee: Gary Gerlemann

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received them as a result of the disputed treatment.² We conclude, therefore, that the burden was properly shifted to employer to demonstrate that employee "was not required to pay the billed amounts, that [his] liability for the disputed amounts was extinguished, and that the reason that [his] liability was extinguished does not otherwise fall within the provisions of section 287.270 [RSMo]." Farmer-Cummings v. Pers. Pool of Platte County, 110 S.W.3d 818, 823 (Mo. 2003).

In its brief, employer notes that certain of the bills reflect various write-offs or adjustments; employer asks us to credit it for same, and reduce employee's award accordingly. "For Employer to seek a reduction for write-downs, write-offs, or adjustments, it had to show that Claimant had no reimbursement obligation or other liability to pay such sums." Proffer v. Fed. Mogul Corp., 341 S.W.3d 184, 190 (Mo. App. 2011). Accordingly, we must determine whether employer has met its burden of proving that employee has no reimbursement obligation or other liability to pay the sums written-off or adjusted.

Turning to the bills, we find attached affidavits from the custodians of records for each of the providers, identifying the bills. Transcript, pages 400-10. Within certain of these affidavits, such as that attached to the bills from St. Luke's Center for Diagnostic Imaging, the custodian has also purported to identify the total charges, the amounts employee paid, the amounts paid by health insurance, and the amounts "written off" or "adjusted." Id. at 402. However, these affidavits do not identify the individual or individuals who negotiated or authorized these write-offs or adjustments, nor do they identify the various providers' reasoning in agreeing to discounts of their original charges. Nor do they contain any foundational statements that would qualify the custodians of these records as authorized on behalf of the providers to fix or set employee's actual liability with regard to the bills in the context of a disputed workers' compensation claim involving such charges.

Employer did not provide any other evidence to demonstrate that employee's liability for his past medical bills has been extinguished, such as testimony from billing representatives with the healthcare providers or a representative from employee's personal insurance carrier. With regard to employee's personal insurance, we note that certain of the bills suggest various adjustments were the product of contractual agreements between the medical providers and employee's own health insurance carrier.³ Pursuant to § 287.270 RSMo, "[n]o savings or insurance of the injured employee, nor any benefits derived from any other source than the employer or the employer's insurer for liability under this chapter, shall be considered in determining the compensation due hereunder" (emphasis added). In other words, where it appears

² We acknowledge employer's argument, in its brief