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

- 4 -

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, that employee did not provide sufficient medical records to document his six dates of service with St. Louis Physical Therapy in May 2014. Although employee did not provide a record for each session, the Physical Therapy Progress Note from employee's last visit of May 30, 2014, discusses and documents employee's progress over the previous sessions. Transcript, page 195. In conjunction with the (unusually detailed) bill and employee's credible testimony discussing this treatment, we deem the evidence sufficient to demonstrate that employee attended the six physical therapy sessions, and incurred the relevant charges. We so find.

³ See, for example, the bill from Missouri Baptist Hospital, reflecting a "Coventry Insurance Contractual Adjustment" in the amount of $1,463.39. Transcript, page 406.

write-offs or adjustments were a benefit of employee's personal insurance carrier having paid for compensable treatment, we cannot credit employer for same, as such would run directly contrary to the mandate under $\S 287.270$ that we not even "consider" these sources in determining the compensation to which employee is entitled.

Ultimately, while it is clear that certain of the bills do contain adjustments, we are of the opinion that employer has not provided sufficient evidence to demonstrate (1) that employee's liability for the full amount of the charges has been reduced or extinguished by these adjustments, and (2) that the reason employee's liability was extinguished does not fall within the provisions of $\S 287.270$ RSMo. In the absence of persuasive evidence from the employer as to these questions, we must conclude that employer has failed to meet its burden of proof as articulated by the court in Farmer-Cummings. We conclude that employer is liable for employee's past medical expenses in the amount of $\ 7,516.20, and modify the administrative law judge's award accordingly.

We modify the award of the administrative law judge as to the issue of past medical expenses.

Employee is entitled to, and employer/insurer is hereby ordered to pay, $\ 7,516.20 in past medical expenses.

The award and decision of Administrative Law Judge Suzette Carlisle, issued June 30, 2016, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an 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 $7^{\text {th }}$ day of February 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Insurer: Missouri Highway \& Transportation

Hearing Date: April 13, 2016

Checked by: SC

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: May 24, 2012
5. State location where accident occurred or occupational disease was contracted: Franklin 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 injured his cervical spine when the truck he was sitting in was rear-ended by another vehicle.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Cervical spine
14. Nature and extent of any permanent disability: 7.5 % permanent partial disability of the body
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 7,926.33

Employee: Gary Gerlemann Injury No.: 12-039515

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 734.13
3. Weekly compensation rate: $\ 489.42 temporary total disability/\$425.19 (permanent partial disability rate)
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Unpaid medical expenses: $\ 0

30 weeks of permanent partial disability from Employer $\ 12,755.70

1. Second Injury Fund liability: Voluntary dismissal at start of hearing

TOTAL: $\quad \ 12,755.70

1. Future requirements awarded: N/A

Said payments to begin 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: Attorney Dean L.

Christianson

Employee: Gary Gerlemann

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Missouri Department of Transportation Missouri Highway \& Transportation

Additional Party: Second Injury Fund

Insurer: Missouri Highway \& Transportation

Hearing Date: April 13, 2016

Injury No.: 12-039515

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On April 13, 2016, Mr. Gary Gerlemann, ("Claimant"), appeared at the Missouri Division of Workers' Compensation, St. Louis Office ("Division"). Claimant requested a hearing for a final award to determine the liability of the Missouri Department of Transportation (" aka MHTC"), "(Employer"), and the Missouri Highway \& Transportation ("Self-Insured"), to pay permanent partial disability ("PPD") benefits, medical benefits, and mileage reimbursement.

Attorney Dean L. Christianson appeared on behalf of Claimant. Attorney Jeffrey W. Wright appeared on behalf of the Insurer. Assistant Attorney General Caroline Bean appeared on behalf of the Second Injury Fund ("SIF"). At the start of the hearing, Claimant voluntarily dismissed the SIF from the case.

The record closed after presentation of the evidence. Court Reporter Maria Krawat recorded the proceedings.

The parties stipulated that on May 24, 2012:

1. Claimant was employed by Employer and sustained an accidental injury to his cervical spine which arose out of and in the course of his employment in Franklin County; ${ }^{1}$
2. Employer and Claimant operated under the Missouri Workers' Compensation Law; ${ }^{2}$
3. Employer's liability was self-insured;
4. Employer had proper notice that a claim was filed;
5. Claimant's average weekly wage was $\ 734.13, with a rate of $\ 489.42 for temporary total disability ("TTD") and $\ 425.19 for permanent partial disability benefits PPD benefits;
6. Employer paid no TTD benefits; and
7. Employer paid medical benefits totaling $\ 7,926.33.

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[^0]: ${ }^{1}$ All references in this award to the Employer also refer to the Insurer unless otherwise stated.

${ }^{2}$ Unless otherwise stated, all statutory citations are to RSMo 2005.

The parties identified five issues for disposition:

1. Did Claimant sustain an accidental injury to his left shoulder that arose out of and in the course of his employment?
2. Are Claimant's left shoulder complaints medically causally related to the work injury?
3. Is the Employer liable for past medical expenses totaling $\ 7,416.20 ?
4. What is the nature and extent of the Employer's liability for PPD benefits, if any?
5. Should Claimant be reimbursed for 2,230 miles travelled for treatment related to this injury?

Claimant offered the following exhibits which were admitted into evidence without objection from opposing counsel:

Exhibit 1 - Deposition of David Volarich, M.D.

Exhibit 2 - St. Louis Orthopedic, Inc. medical records

Exhibit 3 - Mercy Corporate Health medical records

Exhibit 4 - West County Spine \& Sports Medicine

Exhibit 5 - PRORehab records

Exhibit 6 - Medical bills and summary

Exhibit 7 - Police report

Exhibit 8 - Mileage report

Exhibit 9 - Demand letter for treatment

Exhibit 10 - Claim for Compensation

Employer offered the following exhibits which were admitted without objection from opposing counsel:

Exhibit A - Deposition of Nathan Mall, M.D.,

Exhibit B - Todd Craig, M.D., Mercy Hospital

Any objections made during the hearing or contained in the depositions but not ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, they were made prior to becoming a part of this record and were not placed there by the undersigned administrative law judge.

Employer hired Claimant in 1995. At the time of the hearing, Claimant remained employed as a senior maintenance worker. As a maintenance worker, Claimant drives various vehicles, a dump truck, tractor, backhoe, loader, and a grader. He mows the right-of-ways, plows snow, fills potholes, replaces driveway and cross pipes on the highway, fills ditches with rock, dirt or grass on right-of-ways, posts signs, rakes and shovels, sweeps, and performs oil changes, grease jobs, minor electrical work and changes tires and flats.

At home, Claimant operates a farm with two main components, hay and cattle. He owns about 60 head of cattle and he works 600 acres of land. The business generates up to $\ 30,000 per year annually in income for Claimant.

Claimant bales hay using a tractor and truck, and sells it from May through July. The second cutting takes place in September and October. In summer months, Claimant works halftime for Employer and half-time on his farm, using accumulated compensatory time and vacation. In September and October, Claimant performs most of the farm work on the weekend.

Sometimes he reseeds grass. He uses a tractor with a cutter behind it to cut the grass. The cutter swings out to the right side and cuts grass off like a lawn mower and places it in a window. He rakes the hay with a wide machine with ground wheels.

After the hay is raked, Claimant bales it. Hay is removed from the baler and baled into a wagon. Large round bales of hay are loaded onto a trailer and delivered or carried 10 feet to the elevator and set back onto a trailer. Claimant stacks hay in the barn with an electric hay elevator. Square bales weigh 60 pounds and require more work to load and unload than the large round bales. Big round bales weigh 1200 to 1,500 pounds.

Claimant delivers hay to about five customers located in Franklin County and Springfield. Claimant drives three hours to Springfield to deliver hay, which causes his neck to lock up. A load contains 200 bales of hay. Claimant primarily cuts and hauls hay. Claimant's two sons and his spouse assist with preparing the hay. ${ }^{3}$ When he arrives in Springfield, children are available to help unload hay. Claimant assisted too, which caused some neck pain. He no longer delivers hay to Springfield.

Claimant raises cattle to sell when they weigh 400 to 500 pounds. He also has a calf operation to maintain the stock. He maintains the health of the cows, and repairs fences and buildings. Fence repair involves replacing wiring and using a hydraulic loader to put new posts in the ground. To replace wire, Claimant uses a ratchet to push and pull wire into place.

In spring and fall, Claimant pushes cattle through a shoot. This requires him to physically push cattle forward and into the shoot. The shoot is connected to a cage which is used to treat cattle.

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[^0]: ${ }^{3}$ Claimant's sons are ages 14 and 21.

On May 24, 12012, Claimant was sitting in the driver's seat of a parked one ton flat bed dump truck on the side of the highway while a co-employee picked up large trash and rubber tires on the highway. The truck contained a rack behind the back window of the cab.

A car traveling at 55 miles per hour rear-ended the left rear corner of the truck. The impact of the accident pushed the truck forward about 30 feet, caused the back window to break and the rear axle became disengaged. The bed of the truck hit the cab. A bracket attached to the cab dislodged, came through the back window, and lodged in the ceiling before it hit the left side of Claimant's hardhat, and dented it. The vehicle that hit the truck flipped and landed upside down in the middle of the highway.

Claimant treated with Mercy Corporate Health and Dr. Lange for pain to his left elbow, neck, and low back. Treatment included x-rays and physical therapy. Dr. Lange released Claimant from medical care but he continued to have catching, popping and limited range of motion of the cervical spine area, which he described as feeling like "somebody taking a finger, like, a needle and just poking you in the neck." Claimant disagreed with Dr. Lange's report that his symptoms had resolved by the time he was released.

Claimant's residual neck complaints include; pain with looking right and left all day at work and riding over rough terrain, catching, burning on the left side. Sitting too long causes radiating pain down the upper left shoulder. Claimant is careful about how he lifts, shovels rakes, and hangs signs to avoid pain. When changing oil, Claimant has problems unscrewing the filter on large dump trucks because of pain to his left shoulder and neck. In the morning he has less pain which increases as the day progresses.

On the farm, Claimant has pain on the left arm and neck while carrying two 5 gallon buckets of grain. Use of the weed eater causes pain to the left arm. Baling hay, driving, and moving square bales cause his neck to catch, burn, and radiate into the shoulder blade and arm. Claimant has headaches three to four times a month after lifting heavy objects. He takes Advil to relieve pain. During the headaches, Claimant experiences more neck pain and tightness. Heavy duty dump trucks cause more neck pain than regular dump trucks. Claimant's neck is aggravated and locks up when he uses tractors to cut and bale hay.

Claimant's low back and elbow pain resolved within five days of the work accident; however, Claimant continued to have left posterior neck pain. Claimant's neck symptoms increase when he works on the farm and for Employer. Also, he had minor discomfort to his left shoulder. Pain extends from the left side of his neck, across the top of his shoulder, and onto his shoulder blade.

Dr. Lange diagnosed cervical facet arthropathy and prescribed physical therapy. Claimant reported his symptoms had improved when Dr. Lange released him the first time on

June 25, 2012. On May 13, 2013 Claimant sought treatment with Todd Craig, M.D., his personal physician. Several months later, Dr. Lange prescribed more physical therapy for Claimant. On October 21, 2013, Claimant told the therapist his neck pain increased after "a lot of pushing and pulling on the cattle." After six therapy visits, Claimant felt better, but still had a catch in his neck with movement. Dr. Lange released him November 5, 2013. Two weeks later, Claimant began to have more neck discomfort.

Later, Claimant sought more treatment on his own with Dr. Margherita who prescribed physical therapy. Dr. Margherita ordered the following diagnostics of Claimant's cervical spine: MRI, bone scan, and x-rays. Also, Dr. Margherita ordered more physical therapy.

Claimant last saw Dr. Margherita on June 4, 2014. At the time of Claimant's release, he reported significant improvement with minimal symptoms, and significant benefit from physical therapy. Claimant identified the medical bills and physical therapy ordered by Dr. Margherita. The medical bills were channeled through his insurance. Claimant paid co-payments related to his unauthorized treatment. Claimant sought treatment again for his neck from Dr. Craig on July 10, 2014 .

Claimant used Google map to determine the amount of mileage he traveled to the doctor.

Mercy Corporate Health treated Claimant for strains to his low back and cervical spine. Claimant reported low back pain and left elbow pain had resolved by June 4, 2012. Dr. Lange examined Claimant for a surgical consultation and prescribed physical therapy for a cervical strain. Medical records show on June 25, 2012, Claimant told PRORehab he was driving without problems and continued to improve. Dr. Lange's records show Claimant reported he was doing fine and felt a "world of difference" after he finished therapy on June 25, 2012 and was released from care with no restrictions and no expected permanency.

On April 30, 2013, Anthony J. Margherita, M.D. examined Claimant at the request of his attorney, and diagnosed a cervical strain. Dr. Margherita reexamined Claimant again in February and March 2014 for cervical pain with radiation. He identified an elevated left shoulder, but the rest of the examination was normal. He diagnosed cervical facet arthropathy and whiplash/cervical sprain.

An MRI of the cervical spine dated April 16, 2014 revealed mild spondylosis at C3-4, and minimal bulges at C4-5 and C2-3. X-rays of the cervical spine dated February 19, 2014, revealed neural foraminal narrowing from C3 to C5. A bone scan dated March 19, 2014 revealed degenerative or post traumatic changes at the AC joints.

On May 12, 2014, Claimant returned to physical therapy at St. Louis Physical Therapy for left-sided neck pain, catching and pinching with a history of no relief from physical therapy

in 2012. Dr. Margherita ruled out C5-6 radiculopathy. Dr. Margherita released Claimant with significant improvement of the cervical spine, and few complaints.

In October 2013, Dr. Lange examined Claimant again and diagnosed chronic neck pain related to the motor vehicle accident in 2012. He released Claimant at MMI in November 2013 with neck symptoms but normal range of motion and a normal neurologic examination.

David Volarich, M.D. examined Claimant on February 4, 2015, reviewed medical records, wrote a report and testified for Claimant at the request of his attorney. Dr. Volarich did not review any x-rays, bone scans or MRI scans when preparing his report. Examination of the cervical spine revealed decreased range of motion in flexion, extension, side bending, and rotation. Dr. Volarich concluded Claimant aggravated underlying arthritis which caused decreased range of motion.

For the cervical spine, Dr. Volarich diagnosed a severe strain/sprain with aggravation of underlying degenerative disc disease and degenerative joint disease without radiculopathy. Dr. Volarich defined "aggravation" as a permanent change and exacerbation as temporary. He opined the radiating pain to Claimant's left trapezius is referred from his neck due to aggravation of facets.

For the shoulder, he diagnosed mild to moderate left shoulder impingement with resolved symptoms to the lumbar strain, left elbow and headaches.

Dr. Volarich opined the accident was the substantial contributing factor that caused severe whiplash, which caused moderate to severe cervical spine strain, aggravating the underlying degenerative disc disease and degenerative joint disease, and moderate left shoulder strain which caused moderate impingement and resolved lumbar strain and closed head injuries. Dr. Volarich further testified the injury was the prevailing factor that caused Claimant's complaints.

Dr. Volarich rated 20\% PPD of the body for the cervical spine and 20\% PPD of the left shoulder. He assigned no disability to Claimant's low back, left elbow, and closed head injury. Dr. Volarich recommended pain management, narcotic medication, muscle relaxers, and physical therapy.

During cross-examination, regarding Claimant's cervical spine, Dr. Volarich acknowledged he found no muscle spasm or trigger points, and only mild loss of grip strength on the left. Dr. Volarich testified the presence of muscle spasm would indicate active irritation, and most likely Claimant would not be at MMI.

Dr. Volarich testified the MRI revealed minimal spondylosis and disc bulging at C3-4, and C4-5, which he concluded was preexisting. ${ }^{4}$ Dr. Margherita ruled out a disc herniation at C5-C6 and trigger points.

Dr. Volarich did not know Claimant denied neck complaints when he saw Dr. Craig on July 10, 2014. Also, in June 2014 Claimant reported left sided pain with rotation to Dr. Margherita. When Dr. Volarich saw him in February 2015 his neck symptoms were on the right.

For the left shoulder, Dr. Volarich further testified Claimant sustained a left shoulder strain with mild to moderate impingement from the work accident. Dr. Volarich admitted he diagnosed a left shoulder strain, impingement, and tendinitis, but the treating physicians did not diagnose or treat Claimant's left shoulder.

Dr. Volarich testified that Dr. Lange and Dr. Margherita diagnosed "pain and strain-type injury" to the left shoulder, but later, testified that Dr. Margherita did not diagnose a shoulder strain, and found Claimant's left shoulder examination was normal during each visit.

Dr. Volarich could not explain why Dr. Margherita only examined Claimant's left shoulder on three occasions without any history of left shoulder complaints in the record. Dr. Volarich concluded there must have been a problem with the left shoulder otherwise Dr. Margherita would not only examine the left side despite the absence of complaints in the record. Dr. Volarich conceded Dr. Margherita's records contain no history of left shoulder complaints during each visit; March 24, 2014, February 19, 2014, and April 30, 2013, and the records show no evidence of impingement. Dr. Volarich also conceded the treating physicians provided no medical treatment for the left shoulder.

Dr. Volarich further conceded the treating physicians did not diagnose a closed head injury, but he did because Claimant reported a bracket hit his helmet and dented it. However, Dr. Volarich found no disability from it.

Dr. Volarich testified he was aware Claimant had trouble handling loads of hay and delivering them, but did not know the specific amount of labor Claimant performed on the farm on a daily basis.

Dr. Volarich testified he was raised on a farm and cows were generally moved with a prod because of their strength. He further acknowledged the medical reports do not mention use of a prod. Based on the October 21, 2013 therapist note, Dr. Volarich agreed Claimant regularly performed a good deal of physical labor on his farm. However, Dr. Volarich could not opine whether Claimant's condition was aggravated by his farm work.

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[^0]: ${ }^{4}$ Dr. Volarich testified he did not review the x-rays, bone scans MRI scans or any of the actual film. However, his report showed he reviewed the diagnostic studies.

Dr. Volarich further acknowledged the treatment records do not reflect the history Claimant gave him of a gradual increase in neck and left shoulder pain after Dr. Lange released him on June 25, 2012.

Dr. Volarich concluded Claimant had reached MMI related to the May 2012 motor vehicle accident and recommended ongoing treatment primarily for the cervical spine.

Nathan A. Mall, an orthopedic surgeon, board certified in independent medical evaluations, ("IME") reviewed medical records and diagnostics, and performed one IME on July 13, 2015, at the Employer's request, with a history of left shoulder and neck pain after an accident at work in 2012. Claimant gave no history of throwing heavy square bales of straw, driving across the state to deliver straw and hay, and pushing and pulling cows when he takes them to market on his family farm.

Examination of the shoulder was normal except for pain with a cross-body adduction, and direct pressure to the AC joint. The Spurling's test revealed no impingement. X-rays revealed AC joint arthritis, but no sign of joint separation, a high riding clavicle or superior-inferior displacement of the AC joint.

An MRI of the cervical spine was normal except for very mild disc bulging at C2-3 and C3-4. Mild tenderness was found at C6-7 with pressure. Dr. Mall testified the bulges were not near any nerve roots. Most of Claimant's complaints are in the trapezius area, which he found inconsistent with bulges found at C2-3 and C3-4.

Based on Claimant's history, complaints, examination, and diagnostic tests, Dr. Mall diagnosed left shoulder AC joint arthritis, not related to the motor vehicle accident. He testified Claimant had normal arthritic changes for a 46 year old and certain activities can cause it to flare up. However, many patients are treated with no history of trauma. Also, patients who lift weights or do a lot of pushing and pulling activities may also seek treatment for AC joint arthritis. A true AC joint sprain requires lateral impact. Based on Claimant's history of how the accident occurred, Dr. Mall concluded he did not sustain lateral impact to the AC joint. Therefore, Dr. Mall opined the AC joint arthritis occurred idiopathically or due to pushing and pulling activities which are unrelated to his job.

Dr. Mall further opined that Claimant's farm activities could produce AC joint inflammation. He believed the pushing movement used to bench press was similar to the push move needed to move cattle forward. But he said it would be helpful for him to see Claimant pushing cattle to be sure.

Based on a lack of disc pathology on the MRI of the cervical spine, Dr. Mall diagnosed a cervical strain related to Claimant's motor vehicle accident. Dr. Mall estimated the cervical strain injury should have resolved within eight weeks of injury, and certainly by the time he saw Claimant three years after the motor vehicle accident. Therefore, Dr. Mall found Claimant had

reached MMI from the work injury. Furthermore, Dr. Mall concluded any current cervical complaints Claimant had would not be related to the pathology seen on the MRI.

Dr. Mall did not assign disability because he found Claimant's current symptoms are not related to the motor vehicle accident that occurred on May 24, 2012.

Claimant asserts an 'accident' is not in question because the parties stipulated Claimant sustained an accident which arose out of and in the course of his employment on May 24, 2012. Therefore, the only issue is the medical-causal relationship between his left shoulder condition and the motor vehicle accident on that date. Employer contends Claimant did not meet his burden to show he suffered an accident to his left shoulder that arose out of and in the course of his employment on May 24, 2012. Therefore, accident regarding the left shoulder is in dispute.

Section 287.020.2 defines "accident" 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."

The claimant in a workers' compensation proceeding bears the burden to prove all material elements of his claim by a preponderance of the credible evidence. Meilves v. Morris, 422 S.W.2d, 335, 339 (Mo.1968). The standard of proof is reasonable probability. Fischer v. Archdiocese of St. Louis, 793 S.W.2d 195, 199 (Mo. App. 1990) (Citations omitted). ${ }^{5}$ "Probable means founded on reason and experience which inclines the mind to believe but leaves room to doubt." Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo. App. 1986).

Section 287.808 requires Claimant to prove his claim for compensation is more likely to be true than not true.

In addition, Section 287.020.3(2) states that an injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) 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 in normal nonemployment life.

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[^0]: ${ }^{5}$ Several cases herein were overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo banc 2003). No further reference will be made to the Hampton case in this award.

Section 287.800.1 requires [fact finders] to construe the provisions of this chapter strictly and weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts.

Under the Missouri Workers' Compensation Law, the employee bears the burden of proving all the essential elements of his claim, including medical causation. Roberts v. Mo. Highway \& Trans. Comm., 222 S.W.3d 322, 331 (Mo. App. 2007).

A claimant must show not only causation between the accident and the injury but also that a disability resulted and the extent of such disability. Smith v. National Lead Co., 228 S.W.2d 407, 412(4) (Mo.App.1955).

I find Claimant did not meet his burden to show the motor vehicle accident, on May 24, 2012 produced objective symptoms of injury to his left shoulder. I find Claimant's testimony during the hearing was not credible that he injured his left shoulder during the motor vehicle accident on May 24, 2012. After the motor vehicle accident Claimant received medical treatment at Mercy Corporate Health, Dr. Lange and Dr. Margherita but none of their medical records in evidence contain a history, diagnosis or treatment related to the left shoulder injury. Dr. Margherita is the only physician that found 10 percent of Claimant's problems were related to his left shoulder, but found Claimant's left shoulder examination was normal.

Based on persuasive testimony by Dr. Mall, medical records in evidence, and less than credible testimony by Claimant, I find Claimant did not prove he experienced an unexpected traumatic event or unusual strain to his left shoulder that was identifiable when the motor vehicle accident occurred on May 24, 2012. Therefore, I find Claimant did not sustain a compensable accident related to his left shoulder.

Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. George v. Shop ' N Save Warehouse Foods Inc., 855 S.W.2d 460, 462 (Mo. App.1993) (Citations omitted). The decision to accept one of two conflicting medical opinions is a question of fact for the [fact finder]. Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 233 (Mo. App. 2003) (Citations omitted). Reviewing courts defer to the [fact finder's] findings on issues of the weight and credibility given to medical testimony. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 49 (Mo.App.2007). (Citations omitted).

I find Dr. Mall's opinion is more persuasive than Dr. Volarich's opinion. Dr. Volarich did not review any x-rays, bone scans or MRI scans when he prepared and diagnosed a left shoulder mild-to-moderate strain which caused moderate impingement. He acknowledged the

treating physicians did not make any diagnosis for the left shoulder. Initially, Dr. Volarich testified that Dr. Lange and Dr. Margherita diagnosed "pain and strain-type injury" to Claimant's left shoulder, but later, changed his testimony and said Dr. Margherita did not diagnose a shoulder strain, and found Claimant's left shoulder examination was normal during each visit. Dr. Volarich further acknowledged that Drs. Lange and Margherita did not prescribe treatment for Claimant's left shoulder.

I find Dr. Dr. Mall's opinion is more persuasive that Claimant has AC joint arthritis, unrelated to the motor vehicle accident. He further concluded Claimant had normal arthritic changes for a 46 year old. Dr. Mall is a board certified orthopedic surgeon. He reviewed x-rays which revealed AC joint arthritis, with no sign of joint separation, high riding clavicle or superior-inferior displacement of the AC joint. Claimant's left shoulder examination was normal except for pain with cross-body adduction, and direct pressure to the AC joint. The Spurling's test revealed no impingement. Patients who lift weights or do a lot of pushing and pulling activities such as farm work, may seek treatment for AC joint inflammation.

Based on persuasive testimony by Dr. Mall, medical records and reports in evidence, and less than credible testimony by Claimant, I find Claimant's motor vehicle accident on May 24, 2012 is not the prevailing factor that caused his current left shoulder condition.

I further find Claimant's left shoulder condition comes from a hazard or risk unrelated to his employment. Dr. Mall compared pushing cattle to the movement needed to bench press weight. He concluded Claimant's AC joint problems may have developed from an idiopathic source or from pushing and pulling activities on the farm. Also, Dr. Mall testified a true AC joint sprain requires lateral impact, which Claimant did not describe as his mechanism of injury. Either way, Dr. Mall did not attribute the AC joint findings to Claimant's work activities.

Based on Dr. Mall's opinion and medical records in evidence, I find Claimant's left shoulder injury did not come from a hazard or risk related to his employment that workers would have been equally exposed to outside of and unrelated to employment in nonemployment life. I find Claimant's left shoulder injury did not arise out of and in the course of his employment with Employer.

Based on the above discussion, I find Claimant did not meet his burden to prove more likely than not his left shoulder complaints are medically causally related to the May 24, 2012 motor vehicle accident.

Claimant asserts Employer did not provide the medical treatment he needed to cure and relieve the effects of the motor vehicle accident. Furthermore, Claimant incurred medical bills

totaling $\ 7,416.20 for unauthorized treatment he received for the injuries he sustained on May 24, 2012. Employer contends Claimant did not meet his burden to show the unauthorized medical treatment flowed from the May 24, 2012 motor vehicle accident.

Section 287.210.1 Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury...of the employee by accident....arising out of and in the course of the employee's employment.

Section 287.140.1 states: 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. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense. (Emphasis added)

Neither Dr. Volarich nor Dr. Mall discussed Claimant's need for unauthorized medical treatment or the associated medical bills. However, Dr. Mall concluded the cervical strain had resolved within eight weeks of the accident.

I find Claimant's testimony is not credible that after the first release he continued to have catching, popping and limited range of motion of the cervical spine area, which he described as feeling like "somebody taking a finger, like, a needle and just poking you in the neck." Also, in 2014, Claimant gave Dr. Margherita a history of no relief from physical therapy in 2012. Dr. Volarich acknowledged the treatment records do not reflect the history Claimant gave him of a gradual increase in neck and left shoulder pain after Dr. Lange released him on June 25, 2012.

In addition, Dr. Lange treated and released Claimant twice, and medical records in evidence show cervical spine improvement each time. During the first release, Claimant reported a "world of difference" on June 25, 2012. Dr. Lange released Claimant again in November 2013 at MMI with neck symptoms but normal range of motion and a normal neurologic examination. Dr. Volarich did not know Claimant denied neck complaints when he saw Dr. Craig on July 10, 2014.

Dr. Mall examined the MRI results of the cervical spine and concluded it was normal except for very mild disc bulging at C2-3 and C3-4 which were not near nerve roots, which Dr. Mall opined was normal degeneration for Claimant's age. Since most of Claimant's complaints are in the trapezius area, Dr. Mall found this to be inconsistent with bulges at C2-3 and C3-4.

Based on a lack of disc pathology on the cervical MRI, Dr. Mall diagnosed a cervical strain related to Claimant's motor vehicle accident, which he expected to resolve within eight weeks, and certainly by the time Dr. Mall saw him three years later.

I further find 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. Also, on October 21, 2013, Claimant told the physical therapist his neck pain increased after "a lot of pushing and pulling on the cattle." Based on the October 21, 2013 therapist's note, Dr. Volarich agreed Claimant regularly performed a good deal of physical labor on his farm but could not opine whether Claimant's condition was aggravated by his farm work. In June 2014, Claimant reported to Dr. Margherita that he had left sided pain with rotation. However, in February, 2015, Claimant told Dr. Volarich his neck pain was on the right side.

I further find the treatment was not reasonable and necessary to cure and relieve the effects of the motor vehicle accident on May 24, 2012. Claimant had the right to seek medical care on his own, at his expense, if he chose to do so. However, I find Claimant did not meet his burden to show Employer is liable for that treatment.

Claimant asserts Employer is liable for mileage reimbursement for treatment he received from Dr. Lange and Dr. Margherita totaling 2,230 miles. Employer contends Claimant failed to prove liability for reimbursement because he did not provide evidence about the location of his principal place of employment.

Section 287.140.1 states in part: When an employee is required to submit to medical examinations or necessary medical treatment at a place outside of the local or metropolitan area from the employee's principal place of employment, the employer or its insurer shall advance or reimburse the employee for all necessary and reasonable expenses; ... The choice of provider within the location selected shall continue to be made by the employer... . In no event, however, shall the employer or its insurer be required to pay transportation costs for a greater distance than 250 miles each way from place of treatment.

Claimant's Exhibit 8 is identified as "Travel." It contains the following information:

- 5 visits to Dr. Lange @ 54 miles one way, totaling 540 miles

- 24 visits to Pro Rehab @ 18 miles one way, total 864 miles

- 6 visits to Dr. Margherita @ 54 miles one way, total 648 miles

- 1 visit to Missouri Baptist Medical Center - 53 miles one way, total 106 miles

- 1 visit to CDI in Chesterfield, MO @ 54 miles one way total 108 miles

- 6 visits St. Louis PT in Fenton, MO @ 42 miles one way total 504 miles

Total miles: 2,770

Five lines are redacted on the exhibit. At the hearing, Claimant testified he used Google maps to determine the mileage. However, the basis for the mileage figures is unknown. Claimant did not offer testimony about how the miles were measured. The trip dates are unknown. Claimant did not identify the local or metropolitan area or the location of his principal place of employment.

For these reasons, I find Employer is not liable for mileage reimbursement.

A claimant must show not only causation between the accident and the injury but also that a disability resulted and the extent of such disability. Smith v. National Lead Co., 228 S.W.2d 407, 412(4) (Mo.App.1955). An employee must prove the nature and extent of any disability by a reasonable degree of certainty. Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. 1995). During cervical spine examination, Dr. Volarich found no muscle spasm which indicates no active irritation. Based on medical records in evidence and credible testimony by Dr. Mall, I find Claimant sustained 7.5\% PPD of the cervical spine as a result of a cervical spine strain caused by the motor vehicle accident on May 24, 2012.

Claimant did not sustain an accidental injury to his left shoulder that arose out of and in the course of his motor vehicle accident on May 24, 2012. Therefore, Claimant's left shoulder complaints are not medically causally related to the work injury. Employer is not liable for unauthorized past medical expenses or reimbursement for mileage. Employer is liable for permanent partial disability. The award is subject to a lien in favor of Claimant's attorney for legal services rendered.

Made by: $\qquad$

Suzette Carlisle

Administrative Law Judge

Division of Workers' Compensation