Gina Clark v. Almost Family, Inc.

The parties expressly stipulated that employee provided services for the patient in question on November 29, 2014, a Saturday. Transcript, page 2. "Stipulations are controlling and conclusive, and the courts are bound to enforce them." Boyer v. Nat'l Express Co., 49 S.W.3d 700, 705 (Mo. App. 2001). It follows that, if employee's testimony is believed, November 29, 2014, must have been the date that she suffered the claimed accident.

As to what happened after she was injured lifting the patient, employee testified that she went to the hospital "that [following] Monday, I guess," after experiencing extreme left arm pain while in the shower that morning. Transcript, page 12. The medical records in evidence, however, reveal that employee did not seek treatment until December 9, 2014, a Tuesday, and a full ten days after the claimed accident.

There is no explanation on this record to explain why employee waited ten days to seek emergency medical treatment for her claimed work injury. This is particularly troubling when we note that, according to the payroll records received in evidence, employee worked, in the interim, a total of five days for employer. If, following the accident, employee was continually suffering from the intractable, severely disabling pain she described at the hearing before the administrative law judge, it is wholly unclear to us how she was able to perform her duties for employer as an in-home health aide during this time period.

Turning to the testimony from employee's medical expert, Dr. Volarich, we find that he did not address any of these troubling issues. Instead, Dr. Volarich assumed, based on the history that employee provided to him, that she suffered her injury on December 6, 2014; experienced persistent neck pain thereafter; first developed the sudden onset of left arm pain in the shower on Monday, December 8, 2014; and then went to the emergency room the next morning because of ongoing pain. Clearly, Dr. Volarich's timeline with regard to the accident, employee's onset of symptoms, and her first seeking emergency medical treatment materially differs from the facts that we must find if we are to both (1) honor the parties' stipulation and (2) credit employee's testimony.

Dr. Volarich also failed to address the inconsistencies contained in the records generated during employee's treatment in the emergency department of St. Joseph Hospital on December 9, 2014. As noted by the administrative law judge, these records conflict, in numerous respects, with employee's testimony regarding the circumstances of the accident and the onset of her symptoms. We are most troubled by an indication that employee's pain, "a severity of 10/10" had been "constant since onset." Transcript, page 51. Although employee testified, at the hearing, that the records are in error to the extent they suggest she told attending providers that the injury occurred at home 3 to 5 hours before her arrival in the emergency room, she did not contest the record's indication that her pain following the accident was constant; instead, she suggested this extreme pain did, indeed, begin with the accident and continued, unabated, thereafter.

Again, we find it extremely unlikely that an individual suffering from 10/10 pain would wait a full 10 days to seek emergency treatment, much less continue to work a heavy demand job in the interim. This evidence strongly suggests to us (and we so find) that some injurious and/or aggravating event must have occurred between November 29, 2014, and employee's seeking treatment on December 9, 2014.

If Dr. Volarich had been properly apprised of the date of initial injury, 10-day gap in seeking treatment, employee's work in the interim, and the apparent aggravation and or worsening of employee's symptoms between November 29 and December 9, 2014, he might have been able to explain these circumstances in a manner that would, nevertheless, persuasively identify the accident as the prevailing factor in causing injury. Indeed, it is not outside the realm of possibility that employee suffered an initial injury on November 29, 2014, that gradually worsened as she continued to perform her duties for employer, until her symptoms became so severe that she required emergency care. Such a theory of injury might satisfy the statutory requirements, if supported by persuasive expert medical testimony.

As it stands, however, we are faced with a record where employee's evaluating expert relied upon demonstrably, and in our view, materially incorrect facts. For this reason, we are not persuaded to credit the medical causation opinion of Dr. Volarich. We find that the accident of November 29, 2014, was not the prevailing factor causing employee to suffer the resulting medical conditions of a cervical spine injury with left upper extremity radicular symptoms. We conclude, therefore, that the claim is not compensable pursuant to § 287.020.3(1) RSMo.

All other issues are moot.

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

The award and decision of Administrative Law Judge Edwin J. Kohner, issued June 21, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $23^{\text {rd }}$ day of February 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: November 29, 2014 (Alleged)
5. State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri
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? No
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: The employee, a home-bound medical care provider, suffers from cervical degenerative disc disease.
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: Neck and left arm (alleged)
14. Nature and extent of any permanent disability: Not determined
15. Compensation paid to-date for temporary disability: $\ 7,799.90
16. Value necessary medical aid paid to date by employer/insurer: $\ 4,636.32

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gina Clark

1. Value necessary medical aid not furnished by employer/insurer? Not determined
2. Employee's average weekly wages: $\ 540.04
3. Weekly compensation rate: $\ 360.03
4. Method wages computation: By agreement

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

None

1. Future requirements awarded: None

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: David G. Plufka, Esq.

Employee: Gina Clark

Injury No.: 14-097943

Dependents: N/A

Employer: Almost Family, Inc.

Additional Party: N/A

Insurer: Travelers Insurance Company of America

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri<br>Checked by: EJK/

This workers' compensation case raises several issues arising out of an alleged workrelated injury in which the claimant, a home-bound medical care provider, suffers from cervical degenerative disc disease. The issues for determination are: (1) Accident or occupational disease arising out of and in the course of employment, (2) Medical causation, (3) Future medical care, and (4) Temporary disability. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered a deposition of David T. Volarich, D.O., medical records from SSM St. Joseph Hospital West, Mercy Corporate Health, Sean P. Stoneking, M.D., and Joy C. Stowell, M.D. The defense offered a deposition of Brett A. Taylor, M.D., and copies of the incident report, the claimant's attendance records, and the claimant's off-work records.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

This then 46-year-old, claimant, a home-bound medical care provider, suffers from cervical degenerative disc disease. She worked as a home-health nurse for this employer for five years. As a home-bound medical care provider, the claimant visited patients in their homes or a care facility and provided shower assistance. The claimant filed a report of injury and Claim for Compensation alleging that on December 6, 2014, she injured her neck and left arm providing services to a 400-pound patient that was unable to breathe. See Exhibit A.

At the hearing, the claimant testified that on a Saturday in late November or early December 2014, the claimant visited Whispering Pines, an independent living facility, to provide a patient, Melvin Monroe, a shower. Mr. Monroe had been a patient of the claimant for almost a year by that point. The claimant testified that Mr. Monroe weighed 400 pounds.

The claimant testified that she made a special visit to Mr. Monroe on a Saturday, which she could only remember doing one time, because he had recently been returned from the

hospital and, "was not doing well". The claimant originally filed a Claim for Compensation alleging a date of injury of December 6, 2014. The claimant filed an amended Claim for Compensation alleging an injury date of November 29, 2014.

The claimant testified that the employer's attendance records were unreliable documents that were prepared from the claimant's reports submitted after the visits and that the claimant would frequently have to correct the information because it was not transcribed properly. The claimant had no other explanation for the November 29, 2014, entry, but reiterated that she was injured while completing a shower for Mr. Monroe on a Saturday.

The claimant testified that she laid Mr. Monroe on his back after the shower and that Mr. Monroe immediately became short of breath. Acting quickly, Ms. Clark grabbed the patient's neck with her left arm and pulled up on the back of his neck. In so doing, she experienced immediate pain in her left arm.

On December 9, 2014, the claimant went to the emergency room at St. Joseph Hospital West complaining of neck pain and a loss of feeling down her arm from her elbow to her hand. See Exhibit 1. The claimant reported different medical histories about how the condition manifested. One portion of the history lists the mechanism of injury as "unknown". See Exhibit 1. Another portion of the medical history reported, "The incident occurred 3 to 5 hours ago." See Exhibit 1. Another portion of the medical history reported, "The incident occurred home." See Exhibit 1. Another portion of the medical history reported, "The injury mechanism is unknown." See Exhibit 1. Still another portion of the patient medical history at the emergency room reports:

Entered room to take pt work note. Pt hangs up phone upon RN entering and states, "this needs to go on work comp." RN questioned this regarding pt previously denying known injury. Pt states, "my husband says he's tired of paying for everything when it's work related. My boss is gonna be pissed but they're paying for this. I'm gonna be laid up for awhile. I can't go back to work like this." Pt then goes on to state, "I had a 400-lb pt who couldn't breathe when I laid him down, and I helped him sit up. I could feel it in my back then and have had pain since then." See Exhibit 1.

On December 10, 2014, the claimant went to Dr. Stowell complaining of left arm numbness and tingling in both her hand and fingers. Dr. Stowell referred the claimant to an orthopedic. See Exhibit 2.

On December 23, 2014, the claimant reported to her employer that she injured her neck and left arm at work on December 6, 2014. See Exhibit A. On the same date, the claimant went to Dr. Mumford who reported that the claimant complained of moderate arm pain, and constant aching in neck and entire left arm. See Exhibit 3. Dr. Mumford's physical exam revealed pain to palpation over the entire arm and hyperesthesia. See Exhibit 3. He restricted the claimant's work duties and requested an MRI for her neck. See Exhibit 3. Based on these recommendations, the employer initiated temporary total disability benefits as of December 13, 2014.

On January 2, 2015, the claimant returned to Mercy. Her complaints included sharp neck pain, constant and severe. She also complained of tingling along the entirety of her left arm. The claimant reported the pain registered as an 8 on a 1-10 scale. The MRI revealed degenerative disc disease and some neural foraminal narrowing but no evidence of disc rupture. See Exhibit 3. She was referred for a neurological consult, and given a restriction of lifting no more than one pound with her upper extremity. See Exhibit 3.

The claimant testified that she continued to be in quite a bit of pain. Despite requests for treatment, no consult was offered until April 8, 2015, when the claimant went to Dr. Taylor. Dr. Taylor examined the claimant and opined that the claimant might be suffering cervical radiculopathy and ordered an EMG/nerve conduction study. The first effort at the test could not be completed because the claimant complained that the test was too painful. A second effort was made days later. This time most of the test was completed. However, Dr. Phillips explained in his report that left paraspinals, even after the second test, were never recorded. On May 27, 2015, Dr. Taylor concluded that the claimant aggravated a pre-existing cervical arthritis and that she suffered left hand carpal tunnel syndrome, unrelated to the work injury.

The employer stopped temporary total disability benefits on May 28, 2015, and denied further demands for treatment. On June 22, 2015, the claimant went to Dr. Stoneking who administered injections to the claimant's neck on June 22 and July 14, 2015. See Exhibit 4. These injections did not help her symptoms.

On July 27, 2015, Dr. Polineni examined the claimant's wrist for carpal tunnel symptoms and recommended that she see a spine specialist. See Exhibit 5.

At the hearing, the claimant complained about the condition of her left arm and hand. She testified the left hand now even 'draws up' due to unrelenting pain. She uses her left hand for almost nothing. She has constant pain in the left side of her neck, a loss of sensation, weakness, and numbness in the left arm, especially from the elbow to the hand. She asked the Division of Workers Compensation for an order to compel the defense to provide more treatment.

David T. Volarich, D.O.

On August 11, 2015, Dr. Volarich took a medical history from the claimant, reviewed the claimant's medical records, and examined the claimant. He diagnosed cervical left arm radiculopathy, incompletely treated, and anxiety. See Exhibit 6. He opined that the claimant suffers cervical left arm radiculopathy that has been incompletely treated. He opined that when she attempted to lift up Mr. Monroe by the neck she injured her own neck, and now requires myelogram testing to better determine the existence of nerve root impingement in the neck as well as pain management to help her better deal with her symptoms. See Exhibit 6.

Brett Taylor, M.D.

Dr. Taylor examined the claimant, took a medical history, and opined that the claimant's work accident merely aggravated pre-existing degenerative changes in her neck. He opined that the claimant suffers left-sided carpal tunnel syndrome, unrelated to her work. He opined that the

claimant suffers from a somatization syndrome related to a pre-existing anxiety disorder. Dr. Taylor opined that none of her neck or left arm complaints had any organic basis whatsoever and that she requires no treatment related to the work injury.

The claimant has the burden to establish that he has sustained an injury by accident arising out of and in the course of her employment, and the accident resulted in the alleged injuries. Choate v. Lily Tulip, Inc., 809 S.W.2d 102, 105 (Mo.App. 1991).

An 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". Section 287.020.2, RSMo Supp. 2011. "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". Section 287.020.3 (1), RSMo Supp. 2011. "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." Section 287.020.3(2), RSMo Supp. 2011. The Courts, the Commission, and Administrative Law Judges "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 conflict." Section 287.800, RSMo Supp. 2011.

"The claimant in a workers' compensation case has the burden to prove all essential elements of her claim, including a causal connection between the injury and the job." Royal v. Advantica Rest. Group, Inc., 194 S.W.3d 371, 376 (Mo.App.W.D.2006) (citations and quotations omitted). "Determinations with regard to causation and work relatedness are questions of fact to be ruled upon by the Commission." Id. (citing Bloss v. Plastic Enters., 32 S.W.3d 666, 671 (Mo.App.W.D.2000)). Under the statute, "[a] n 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. § 287.020.2. On the other hand, "[a]n injury is not compensable because work was a triggering or precipitating factor." Id. Awards for injuries 'triggered' or 'precipitated' by work are nonetheless proper if the employee shows the work is the prevailing factor in the cause of the injury. Thus, in determining whether a given injury is compensable, a work related accident can be both a triggering event and the prevailing factor."

"[T]he question of causation is one for medical testimony, without which a finding for claimant would be based upon mere conjecture and speculation and not on substantial evidence." Elliot v. Kansas City, Mo., Sch. Dist., 71 S.W.3d 652, 658 (Mo.App. W.D. 2002). Accordingly, where expert medical testimony is presented, "logic and common sense," or an ALJ's personal views of what is "unnatural," cannot provide a sufficient basis to decide the causation question, at least where the ALJ fails to account for the relevant medical testimony. Cf. Wright v. Sports Associated, Inc., 887 S.W.2d 596, 600 (Mo. banc 1994) ("The commission may not substitute an

Employee: Gina Clark

Injury No.: 14-097943

administrative law judge's opinion on the question of medical causation of a herniated disc for the uncontradicted testimony of a qualified medical expert."). Van Winkle v. Lewellens Professional Cleaning, Inc., 358 S.W.3d 889, 897, 898 (Mo.App. W.D. 2008).

The essential question in this case is whether the claimant suffered a work-related injury from an accident at work. She testified at the hearing that she suffered a severe neck and left arm injury while lifting a 400-pound patient on November 29, 2014, or December 6, 2014. On the other hand, the claimant suffered from pre-existing cervical arthritis and degenerative disc disease relating to her neck. See Dr. Volarich deposition, page 13.

The defense challenged the claimant's credibility with numerous prior inconsistent statements and records. First, the claimant initially contended that she suffered her injury on December 6, 2014, and went to the hospital emergency room three days later on December 9, 2014. The medical records at the emergency room offered multiple different medical histories within 90 minutes. See Exhibit 1. The claimant reported the occurrence to her employer and filed a claim alleging the date of injury of December 6, 2014. See Exhibit A. However, the defense produced business records showing that the claimant did not work on that date. See Exhibit C. The claimant filed an amended Claim for Compensation on March 23, 2015, alleging the date of injury of November 29, 2014, eleven days before reporting to the hospital emergency room. The claimant testified that the employer's time records are often inaccurate. The claimant's case rests entirely on the claimant's credibility about how her condition occurred. Presenting multiple medical histories and different dates of injury along with a delay in obtaining emergency medical services and a delay in filing a report of injury with the employer reduces the claimant's credibility.

The conclusion is that the occurrence was from an incident that occurred at the claimant's home three to five hours before her first emergency room visit on December 9, 2014, with an unknown mechanism of injury. This was the initial emergency room medical history. See Exhibit 1. The claimant offered no records of a 400 pound patient or her work on November 29, 2014 .

Based on the above, the claim is denied.

The Workers' Compensation Act requires employers "to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment[.]" § 287.120.1. This compensation often includes an allowance for future medical expenses, which is governed by Section 287.140.1. Rana v. Landstar TLC, 46 S.W.3d 614, 622 (Mo.App.2001). 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.

Section 287.140.1 places on the claimant the burden of proving entitlement to benefits for future medical expenses. Rana, 46 S.W.3d at 622. The claimant satisfies this burden, however, merely by establishing a reasonable probability that he will need future medical treatment. Smith v. Tiger Coaches, Inc., 73 S.W.3d 756, 764 (Mo.App.2002). Nonetheless, to be awarded future medical benefits, the claimant must show that the medical care "flow [s] from the accident." Crowell v. Hawkins, 68 S.W.3d 432, 437 (Mo.App.2001)(quoting Landers v. Chrysler Corp. 963 S.W.2d 275, 283 (Mo.App.1997).

In determining whether medical treatment is "reasonably required" to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 519 (Mo.App. W.D 2011). Rather, once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. Id. The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant. Id. Application of the prevailing factor test to determine whether medical treatment is required to treat a compensable injury is reversible error. Id. at 521.

Dr. Volarich testified the claimant's medical condition requires treatment and opined that she would benefit from a myelogram and, perhaps, a discogram procedure to pinpoint the exact location of possible nerve root impingement. Dr. Volarich opined that while the MRI did not show evidence of disc herniation, there was osteophyte formation that may have been compressing the thecal sac. See Dr. Volarich deposition, page 12. Dr. Volarich opined that those areas of narrowing, particularly at level C7, could be where the claimant has a specific problem. As to the EMG/NCV studies, Dr. Volarich testified that those tests can be negative 10 to 20 percent of the time in patients with cervical radiculopathy. Also in this case the left side of the neck (where the claimant's symptoms are) was never tested. See Dr. Volarich deposition, page 8. The claimant has never before been treated for left arm or left side of her neck symptoms. She has prior history of carpal tunnel syndrome in the right, and prior treatment for anxiety and low back pain. No evidence was presented that she has ever been hospitalized, treated for, or complained about the symptoms she now suffers. As to the "clawing" symptom manifested over the last several months, neither Dr. Taylor nor Dr. Volarich had an explanation. However, Dr. Volarich suggested that it could be evidence of "double crush" syndrome where the median nerve is impinged in two places, causing the hand to cramp and spasm. See Dr. Volarich deposition, page 13 .

On the other hand, Dr. Taylor evaluated the claimant on three occasions. After reviewing the results of a nerve conduction study, he opined that while the claimant suffered carpal tunnel syndrome, that condition was not related to her employment. He opined that the claimant's symptoms were not organically based.

Dr. Volarich has a more reasonable analysis of the claimant's medical condition. He opined that the claimant has suffered nerve injury in one or more places on the left arm causing the claimant to complain of a loss of sensation, numbness, weakness, pain, and lately, a drawing up of her left hand. Dr. Taylor focused on the relationship of the alleged occurrence to the claimant's medical condition and did not clearly determine the medical treatment indicated

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gina Clark

Injury No.: 14-097943

beyond the forensic relationship between the alleged occurrence and the claimant's medical condition.

However, since the Claim is not compensable, the claim for additional medical care is denied.

Compensation must be paid to the injured employee during the continuance of temporary disability but not more than 400 weeks. Section 287.170, RSMo 1994. Temporary total disability benefits are intended to cover healing periods and are unwarranted beyond the point at which the employee is capable of returning to work. *Brookman v. Henry Transp.*, 924 S.W.2d 286, 291 (Mo.App. E.D. 1996). Temporary awards are not intended to compensate the Employee after the condition has reached the point where further progress is not expected. *Id.*

When an employee is injured in an accident arising out of and in the course of his employment and is unable to work as a result of his or her injury, Section 287.170, RSMo 2000, sets forth the TTD benefits an employer must provide to the injured employee. Section 287.020.7, RSMo 2000, defines the term "total disability" as used in workers' compensation matters as meaning the "inability to return to any employment and not merely mean[ing the] inability to return to the employment in which the employee was engaged at the time of the accident." The test for entitlement to TTD "is not whether an employee is able to do some work, but whether the employee is able to compete in the open labor market under his physical condition." *Thorsen v. Sachs Electric Co.*, 52 S.W.3d 611, 621 (Mo.App. W.D. 2001). Thus, TTD benefits are intended to cover the employee's healing period from a work-related accident until he or she can find employment or his condition has reached a level of maximum medical improvement. *Id.* Once further medical progress is no longer expected, a temporary award is no longer warranted. *Id.* The claimant bears the burden of proving his entitlement to TTD benefits by a reasonable probability. *Id.*

Temporary total disability awards are designed to cover the employee's healing period, and they are owed until the claimant can find employment or the condition has reached the point of maximum medical progress. When further medical progress is not expected, a temporary award is not warranted. Any further benefits should be based on the employee's stabilized condition upon a finding of permanent partial or total disability. *Shaw v. Scott*, 49 S.W.3d 720, 728 (Mo.App. W.D. 2001). The Missouri Supreme Court ruled that if "additional treatment was part of the claimant's rehabilitative process, then he or she is entitled to TTD benefits pursuant to Section 287.149.1 until the rehabilitative process is complete. Once the rehabilitation process ends, the commission then must make a determination regarding the permanency of a claimant's injuries."

The plain language of section 287.149.1 does not mandate the commission arbitrarily rely on the maximum medical improvement date to deny TTD benefits, if the claimant is engaged in the rehabilitative process. Instead, whether a claimant is engaged in the rehabilitative process is the appropriate statutory guidepost to determine whether he or she is entitled to TTD benefits under the plain language of Section 287.149.1. It is plausible, and likely

Employee: Gina Clark

Injury No.: 14-097943

probable, that the maximum medical improvement date and the end of the rehabilitative process will coincide, thus, marking the end of the period when TTD benefits can be awarded. However, when the commission is presented with evidence, as here, that a claimant has reached maximum medical improvement yet seeks additional treatment beyond that date for the work-related injury in an attempt to restore himself or herself to a condition of health or normal activity by a process of medical rehabilitation, the commission must make a factual determination as to whether the additional treatment was part of the rehabilitative process. If the commission determines the additional treatment was part of the claimant's rehabilitative process, then he or she is entitled to TTD benefits pursuant to section 287.149 .1 until the rehabilitative process is complete. Once the rehabilitation process ends, the commission then must make a determination regarding the permanency of a claimant's injuries. Greer v. Sysco Food Servs., 475 S.W.3d 655, 668-69 (Mo. Banc 2015).

The Court, thus, requires a detailed analysis of the claimant's medical treatment to determine whether the claimant is entitled to temporary total disability benefits. In this case, Dr. Volarich testified that the claimant cannot return to her employment with this employer doing that type of work at this time. He restricted her to lifting 20 pounds or less, and avoiding fixed positions for longer than 30 to 45 minutes. He also recommended she be allowed to sit, and stretch on occasion. At the hearing, the claimant testified she cannot return to work because of weakness and pain in her left arm. These symptoms are constant, and severe. She has been unable to do that work since May 29, 2015, through the date of the hearing.

However, since the Claim is not compensable, no temporary total disability benefits are awarded.

Made by: $\qquad$

EDWIN J. KOHNER

Administrative Law Judge

Division of Workers' Compensation