Kelly Miller v. Nieman Foods, Inc.

Dr. Meyer was reasonable and necessary to cure and relieve the effects of employee's injury, and the treatment administered to employee was the responsibility of the employer and should have been provided by the employer pursuant to Chapter 287; (7) there is substantial and competent evidence that employee was not available in the open labor market from April 9, 2013, through May 23, 2013, and employer is ordered to pay employee temporary total disability benefits for this time period; (8) employee's thoracic complaints have returned to baseline from prior to the January 2013 injury and any complaints of thoracic pain emanating from the January 2013 injury were an exacerbation of the July 30, 2012, injury and should be treated as part and parcel of the injury of July 30, 2012, as set out in the award for Injury No. 12-060156, and based on these findings, no future medical is ordered to be provided by employer in this award; and (9) employer is ordered to reimburse employee in the sum of $\ 62,621.92 for necessary medical expenses incurred by employee in order to cure and relieve employee of the effects of the injury.

Employer filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in that the evidence does not support causation between the accident and the cervical spine condition because the evidence does not establish that the accident was a substantial and prevailing factor in employee's cervical spine condition; (2) in ordering employer to reimburse employee medical expenses totaling $\ 62,621.92 without allowing employer a credit for the amounts covered through employer's self-funded group health insurance plan; (3) in ordering employer to pay medical expenses that were written off pursuant to contract with employer's self-insured group health insurance; and (4) in failing to give employer a credit in the amount of $\ 2,713.25 for a payment previously made by employer's workers' compensation carrier to employee.

For the reasons stated below, we modify the award of the administrative law judge referable to the issue whether employer is entitled to a credit for a payment previously made to employee by employer's workers' compensation carrier.

Employee stopped working for employer in January 2013, and employer discharged her in April 2013. Employee testified that, at some point in January 2015, she received a check from employer in the amount of $\ 2,713.15. Employer argues, in its brief, that it should receive a credit for this amount against any award of compensation, as it represented a payment on account of the injury directly from employer or employer's workers' compensation insurer. In her brief, employee concedes that the check came from employer's workers' compensation insurer, but argues that employer is not entitled to a credit because employer's position is that this claim is not compensable, the check was sent in error, and employer therefore cannot now claim that the payment was made pursuant to Chapter 287.

Two statutory sections are relevant to the parties' arguments with regard to this issue. First, § 287.270 RSMo provides, in relevant part, that "[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[.]" Second, § 287.160.5 RSMo provides "[t]he employer shall not be entitled to credit for wages or such pay benefits paid to the employee or his dependents on account of the injury or death except as provided in section 287.270 ."

There is no evidence that the check from employer's workers' compensation insurer represented past due wages, or vacation pay, or some other amount owing to employee from employer due to employee's employment relationship with employer; instead, the evidence reveals (and we so find) that employer's last payment of this nature to employee occurred in March 2013. Thus, the prohibition under $\S 287.160 .5$ against credits for "wages or such pay benefits" is inapplicable here. Likewise, we are not prohibited from crediting employer pursuant to $\S 287.270$, as the parties have conceded that this check came directly from employer's workers' compensation insurer, i.e., "employer's insurer for liability under [Chapter 287]" for purposes of that section. Employee has not directed us to any authority that would support her argument that employer's position in this case of denying all compensability, or the (apparent) error in sending the check to her, should prevent employer from receiving a credit for amounts that both parties concede have been paid to her.

In light of the foregoing considerations, we are most persuaded by employer's arguments. Accordingly, we conclude that employer is entitled to a credit in the amount of $\ 2,713.15 against the compensation awarded herein.

In its application for review and brief filed with the Commission, employer argues the administrative law judge erred in awarding the total charges employee incurred for disputed past medical treatments. Employer notes that the bills submitted by employee reflect various adjustments with regard to the charged amounts; employer argues that, based on the bills themselves, we should find that the providers have relieved employee of liability for any adjusted amounts, and thus employer's liability should be reduced accordingly, pursuant to Farmer-Cummings v. Pers. Pool of Platte County, 110 S.W.3d 818 (Mo. 2003). We are not persuaded, for the following reasons.

Once employee submitted her medical records and corresponding bills into evidence, and adduced evidence sufficient to permit a finding that she incurred the disputed charges for treatment reasonably required to cure and relieve the effects of her work injury, the burden of proof shifted to employer to demonstrate some reason why it is not liable for the full amounts of the disputed charges. See Farmer-Cummings, 110 S.W.3d at 823. "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). Also, in light of the collateral source rule under $\S 287.270$ RSMo (quoted, in relevant part, above), it was additionally incumbent upon employer to demonstrate that the adjustments were not a benefit derived from employee's savings, insurance, or any other source other than employer or employer's workers' compensation insurer. See Maness v. City of De Soto, 421 S.W.3d 532, 545 (Mo. App. 2014).

Enployee: Kelly Miller

- 4 -

Accordingly, the appropriate question is whether employer met its burden of proving (1) that employee's liability for the full amount of the charges has been reduced and extinguished by any amount, and (2) that the reason employee's liability was extinguished does not fall within the provisions of § 287.270 RSMo. Employer argues that many of the disputed charges have already been satisfied, in part, by payments from employee's group health insurance plan through employer. But (as employer acknowledges in its brief) the record is bereft of evidence to establish the nature of that insurance policy, and whether such was fully funded by the employer or instead involved co-pays, co-insurance, deductibles, or monthly premiums payable by employee. In the absence of such evidence, there is no support for a finding these insurance payments and/or any adjustments referable thereto constituted benefits directly from the employer for purposes of § 287.270.

Nevertheless, employer asserts it will offer the requisite evidence if and when this matter proceeds to a hearing for a final award, and asks the Commission to impose a "stay" on the Division's award of past medical expenses until the full hearing may be held. We must decline this request, because the relevant statutes do not confer upon the Commission the authority to "stay," in whole or in part, any temporary or partial award by an administrative law judge. Instead, pursuant to § 287.510 RSMo, these proceedings are kept open until a final award can be made:

In any case a temporary or partial award of compensation may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made, and if the same be not complied with, the amount equal to the value of compensation ordered and unpaid may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award.

Pursuant to the foregoing, employer is now liable for the award of $62,621.92 in past medical expenses—and may additionally be liable for the above-described statutory penalty with regard to any amount of the award that remains unpaid, in the event the final award is in accordance with our temporary award herein. Of course, this does not foreclose employer's opportunity to present additional significant evidence with regard to the issue of past medical expenses, in the event this matter proceeds to a hearing for a final award. See Jennings v. Station Casino St. Charles, 196 S.W.3d 552, 558 (Mo. App. 2006).

In sum, while it is clear upon the existing record that certain of the bills do contain adjustments, 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 in any amount, and (2) that the reason employee's liability was extinguished does not fall within the provisions of § 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.

For the foregoing reasons, we affirm the administrative law judge's award of $62,621.92 in past medical expenses.

We modify the award of the administrative law judge with respect to the issue whether employer is entitled to a credit for a payment previously made to employee by employer's workers' compensation insurer.

Employer is entitled to a credit in the amount of $\ 2,713.15 for a payment previously made in this case to employee by employer's workers' compensation insurer.

The award and decision of Administrative Law Judge David L. Zerrer, issued September 1, 2016, is attached and incorporated herein to the extent not inconsistent with this decision and award.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 2^{\text {nd }} \qquad$ day of March 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Kelly Miller

Departments:

Employer: Nieman Foods, Inc.

Additional Party:

Insurer: Self-Insured T/P/A CBCS

Hearing Date: May 10, 2016/June 3, 2016

Injury No. 13-008458

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

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: January 16, 2013
5. State location where accident occurred or occupational disease contracted: Marion 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? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Self-insured
11. Describe work employee was doing and how accident happened or occupational disease contracted: Claimant was lifting boxes when felt sharp pain in back
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: Back; body as a whole
14. Compensation paid to-date for temporary disability: None
15. Value necessary medical aid paid to date by employer/insurer? None
16. Value necessary medical aid not furnished by employer/insurer?

1. Employee's average weekly wages: $\ 409.04
2. Weekly compensation rate: $\ 272.69
3. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 62,621.92

Six weeks of temporary total disability (or temporary partial disability) $\ 1,715.22

TOTAL: $\ 64,337.14

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

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: Clare Behrle

Employee: Kelly Miller

Departments:

Employer: Nieman Foods, Inc.

Additional Party:

Insurer: Self-Insured T/P/A CBCS

Injury No: 13-008458

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

On the $10^{\text {th }}$ day of May, 2016, the parties appeared before the undersigned Administrative Law Judge for a temporary hardship hearing. The Claimant appeared in person and by her attorney, Clare Behrle. The employer appeared by its attorney, Jennifer Winking. The Treasurer of the State of Missouri is a party to this claim having been excused from participation in this hearing by agreement of the parties. This claim was consolidated with Injury No. 12-060156 for trial purposes only. Any evidence adduced at the hearing which would only apply to one of the injuries would not be considered in adjudicating the other injury. The record was ordered to be left open until 5:00 p.m. June 3, 2016.

The parties have entered into a stipulation as to certain facts which are not at issue in this claim as follows, to wit: On or about the $16^{\text {th }}$ day of January 2013, Nieman Foods, Inc. was an employer operating subject to the Missouri Workers' Compensation Law; the Employer's liability was fully self-insured, third party administrator CBCS; on the alleged injury date of January 16, 2013, Kelly Miller was an employee of the Employer; the Claimant was working subject to the Missouri Workers' Compensation Law; the employment occurred in Marion County, Missouri, and the parties agree that Marion County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the

**Employee:** Kelly Miller

**Injury No.:** 13-008458

Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed accident, Claimant's average weekly wage was 409.04, sufficient to allow a compensation rate of 272.69 for temporary total disability, temporary partial disability, permanent partial disability, and permanent total disability; no temporary total disability benefits have been paid prior to the date of this hearing; Employer has paid no medical benefits prior to the date of this hearing; Claimant's attorney seeks approval of an attorney fee of 25% of the amount of any award; the parties have further agreed and stipulated that the proper name of the Employer is Nieman Foods, Inc.

- Whether the Claimant sustained an accident?

- Whether the accident arose out of the course of and scope of employment?

- Whether the accident caused the injuries and disabilities for which benefits are not being claimed?

- Whether the Employer is obligated to pay for past medical expenses?

- Whether the Claimant has sustained injuries that will require future medical care in order to cure and relieve the Claimant of the effects of the injuries?

- Whether temporary total benefits are owed to the Claimant?

A legal file was established for this hearing, which consists of the following documents, to wit: Report of Injury; Claim for Compensation, filed with the Division April 11, 2013;

**Employee:** Kelly Miller

**Injury No.:** 13-008458

Employer's Answer to Claim for Compensation, filed with the Division May 9, 2013; Request for Hardship Hearing, filed with the Division March 23, 2016.

Kelly Miller, claimant herein, testified on her own behalf. Claimant testified that she is married with two children one of whom lives in the home. Claimant graduated high school and cosmetology school. She worked in the past as a hair stylist and groomer of pets. Claimant began employment with Employer in November 2010. She has no marketable computer skills. Claimant stated that she has not worked for Employer since January 28, 2013, when she was terminated by the Employer.

Claimant testified that in July 2012 she was the frozen food manager for Employer, which included ordering product, lifting boxes, unloading palettes, and included body movements of lifting, bending, squatting, and kneeling, in addition to standing and walking. Claimant indicated that she lifted boxes weighing about 25 pounds on July 30, 2012, and that she worked nine hours on the date of injury.

Claimant testified that on July 30, 2012, she was working in the dairy freezer, handling crates filled with milk containers. She indicated that each crate weighed 32 pounds, the crates were stacked seven high on the palette that was being emptied, and that Claimant had unpacked more than three palettes full of crates of gallon milk containers prior to her accident. Claimant stated that when handling crates of milk she would lift the crate full of milk up off of the shipping stack, move the crate to her chest, then down to the ground level. Claimant testified that on July 30, 2012, after lifting crates and other products for several hours she began to feel a burning sensation in her mid-back like someone was sticking an ice pick in her mid-back.

Claimant testified that she completed her work shift on July 30, 2012, even though her back was "locking up" and she was having muscle spasms. Claimant stated that her back

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kelly Miller

Injury No. 13-008458

continued to hurt her at home after work. The following day Claimant reported the incident of July 30, 2012 to Will Hexler, an assistant manager for Employer. Claimant was sent for a drug test and then was referred to Dr. Gina Pontius for treatment. Claimant had treatment which consisted of medications, X-ray, and physical therapy, and was placed on light duty. Claimant indicated that she had nine sessions of physical therapy, which helped some to resolve the muscle spasms. Claimant testified that she was released from treatment by Dr. Pontius on October 8, 2012, and told to follow up with her own physician.

Claimant testified that she next presented for treatment with her primary care physician on September 20, 2012, where she received treatment of injections and medications. Claimant requested to be returned to Dr. Pontius, whom Claimant saw on September 28, 2012, at which time Claimant was referred for an MRI. Dr. Pontius prescribed medications for Claimant and referred Claimant to a specialist. Claimant stated that she returned to work at full duty as dairy and frozen food manager and that she continued to have pain in her mid-back and sometimes her back would "lock up."

Claimant testified that on January 16, 2013, she was moving product from palettes onto carts and further onto shelves. She stated that she was unloading bags of potatoes, which weighed 25 pounds each, when she felt a pain similar to the pain which she felt in July 2012 in the same part of her back. Claimant reported the incident and was sent for a drug test. Claimant stated that she was treated by a nurse practitioner where she complained of mid-back pain along with neck and shoulder pain, which was different than the pain experienced in the previous incident.

Claimant testified that she was treated by Dr. Pontius during January 2013, and released from treatment on January 30, 2013. Claimant stated that she did not agree that her symptoms

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kelly Miller

Injury No. 13-008458

had resolved and that she still had upper back pain, shoulder pain, and pain down her arms.

Claimant testified that she was told to follow up with her personal physician.

Claimant testified that she saw Dr. Meyer on February 5, 2013, with complaints of mid-back pain, neck pain, shoulder pain, and headaches. Dr. Meyer ordered an MRI and administered one injection, which was not successful in relieving Claimant's pain complaints. Dr. Meyer performed surgery on Claimant's neck on April 9, 2013. Claimant testified that her pain symptoms were relieved for a time after the surgery and that her headaches resolved. However, the mid-back and shoulder pain continued. After Claimant completed physical therapy following surgery, Dr. Meyer released Claimant to return to work. Claimant stated she was told she was terminated from employment with Employer on April 11, 2013. Claimant testified that her last date of treatment with Dr. Meyer was October 18, 2013.

Claimant testified that her health insurance paid for her surgery, except for the out-of-pocket portion, but that the insurance coverage stopped on April 11, 2013, and Claimant did not have the money to pay for more treatment.

Claimant testified that she is requesting additional treatment.

Claimant testified that after her surgery she had an independent medical evaluation with Dr. Kennedy on her behalf; Dr. deGrange on behalf of Employer; and Dr. Jeffries, but that she never saw Dr. Jeffries.

Claimant testified that prior to July 30, 2012, she had no problem medically with her mid-back; she was not having pain symptoms; not having headaches; no arm pain; and was able to do her job without any pain or difficulty. Claimant stated that she had no prior injury to her mid-back, except for a neck injury suffered as a result of a motor vehicle collision in 1992 or

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kelly Miller

Injury No. 13-008458

1. Claimant also stated that she injured her low back in about 2000, but that injury was not at the same level as these injuries.

Claimant testified that she has not had any other employment since being terminated by Employer in April 2013. She currently complains of pain across her shoulders and down into her hands, as well as pain from her mid-back around to her chest at about the level of her bra. Claimant stated that she has daily pain which is exacerbated by more activity such as reaching, bending, and housekeeping.

Claimant identified bills set out in Exhibit 6 as accurate. She stated that most of the charges are for January 2013. Claimant stated that the answers and information she gave to doctors was accurate at the time of the visit and that the doctors' records would be accurate for what was discussed during treatment. Claimant indicated that her surgery helped.

Claimant offered, and there was admitted Exhibits 1, 2, 3, 4, and 6 without objection. Exhibit 5 was admitted over Employer's objection.

On cross-examination by Employer, Claimant admitted that she has had neck pain since July 30, 2012. She also admitted that she has had upper back pain which comes around to her chest area and the pain is a stabbing type pain. Claimant admitted that she has been treated by Dr. Pontius, Nurse Practitioner Christy, Dr. Meyer, and Nurse Practitioner Kline.

Claimant admitted that she reported to Dr. Meyer on February 5, 2013, that she had severe pain in back and shoulder level and that she had no pain below the shoulder level. She also admitted that Dr. Pontius' record of January 30, 2013, shows no neck pain or radicular pain, but has stiffness with activity. Claimant admitted that the records of Nurse Practitioner Christy of January 16, 2013, showed no headaches, numbness, or tingling; that the record of Nurse Practitioner Kline of January 30, 2013 showed no headaches or numbness and tingling.

WC-32-R1 (6-81)

Page 8

**Employee:** Kelly Miller

**Injury No.:** 13-008458

Claimant admitted that Dr. Meyer treated different symptoms than Dr. Pontius. Claimant also admitted that a physical therapy note of September 25, 2012, stated: painful to lie down; and further that Dr. Meyer's records report that Claimant obtains relief by lying down. Claimant further admitted that Dr. Pontius referred Claimant to an orthopedic specialist and to Claimant's primary care physician. Claimant also admitted that she was released by Dr. Meyer on May 23, 2013, to full duty.

Claimant admitted that she is under no current restrictions and further that she is under no treatment, except ongoing treatment for diabetes.

Claimant admitted that Dr. Kennedy is recommending neck treatment for pain complaints. She further admitted that she does not remember when she started incurring neck pain again, but that the neck pain she feels now is not the same as prior to any injury.

Claimant admitted that she received and cashed a check from Employer for $2,713.00, which she used to pay some of her treatment expenses, and that she does not remember how much of the money received from Employer was paid to Columbia Orthopedic Group.

Dr. David Kennedy testified on behalf of Claimant by deposition. Dr. Kennedy testified that he performed an independent medical evaluation of the Claimant and authored a written report of his findings and opinions dated April 1, 2014. Dr. Kennedy took a history from the Claimant, reviewed certain records, and performed a physical examination of the Claimant.

Dr. Kennedy's report indicates that he diagnosed pain in the base of the cervical spine and upper thoracic spinal area, mediated by abnormal disc as noted on the MRI at C6-7. He noted that Claimant was not symptomatic prior to the injury of July 30, 2012, and that the MRI showed a bone spur which could have caused Claimant's pain symptoms. Dr. Kennedy indicated

**Employee:** Kelly Miller

**Injury No.:** 13-008458

That the source of Claimant's pain in the cervical and upper thoracic area could be referred from the disc abnormality found at C6-7.

In addition, Dr. Kennedy opined that Claimant continued to have pain in the thoracic area and that Claimant had not had any treatment such as selective nerve root blocks. He noted that the spur shown on the MRI of the mid thoracic spine could have pre-existed the injury of July 30, 2012, Claimant did not have any symptoms, and therefore, he opined that the accident of July 30, 2012, aggravated the condition to a level which required treatment.

Dr. Kennedy's report recommends a cervical myelogram to verify if the vertebral fusion is in place along with a selective nerve root block at T6-7 to determine if this would alleviate Claimant's pain symptoms and help diagnose if this is the source of Claimant's current complaints.

Dr. Kennedy testified that the free fragment found during the cervical surgery was most likely caused by a traumatic event consistent with the type of injury and onset of pain that Claimant described. He further testified that the Claimant has a significant foraminal encroachment shown on the MRI of the T6-7 area of the thoracic spine, which he characterized as severe foraminal stenosis. Dr. Kennedy opined that the stenosis may be the source of Claimant's pain complaints. Dr. Kennedy testified that his opinions are based, in part, on the fact that Claimant had immediate thoracic pain at the time of the injury and that the painful area corresponds to the nerve root impingement shown on the MRI of T6-7.

Dr. Kennedy testified that in an injury in the nature of Claimant's July 30, 2012, injury there can be spasms which occur predominantly on the symptomatic side, but also due to posture and compensation, the pain symptoms can be similar on the opposite side of the injured.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kelly Miller

Injury No. 13-008458

vertebrae. Dr. Kennedy opined that if Claimant does not receive treatment, her prognosis will not change or improve spontaneously.

On cross-examination by the Employer, Dr. Kennedy admitted that Claimant reported mid thoracic area and interscapular area numbness and tingling and that he relied on this information in assessing Claimant's examination. He also admitted that he made recommendations for additional treatment in the form of nerve root blocks to relieve pain and as a diagnostic aid in identifying Claimant's pain generators.

Dr. Kennedy admitted that the bone spur at the T6-7 area could be degenerative or it could be as a result of a vertebral fracture which has healed with a spur forming. He also admitted that Claimant's pain complaints initially could have been from a fracture in the thoracic area of the spine, as a result of an acute injury.

Dr. Kennedy admitted that he did not believe there was enough evidence of degeneration to rule out some other cause for the bone spur. He further admitted that in his opinion, as a result of the injury of July 30, 2012, Claimant became symptomatic. He also admitted that if a nerve root block is administered, and it achieves some symptom relief, then that could establish the source of the pain complaints. Dr. Kennedy denied that the lifting incident which Claimant suffered caused the pain which is complained of at the time of the examination.

Claimant offered, and there was admitted without objection, Exhibits 2 through 5, which are medical records from Claimant's treating care providers, authorized and unauthorized. The records generally, with some notable exceptions, support the testimony of Claimant. Claimant testified that she told the truth and accurately relayed her symptoms to each physician as those symptoms appeared on any particular day of treatment. She also testified that she had no reason

WC-32-81 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kelly Miller

Injury No. 13-008458

to believe that any medical record would not be accurate as to what she reported to the physicians.

Exhibit 6 sets out what purports to be medical bills incurred by Claimant for both injuries of July 30, 2012, and January 16, 2013. Some of the entries contained in Exhibit 6 are for treatment other than for either of these injuries.

Dr. Joel Jeffries testified on behalf of Employer by deposition. Dr. Jeffries testified that he is an orthopedic surgeon, but that he no longer does surgery on patients. He stated that he treats non-surgical patients with neck, mid-back, and low back pain.

Dr. Jeffries testified that he performed a records review of Claimant's treatment for injuries of July 30, 2012, and January 16, 2013. He did not take a history from the Claimant nor did he perform an examination of the Claimant. He testified that his review included records of Blessing Physician Services; Hannibal Clinic; Priority Physical Therapy; Palmyra Clinic; Columbia Orthopaedic Group; Advanced Radiology; and medical opinions of Drs. Donald deGrange and David Kennedy.

Dr. Jeffries testified that Claimant's MRI scan showed a prominent facet joint on the right of T6-7 with severe foraminal stenosis. He indicated that the records of Nurse Practitioner Kline showed denial of any numbness or tingling in the hands or arms. He also indicated that the records show first complaint of neck stiffness on January 30, 2013.

Dr. Jeffries testified concerning what he read in reviewing the medical records submitted to him which included Blessing Physician Services; Hannibal Clinic; Priority Physical Therapy; Nurse Practitioner, Beverly Christy; The Palmyra Clinic; The Columbia Orthopaedic Group; Advanced Radiology; Missouri Department of Labor and Industrial Relations; Dr. Donald deGrange; and Dr. David Kennedy.

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Page 12

**Employee:** Kelly Miller

**Injury No.:** 13-008458

Dr. Jeffries testified that in his opinion the injury of July 30, 2012, was the prevailing factor in causing the thoracic diagnosis set out in Dr. Pontius' records. He further testified that in his opinion, the injury of July 30, 2012, was not the prevailing factor in the development of Claimant's thoracic spondylosis or the bone spur at the T6-7 level. He indicated that the change that occurred at T6-7 generally occurs over the course of time longer than from Claimant's date of injury to the date of the MRI which shows the bone spur. Dr. Jeffries opined that he did not think surgery or treatment of the thoracic spondylosis or the spur would be beneficial because Claimant's complaints were not consistent with T7 radiculopathy.

Dr. Jeffries testified that he did not believe the Claimant's injury of July 30, 2012, was the prevailing factor in causing the cervical disc protrusion or the need for the surgery which was performed. He stated that his opinion with regard to the neck complaints was due to the delayed nature of the Claimant's complaints and the absence of any complaints of radiculopathy or myelopathy. Dr. Jeffries testified that it was his opinion that the injury of January 16, 2013, was not the prevailing factor in causing a diagnosis of thoracic spondylolysis. He further testified that it was his opinion that the injury of January 16, 2013, was not the prevailing factor in the development of a cervical disc protrusion or that the need for surgery was caused by the January 16, 2013, injury because of the delay of symptom onset and the symptoms were not consistent with myelopathy or radiculopathy.

Dr. Jeffries testified that from the medical records reviewed, it appeared that the surgery resolved her neck pain and her headaches; however, after the surgery, Claimant's symptoms returned to baseline complaints of thoracic pain.

On cross-examination by the Claimant, Dr. Jeffries admitted that pain complaints sometimes to the right, sometimes to the left, and sometimes would wrap around the front of

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Page 13

**Employee:** Kelly Miller

**Injury No.:** 13-008458

Claimant's body is consistent with an injury to the thoracic spine area. He also admitted that the records he reviewed indicated that Claimant's pain complaints did not resolve through all of the treatment administered. He further admitted that it was his opinion that the Claimant's lifting injury was the prevailing factor in the development of her pain. He further admitted that the findings on the MRI at the T6-7 level could explain the Claimant's pain complaints, but that he was concerned that the findings and Claimant's complaints were not consistent with a thoracic radiculopathy; however, it could explain Claimant's complaints.

Dr. Jeffries admitted that the development of Claimant's pain complaints required medical treatment to cure and relieve the Claimant of the effects of her injury; however, the treatment administered did not, in Dr. Jeffries' opinion, cure or relieve Claimant's pain. He further admitted that in his opinion, the injury of January 16, 2013, was an exacerbation of the July 30, 2012, injury.

Dr. Jeffries admitted that a finding of loose fragment during cervical surgery can be objective evidence of an acute injury and that a lifting incident could cause a herniated disc as found in Claimant's cervical surgery. Dr. Jeffries further admitted that he had a concern as to what may have caused Claimant's herniated disc and loose fragment because of the delay between the injury and the onset of symptoms and the lack of complaints consistent with radiculopathy or myelopathy. Dr. Jeffries also admitted that he was not aware of any other event which caused the C6-7 disc protrusion for which surgery was performed.

Dr. Jeffries admitted that he did not believe that the January 16, 2013, injury was the prevailing factor in the need for cervical surgery, but that the January 2013 injury caused an exacerbation or aggravation of the July 30, 2012, injury. He further admitted that it was his opinion that the chronic low back pain currently suffered by Claimant is a result of her July 2012 injury.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kelly Miller

Injury No. 13-008458

work related injury. Dr. Jeffries also admitted that he would recommend additional treatment in the form of anti-inflammatory medications and continued exercise program.

Dr. Jeffries admitted that he had no reason to doubt the truthfulness of Claimant's complaints and Claimant's complaints could be consistent with the mechanics of her injuries.

Dr. Donald deGrange testified on behalf of the Employer by deposition. Dr. deGrange testified that he performed an independent medical evaluation of the Claimant and authored a written report of his findings and opinions dated November 22, 2013. He testified that he took a history from the Claimant, reviewed certain medical records, and performed an examination of the Claimant.

Dr. deGrange's report sets out his findings and conclusions with regard to the evaluation. The report states that the evaluation was to be in regard to the January 16, 2013, injury. The report indicates that Claimant may return to her usual and customary job duties without restrictions and that there is no basis for any permanent partial disability. The report indicates that Claimant's current complaints are referable to preexisting degenerative findings noted in X-rays and MRI studies of the thoracic spine. In addition, the report states that the January 16, 2013, injury was an aggravation or exacerbation of a preexisting degenerative condition not the prevailing factor in the need for surgery performed in April 2013.

Dr. deGrange also authored an addendum to his report of November 22, 2013, dated June 13, 2014. The addendum makes reference to the review of an independent medical evaluation performed by Dr. David Kennedy. Dr. deGrange opined that his review of Dr. Kennedy's evaluation did not cause him to change any of the opinions expressed in the evaluation dated November 22, 2013.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kelly Miller

Injury No. 13-008458

Dr. deGrange testified that when he examined Claimant, she denied any pre-existing incidents or injuries other than the injury of July 2012 and the injury of January 2013. He noted 15% to 20% loss of range of motion with forward bending and approximately 30% loss of range of motion in neck extension. Lateral bending range of motion was decreased 40% and right rotation range was decreased to about 50 degrees and left rotation was decreased to 60 degrees.

Dr. deGrange further testified that the MRI report showed a significant facet spur at the T6-7 level of the spine with severe right foraminal stenosis.

Dr. deGrange diagnosed Claimant with thoracic strain with disc degeneration in the thoracic spine, as well as post operative cervical discectomy at the C6-7 level. He further testified that his review of Dr. Pontius' records indicated that in January 2013 she found anatomical symptoms in the area of T6-7 with radiating pain symmetrically on both sides wrapping around the rib area left and right.

Dr. deGrange testified that it was his opinion that the incident of January 2013 was not the prevailing or primary factor in the need for the cervical surgery of April 2013. He also stated that the lifting incident of January 16, 2013, was not the prevailing factor in causing the thoracic degenerative condition, based on the MRI of October 2012.

On cross-examination by Claimant, Dr. deGrange admitted that the Claimant's complaints with regard to her July 30, 2012, injury not resolving were consistent with the medical records he reviewed. He also admitted that in his medical practice, patients are not the most accurate or best historians. Dr. deGrange further admitted that a nerve compression of the T7 nerve root would radiate pain around the right 6th rib and sometimes into the chest. He also admitted that, in his opinion, the January 2013 injury could have caused an exacerbation but not an aggravation of a pre-existing issue.

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Page 16

**Employee:** Kelly Miller

**Injury No.:** 13-008458

Dr. deGrange admitted that Claimant's complaints of headaches after the January 2013 injury would require inquiry at the cervical area to see if there is a pathology that might be causing complaints of headaches. Dr. deGrange admitted that he did not include the operative report of the April 2013 surgery because he did not consider it relevant. He also admitted that there can be free fragment disc at the C6-7 level and a patient not have radicular symptoms and that there can be pain complaints caused by the pathology of a free fragment disc with headaches. He also admitted that a free fragment disc could be objective evidence of an acute injury, but that he ruled that out based upon the pre-existing or prior diagnostic studies that Claimant underwent.

Dr. deGrange admitted that lifting incidents can cause a herniated disc; a thoracic sprain; can exacerbate pre-existing conditions; or can cause an aggravation of a pre-existing condition. He also admitted that treatment for a thoracic spur would be handled by pain management doctors.

The undisputed evidence adduced at the hearing established that Claimant was lifting boxes which weighed about 25 pounds each and placing them on shelves in preparation for sale. Claimant was working a normal shift performing her normal job duties when she felt a sharp pain in her back, shoulders, and cervical region of her spine. Claimant reported the incident to the Employer and was sent for treatment to Dr. Pontius, who treated Claimant for similar complaints.

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Page 17

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kelly Miller

Injury No. 13-008458

in August, September, and October of 2012. Dr. Pontius' treatment records are in evidence.

Claimant testified that part of her job duties was loading or unloading product in connection with the sale of food at the Employer's place of business. Claimant complained to Dr. Pontius about her upper back and thoracic pain from the day of the incident until released by Dr. Pontius at the end of January 2013. Thereafter, Claimant sought treatment on her own after being told by Dr. Pontius that the workers' compensation part of her January 16, 2013, accident was completed and that Claimant should see a private physician for more treatment for her pain complaints.

Claimant presented to Dr. Meyer, an orthopedic surgeon on February 5, 2013, for further evaluation and treatment. Dr. Meyer ordered an MRI of the cervical region of Claimant's spine which revealed a herniated disc at C6-7 level. After unsuccessful conservative treatment, Dr. Meyer recommended surgery to the cervical spine, which occurred April 11, 2013. Post surgically, Claimant indicated that her headaches resolved but her thoracic pain, similar to what she continued to experience after release by Dr. Pontius on October 8, 2012, returned to baseline.

After a review of all the evidence adduced at the hearing, both oral and written, and based on the record as a whole, I find that Claimant has sustained her burden of proof that she suffered an accident on January 16, 2013, which resulted in a change of pathology of Claimant's symptoms and complaints in regard to her headaches which started after the January 16, 2013, accident. I find the opinions of Dr. Kennedy to be more persuasive than those of Dr. deGrange or Dr. Jeffries, in regard to the herniated disc first diagnosed in February 2013. I further find that Claimant's accident occurred during a regular work shift while Claimant was performing her normal job duties within the course and scope of her employment with the Employer.

Claimant sought out medical treatment on her own after she was released by the authorized treating physician and concurrent with the recommendation of the authorized treating physician.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kelly Miller

Injury No. 13-008458

physician that Claimant seek treatment for her back complaints from a private physician. I find that the accident of January 16, 2013, caused the injuries and disability for which benefits are now being claimed, most notably, the herniated disc with loose fragment which Dr. Meyer treated surgically and the result of which was a cessation of Claimant's headaches and upper shoulder complaints, but not the resolution of Claimant's thoracic pain complaints.

I find that Claimant suffered a compensable injury on January 16, 2013, which resulted in the need for treatment to cure and relieve the Claimant of the effects of the injury, which treatment consisted of removal of a loose fragment and discectomy and fusion at the C6-7 level of the cervical spine.

I further find that the treatment administered by Dr. Meyer was reasonable and necessary to cure and relieve the effects of Claimant's injury of January 16, 2013. I further find that the treatment administered to Claimant was the responsibility of the Employer and should have been provided by the Employer pursuant to Chapter 287 of the Revised Statutes of Missouri.

I find these issues in favor of Claimant.

Whether temporary total benefits are owed to the Claimant?

Claimant first saw Dr. Meyer on February 5, 2013. At that time, Dr. Meyer did not place any restrictions on Claimant. Claimant underwent cervical spine surgery on April 9, 2013. Dr. Meyer again saw Claimant in follow-up on May 23, 2013, at which time he released Claimant to normal activities. No physician has opined that Claimant is restricted from working after May 23, 2013.

After a review of all the evidence adduce at the hearing, and based on the record as a whole, I find that there is substantial and competent evidence that Claimant was not available in

WC-32-R1 (6-91)

Page 19

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kelly Miller

Injury No. 13-008458

the open labor market from April 9, 2013, through May 23, 2013, a period of 6-2/7 weeks.

Claimant's stipulated compensation rate is 272.69.

Employer is hereby ordered to pay to Claimant the sum of 1,715.22 as and for temporary total disability benefits.

I find this issue in favor of Claimant.

Whether the Claimant has sustained injuries that will require future medical care in order to cure and relieve the Claimant of the effects of the injuries?

Dr. Kennedy has recommended further study of Claimant's cervical fusion to determine if there is a nonunion at the site of the fusion. The medical records indicate that Dr. Meyer treated Claimant on October 13, 2013. Claimant had full neck flexion, extension, axial rotation and side bending. X-rays of the cervical spine showed "good solid interbody fusion". The record of October 18, 2013, does reflect tenderness to palpation midline of the lower thoracic spine, with increased discomfort with forward flex and extension. Dr. Jeffries did not recommend further cervical treatment. Dr. deGrange did not opine that the cervical spine was part of any January 16, 2013, incident.

After a review of all the evidence adduced at the hearing, both oral and written, and based on the record as a whole, I find that Claimant has reached maximum medical improvement for the injury of January 16, 2013. I further find that Claimant's thoracic complaints have returned to baseline from prior to the January 2013 injury and that any complaints of thoracic pain emanating from the January 2013 injury were an exacerbation of the July 30, 2012, injury and should be treated as part and parcel of the injury of July 30, 2012, as set out in award for injury No. 12-060156.

WC-32-R1 (6-81)

Page 20

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kelly Miller

Injury No. 13-008458

Based on the findings set out above, no future medical treatment is ordered to be provided by Employer in this injury.

I find this issue in favor of Employer.

Whether the Employer is obligated to pay for past medical expenses?

Exhibit 6 sets out medical treatment bills incurred by Claimant for treatment administered by Dr. Meyer and other health care providers. The total charges for Columbia Orthopaedic Group were 13,348; the total charges for the Surgical Center were 47,623.80; the total charges for Boone Hospital Center were 1,143.00; the total allowable charges for Blessing Physician Services were 345.00; the total charges for prescription medications were $162.12.

After a review of all the evidence adduced at the hearing, both oral and written, and based on the record as a whole, I find that Claimant has sustained her burden by substantial and competent evidence that the charges for medical services provided to her in order to cure and relieve the effects of the injury of January 16, 2013, were reasonable and necessary and were the responsibility of the Employer to provide the medical treatment administered to Claimant as a result of the injury of January 16, 2013.

Employer is hereby ordered to reimburse Claimant in the sum of $62,621.92 for necessary medical expenses incurred by Claimant in order to cure and relieve Claimant of the effects of the injury.

I find this issue in favor of Claimant.

Claimant's attorney has requested approval of an attorney fee of 25% of the amount of any award. Claimant's attorney's fee request is hereby approved. Claimant's attorney is awarded an attorney fee of 25% of the amount of this award. Claimant's attorney is awarded a lien on the proceeds of this award unless and until the attorney fee shall have been paid in full.

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Page 21

**Employee:** Kelly Miller

**Injury No.:** 13-008458

I certify that on **9/1/16** I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

**By:** CP

**Made by:** David L. Zerrey

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-81)

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