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

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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 l