Heather Bass v. Board of Police Commissioners of Kansas City, Missouri

hearing in this matter, the administrative law judge made the following statement: "I show the average weekly wage agreed to be $\ 1,028 and the compensation rates agreed to be $\$ 685.39 / \ 389.04." Transcript, page 2. Critically, though, the administrative law judge did not invite the parties to indicate, on the record, whether they agreed or disagreed with this statement. Next, the administrative law judge provided a list of what he understood to be the disputed issues in this matter; average weekly wage and rate of compensation were not among the issues listed. Once again, however, the administrative law judge failed to ask the parties whether they agreed or disagreed with his statements as to the issues in dispute.

In his award, the administrative law judge provided the following comments with regard to the average weekly wage:

It is to be noted at this point that the proposed awards submitted by the Employer and Insurer as well as the Claimant allege a different average weekly wage. The Employer alleges an average weekly wage of $\ 1,129, and the Employee alleges an average weekly wage of $\ 1,100. Likewise, the parties have in their proposed awards suggested compensation rates for the Employer $\$ 772.53 / \ 404.66 and the Claimant $\$ 742.72 / \ 389.04. The maximum compensation rates on the date of injury were $\ 742.72 for temporary total disability and $\ 389.04 for permanent partial disability. The average weekly wage agreed to be and on the record presented is $\ 1,028, which would entitle the Claimant to a temporary total rate of $\ 685.33 and a permanent partial rate of $\ 389.04. There was no evidence of wages presented and the agreed upon average weekly wage established the compensation rates to be applied.

Award, page 3.

It is unclear to us why, if the parties' proposed awards were generally in agreement that employee was entitled to the maximum weekly compensation rates, the administrative law judge declined to give effect to this (apparent) agreement or stipulation, especially where he failed to ask the parties, on the record at the hearing, whether his own (apparently mistaken) understanding with regard to the average weekly wage was correct. In any event, the parties' proposed awards submitted to the administrative law judge were not made a part of the record in this matter, and thus are not presently before us as evidence upon which we might rely to give effect to any stipulation or general agreement contained therein that employee is entitled to the maximum compensation rates.

Employee appeals the administrative law judge's determination with regard to her average weekly wage and corresponding rates of compensation. In her brief, employee alleges that the "evidence clearly established that the parties mistakenly stipulated to the wrong average weekly wage of $\ 1,028, prior to the hearing. ... In her Claim for Compensation, Mrs. Bass claimed that her weekly wage was $\ 1,100.00, Employer did not object to this in its' [sic] Answer. ... [T]o hold the Petitioner to a [sic] honest mutual

mistake made by both attorneys in this case would be a grave miscarriage of justice." Petitioner's Brief, page 15.

We disagree that the record before us supports a finding that the parties made a mutual mistake with regard to stipulating employee's average weekly wage. This is because, as we have noted, the record before us does not contain any stipulation by the parties (mistaken or otherwise) with regard to employee's average weekly wage; instead, we have only a recitation of the administrative law judge's own understanding with respect to the stipulations and disputed issues, combined with a discussion in his award that strongly suggests his own understanding was, in fact, mistaken. Meanwhile, a review of the parties' filings with the Division of Workers' Compensation (of which we hereby take administrative notice) reveals that although employee did allege, in her first and each of her subsequent amended claims for compensation, an average weekly wage of $\ 1,100.00, employer disputed, in its first and each of its subsequent amended answers, each and every allegation contained in employee's claims for compensation.

Employer, in its brief, asks us to affirm the administrative law judge's determination with respect to employee's average weekly wage and corresponding rates of compensation, suggesting that "the parties stipulated to an average weekly wage rate of $\ 1,028.00 prior to the hearing." Brief of the Employer, page 8. Again, regardless what the parties may have discussed or agreed off the record prior to the hearing, the transcript of evidence presently before us simply does not contain any stipulation with regard to the average weekly wage. Consequently, it appears that we must resolve this critical issue.

Fortunately, the existing record does contain some evidence as to employee's earnings with employer. Specifically, employee testified that she believed her annual salary with employer was about $\ 62,000.00. Although employee's testimony was somewhat equivocal, employer did not present any contrary evidence. We find that employee's annual salary with employer was $\ 62,000.00.

Section 287.250.1 RSMo provides, in relevant part, as follows:

Except as otherwise provided for in this chapter, the method of computing an injured employee's average weekly earnings which will serve as the basis for compensation provided for in this chapter shall be as follows: ...

(3) If the wages are fixed by the year, the average weekly wage shall be the yearly wage fixed divided by fifty-two[.]

Dividing employee's annual salary of $\ 62,000.00 by 52 yields an average weekly wage of $\ 1,192.31. We find that this was employee's average weekly wage as of the date of injury. We conclude, therefore, that the appropriate weekly rates of compensation are $\ 742.72 for both temporary total and permanent total disability, and $\ 389.04 for permanent partial disability. See $\S \S 287.170,287.190$, and 287.200.

We would caution that, in the future, parties will be better served by taking every step necessary to ensure that the record contains a complete, accurate, and precise

Enployee: Heather Bass

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statement of the parties' stipulations, as well as the issues in dispute. This is because the administrative law judge and this Commission are duty-bound to both give effect to the parties' stipulations, and to limit our review to the particular issues in dispute, see, e.g., *Hutson v. Treasurer of Mo.*, 365 S.W.3d 269 (Mo. App. 2012), *Boyer v. National Express Co., Inc.*, 49 S.W.3d 700 (Mo. App. 2001), and *Lawson v. Emerson Electric Co.*, 809 S.W.2d 121 (Mo. App. 1991). In the rare case such as this, where the administrative law judge merely recites his or her own understanding of the stipulations and issues without asking the parties whether they agree or disagree, it will be incumbent upon the parties to take additional steps to clarify the record.

The parties disputed the issue of medical causation, but the administrative law judge did not provide any findings of fact or conclusions of law with regard to the relevant statutory test, and did not identify the medical condition(s) he believed to have resulted from the accident of January 2008. The administrative law judge's findings also appear to be inconsistent, as he specifically credited, in a lengthy discussion, employer's psychiatric expert (who found employee suffers no disability as a result of the accident), yet went on to ultimately award permanent partial disability for a psychiatric injury. In light of these concerns, we hereby disclaim the administrative law judge's findings, analysis, and discussion with regard to all issues of medical causation, and instead provide the following findings and conclusions to resolve this issue.

Section 287.020.3(1) RSMo sets forth the statutory test for medical causation applicable to this claim, and provides, in relevant part, as follows:

> 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.

Employee presents the testimony of Dr. P. Brent Koprivica, who examined employee on July 16, 2009, and January 21, 2013. Dr. Koprivica believes employee's January 2008 fall at work was the prevailing factor causing her to suffer the following medical conditions with associated permanent partial disability: profound rotator cuff weakness and ongoing chronic pain affecting the left shoulder; chronic cervicothoracic or regional myofascial pain referable to a sprain/strain; intractable headaches that are musculoskeletal in origin; chronic pain and ulnar neuropathy affecting the left elbow; and compensatory complaints of pain affecting the right shoulder.

Employee also presents the expert psychiatric opinion of Dr. William Logan, who believes the January 2008 accident was the prevailing factor causing employee to suffer the following psychiatric conditions with associated permanent partial disability: a moderately severe depressive disorder as a result of her loss of left upper extremity function and associated chronic pain; and significant exacerbation of a preexisting panic disorder.

Employer, on the other hand, presents Dr. Eden Wheeler, who performed an independent medical examination on October 5, 2011. Dr. Wheeler believes employee suffers from the following medical conditions: diffuse left shoulder/forequarter and neck pain with left arm numbness/tingling; aphysiologic subjective tremors without other associated neurologic abnormality; and an additional psychological overlay with regard to employee's progressive pain symptoms. Critically, though, Dr. Wheeler did not, in her report, indicate whether she felt the January 2008 work injury was the prevailing factor causing all or any of these medical conditions, nor did she indicate whether she believes any disability (permanent or otherwise) is associated with her diagnoses. Thus, it would appear Dr. Wheeler's findings are not especially probative with regard to the issue of medical causation.

Employer also presents the January 6, 2010, report of Dr. Patrick Hughes with regard to employee's claimed psychiatric injuries. Dr. Hughes believes employee suffers from an adjustment disorder, but that the work injury is not the predominant or prevailing cause of such. As support, Dr. Hughes asserts that, in his opinion, there is no physiological mechanism or link between orthopedic shoulder injuries and the biomechanical workings of the brain.

The parties also present the records from the authorized treating surgeon, Dr. Craig Satterlee. Dr. Satterlee believes the January 2008 work injury was the prevailing factor causing employee to suffer a rotator cuff tear and ulnar nerve injury, with associated permanent partial disability. Dr. Satterlee did not address employee's headaches, chronic cervicothoracic or regional myofascial pain, or compensatory pain with regard to the right shoulder. It appears, therefore, that Dr. Koprivica's findings with regard to these diagnoses are wholly unrebutted on this record.

After careful consideration, we find most persuasive the testimony from Dr. Koprivica with regard to causation of employee's physical injuries, as his evaluation strikes us as the most thorough and comprehensive, and as we have noted, Dr. Satterlee did not provide any findings or opinions to directly rebut those of Dr. Koprivica. Accordingly, we credit Dr. Koprivica's opinions with regard to medical causation. We conclude the accident of January 23, 2008, was the prevailing factor causing employee to suffer the following medical conditions and associated permanent disability: profound rotator cuff weakness and ongoing chronic pain affecting the left shoulder; chronic cervicothoracic or regional myofascial pain; intractable headaches that are musculoskeletal in origin; chronic pain and ulnar neuropathy affecting the left elbow; and compensatory complaints of pain affecting the right shoulder.

With regard to employee's psychiatric injury, we find most persuasive the testimony from Dr. Logan, as we are not at all persuaded by Dr. Hughes's theory that there is no connection whatsoever between multiple, chronically painful physical injuries (requiring no less than three surgeries) and the workings of the brain. Accordingly, we credit Dr. Logan's opinions with regard to medical causation. We conclude the accident of January 23, 2008, was the prevailing factor causing employee to suffer the following, additional medical conditions and associated permanent disability: a moderately severe

depressive disorder as a result of employee's loss of left arm function, and associated chronic pain; and significant exacerbation of a preexisting panic disorder.

Employee claims $\ 12,019.86 in unpaid past medical expenses. The administrative law judge declined to award these expenses, and employee appeals. It is well-settled in Missouri that an award of past medical expenses is supported when the record includes (1) the bills themselves; (2) the medical records reflecting the treatment giving rise to the bills; and (3) testimony from the employee establishing the relationship between the bills and the disputed treatment. Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. 1989).

With regard to the first element identified above, employee advances a number of bills from various providers which, incidentally, are not accompanied by any certifying affidavits from the custodians of these records. Employer, however, did not object to these exhibits, so we are inclined to credit them, at least with regard to the amounts of the various medical expenses and charges employee incurred on her own after Dr. Satterlee released her in December 2011.

Employee also advances letters from two different collection agencies representing employee's personal health insurer; these letters are accompanied by summaries setting forth the various charges for which the insurer claims reimbursement in the event the expenses are deemed compensable as part of employee's workers' compensation claim. Employee, however, fails to provide the actual bills from many of the providers listed in the summaries attached to these collection letters. While the letters are certainly relevant and probative as to the issue of employee's liability in the event an award is entered in her favor with regard to disputed medical expenses, we are less inclined to credit them with regard to the actual charges where the record does not include the bills themselves, as this aspect of these documents amounts to hearsay, and these documents (like the bills) are not accompanied by certifying affidavits from custodians of records that might otherwise serve to bolster their indicia of reliability. Again, though, employer did not object to these exhibits, so it appears there is no argument currently pending that we should not credit these letters with regard to charges that are not supported by actual bills in evidence.

We need not reach that question, however, because employee has failed to satisfy the second element identified above. In her brief, employee fails to provide citations to the transcript where we might find the medical records reflecting the disputed treatment giving rise to the bills. Our own review of the transcript reveals that none of the records pertaining to disputed treatment are in evidence. Consequently, we conclude that the claim for disputed past medical treatment fails on this basis. Employer is not liable for past medical expenses, because employee has failed to satisfy the requisite elements to prove up her claim for same.

We acknowledge the considerable disagreement in this case with regard to whether employee provided appropriate notice to employer of her need for additional treatment, and whether such treatment was proven to be reasonable and necessary as a result of

the work injury. While these issues are obviously moot at this point, we discern a need to disclaim the administrative law judge's discussion in this regard. Specifically, we note that the administrative law judge summarily denied the claim for past medical expenses based on his view that employee admitted, on cross-examination, that employer provided all the medical care she requested, never denied her medical care, and the disputed treatment employee sought is unrelated to her left shoulder and elbow injuries.

The administrative law judge appears to have overlooked his own (implicit) finding that employee's work injuries were not limited merely to her left shoulder and left elbow, but also involved a psychiatric component, for which employer has never provided employee with any treatment, despite employer's knowledge of this claimed injury, and despite employee's repeated requests for treatment. See Transcript, pages 647, 84445, 1038-39, 1126-27. Further, we simply disagree with the administrative law judge's characterization of employee's testimony on the issue.

Although the record reflects that employee's presentation at trial was certainly emotional and at times obviously confused, she did testify that she made both Dr. Satterlee and her supervisors aware that she felt she needed additional treatment, but that she was consistently referred to her primary care physician. Employer did not present any evidence to rebut this testimony by the employee, and this testimony is amply supported by Dr. Satterlee's own records. In our view, employer's awareness of employee's claimed need for both psychiatric care and additional medical treatment for her chronic pain, combined with employer's failure to provide same, constitutes the requisite refusal which would (if employee had otherwise proved her claim) defeat any "authorization" defense by the employer. See Downing v. McDonald's Sirloin Stockade, 418 S.W.3d 526 (Mo. App. 2014).

The parties disputed the issue of future medical care, but the administrative law judge did not provide any findings or conclusions on this topic. Accordingly, we must resolve the issue herein. Section 287.140.1 RSMo provides for an award of future medical treatment where the employee can prove there is a reasonable probability of a need for future medical treatment that flows from the work injury. Conrad v. Jack Cooper Transp. Co., 273 S.W.3d 49, 51-4 (Mo. App. 2008). Dr. Koprivica believes employee will need an ongoing multi-disciplinary chronic pain program, including access to physicians, psychotherapy, and medications, and that the need for this treatment flows from the effects of the work injury.

It does not appear that employer has advanced a contrary medical expert opinion with regard to this specific issue. To the extent employer relies upon Dr. Satterlee's opinion that he could offer employee nothing else as of December 2011, we do not find in Dr. Satterlee's notes any explicit opinion that there is not a reasonable probability that employee will have a need for future medical treatment that flows from the work injury. Instead, Dr. Satterlee merely recited his understanding that employee was receiving ongoing psychiatric and pain management care on her own. This, in our view, does not constitute an unequivocal medical opinion to rebut that of Dr. Koprivica. And, as we have noted above, the report from Dr. Wheeler did not touch upon any issues of

causation, including whether employee has a need for future medical care flowing from the work injury.

We are persuaded by Dr. Koprivica's essentially unrebutted opinion. We are convinced (and we so find) that there is a reasonable probability that employee has a need for future medical treatment flowing from the work injury. We conclude that employer is obligated to provide that future medical treatment that may reasonably be required to cure and relieve the effects of employee's work injury.

The administrative law judge determined that employee is not permanently and totally disabled. We disagree, for the following reasons.

First, with regard to the issue of maximum medical improvement, we note that employee, in her brief, asserts she reached maximum medical improvement on December 22, 2016. Given that this date falls well after the date of the hearing in this matter, we take it that this is an apparent clerical error, and that employee instead meant to reference Dr. Satterlee's release of December 22, 2011. At his deposition, Dr. Koprivica agreed December 22, 2011, was the appropriate date of maximum medical improvement. We credit this opinion. We find employee reached maximum medical improvement on December 22, 2011.

Turning to the nature and extent of disability referable to the work injury, we note that in his final report, Dr. Koprivica rated employee's permanent partial disability referable to the work injury as follows: 35 % permanent partial disability of the left shoulder; 15 % permanent partial disability of the body as a whole referable to employee's chronic cervicothoracic or regional myofascial pain; 15 % permanent partial disability of the body as a whole referable to intractable headaches; 15 % permanent partial disability of the left elbow for chronic pain and ulnar neuropathy affecting the left elbow; and 15\% permanent partial disability of the right shoulder for compensatory pain.

Dr. Koprivica also provided the opinion that, globally, for employee's multiple impairments and the severity of her overall presentation, a much more significant permanent partial disability should be apportioned. In this regard, Dr. Koprivica assigned a 70 % permanent partial disability to the body as a whole for the physical impairments in isolation. Dr. Koprivica does not believe any ordinary employer would hire employee as she presents.

With regard to employee's psychiatric disability, Dr. Logan rated a 15\% permanent partial disability of the body as a whole referable to the effects of the January 2008 work injury. Dr. Logan opined that employee would not be able to work, except in a low stress job with minimal coworker conflict or pressure.

Dr. Satterlee, meanwhile, rated employee's permanent partial disability at 18\% of the left shoulder and 10 % of the left elbow; notably, Dr. Satterlee issued these ratings on March 29, 2010, and did not revisit or revise them after employee underwent a third left shoulder surgery in July 2011. In his final note of December 22, 2011, Dr. Satterlee

recommended that employee restrict her lifting to within her pain tolerance, and probably not more than 10 pounds with regard to the left shoulder. Dr. Satterlee also indicated his opinion that it did not appear that employee would be able to return to her work as a police officer, in light of both her shoulder injury and her psychological difficulties.

Employee also presents the expert testimony of Terry Cordray, a certified vocational rehabilitation counselor, who believes employee is totally vocationally disabled. Mr. Cordray explained that the combination of employee's physical and psychological impairments resulting from the work injury will prevent her from successfully competing for work. Mr. Cordray highlighted that even if employee were able to secure an entrylevel clerical or customer service position; such jobs would involve frequent, stressful interactions with coworkers and customers, which would be incompatible with employee's psychological limitations as identified by Dr. Logan. In Mr. Cordray's view, it is not realistic to expect any employer in the normal course of business to hire an individual, like employee, who is incapable of physically performing her past work, and who has pain and psychological issues that would prevent her from presenting to work on a consistent basis.

Employer, on the other hand, presents the testimony of Michelle Sprecker, a vocational rehabilitation counselor, who believes, notwithstanding employee's physical and psychological limitations, that it would not be unreasonable for an employer in the normal course of business to realistically hire employee as a telemarketer, parking lot cashier, or surveillance system monitor. Notably, Ms. Sprecker confined her analysis to a comparison of the physical requirements of various jobs with employee's physical restrictions, as assigned by the various treating and evaluating physicians in this case. We have credited the opinions of Dr. Koprivica with regard to medical causation; we note that Ms. Sprecker conceded that employee would likely be rendered permanently and totally disabled if one assumed Dr. Koprivica's restrictions.

After careful consideration, we find Dr. Koprivica's and Mr. Cordray's analysis most persuasive with regard to this issue. We find that employee is unable to compete for work in the open labor market as a result of the multiple disabling effects of the primary injury. We conclude, therefore, that employer is liable for permanent total disability benefits pursuant to $\S 287.200$ RSMo.

We modify the award of the administrative law judge as to the issues of: (1) rate of compensation; (2) future medical care; and (3) the nature and extent of disability.

The appropriate weekly rates of compensation in this case are $\ 742.72 for both temporary total and permanent total disability, and $\ 389.04 for permanent partial disability.

Employee is entitled to, and employer is hereby ordered to provide, that future medical care that may reasonably be required to cure and relieve from the effects of the work injury.

Employee: Heather Bass

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Employee is entitled to, and employer is hereby ordered to pay, weekly permanent total disability benefits beginning on the date of maximum medical improvement, December 22, 2011, at the rate of $742.72. The weekly payments shall continue for employee's lifetime, or until modified by law.

The award and decision of Administrative Law Judge Mark S. Siedlik, issued August 10, 2016, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an attorney's fee herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this $\qquad$ day of April 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Heather Bass

Injury No. 08-006183

Dependents: N/A

Employer: Board of Police Commissioners of Kansas City, Missouri

Self-Insurer: Board of Police Commissioners of Kansas City, Missouri

Additional Party: N/A

Hearing Date: March 1, 2016

Checked by: MSS/lh

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 23, 2008.
5. State location where accident occurred or occupational disease was contracted: Jackson 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? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While exiting her patrol vehicle, the Claimant slipped on ice.
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: Left shoulder, left elbow, whole body.
14. Nature and extent of any permanent disability: 45 percent left shoulder, 10 percent left elbow, 10 percent whole body.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Heather Bass

1. Compensation paid to-date for temporary disability: $\ 21,051.31
2. Value necessary medical aid paid to date by employer/insurer? $\ 95,156.58.
3. Value necessary medical aid not furnished by employer/insurer? N/A
4. Employee's average weekly wages: $\ 1,028.00
5. Weekly compensation rate: $\$ 685.33 / \ 389.04
6. Method wages computation: By stipulation.

1. Amount of compensation payable: 165.4 weeks @ $\ 389.04, due from the Employer/Insurer.
2. Second Injury Fund liability: N/A

TOTAL: $\ 64,347.22

1. Future requirements awarded: None

Said payments to begin as of the date of the award 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Shellie Rebman.

This case comes on for hearing before Administrative Law Judge Siedlik in Kansas City, Missouri on March 1, 2016. The Claimant Heather Bass was represented by her counsel, Ms. Shellie Rebman. The Employer and Insurer were represented by their counsel, Mr. Anthony Bush. This case involves injuries on or about January 23, 2008, while the Claimant was in the employ of the Board of Police Commissioners of Kansas City and sustained an injury by accident arising out of and in the course and scope of employment in Jackson County, Missouri. At the time of the injuries, the parties were subject to the Missouri workers' compensation law and the employer's liability self-insured. The Employer had notice of the injury and claims were timely filed. I show the average weekly wage stipulated to be $\ 1,028 and compensation rates agreed to be $\$ 685.33 / \ 389.04. It is to be noted at this point that the proposed awards submitted by the Employer and Insurer as well as the Claimant allege a different average weekly wage. The Employer alleges an average weekly wage of $\ 1,129, and the Employee alleges an average weekly wage of $\ 1,100. Likewise, the parties have in their proposed awards suggested compensation rates for the Employer $\$ 772.53 / \ 404.66 and the Claimant $\$ 742.72 / \ 389.04. The maximum compensation rates on the date of injury were $\ 742.72 for temporary total disability and $\ 389.04 for permanent partial disability. The average weekly wage agreed to be and on the record presented is $\ 1,028, which would entitle the Claimant to a temporary total rate of $\ 685.33 and a permanent partial rate of $\ 389.04. There was no evidence of wages presented and the agreed upon average weekly wage establishes the compensation rates to be applied. Weekly benefits of $\ 21,051.13 have been paid, medical expenses of $\ 95,156.58 have been provided.

The issues to be presented at trial include:

1) Medical causation;

2) The liability for past medical expenses;

3) The need for future medical care;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Heather Bass

Injury No. 08-006183

4) The nature and extent of permanent disability; and,

5) The allegation of unreasonable defense pursuant to $\ 287.560 for which the Claimant's counsel believes attorney's fees and costs are appropriate for the unlawful withholding of medical care.

Exhibits presented at trail included Claimant's Exhibits A through T and Employer and Insurer Exhibits 1 through 9. After the close of evidence by email correspondence counsel from the Employer and Insurer forwarded a letter dated March 7, 2016 in response to counsel for the Claimant suggesting letters from counsel for the Claimant to counsel for the Employer and Insurer dated April 29, 2014, January 24, 2014, and October 6, 2009 be admitted into evidence. Counsel for the Employer and Insurer would not agree to their admission into evidence and no motion was made to reopen the record and those letters from Claimant's counsel are in the nature of settlement negotiations pre and post mediation conferences and are of no probative value to the determination of the case.

The evidence at trial consisted of the above-mentioned exhibits together with the testimony in person of the Claimant Heather Bass and her husband Vincent Bass. Claimant testified that on or about January 23, 2008, she was answering a call in the performance of her duties and upon exiting a police vehicle, Claimant slipped and fell on black ice landing on her left elbow injuring her left elbow and shoulder. Claimant noticed immediately immediate swelling in the elbow. The Claimant was provided treatment that day by the Employer and Insurer at Concentra medical facility. The Claimant was initially provided X-rays which were negative for fractures and diagnosed with left elbow contusion and sprain along with left shoulder pain. The Claimant was provided conservative treatment and physical therapy which began January 29, 2008. The Claimant's complaints of pain persisted and an MRI was performed January 30, 2008. The Claimant was referred to Dr. Lofgren and on February 1, 2008, the Claimant was diagnosed with a rotator cuff strain and physical therapy was recommended. The Claimant's complaints of pain persisted and on February 28, 2008, the Claimant was seen by Dr. Hood who provided a subacromial injection to the left shoulder without improvement. On March 19, 2008, Dr. Hood performed surgery, including a distal clavicle resection, acromioplasty in the left shoulder, and left rotator cuff repair. Claimant was released to light desk duty on April 3, 2008 .

The Claimant's pain complaints continued and in April she sought leave to again be seen by Dr. Hood. On April 17 Claimant was referred back to Dr. Hood, but on April 18, 2008, before her appointment with Dr. Hood the Claimant presented to the emergency room with excruciating shoulder pain. There the Claimant was X-rayed and prescribed pain medication. The Claimant saw Dr. Hood on April 2, 2008. Dr. Hood ordered for the Claimant to continue the physical therapy which she was undertaking. During her course of physical therapy on three separate occasions in May of 2008, the Claimant noted excruciating complaints of pain while in physical therapy.

The Claimant had an appointment scheduled for May 19, 2008, with Dr. Hood which was canceled and the Claimant was told the doctor was on extended vacation. The Claimant further testified that it was her understanding that Dr. Hood had his license revoked. During the course of treatment for her shoulder the Claimant also saw Dr. MacMillan who diagnosed left lateral

epicondylitis and left carpal tunnel syndrome in a visit on May 21, 2008. During the course of the Claimant's physical therapy in May of 2008, the Claimant requested the physical therapy be transferred to Concentra from ARC because the Claimant felt the therapist at ARC was too aggressive causing her excruciating pain.

The Claimant's complaints of shoulder pain persisted and her care was directed to Dr. Charles Satterlee who on October 17, 2008 performed a second surgical procedure to the Claimant's left shoulder. Claimant again entered occupational therapy to rehabilitate after the second surgical procedure. Claimant continued in physical therapy and in early March 2009 discovered she was carrying her first child. On March 11, 2009, the Claimant called Dr. Satterlee's office to report that she had been to the North Kansas City emergency room on March 5, 2009, due to excruciating pain wherein her pregnancy was discovered. The Claimant on May 6, 2009, had an MRI arthrogram which revealed a full thickness tear of the rotator cuff with extravasation into the subacromial bursal, residual or recurrent full thickness tear at the anterodistal aspect of the supraspinatus tendon, partial thickness tear of the glenohumeral surface of the infraspinatus tendon with contrast extending within the tendon substance to the level of the musculotendinus junction. A surgical recommendation for a third procedure was recommended and the Claimant by letter to her supervisor explained she did not wish to have a third procedure and wished to be considered for medical retirement. The Claimant in a visit on May 18, 2009, to Dr. Satterlee informed her she did not wish to have a third surgical procedure and wished to be released from care.

The Claimant continued with complaints of pain to her shoulder and on September 16, 2010, the Claimant met with Dr. Satterlee and indicated she wished to try another surgical procedure after her pregnancy concluded.

The Claimant thereafter underwent a third surgical procedure on July 15, 2011, with Dr. Satterlee. Dr. Satterlee notes there was a small partial thickness deep surface rotator cuff tear from underneath visualization and also noted some scarring of the subacromial bursa but not obsessive. The Claimant again on July 20th of 2011 began physical therapy at Select Physical Therapy. On August 29, 2011, the Claimant was returned to light duty with restrictions of no lifting with the left arm and no driving. The Claimant testified she informed her work supervisor of her work restrictions and because of her residence in relation to the assigned work place of her restricted duty she would not be able to present to work unless she was provided transportation to and from her physical therapy three times a week which was part of her treatment regimen. The Claimant was informed that that was not a possibility and the Claimant chose not to return to limited duty under those circumstances.

Claimant saw Dr. Satterlee on November 10, 2011, and Dr. Satterlee noted that the Claimant is currently on some medications as prescribed by her personal physician, that her left shoulder incisions appeared well healed. Dr. Satterlee noted some tremor in the shoulder and recommended that the Claimant see Dr. Wheeler for pain management evaluation. On December 22, 2011, Dr. Satterlee reported Claimant was able to return to light duty with permanent restrictions of lifting 5 to 10 pounds to horizontal with the left upper extremity. Dr. Satterlee noted the Claimant does have some residual neck pain over the area of the distal clavicle area, and notes that the therapist providing treatment felt the Claimant was in need of no further

physical therapy. Dr. Satterlee noted the Claimant should keep her lifting to pain tolerances probably less than 10 pounds.

Claimant testified she never returned to work after the third surgery and that upon reaching her conclusion of treatment on December 22, 2011, her entitlements to temporary total disability or temporary partial disability benefits ceased. The Claimant testified she used vacation and/or sick days and received no other pay until she was placed on duty-related disability on June 14, 2012.

The Claimant was seen by Dr. Eden Wheeler on October 25, 2011. Dr. Wheeler noted grave concern regarding the history of progressive pain intensity as evidenced by the Claimant despite three shoulder surgeries, four courses of extensive therapy both pre and post operative, multiple shoulder injections as well as topical and oral agents of various therapeutic designations. Dr. Wheeler also noted despite her extensive physical therapy her range of motion has continued to decline with increased complaints of pain. Dr. Wheeler noted that Claimant has been seen by a number of orthopaedic specialists and despite their treatment has a history of escalating pain and other multiple subjective symptoms. Dr. Wheeler after her examination felt she had little to offer the Claimant in as much as medications would not resolve her subjective complaints and felt further injection treatment or medications would be of no value. Further Dr. Wheeler noted extensive therapy documenting minimal gains or actual declines would cause her to medically advise that continuation of said treatment would be inappropriate.

Dr. William Logan saw the Claimant and his report is in evidence. Dr. Logan is of the opinion that the Claimant is suffering from a moderately severe depressive disorder as a result of her left upper extremity function and associated chronic pain from January 23, 2008 injury. Dr. Logan further believed that the work-related injury has exacerbated to a significant degree of preexisting panic disorder.

Dr. Logan felt that the Claimant had a permanent partial disability 15 percent of the whole person relative to her work-related injury and that she would be able to work in a low stress job with minimal coworker conflict or pressure and with minimal demands requiring repetitive use of her left upper extremity.

The Claimant was examined by Dr. Hughes on January 6, 2010, and Dr. Hughes' report is in evidence. Dr. Hughes was of the opinion based on the medical records reviewed that the Claimant suffers from chronic neuropathic pain from her ongoing rotator cuff tear. Dr. Hughes further reports that Claimant suffers "reactive" distress, anger, frustration, upset and sadness about the changes in her life subsequent to her shoulder injury. Dr. Hughes felt the factors causing the Claimant's ongoing conditions are: (1) upset over ongoing interpersonal discord with coworkers, supervisors, doctors, and workers' compensation personnel and (2) fury at her initial treating surgeon and his perceived malpractice, which has left her in need of additional medical care and (3) diminished status and standing among coworkers, due to her persistent but necessary light-duty work tasks and (4) intermittent distress from her left shoulder pain and the life's limitations.

Dr. Hughes is of the opinion that the Claimant's adjustment disorder causes no impairment in activities of daily living, moderate impairment in interpersonal relationships, mild impairment in adaptive workplace duties, and no impairment in focus or concentration. Dr. Hughes believed that 80 percent of any psychiatric impairment is for unrelated causes to her workplace shoulder injury and only 20 percent of her adjustment order is because of the injury itself. Dr. Hughes noted that the Claimant had already been provided a good deal of psychotherapy sessions, currently was taking Cymbalta which she found generally helpful with her overall demeanor. Dr. Hughes was of the opinion that the ongoing use of Cymbalta was unrelated to any work-related residual impairment and dealt with the unrelated and pre-existing stressors in the Claimant's makeup. Dr. Hughes overall opined the Claimant had a permanent psychiatric disability of 10 to 12 percent to the body as a whole but attributed 80 percent of that to pre-existing and nonrelated stressors. Dr. Hughes was then of the opinion at most the Claimant had a 2.4 percent psychiatric disability attributable to any work-related event.

I find the report of Dr. Hughes more credible and compelling than that of Dr. Logan with regard to the Claimant's psychiatric condition alleged to be a part of this claim. Dr. Hughes in his report noted that Dr. Logan's psychiatric evaluation notes the majority of the patient's complaints and various depressive symptoms emanate from her increasing pain, highlighted by panic attacks which began prior to her workplace injury. It is for that condition that the Claimant has been engaged in psychotherapy and taking Cymbalta and small doses of Amitriptyline and Xanax for sleep and anxiety respectively. Dr. Hughes noted that Dr. Logan had diagnosed "depression due to a general medical condition" which Dr. Hughes points out as a factually inaccurate diagnosis according to the American Psychiatric Association. Dr. Hughes noted according to the American Psychiatric Association that in order for a clinician to appropriately diagnose depression secondary to a medical condition the clinician must establish that the mood disturbances etiologically related to the general medical condition through a physiological mechanism. No such psychological mechanism or link exists between the orthopaedic shoulder injuries and biochemical workings of the brain. Dr. Hughes goes on to say that consistent with the DSM-IV-TR there list the associated general medical conditions that do cause depression secondary to general medical conditions and nowhere in that list are orthopaedic shoulder injuries or chronic subjective physical pain. Dr. Hughes again points out Dr. Logan diagnosis an exacerbation of pre-existing panic disorder, with that exacerbation caused by the patient's shoulder pain. Dr. Hughes points out this is also factually inaccurate medical conclusion as it has been conclusively disproven via sound psychiatric research that pain has any effect or causes more panic attacks. It is for the reasons set forth above as highlighted in Dr. Hughes' report I find his opinion on any degree of psychiatric disability to be more credible than that of Dr. Logan.

Dr. Satterlee examined the Claimant and provided two surgical procedures to her left upper extremity and his report is in evidence as Employer and Insurer's Exhibit No. 2. Dr. Satterlee performed two operative procedures to the Claimant's left upper extremity after the initial surgery by Dr. Hood resulted in the ongoing need for treatment and further repair. Dr. Satterlee in his report dated March 29, 2010, noted the Claimant had undergone surgery with Dr. Hood and afterwards continued to have pain in her left arm and numbness and tingling in her fourth and fifth fingers. Dr. Satterlee performed a second surgery for revision of the rotator cuff tear. Dr. Satterlee opined the injury of January 23, 2008, was a prevailing factor in causing the

Claimant's injuries including a rotator cuff tear and ulnar nerve injury. After the first surgery by Dr. Satterlee, the second operative procedures on the Claimant's left shoulder, the Claimant still had multiple complaints of pain and limitations in the left shoulder and received a recommendation for a third surgical procedure which she chose not to pursue. After the passage of some time in the continued complaints of the Claimant she again was sent to Dr. Satterlee to acquiesce to the third surgical procedure but wished to wait until the birth of her first child, necessitating a postponement of the third surgical procedure. At the conclusion of Dr. Satterlee's treatment he opined that the Claimant had a permanent partial disability of 18 percent to the left shoulder and 10 percent permanent partial disability to the left elbow.

Dr. Koprivica examined the Claimant on two occasions and his report and deposition testimony is in evidence. Dr. Koprivica first examined the Claimant on July 16, 2009, noted the Claimant had a work-related fall January 23, 2008, and after his interview of the Claimant and review of medical records formed opinions. Dr. Koprivica felt at the time of his first report the Claimant had a 10 percent permanent partial disability of the left upper extremity at the elbow, 35 percent permanent partial disability of the left upper extremity at the shoulder, and for regional myofascial complaints in the cervical thoracic region he assessed 5 percent permanent partial disability. Dr. Koprivica felt the Claimant's global overall disability from his exam on July 16, 2009 was $321 / 2$ percent of the whole body, and had indicated a psychiatric or psychological referral should be made. Dr. Koprivica felt at that time the Claimant was not totally disabled and that she would be able to access the labor market, albeit not as a police officer.

Dr. Koprivica later examined the Claimant again on January 21, 2013, following the third shoulder surgery, and after again interviewing the Claimant and reviewing medical records assigned 15 percent permanent partial disability to the left upper extremity at the elbow. This rating was 5 percent higher than his earlier opinion on disability with no notable change in complaints or treatment in the four-year period since. Dr. Koprivica further assessed 35 percent permanent partial disability to the shoulder at the 232-week level. Dr. Koprivica further assessed 15 percent permanent partial disability to the cervical thoracic complaints which had been 5 percent and 15 percent permanent partial disability for disabling headaches to the whole body. Dr. Koprivica identified problems without elaboration regarding the right upper extremity and portioned 15 percent permanent partial disability to the right upper extremity at the level of the shoulder. It was Dr. Koprivica's opinion that the overall disability to the Claimant was 70 percent permanent partial disability to the whole which would not include any psychiatric or psychological disability.

Dr. Koprivica limited the Claimant's physical abilities to restricted use from repetitive use of either upper extremity, that the Claimant should avoid repetitive elbow flexion and extension as well as vibration. Dr. Koprivica would restrict the Claimant to below chest level activities with either upper extremity, noting she should not lift overhead and limited carrying activities occasionally of less than 10 pounds below chest level. Dr. Koprivica attached great significance to the frequency and severity of headaches which he believed would not allow the Claimant to reliably present for work which would be on a weekly basis in his opinion.

On the issue of future medical treatment, Dr. Koprivica's opinion was that the Claimant would need ongoing indefinite medical treatment.

The Claimant was examined by Michelle Sprecker, a vocational expert on behalf of the Employer and Insurer, who was provided medical records and opinions on the physical restrictions by the treating and examining physicians. Sprecker was of the opinion based on the medical restrictions provided as well as the physical demands and described by the Claimant of her job as a police officer that she could not return to any of her preinjury positions. Ms. Sprecker was also made aware of both psychiatric restrictions identified by Dr. Logan and opined that the Claimant was capable of performing low stress jobs with minimal coworker conflict or pressure with minimal demands requiring repetitive use of her left upper extremity. Ms. Sprecker identified a number of positions through the Dictionary of Occupation Titles and her own vocational searches to identify positions such as inside sales representative, customer retention, customer service, temporary agency positions or cashiering positions which Ms. Sprecker believed the Claimant was capable of performing.

Ms. Sprecker ultimately was of the opinion after examining both medical and psychiatric restrictions and interviewing the Claimant that the Claimant was employable in the open labor market, albeit not at her previous position as a law enforcement officer.

Ms. Sprecker in her deposition testimony went through with some detail the physical restrictions as outline by a number of physicians who have commented on the issue and has laid out concrete examples and actual jobs of a number of occupations to which the Claimant may reasonably be expected to be employed. Those jobs are of minimal stress and sometimes with little coworker communication, but jobs Ms. Sprecker felt fully were within any physical restrictions Claimant was ordered to adhere to.

I find the vocational opinion testimony of Ms. Sprecker to be more credible and worth more consideration than that of Mr. Cordray for the reasons set forth above that Ms. Sprecker finds actual concrete examples of employment within the physical restrictions outlined. The opinions of Mr. Cordray seem too fixated on the Claimant's duty disability status and the fact as brought out in his deposition testimony that the police department had they felt the Claimant employable could have but did not offer the Claimant positions in filing, dispatch or other civilian activities. Mr. Cordray attaches great significance to this as what he perceives to be inability to compete in the open labor market.

Mr. Terry Cordray, a vocational expert, examined the Claimant on her behalf. Mr. Cordray indicated he reviewed the medical reports and opinions of Dr. Satterlee, Dr. Koprivica, and Dr. Logan, along with his own testing and research to perform his opinions. Mr. Cordray was of the opinion that the Claimant was after the third shoulder surgery totaling disabled from gainful employment. Mr. Cordray noted that the Board of Police Commissioners had found the Claimant unable to return to her job as a police officer and while there were varying opinions as to the sedentary abilities of the Claimant, Mr. Cordray differs in his opinion. Mr. Cordray believes that despite the Claimant's advanced education sedentary work is not available to her as

a realistic opportunity in the open labor market because of the Claimant's inability to physically perform and her pain and psychological issues which would prevent her from presenting to work on a consistent basis. Mr. Cordray in his testimony offers his opinion that while the Board of Police Commissioners found the Claimant not able to return to duties as a police officer they offered her no other job, whether it be a clerk, dispatcher, or mailroom job, and Mr. Cordray believes this is compelling evidence of the Claimant's unemployability in the open labor market.

Based on the evidence presented and testimony solicited, I find the Claimant has met her burden of proof to establish the medical causation for her injuries for which the treatment has been provided in the form of three surgical procedures to her shoulder. The Claimant upon questioning at trial was asked about any medical treatment refused her in the course of this case to which the Claimant indicated she has not been denied any treatment which she has needed nor requested. The Claimant nonetheless resents the issue of past medical expenses for chiropractic bills, prescriptions, and visits to a therapist, which Dr. Hughes found unrelated to her workrelated injuries. Claimant on cross-examination admitted that the City has provided all the medical care which she has requested, has not denied her medical care and the care she is currently seeking is seemingly unrelated to her left shoulder and elbow injuries, in the form of sleep aids, Cymbalta for her mood, and occasional chiropractic visits.

Claimant's counsel has made an issue of whether the Board of Police Commissioners has unreasonably defended this case and denied the Claimant appropriate care. That assertion is flatly refuted by the testimony of Dr. Koprivica in his deposition when he asserts he has no belief that the Claimant was provided inappropriate medical care. It seems the assertions made by Claimant's counsel of inappropriate medical care and denial of treatment emanates from the period of time after the first surgery by Dr. Hood where Dr. Hood was of the opinion that extended physical therapy and other conservative modalities of treatment were more appropriate than a second surgical procedure which ultimately had to be performed by Dr. Satterlee. The Claimant was clearly frustrated with this delay in treatment but the difference of medical opinion does not rise to denial of care.

At trial counsel for the Employer and Insurer and the Court directly questioned the Claimant as to whether or not she believed she was provided substandard medical care, a medical malpractice issue, which she denied was the case. The second assertion of unlawfully withholding medical care appears to be the period of time between the second shoulder surgery and the recommended third shoulder surgery. The evidence as presented is after the second surgery the Claimant chose not to pursue the third surgery and was released from care at her request. After persistent complaints of pain, the Claimant chose to again seek that third surgical procedure but only after the completion of her pregnancy which caused a delay in the third surgical procedure. This can no way rise to unlawfully withholding medical care.

While not presented as an issue at trial, the Claimant in per post-trial brief alleges a period of temporary total disability is due for a period of time when the Claimant was released to light duty and directed to a certain facility. The Claimant testified that while she could get transportation to and from work she was unable to drive during that period of time and would not

be able to attend her physical therapy sessions and requested a reassignment which was denied. The Claimant thereafter used vacation, sick leave and FMLA leave as her source of income. I find this period of time to be a non-issue primarily because there was no claim for temporary total disability as set forth in any disputed issues in this matter and the Employer and Insurer had provided the opportunity for light duty treatment and it was the Claimant who chose not to comply with the light duty offered.

The Claimant through counsel makes the assertion that the Employer and Insurer had no evidence to contradict the Claimant's evidence of permanent and total disability and that by proceeding to a hearing the Employer and Insurer engaged in abusive and harmful behavior to the detriment of the Claimant. I find there was competent and substantial evidence from numerous experts on the extent and degree of the Claimant's disability and employability and differences of opinion of those experts on those very issues and find the Claimant's request for attorney's fees and costs pursuant to 287.560 to be misguided and they are denied.

Based on the evidence presented I find the Claimant has established entitlement to permanent partial disability benefits in the amount of 45 percent of the left upper extremity at the shoulder, 10 percent permanent partial disability of the left upper extremity at the elbow and 10 percent of the whole body referable to her psychiatric condition. The Employer therefore owes the Claimant 165.4 weeks of permanent partial disability benefits at $\ 389.04 per week, a total of $\ 64,347.22. This amount due and owing from the Employer and Insurer is set off from a dollar-for-dollar basis against the Claimant's current duty disability pension.

Claimant's counsel is entitled to attorney's fees of 25 percent of sums recovered for her legal services rendered.

Made by: $\qquad$

Mark S. Siedlik

Administrative Law Judge

Division of Workers' Compensation