Carmelita Estes v. State of Missouri, Department of Public Safety

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 12-037180

Employee: Carmelita Estes

Employer: State of Missouri, Department of Public Safety

Insurer: Office of Administration CARO

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 9, 2016. The award and decision of Administrative Law Judge Robert House, issued December 9, 2016, is attached and incorporated by this reference.

The Commission further approves and affirms 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 $18^{\text {th }}$ day of July 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

1. Are any benefits awarded herein? 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, to Employee's neck.
4. Date of accident or onset of occupational disease. 01/27/2012
5. State location where accident occurred or occupational disease was contracted. Missouri Veterans Home, Mt. Vernon, Missouri
6. Was above employee in the 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 employment? Yes to Employee's neck only
9. Was Claim for Compensation filed within time required by law? Yes.
10. Was employer insured by above insurer? Yes, self-insured.
11. Describe work being performed and how accident occurred or occupational disease contracted. The Employee worked as a housekeeper at the Missouri Veterans Home and was cleaning a sink when she felt a pain in her neck.
12. Did accident or occupational disease cause death? No.
13. Parts of body injured by accident or occupational disease. Neck/body as a whole.
14. Nature and extent of any permanent disability. Permanent partial disability of 20 % to the body-as-a whole related to Employee's neck.
15. Compensation paid to-date for temporary disability. None.

Employee: Carmelita Estes

Injury No : 12-037180

1. Value necessary medical aid paid to-date by employer/insurer? $\ 8,837.05.
2. Value necessary medical aid not furnished by employer/insurer? $\ 0
3. Employee's average weekly wages: $\ 392.98.
4. Weekly compensation rate: $\ 262.00.
5. Method wages computation: Stipulation.
6. Compensation payable: $\ 20,960 ( 80 weeks of disability ( 20 % BAW) at the rate of $\ 262.00 per week)
7. Unpaid medical expenses: $\ 0
8. Second Injury Fund Liability: Not applicable.
9. Future requirements awarded: Future medical treatment is awarded for Employee' neck. The Employer is order to provide future medical treatment for the Employee's neck in order to cure or relieve the effects of her work related injury.
10. Attorneys' fees and expenses: Patrick J. Platter and the Law Firm of Neale \& Newman, LLP is granted an attorneys' fee of twenty-five percent ( 25 % ) of the amount order paid herein.

Employee: Carmelita Estes Injury No: 12-037180

Beforethe

Dependents: N/A

DIVISION OF WORKERS' COMPENSATION

Employer: State of Missouri / Department of Public Safety

Department of Labor and Industrial

Relations of Missouri

Additional Party: N/A

Jefferson City, Missouri

Insurer: Office of Administration

Clerk

Central Accident Reporting Office (CARO)

Hearing Date: August 30, 2017

The parties presented evidence at a hearing on August 30, 2016. Employee appeared in person and with her attorney, Patrick Platter. Employer/Insurer appeared through their attorney, Assistant Attorney General Cara Harris. The parties presented six issues for determination:

1) Whether Employee's right shoulder complaints arise out of and in the scope of her employment;

2) Medical causation of Employee's right shoulder complaints;

3) The nature and extent of permanent disability attributable to Employee's neck injury and right shoulder injury, if it is found to be a compensable injury, with Employee alleging she is permanently and totally disabled. The parties agreed should permanent total disability benefits be awarded, those benefits would start as of November 12, 2013;

4) Whether Employer/Insurer are responsible for past medical bills incurred by Employee with Employee alleging Employer/Insurer are responsible for a total of $\ 55,054.69 in past medical; with $\ 39,407.26 related to past medical care for her neck and $\ 15,647.43 related to her right shoulder;

5) Whether Employer/Insurer are responsible to provide Employee with future medical care related to her neck and/or her right shoulder; and

6) Whether Employee gave Employer notice of and the opportunity to provide her with medical care related to any injuries which are found to be compensable.

7) Employee's attorney, Patrick Platter, seeks an attorney fee of 25 percent.

The record was left open for thirty days for the parties to present additional exhibits on a timeline of events and a breakdown of the past medical expenses sought.

Employee called her husband, Don Estes to testify on her behalf. Mr. Estes and Employee wed in the Philippines in 1969, where she was born. Mr. Estes testified that Employee was hired by the state to work at the Veterans Home in 1996. He noticed her health began to change in September 2011 when she sustained a back injury working at the Veterans Home. Mr. Estes testified that Employee sometimes has problems with expressing herself in written communication, and he has helped her write some letters to the Veterans Home and has also attended some meetings with personnel at the Veterans Home.

Employee testified on her own behalf. She was born on October 5, 1950, and at the time of the hearing was 65 years old. She was educated through the sixth grade in the Philippines. After marrying Mr. Estes and moving to America in 1979, Employee was steadily employed until November 2013 when she retired from the Veterans Home.

She moved to Missouri in 1994 and worked three months at Tyson's and two months at Little Tykes. She quit her job at Tyson's because hanging the chickens was hurting her shoulders, and she was unable to do the heavy work at the pace they wanted. She left the job at Little Tykes when the plant closed.

Employee next worked for the State of Missouri at the Veterans Home in Mount Vernon on the 2:30 p.m. to 11:00 p.m. shift in housekeeping. She worked with a partner, Erlinda for fifteen years. They worked four days a week together and two days a week alone. On the days they both worked, they did the heavier cleaning; and, on the days apart, each did lighter cleaning and emptied the trash.

Employee described her duties at the Veterans Home, part of which included collecting trash and taking it to the dumpster. Employee testified that the Veterans Home used 55-gallon bags for trash when she started, but the size was changed to 40-gallon bags after an inspection. She estimated picking up trash took her 45 minutes per shift. She testified while she picked up trash in several areas, the bags from the shower rooms were the heaviest. Employee admitted she was uncertain regarding the change in trash bag size, and it could have been from 40 to 30 gallons. She also testified that she never weighed the trash, and her estimates on how much the trash weighed, are just that, "estimates."

Her duties also included at times bending and kneeling on the floor to scrub the edges of the hallway floor. She testified that when she got down on the floor, she had difficulty getting back to her feet because of her knee problems. She would have to use the handrail bars along the hallway to get up. Employee had a prior knee injury in the 1990's, that resulted in surgery with a screw being placed in her knee. As a result of this prior injury, Employee left the job she had at that time because of difficulty going up and down stairs. Prior to the January 27, 2012, injury to her neck, Employee had problems walking. She wore a compression stocking on her knee; and her standing was limited to 45 minutes to one hour.

Employee cleaned the public bathrooms (when her partner was not there), cleaned toilets twice a day, did dusting and cleaned showers "once in a blue moon." She estimated she spent three hours per shift mopping, sweeping and vacuuming.

On Thursday, September 15, 2011, Employee injured her low back while working at the Veterans Home. She reported this injury to her supervisor, and paperwork regarding the injury was completed on Saturday September 17, 2011. Employee was seen in the Emergency Room on September 18, and she followed up with Dr. Galligos for treatment. Employee testified that since this injury occurred, she has had constant low back pain and that her husband had to massage her low back after work at least three days a week. She also had problems sitting for long periods of time following this injury, especially on car rides due to low back pain.

Prior to the January 27, 2012, injury, Employee suffered from her 1990's knee surgery and her continuing problems from it, the September 2011 low back injury and continuing problems from it as well as other health problems including cataracts (which caused her to have headaches), kidney and gallstones (which caused her to miss time from work), swelling in her hand (which caused her to give up crocheting and resulted in her being put on Meloxicam), and bunions on her feet (which caused her to miss time from work and required surgery in 2012.)

On Friday, January 27, 2012, Employee was cleaning the break room sink at the Veterans Home when she tilted her neck such as to cause her to have pain in her neck and such that she "saw stars." This happened at approximately 10:30 p.m., just twenty-three minutes before her the time records show she clocked out for the night. Employee first testified she told a supervisor named Lynette (last name unknown) about the incident that night and that she was given paperwork to fill out; however, she does not know what happened to that paperwork. In a handwritten letter to her Employer dated February 27, 2012, Employee references the January 27

event and states she told a supervisor of this incident "a couple of days after." (Exhibit 13). Employee later testified that she was uncertain exactly when she first told a supervisor about the neck pain.

Employee had the same neck pain twice the next day, Saturday (January 28), while at home, and once on Monday (January 30) while being treated at the dentist office. Employee's regular days off were January 28 and 29. She took sick leave for herself on January 30 and 31, and she took a combination of sick leave and annual leave on February 1. Employee saw her family doctor, Dr. Watts, on January 31. She saw Dr. Watts because she was in pain was scared. and had not been directed for care by Employer. However, Employee testified that no one at the Veterans Home or CARO told her that they would not provide her treatment for her injury prior to her seeing Dr. Watts on her own on January 31, 2012. She told Dr. Watts about the episodes of pain in her neck at the Veterans Home, at home while she was cleaning the shower, the episode at the dentist office, and yet another episode later that night. She made no complaints to Dr. Watts about her right shoulder. Dr. Watts sent her for an MRI, which was done on February 6, 2012, she was referred to Dr. Kuntz.

On February 27, 2012, Employee wrote a letter to Employer, attaching the February 6, 2012, MRI. The letter stated that on January 27, while she was scrubbing the sink she "had a severe ache and I grab the back of neck and tilt it back for a couple times till the pain was gone." (sic) She went on to write that she "told her supervisor about it, couple of days after because its weekend. I had a day off on Monday Jan 30 on dental appoint. It went to that, then it happen again when I'm cleaning the shower, I call my husband and he massage my neck. After I had my dental appoint. it happen again about 7:45 p.m. and think I might go to emergency room because it's so painful, but I waited for a while and the pain stop. So next day Jan. 31 I made appoint. to

see Dr. Watts that day and he told me to get x-ray and write me an excuse not for another day to rest. Dr. Watts call Aurora hosp. to had an MRI and here's the result. Had an appoint on Feb. 28 to see a spine dr." (sic)

In this letter Employee mentions the instance of neck pain at work on January 27 and also mentions three other episodes of neck pain which did not occur at work. Employee admitted in her testimony that she never mentioned in her letter of having any right shoulder injury or pain, that she did not ask the Employer to provide medical treatment for her neck or right shoulder, verbally or in writing, and that she did not ask to fill out workers' compensation paperwork.

Employee saw Dr. Kutz on February 28, 2012. She reported to Dr. Kutz the pain in her neck while cleaning the sink at the Veterans Home and the neck pain she experienced while at the dentist office. She made no complaints of right shoulder pain, although she did complain of continued low back pain going back to September 2011. Dr. Kutz ordered physical therapy for her neck.

Employee continued to work her regular job and hours for Employer through the remainder of February 2012 through March 16, 2012. Employee testified during this time that she had no accommodations from Employer even though she believes that Dr. Kutz placed her on restrictions. She testified she does not know that she had those restrictions in writing or that she ever informed the Veterans Home of the restrictions. No records offered by either Employee or Employer show that either Dr. Watts or Dr. Kutz had placed any restrictions on Employee during this time period.

Between February 2 and March 16 (the date Employee went off work for foot surgery), she used only eight hours of sick leave (which was on February 28, the day she saw Dr. Kutz).

Employee testified that during this time frame while she continued to work, she began to have pain in her right shoulder which she believes in part from lifting trash.

Employee was off work between March 17, 2012, and May 1, 2012, for surgery on her feet. Employee attended physical therapy for her neck during this time. She testified that while she was off work for her foot surgery, the pain in her neck and right shoulder was better. However, when she returned to work her pain returned.

On May 7, 2012, Employee filled out a Report of On-The-Job Incident form for Employer regarding the January 27, 2012, incident at the sink. (Employer exhibit I) Employee did not mention anything about injuring her right shoulder on this form, nor does she mention any mechanism of injury other than cleaning the sink on January 27, 2012. The form was signed by Lynette Mitchell on May 7, 2012. In response to the box entitled "Give date and time you were informed that Employee suffered an injury," Ms. Mitchell wrote "Jan. 272012 at 22:30 pm." In the box entitled "How were you informed that Employee suffered an injury?" Ms. Mitchell wrote "Came to the office on 5/7/12 to report." In the box entitled "Give date and time that Employee's injury occurred as reported to you" Ms. Mitchell wrote "Jan. 27, 2012, 22:30 p.m."

Employee saw Dr. Kutz on May 18, 2012, and complained of increased neck pain since returning to work. She made no complaints of right shoulder pain, but did note that she had a history of arthritis and low back pain since September 2011. Dr. Kutz referred Employee to Dr. Lampert whom she saw on June 20, 2012. At this time she was already taking Meloxicam, for her hands and his records state "wants disability." Dr. Lampert offered an injection in Employee's neck as a form of treatment, however she declined the injection. Employee testified

that she did not ask CARO or anyone at the Veterans Home for approval to see Dr. Lampert before she saw him.

Employee signed medical authorizations in May for Employer to obtain the records from the providers with whom she had previously treated on her own. Employer sent Employee to Dr. Lennard for an evaluation on August 2, 2012. Dr. Lennard found that Employee's neck complaints related to her injury of January 27, 2012, and suggested either an injection or cervical traction, both of which Employee told Dr. Lennard she did not want. With the medical treatment he recommended being declined by Employee, Dr. Lennard found Employee to be at maximum medical improvement. He rated Employee's at five percent permanent partial disability to the body as a whole and opined that Employee would need Meloxicam for the next six months due to her work injury.

Employer's attorney sent Dr. Lennard's report to Employee's attorney on August 10, 2012. In the letter Employer's attorney pointed out that Dr. Lennard understood Employee did not wish to have either injections or cervical traction and thus believed that Employee was at maximum medical improvement. The letter also stated that a prescription card would be sent to Employee so she could obtain the Meloxicam as recommended by Dr. Lennard. Finally, the letter asks Employee for a settlement demand. Records (Exhibits O and T) offered by Employer and admitted into evidence at the hearing confirm a prescription card was sent to the address where Employee resided at the time. There was no response to this letter by Employee's attorney.

On November 8, 2012, Employer's attorney again wrote Employee's attorney. In this letter Employer's attorney wrote that it was announced at a recent pre-hearing conference that Employee was continuing to treat. Employer's counsel stated it was his understanding that Dr.

Lennard had found Employee at MMI, so he asked whether the treatment was for the work injury, while also requesting copies of the treatment records.

On November 16, 2012, Employee's attorney wrote back that "CARO denied further medical treatment. Ms. Estes commenced with treatment with Dr. Ben Lampert of the Mercy Medical Network. We will obtain those records and let you know our position." Employee saw Dr. Lampert again on November 21, 2012. At this visit she decided to proceed with the recommended injection. Dr. Lampert performed the injections on December 11, 2012. Employee testified that she decided on her own to go back to Dr. Lampert for these injections. Employee continued to treat with Dr. Lampert throughout 2013 for her neck complaints. This treatment was paid for by her private health insurance.

In April 2013 Dr. Lampert discussed with Employee radiofrequency ablation (RFA) as a form of treatment. She declined this option in April 2013 but proceeded with it with Dr. Lampert in August 2013. Employee testified that after the RFA, she would have relief from her pain for a period of time, but that her pain would later return.

On September 12, 2013, Employee treated with Dr. Lampert and complained for the first time about right shoulder pain. She reported that her right shoulder was painful when she elevated her arm and that "this pain started recently." Dr. Lampert diagnosed a rotator cuff disorder and injected the right shoulder. Employee testified that prior to seeing Dr. Lampert on September 12, 2013, she never reported injuring her right shoulder to Employer. Employee also testified she did not ask anyone at Employer or CARO for treatment of her right shoulder prior to seeing Dr. Lampert for right shoulder pain in September 2013.

Employee testified that in October 2013 she asked Employer to provide her with one week of light duty in the laundry. Employee testified that the normal jobs in laundry are harder

**Employee:** Carmelita Estes

**Injury No:** 12-037180

Work can be done by the workman. Employee had no record of a physician ordering or recommending "light duty" for her at that time. In October 2013, Employee filed a letter for leave from the workman through the FMLA (Family Medical Leave Act) related to her husband's disability. (Employer Exhibit J) Employer raised questions regarding who had filled out the physician's portion of the FMLA paperwork. Upon learning that Employee or her husband has not been a doctor, she was filled out the paperwork. The FMLA request was denied. Employee became upset that the FMLA request was denied and that her request for light duty was denied. She decided to retire, notifying the Veterans Home on November 1, 2013, that her last day of employment would be November 30, 2013.

On October 29, 2013, Employee's attorney wrote Employer's attorney informing him of Employee's request for a modification of her job duties. Employer's attorney responded to that request on November 4, 2013, writing that related to her work injury. Employee was found to be a MMI on August 2, 2012, by Dr. Lennard and released the normal job duties. The letter went on to state that given this, any request for modification of Employee's job duties is a personnel matter and not part of the workers' compensation matter. Finally, Employer's attorney asked again to provide records regarding the treatment Employee had been getting on her own as none had been provided to date.

Employee's attorney responded to this letter on November 15, 2014, writing that Employer's attorney was incorrect about the medical treatment issue, that Employee requested further treatment from Employer which was denied, so she treated on her own.

Employee continued to work at the Veterans Home during 2013 until her retirement. During 2013, she missed only twelve days of being sick, and six days of someone in her family being sick (Employer Exhibit R). The sick days Employee missed in 2013 were noted by

Employer as primarily being directly before or after other days off, and were not random, or during the middle of the workweek (Employer Exhibit R).

Employee saw Dr. Parmet in March 2014. She told Dr. Parmet that she had right shoulder pain and was uncertain if the pain in her right shoulder relates to her neck or something else. Dr. Parmet opined the Employee was in need of further treatment on both her right shoulder and neck. Dr. Parmet testified that Employee told him that her right shoulder pain began at the time of the sink cleaning episode on January 27, 2012. However, Dr. Parmet agreed that Employee did not list her "right shoulder" as being injured in any of the handwritten letters she wrote regarding the incident and did not report right shoulder pain to any doctor for at least a year and two and one half months after the January 27, 2012, injury. Dr. Parmet testified that he appears to be the only person Employee told that she had injured her right shoulder during the January 27, 2012, sink episode. However, Dr. Parmet admitted that he omitted that information from his report of March 6, 2014.

Dr. Parmet saw Employee again in December 2014. He noted that Dr. Daus had found that Employee had impingement syndrome when he performed the September 2014 right shoulder surgery. Dr. Parmet testified that impingement syndrome can come from trauma, (opining that Employee's injury resulted from the January 27, 2012, sink episode), or can be caused by degenerative changes over time. In his March 6, and December 26, 2014, reports, Dr. Parmet found that the injury of January 27, 2012, is the direct and proximate cause of Employee's neck condition; but he makes no such statement regarding her right shoulder pain.

Dr. Parmet testified that the Employee's lifting of the trash at the Veterans Home could also have contributed to her right shoulder and neck complaints. He relied on information from Employee regarding the size and weight of the trash bags she lifted. He understood that the trash

**Employee:** Carmelita Estes

**Injury No:** 12-037180

Bags were formerly 55-gallon bags, changed to 40-gallon bags. Dr. Parmet reported that Employee told him "the combination of her neck and back pain was a continuing problem. She had to walk extensively around the facility and reported the long hallways were simply too taxing, and she elected to file for retirement early."

On March 17, 2014, Employee's attorney sent to Employer's attorney Dr. Parmet's March 6, 2014, report. He wrote in the letter that Dr. Parmet recommended reevaluation and consideration of certain treatment for both Employee's neck and right shoulder and that Employee "calls upon the Department of Public Safety to provide this treatment." He went on to write "If it does not, as it has previously declined previous treatment Ms. Estes will proceed with this treatment and move to assess the cost of such treatment at future proceedings before the Division."

In response to Employee's demand for reevaluation and consideration of additional treatment, Employer scheduled Employee to see Dr. Lennard. The letter to Employee's attorney informing Employee of Dr. Lennard's appointment states "As of the date of this appointment no additional treatment by any other previously authorized physician will be approved. Please be advised only treatment recommended by Dr. Lennard will be approved."

Employee's attorney responded to this letter writing on April 10, 2014, "the examination with Dr. Lennard does not excuse the Employer from its continuing failure to provide medical treatment. Please be advised Ms. Estes treats this continuing failure to provide medical treatment as a waiver of the right to select medical providers."

On April 16, 2014, Employer's attorney responded to Employee's attorney letter, writing that the appointment with Dr. Lennard is in direct response to Employee's demand that the Employer provide her treatment made in the March 17, 2014, letter from her attorney. The letter

further states that Employer and its attorney is unable to identify a "single demand by [Employee] for further medical treatment following her 8/2/2012 release by Dr. Lennard and prior to Dr. Parmet's evaluation." The letter asks that if Employee's attorney believes that he has "overlooked a previous demand for medical treatment following Dr. Lennard's 8/2/2012 release" to "please direct [his] attention to that demand and [he] will make sure it is brought to CARO's attention."

Also on April 16, 2014, Employee saw Dr. Lampert for her neck and right shoulder complaints. At that time Dr. Lampert ordered an MRI of her shoulder and referred her to Dr. Daus.

On April 21, 2014, Employee's attorney responded to Employer's attorney's April 16, 2014, letter regarding the issue of previous demands for medical treatment, responding only, "I stand by my position of CARO's continuing failure to provide medical treatment."

On May 5, 2014, Employee filed a Motion for a Temporary Award pursuant to Section 287.510, RSMo., and a Request for Hardship Hearing. In this request Employee notes Dr. Parmet's recommendation for further evaluation. Employee's request for hearing was denied in light of the appointment Employer had set for Employee with Dr. Lennard.

Dr. Lennard issued a report on April 23, 2014, and a supplemental report on May 30, 2014. In his reports, Dr. Lennard found that Employee's complaints to her right shoulder were unrelated to her workers' compensation claim. He opined that going forward with further treatment on Employee's neck, in the form of facet joint radiofrequency was reasonable and was related to Employee's injury of January 27, 2012.

Employer scheduled Employee for an appointment with Dr. Workman on August 14, 2014, for an injection and for a follow-up appointment with Dr. Lennard on August 26, 2014.

Employee's attorney asked for clarification of the treatment being provided by Dr. Workman, and Employer's attorney responded it was for the RFA recommended by Dr. Parmet.

On August 14, 2014, Employee was treated by Dr. Workman with an epidural steroid injection (ESI). Employee testified she did not like Dr. Workman's bedside manner when he gave her the ESI, and further testified that the injection provided her no relief. Employee further testified she did not believe Dr. Workman was going to put her out for the RFA or follow up with her after the procedure, both things that Dr. Lampert did. Employee admitted, however, she never had a RFA with Dr. Workman and is unsure of what his procedure would have been.

Another appointment was made with Dr. Workman for November 21, 2014, for the RFA. Employer's attorney acknowledged this appointment in a November 3, 2014, letter to the Division requesting a pre-hearing conference be continued in light of the appointment.

On November 21, 2014, Employee called Dr. Workman's office and cancelled the appointment which had been scheduled by Employer. She told Dr. Workman's office that she was cancelling because she was getting the same procedure done by Dr. Lampert. On November 21, 2014, Employer's attorney sent a letter to attorney for Employee outlining her understanding of the demands and offers of treatment in the file. In this letter, Employer's attorney specifically asked Employee's attorney to point her to the request for treatment made by Employee and denied by Employer after she first saw Dr. Lennard and was rated and released in August 2012. Dr. Lennard rated her disability to the body as a whole for her neck at 15 percent from her work and 10 percent from her preexisting degenerative changes. Employer's attorney also reiterated that Employer was ready, willing, and able to provide Employee with the treatment recommended by Dr. Lennard, specifically with Dr. Workman for the RFA.

Employee's attorney responded to the November 21, 2014, letter stating in part that "supervisors at the Missouri Veterans Home told Ms. Estes further medical treatment would be denied"; "CARO never sent a pharmacy card or other authorization for Meloxicam. At a minimum, CARO never sent this or notified me it was authorizing this"; "Given this, [Employee] sought and continued treatment with Dr. Lampert. Her first appointment with Dr. Lampert was June $20^{\text {th }}$, 2012. This was her only appointment with Dr. Lampert before the IME with Dr. Lennard"; "Employer did nothing about intervening for medical treatment until after the evaluation by Dr. Allen Parmet on March $6^{\text {th }}$, 2014." The letter goes on to state that the Employer has failed to provide treatment for two years for Employee's neck and by then, Employee had "already firmly established a physician-patient relationship with Dr. Lampert" and the statement by Employer that is "'ready, willing and able to provide treatment to [Employee] as recommended by Dr. Lennard' is disingenuous." ${ }^{1}$

Employer's attorney responded to the November 21, 2014, letter on November 24, 2014, writing in part that she is "baffled why Ms. Estes would request that we provide treatment by requesting a hardship hearing, and then after we provide treatment pursuant to that request say that we gave up our right to do so." Employer's attorney further reiterated that Employer stands ready, willing, and able to provide the RFA she is seeking with Dr. Workman and provide pharmacy cards.

Employee continued to receive RFA with Dr. Lampert, getting treatments in December 2014 and May 2016. In May 2016, Dr. Lampert's office sought pre-approval from Employer for

[^0]

[^0]: ${ }^{1}$ Employee's attorney also references the demand and denial of treatment for Employee's right shoulder. This discussion is not set forth herein that Employer admits it denied treatment for Employee's right shoulder based on Dr. Lennard's opinion that the right shoulder complaints are not work related.

RFA, which was denied. Employer's attorney immediately informed Employee's attorney that while the treatment with Dr. Lampert was denied, Employer would approve the same treatment with Dr. Workman.

In addition to the treatment that Employee had for her neck during 2014, she also had a left knee surgery. Employee does not contend that her knee injury relates to her work. She has been told she will need a total knee replacement in the future. Employee testified this condition is what caused her problems with certain aspects of her job duties at the Veterans Home, including getting up off of the floor and walking the halls.

Employee had surgery on her right shoulder with Dr. Daus in September 2014. The physical therapy notes following that surgery on September 23, 2014, state that her right shoulder pain started in January or February of 2014. Employee has also had right knee problems for which she treated with Dr. Daus in July 2014. Dr. Daus ordered an MRI of her right knee and injected the knee. Employee testified that 2014 "was the most painful year of my life."

Employee testified that she can lift approximately 10 pounds, and her neck pain is between zero to three on a ten-point pain scale. With respect to her right arm, she stated that she has lost a lot of her range of motion. She does not believe she could currently work at the Veterans Home, nor does she believe she could work at Tyson's or as a cafeteria worker. She has never done retail sale work and does not want to do so now. She does not believe she could work as a cashier due to long periods of standing.

Employee offered the deposition testimony and report of Dr. Parmet. In addition to the testimony and report recitations already set forth above, Dr. Parmet opined and testified that Employee has a thirty percent permanent partial disability to the body as a whole related to her neck, a twenty percent permanent partial disability to right shoulder and a pre-existing five

Improve: Carmelita Estes

Injury No: 12-037180

percent permanent partial disability to the body as a whole related to her low back. He also opined that Employee is able to do a "light level of labor" and "should be limited to occasionally lifting or carrying 20 pounds and frequently carrying 10 pounds. She should highly restrict her head motions to avoid any additional irritation." Dr. Parmet was aware of Employee's other physical condition including her left knee (both prior to and after the January 27, 2012, injury), kidney stones, low back, feet, and diabetes, and testified he took all of these into account in reaching his permanent restrictions. Dr. Parmet believed that it was reasonable that Employee would need to continue to take Meloxicam and that RFA's would need to be repeated every two years or so.

Employer offered the deposition testimony and reports of Dr. Lennard. Dr. Lennard saw Employee on two occasions. Notwithstanding his opinions regarding medical treatment set forth above, Dr. Lennard opined that Employee has a five percent permanent partial disability to the body as a whole related her neck injury of January 27, 2012, and ten percent permanent partial disability to the body as a whole for prior degenerative changes in her neck. He opined Employee should avoid lifting greater than 30 pounds and prolonged cervical extension activities. He noted these limitations are due both to her work-related injury and her pre-existing degenerative changes. He opined related to the work injury she would need to take Meloxicam indefinitely.

Employer called Amanda Goeller to testify live. Ms. Goeller works for CARO, the entity that oversees workers' compensation claims made by State of Missouri employees. As part of her duties, Ms. Goeller was assigned to direct medical treatment for Employee.

The first treatment provided to Employee by CARO was in August 2012 after CARO was made aware of the injury. Ms. Goeller set the appointment with Dr. Lennard for August 2, 2012,

and received his report shortly thereafter. Ms. Goeller testified that had Employee wanted either the cervical traction or injections recommended by Dr. Lennard, CARO would have provided them. Ms. Goeller testified and an exhibit (Exhibit Q) was offered, through her testimony showing that a prescription card was mailed to Employee at her address on Carnation Street in Aurora in August 2012; however the card was never used.

Ms. Goeller was also involved in directing treatment for Employee after the demand for treatment was received from Employee's attorney in March 2014. After that demand, Ms. Goeller sent Employee to see Dr. Lennard again. CARO received two reports from Dr. Lennard, one being a follow-up answering specific questions dated May 30, 2014. In the first report Dr. Lennard again recommended Meloxicam be provided and in the second he agreed with Dr. Parmet that facet joint injections and/or RFA was appropriate for Employee.

Pursuant to Dr. Lennard's recommendations, Employee was sent for treatment with Dr. Workman, a doctor who performs the RFA. Employee first got an epidural steroid injection with Dr. Workman, in part due to an error on the order prepared by Dr. Lennard. CARO however set Employee up for the RFA with Dr. Workman, with an initial consult visit to be held on November 21, 2014. On November 21, 2014, Ms. Goeller received a call from Dr. Workman's office telling her that Employee had called and cancelled the appointment telling them she was getting the same treatment from Dr. Lampert. Ms. Goeller testified that Dr. Lampert has never been an authorized treating doctor by CARO in this claim. She also testified that CARO still is ready, willing and able to provide Employee with RFA, with Dr. Workman. To Ms. Goeller's knowledge, Employer/Insurer never denied any treatment for Employee's neck that Employee requested.

With respect to Employee's right shoulder claim, Ms. Goeller testified that CARO sent Employee to Dr. Lennard to obtain his opinion regarding Employee's right shoulder, and whether it was related to her workers' compensation claim. It was Dr. Lennard's opinion that Employee's right shoulder problems were not related to her workers' compensation claim, so CARO denied treatment for Employee's right shoulder claim.

Employer also called Toyna Schmidly. Ms. Schmidly is currently employed as an RN at the Veterans Home. However, prior to her current position, she was head of housekeeping and was Employee's supervisor from 2007 until June 2012. Ms. Schmidly testified regarding the job duties assigned to Employee as a housekeeper at the Veterans Home, and her testimony was mostly consistent with that of Employee. With respect to the size of trash bags used, however, Ms. Schmidly testified that the change in size was from 44-gallon bags to 32-gallon bags and was made in 2010 in response to an inspection. Ms. Schmidly was in charge of ordering the new 32gallon bags and new trash cans to accommodate the bags. Ms. Schmidly testified that the trash Employee had to empty ranged in size from small office trashcans to the 32-gallon bags in the shower rooms, which were the heaviest. She also testified that there has been no change in the size or amount of trash being picked up by the workers in housekeeping between 2011 and the date of the hearing.

Ms. Schmidly testified that during the time she was Employee's supervisor she completed performance evaluations once a year. Ms. Schmidly testified that Employee always received good performance evaluations while she was her supervisor.

Ms. Schmidly testified that cleaning the break room sink at the Veterans Home was one of the duties assigned to Employee. Pictures of the break room sink were offered and admitted into evidence during the testimony of Ms. Schmidly. The sink appears to be a fairly typical

**Employee:** Carmelita Estes

**Injury No:** 12-037180

Kitchen sink, measuring 7.5 inches in depth. Ms. Schmidly testified that Employee did not report to her that Employee injured her neck or right shoulder on January 27, 2012, while cleaning the sink in the break room. Had Employee reported a work injury to Ms. Schmidly on that date, Ms. Schmidly would have had Employee fill out the paperwork required upon report of a work-related injury. Ms. Schmidly testified that Employee should have understood in January 2012 the procedure for reporting a work-related injury, having followed that procedure in September 2011 when Employee injured her low back lifting a bucket. Employee also filled out similar paperwork regarding a work-related injury on February 3, 2013, when paperwork was filled out the very day the injury occurred.

Ms. Schmidly testified that Employee's duties remained the same the entire time she was Employee's supervisor, including after the January 27, 2012, injury until June 22, 2012, when Ms. Schmidly ceased being Employee's supervisor. Ms. Schmidly testified that there were no work accommodations requested from Employee after January 27, 2012, or before June 22, 2012. Ms. Schmidly testified that Employee continued to do all aspects of her job for Employer after the January 27, 2012, injury and that to her knowledge, as Employee's supervisor, Employer was pleased with how Employee was doing her job during that time frame.

Ms. Schmidly testified that Employee never asked her to have Employer provide Employee treatment for her neck or right shoulder as part of a work-related injury that occurred in January 2012. She also testified that she never told Employee that Employer would not provide treatment for Employee's neck and/or right shoulder.

Employer called Marlene Woodall Davis to testify. Ms. Davis is employed at the Veterans Home as the supervisor of housekeeping, a job she has held since November 2012. Ms.

**Employee:** Carmelita Estes

**Injury No:** 12-037180

Davis was Employee's supervisor between November 2012 and the time Employee retired in 2013.

Ms. Davis testified regarding the duties assigned to Employee as a housekeeper at the Veterans Home. Her testimony was similar to the testimony of Employee and Ms. Schmidly regarding Employee's duties. Ms. Davis testified she has observed Employee's work and also prepared performance evaluations regarding Employee. Ms. Davis testified that Employee had favorable performance evaluations while Ms. Davis was Employee's supervisor and that Employer was pleased with Employee's work.

Ms. Davis testified that Employee never provided Ms. Davis with any restrictions for Employee from a doctor for which Employee was seeking accommodation of her work duties. Ms. Davis also testified that she did not recall Employee ever asking Ms. Davis for Employer to provide medical treatment for Ms. Estes' neck or right shoulder, or that Ms. Davis never told Employee that Employer would not provide Ms. Estes medical treatment. Employee continued to perform her regular duties without accommodation until her retirement.

Ms. Davis testified regarding exhibits showing trash bags on a scale. Ms. Davis weighed the trash being pickup by the housekeeping staff the week prior to the hearing. Ms. Davis testified, and the exhibits demonstrate, that the heaviest bag of trash weighed 20 pounds. She testified that the shower room trash is typically the heaviest and that was the 20-pound bag shown in the exhibit. The exhibit regarding the weight of the trash showed that the weigh varied between 2.6 pounds and 20 pounds, with the majority weighing between 8 and 12 pounds. Ms. Davis testified that there have been no changes in the type or number of trash bags being picked up by housekeeping during the time she has been supervisor up until the date of the hearing.

Indirect, Employee testified that the pictures of the trash bags, depicting their weight show what she was lifting while employed by Employer.

Employer called Sally Quick to testify. Ms. Quick is the personnel officer for the Veterans Home. Ms. Quick has worked in the personnel department at the Veterans Home for nine years. Ms. Quick testified that normally all paperwork regarding work-related injuries at the Veterans Home is referred to her. Ms Quick testified that the first paperwork she received regarding Employee's injury of January 27, 2012, was on May 7, 2012, when she was forwarded the report of an on-the-job injury form filled out by the Employee. While Ms. Quick testified that the February 27, 2012, handwritten letter from Employee is in Employee's personnel file at the Veterans Home, she did not know who was given that letter or who placed it in the file. However, she is certain that she did not see the letter in February 2012.

Ms. Quick testified that once a work injury is reported, the Veterans Home fills out paperwork regarding the injury and sends it to CARO and places a call to a 1-800-number for a referral to medical treatment, or she will contact CARO directly. Ms. Quick testified that in September 2011, Employee came in on a Saturday, September 17, 2011, to report an injury to Employee's back that occurred on Thursday September 15, 2011. Ms. Quick was at the Veterans Home on that Saturday, took Employee's paperwork and called CARO, obtaining for Employee a referral to the emergency room that day. Employee did not go to the emergency room on Saturday, but did go on Sunday, pursuant to this referral made by Employer and CARO on Saturday.

Ms. Quick testified that since she was not aware of the January 27, 2012, injury until May 2012, the procedure is a little different because CARO needed to obtain the medical records of treatment Employee had on her own prior to May 2012. Ms. Quick turned the report of injury

**Employee:** Carmelita Estes

**Injury No:** 12-037180

into CARO shortly after May 7, 2012; and CARO sent an authorization for Employee to sign to obtain medical records. Ms. Quick testified that Employee never asked her for treatment for Ms. Estes' January 27, 2012, injury prior to May 7, 2012. Ms. Quick testified that she did not refer Employee to Dr. Watts or Dr. Kutz, nor is she aware of Employee asking anyone at the Veterans Home to see a doctor prior to her seeing Dr. Watts on January 31, 2012. Ms. Quick is also not aware of Employee asking anyone at the Veterans Home to provide her with treatment for her neck or right shoulder prior to Employee seeking treatment with Dr. Kutz and Dr. Lampert. Ms. Quick is unaware of anyone at the Veterans Home ever telling Employee that they were denying her treatment for a work-related injury to her neck and/or right shoulder.

Ms. Quick was involved in the process surrounding Employee's retirement from Employer. Ms. Quick testified that Employee was seeking leave from work pursuant to FMLA due to an asserted need to be available to assist her husband for to his chronic health problems including COPD. Employer provided Employee with FMLA paperwork, but when the paperwork was returned, Employer questioned Employee as to who had filled out the "physician's" portion of the FMLA paperwork. When it was learned that Employee or her husband had filled out that portion of the FMLA paperwork instead of a physician, Employee's request for FMLA was denied, until that could be remedied.

During that time period, Employee asked Employer to provide modified light duty for Employee in the laundry. Employee had no doctor's note setting forth restrictions for light duty; therefore, Employee's request was denied. After Employee's requests for modified duty and FMLA were denied, Employee told Employer she was going to retire. Up until her retirement, Employee was showing up for and working her regular job and performing her regular job duties.

Ms. Quick testified that until Employee retired, Employer was pleased with Employee's work and had no plans to terminate Employee's employment.

Employee offered the report and deposition testimony of vocational expert Terry Cordray. Mr. Cordray met with Employee and reviewed medical records and reports regarding Employee's medical history. Mr. Cordray opined that prior to the January 27, 2012, injury, Employee had a September 2011 low back strain which caused her to alter her work in some fashion, moving from doing "heavy" work to "medium" work. However, he did not find that change significant. He found that Employee's work for Employer would be defined as "medium" given the lifting Employee described, but he noted that most housekeeping positions are defined as "light."

Mr. Cordray gave Employee the Wide Range Achievement Test, $4^{\text {th }}$ edition (WRAT). Mr. Cordray did not give Employee the word reading portion or sentence comprehension portions because, according to his testimony, a person can read words but not know what they mean, and the sentence comprehension portion of the test could be skewed by her culture. He administered the spelling portion of the test. Employee tested at the $8^{\text {th }}$ grade level on spelling. However, on the math portion of the test, Employee performed at the $3^{\text {rd }}$ grade level. He testified that her math skills would prevent her from working retail sales or cashiering.

Mr. Cordray also gave Employee the Wonderlic Personnel Test which measures IQ. He found her IQ to be 80 and found that is a full 10 points below average, not at mental retardation levels, but below average. Based on his testing he found Employee is capable only of hands-on training.

Mr. Cordray found that both of the doctors who provided Employee with restrictions, Dr. Parmet and Dr. Lennard, base all of their restrictions on her last injury, and no prior disabilities were considered. Mr. Cordray testified that while there may be work that is within the

restrictions placed by both Dr. Lennard and Dr. Parmet, he does not believe Employee is placeable in the open labor market when he considers her "advanced age, her extremely low education, her more extremely limited abilities in math and spelling, her lack of intelligence, and the fact that she has a history of work-related injuries with her long-term employer not accommodating her with subsequent employment." (Cordray depo p. 34). Finally, he found Employee was not placeable in the open labor market due to the January 27, 2012, injury alone.

On cross-examination Mr. Cordray testified that neither Dr. Lennard nor Dr. Parmet opined that Employee is unemployable. He also testified that the restrictions provided by Dr. Lennard and Dr. Parmet place Employee in the "light" level of work as defined by the Dictionary of Occupational Titles ("DOT"). Later, on cross-examination, Mr. Cordray retracted his earlier statement that no doctor placed any restrictions on Employee for a prior condition and noted that Dr. Parmet restricted Employee from repetitive bending, squatting or kneeling due to her low back injury of September 2011. Mr. Cordray also was unaware that prior to the January 2012 injury Employee could stand no more than one hour and that she had limits on how far or how long she could walk as well. He testified that knowledge of both of these things could have impacted his opinion regarding whether Employee had a hindrance or obstacle to her employment prior to January 2012.

Mr. Cordray testified that he was aware Employee continued to work for Employer after the January 2012 injury until November 2013. He understood that during this time she was taking sick days, but was not being formally accommodated in her work. Mr. Cordray testified that, considering only Employee's physical restrictions that Dr. Parmet and Dr. Lennard placed on Employee, there are a limited number of jobs she physically would be capable of doing; however, he opined that Employee's age and education/mental abilities would prevent her from

**Employee:** Carmelita Estes

**Injury No:** 12-037180

being employed in those jobs. Mr. Cordray testified he understood that following the September 2011 low back injury, Employee reduced the amount of trash that she was lifting, limiting it to only 30 to 40 pounds, whereas before she was lifting more.

Employer offered the deposition testimony and report of vocational expert Wilbur Swearingin. Mr. Swearingin did not meet personally with Employee, but he did review all of the records and depositions involved in the case.

In reaching his opinions regarding Employee's vocational abilities, Mr. Swearingin considered only the physical limitations from the January 27, 2012, injury (including the right shoulder in case it is found to be related) and no other physical restrictions Employee may have from other injuries or conditions. Mr. Swearingin testified that based on the restrictions placed on Employee by Dr. Lennard and Dr. Parmet, which like Mr. Cordray he found to fit within the "light" category of work, Employee is employable in the open labor market. Mr. Swearingin specifically noted that no doctor has limited Employee's ability to sit or stand. Mr. Swearingin testified that as defined by the DOT, "cleaner/housekeeper" is categorized as a "light" job (lifting no more than 20 pounds occasionally in part). Mr. Swearingin testified there is nothing which would prevent Employee from now doing a "cleaner/housekeeper" job so long as it did not require lifting greater than 20 pounds occasionally. Mr. Swearingin testified Employee has the skills and ability to do such as job, having held a clearer/housekeeping job with Employer for many years. Mr. Swearingin testified such jobs exist in the national economy and in Southwest Missouri. Further, Mr. Swearingin found an additional 846 job titles in the DOT which match or require fewer skills and ability than Employee currently has. In addition to cleaner/housekeeping, Employee has past experience with another one of the included jobs, that of pantry goods maker.

Mr. Swearingin questioned the results of Mr. Cordray's academic testing of Employee and pointed out that the handwritten notes of Employee, which he had the opportunity to review, show someone who has a good command of the English language, although he admitted on cross-examination her written English is not perfect. Mr. Swearingin had concerns regarding the version of the Wonderlic test that Mr. Cordray gave Employee and in his opinion there are "serious questions as to whether this lady has subnormal intelligence." (p. 22). Mr. Swearingin noted neither that Employee's academic background nor her intelligence has caused her any problem in being able to obtain and maintain employment in the past.

Mr. Swearingin believes that Employee is "placeable" in the open labor market. Mr. Swearingin does not believe that Employee's age presents a problem in her being employed, especially given that she would be/should be looking for employment in an area in which she has experience, i.e. housekeeping. Mr. Swearingin also pointed to statistics from the Bureau of Labor Statistics and the Department of Labor, which shows that employment of older workers, is rising.

Based upon all the evidence and testimony in this case on the issues presented for hearing, I find and conclude as follows:

1) Whether Employee's right shoulder complaints arise out of and in the scope of her employment.

2) Medical causation of Employee's right shoulder complaints.

For Employer to be responsible for benefits and disability associated with Employee's right shoulder, Employee has to prove that her right shoulder condition is causally related to her

employment. Employee has alleged that she suffered either an accident or occupational disease to her neck on January 27, 2012, while cleaning a sink for Employer.

Nowhere in any of the initial writings following the incident did Employee allege her right shoulder was injured in the January 27, 2012, incident cleaning the sink.

Similarly, the medical records regarding treatment received by Employer following the January 27, 2012, sink cleaning incident do not indicate or state that Employee had any complaints to her right shoulder. The first notation of any shoulder problems following January 27, 2012, is actually to Employee's left shoulder, not her right. (Dr. Kutz April 24, 2012, office note). The first notation of right shoulder pain is to Dr. Lampert on September 12, 2013, some twenty months after the January 27, 2012, sink incident. Even in that note, Employee does not relate any right shoulder pain to the January 27, 2012, incident. Moreover, Dr. Lampert noted in his record of September 12, 2013, that Employee's complaint of right shoulder pain "started recently."

Dr. Parmet testified that Employee told him she injured her right shoulder at the time of the January 27, 2012, incident. However, Dr. Parmet did not record this in any of his four reports. Furthermore, Dr. Parmet admitted that upon review of the medical records, it appears he is the only person Employee told that she injured her right shoulder while cleaning the sink on January 27, 2012.

Based on the contemporaneous records, both medical and statements written by Employee, I find that Employee did not sustain an injury to her right shoulder at the time that she was cleaning the sink in Employer's break room on January 27, 2012.

In addition to alleging that her right shoulder was injured acutely in the January 27, 2012, sink incident, Employee alleged in her amended Claim for Compensation that she sustained

improve: carmelita Estes

injury to her right shoulder in either an accident or as part of an occupational disease process occurring over her sixteen years of working in housekeeping for Employer. Employee's Amended Claim for Compensation was filed on May 2, 2016, and alleged a "date of accident or occupational disease" of "01-27-2012." Employee continued to work for Employer for twentyone additional months following her alleged date of injury. I find and conclude that Employee's Claim for Compensation is sufficient to put Employer/Insurer on notice of a claim for potential continued exposure to occupational factors for her entire period of work for the Employer.

In reviewing the potential occupational exposure to her right shoulder at work, I find that Employee has failed to prove that her current shoulder problems relates to any such exposure at work. Dr. Lennard specifically found that Employee's current right shoulder complaints are unrelated to her employment. While Dr. Parmet testified that Employee's current right shoulder complaints could relate either to the sink cleaning incident of January 27, 2012, or to an occupational exposure to heavy lifting over the course of her employment with Employer, I find Dr. Parmet's opinions are not persuasive.

Dr. Parmet's history, upon which he based his opinions, is not corroborated by testimony and evidence presented at the hearing. Dr. Parmet opined that Employee was doing "medium" level work for Employer and was required to lift and carry 55-gallon trash bags on a regular basis. In part, he based his opinion that Employee suffered an occupational disease over time to her right shoulder based on his understanding that Employee routinely lifted trash bags of this size and medium weight. The testimony and evidence at hearing established that Employer did not ever use 55-gallon trash bags, but rather that Employer first used 44-gallon trash bags, later in 2010 changing to 32-gallon trash bags. Furthermore, Employee testified that the trash bags pictured and weighed by Employer accurately reflected the trash she was required to lift at work.

Only one of those bags weighed 20 pounds and the majority were in the 8-to-12 pound range. Given this evidence, I find the information upon which Dr. Parmet based his opinion that Employee's right shoulder injury was caused by an occupational disease associated with lifting 55-gallon trash bags is not accurate nor persuasive.

Under §287.067.2(3), Employer is not responsible for "ordinary, gradual deterioration, or progressive degeneration of the body caused by again or by the normal activities of day-to-day living." Dr. Parmet testified that Employee's right shoulder surgery for impingement could have been caused by a degenerative condition. Given the timing of Employee's complaints, my understanding of her job duties and her other health history (which includes degeneration in her hands and knees, which she is not claiming to be work related), I find that Dr. Lennard's opinion regarding the cause of Employee's current right shoulder complaints is more persuasive. Thus, I find that Employee did not suffer an accident or occupational disease injury to her right shoulder while in the employ of Employer. I find that the evidence does not establish that her right shoulder condition is causally related to her employment; thus, I deny Employee any benefits for the right shoulder condition.

Employee alleges that she is permanently and totally disabled as a result of her work-related injury of January 27, 2012. To be found totally disabled, Employee must prove she is unable to return to any employment. *Fletcher v. Second Injury Fund*, 922 S.W.2d 402 (Mo.App.W.D. 1996). The test to be applied is whether or not an employer would hire an

employee given her current situation and conditions to work in the open labor market. Id. at 404. Employer is liable only for the disability that stems from the disability attributable to the injury sustained in their employment. Lewis v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, 435 S.W.3d 144, 155 (Mo.App. E.D. 2014).

Despite having a number of pre-existing disabilities which have resulted in Employee being limited in her employment, Employee has not filed a claim against the Second Injury Fund. Thus, I must determine the amount of disability attributable to Employee's last injury at work.

In determining the extent of disability attributed to Employee's work-related injury, I have considered the opinions of Drs. Lennard and Parmet with respect to Employee's physical limitations. I also have considered the vocational opinions of Mr. Cordray and Mr. Swearingin, who have opined how those physical restrictions affect Employee's employability and placeability.

Both doctors agree that Employee is currently capable of employment at the "light" strength level as defined by the Dictionary of Occupational Titles, with lifting up to 20 pounds occasionally. Mr. Cordray testified that there are jobs in the open labor market which Employee is physically capable of performing, given the restrictions from Drs. Lennard and Parmet; however, Mr. Cordray does not believe that an employer would hire Employee to work in the open labor market given Employee's age, education, and intelligence.

Mr. Swearingin also finds that Employee is physically capable of employment in the open labor market, which would require lifting occasionally 20 pounds and frequently 10 pounds. Mr. Swearingin finds that an employer would hire Employee for employment in the open labor market considering those physical restrictions along with Employee's age, education and intelligence.

The record is clear both that Employee had a long career working for Employer at the Veterans Home. The Veterans Home annually conducted performance evaluations which were placed into evidence. Those evaluations, including her last one conducted in January 2013, almost one year after her work-related neck injury, show that Employee was working up to, and many times exceeding, the standards and expectations of Employer. Employee's supervisors and Employer's personnel representative testified that Employer was happy with Employee's work and had no plan to terminate her employment prior to her retirement.

The time records in evidence regarding Employee's continued work for Employer following the January 27, 2012, injury show that she was working her regular job hours, missing very few days, for twenty months following that injury except for some extended time off for a foot surgery in early 2012. Employee testified that she continued to do her regular job duties for Employer after the January 27, 2012, injury until her retirement.

The evidence at hearing establishes that Employee was performing her job with Employer at the "light" level, and not lifting greater than 20 pounds occasionally and was not working at the "medium" level as the DOT defines housekeeping work. Any problems that Employee testified she had doing her job do not relate to her work injury, but instead relate to her difficulty walking the halls and getting up off of the floor due to knee pain, a condition which Employee does not allege is work related. Employee also consistently told medical providers, including Dr. Parmet that she had continuing low back pain after her September 2011 injury.

Mr. Cordray's opinion that Employee is permanently and totally disabled is based on his finding that her age, education and intellect prevent her from being hired by an employer in the regular course of employment. I find his opinions on these particular issues troubling in part because of Employee's past ability to obtain and continue employment at her education and

Intellect levels. Mr. Cordray's opinion regarding Employee's age as a major factor are refuted in part by statistics from the Department of Labor attached to Mr. Swearingin's deposition, which show employment of older workers is increasing, not decreasing.

Moreover even if I were to consider Employee's current right shoulder complaints as part of her work injury (which I did not find), I would not find her permanently and totally disabled due to her neck and right shoulder alone.

I find and conclude that as a result of her work-related injury, Employee sustained permanent partial disability to her neck. I agree with both Drs. Lennard and Parmet that the injury resulted in ongoing complaints and some restrictions. I find that the work-related injury resulted in Employee sustaining a twenty percent permanent partial disability to the body as a whole. As a result, I order Employer/Insurer to pay Employee 80 weeks of permanent partial disability at Employee's compensation rate of $\ 262.00 pre week for a total of $\ 20,960.00.

4) Whether Employer is responsible for past medical bills incurred by Employee, with Employee alleging Employer is responsible for a total of $\ 55,054.69 in past medical; with $\ 39,407.26 related to past medical care for her neck, and $\ 15,647.43 related to her right shoulder.

And;

6) Whether Employee gave Employer notice of and the opportunity to provide her with medical care related to any injuries which are found to be compensable.

Having found that Employee's right shoulder complaints, both past and current, are unrelated to her work injury, I find that Employer is not responsible for any of the medical bills associated with treatment of Employee's right shoulder. I deny Employee's claim for \$15,647.43 of past medical bills related for treatment to her right shoulder.

Regarding the bills Employee has incurred for treatment of her neck condition, which I have found to be related to her work injury, I find and conclude as follows: Employer has the right to choose the healthcare provider under §287.140.1, RSMo. Should Employee wish to seek treatment with healthcare providers of her choosing, she has that right as well. However, she is then responsible for the charges associated with that care. §287.140.1.

Employee contends that Employer/Insurer denied Employee's medical treatment, and as a result waived their right to control treatment. If Employer/Insurer denied treatment to Employee after being afforded the opportunity to provide it, Employer would have waived its rights to provide treatment. However, Employer must be afforded the opportunity to provide the treatment to Employee and make an affirmative determination to deny, or fail to timely respond, in order to be deemed to have waived its right. Banks v. Springfield Park Care Cnt. 981 S.W.2d 161, 165 (Mo.App. S.D. 1998).

Just four days after the incident of Employee cleaning the sink, Employee sought treatment on January 31, 2012, with Dr. Watts, her primary care physician. While Employee initially testified at hearing that she informed a supervisor of her injury on the night of the incident, she later stated that she was not certain when she first informed a supervisor of the incident. Employee testified that the incident occurred at 10:30 pm on January 27, 2012. The time records show that Employee clocked out at Employer's just twenty-three minutes later at 10:53 pm. Employee's February 27, 2012, handwritten letter to Employer states that she told a supervisor about the incident a "couple of days after" because it was on a weekend. Employer denies that it had notice of Employee's work injury prior to January 31, 2012 when she went to Dr. Watts.

The evidence establishes that Employer has a history of timely filling out paperwork regarding work-related injuries. Employee had two other injuries while employed with Employer, and paperwork regarding both was filled out shortly after the injury at the time Employee reported the injury. Based on Employee's lack of certainty in her testimony at hearing, and her February 27, 2012, letter in which she states she told a supervisor a couple of days after the injury and without any record of Employer or testimony from an Employer representative that Employee notified Employer prior to February 27, 2012, I find that Employer did not have the opportunity to provide Employee treatment for her neck directly after the injury. Employee testified that Employer did not direct her to seek care with Dr. Watts or Dr. Kutz. I find that all medical bills incurred by Employee prior to the February 27, 2012, letter are the responsibly of Employee for having sought treatment with her own selected provider without giving Employer the opportunity to direct care.

For Employer to be liable for medical bills related to treatment that Employee sought on her own, Employee must prove that Employer was given notice that Employee needed treatment and that Employer/Insurer have affirmatively declined to provide such treatment. "The Act gives the employee the right to employ his own physician at his own expense, and it is only when the employer has notice that the employee needs treatment or a demand is made on the employer to furnish medical treatment, and the employer refuses or fails and neglects to provide needed treatment, that the employer is held liable for the medical treatment procured by the employee." Anderson v. Parrish, 472 S.W.2d. 452, 457 (Mo.App. W.D. 1971).

While there is a caveat to the right of an employer to direct care in the case of emergencies, I do not find that Employee's situation was an emergency. Farmer-Cummings v. Future Foam, Inc., 44 S.W.3d 830, 837 (Mo.App. W.D. 2001). Employee did not seek treatment

**Employee:** Carmelita Estes

**Injury No:** 12-037180

from an emergency room, but instead waited four days and sought treatment at an appointment with her primary care doctor. While Employee testified that she went to her doctor because Employer had not sent her anywhere for treatment, there is no evidence that Employee informed Employer that she had an injury for which she needed treatment prior to her visit with Dr. Watts on January 31, 2012.

Employer is a facility which is open twenty-four hours a day, seven days a week. After her September 2011 low back injury, Employee went to Veterans Home on a Saturday to report her injury and to request treatment. Treatment was authorized that same day in the form of an approved visit to the emergency room. I find nothing in the record or testimony to indicate that Employee gave the opportunity to Employer to provide her treatment prior to February 27, 2012. I find nothing in the record or testimony to find that Employee denied treatment sought by Employee for her neck injury prior to February 27, 2012.

On February 27, 2012, Employee apparently gave Employer a handwritten letter referencing the January 27, 2012, incident of neck pain at work, as well as three other incidents of neck pain at home. While Employee states in this letter that she saw her own doctor and had an MRI, which she attached, and that she was seeing a spine surgeon the next day, the letter does not specifically state that she believes her current problems relate to the work incident, nor does she ask Employer to provide her treatment. While it is a close call whether Employer had notice of the work injury and need for medical care as of February 27, 2012, I find the letter does not constitute a demand for treatment from Employer, nor do I find that the letter provides enough information that Employer should have been able to determine that Employee was seeking treatment or asking for treatment related to the sink incident on January 27, 2012, since Employee was obtaining treatment on her own. Therefore even after February 27, 2012, I find

**Employee:** Carmelita Estes

**Injury No:** 12-037180

That Employee continued to treat with medical providers of her own choosing without giving Employer the opportunity to direct the care, thus such treatment was at her own expense under §287.140.1.

Finally on May 7, 2012, Employee filled out official paperwork regarding the injury of January 27, 2012, and made a request for treatment. I find that Employer responded to this request by scheduling her to see Dr. Lennard. I do not find any evidence that Employee made Employer aware of any impending visits with any medical providers that should have prompted Employer to provide treatment prior to Dr. Lennard's appointment. Between the time paperwork regarding the injury was filled out with Employer on May 7, 2012, and the time she saw Dr. Lennard at the direction of Employer, Employee began treating with Dr. Lampert, seeing him on June 20, 2012. Employee testified that no one with Employer or CARO sent her to see Dr. Lampert, nor is there any evidence that Employee informed Employer of the impending appointment with Dr. Lampert. I find that Employee's treatment with Dr. Lampert was not an emergency situation, which would shift the burden of payment to Employer/Insurer.

Employee saw Dr. Lennard at the direction of Employer on August 2, 2012. Dr. Lennard found Employee's complaints to be work related and offered treatment in the form of either injections or cervical traction. Employer/Insurer presented evidence that they would have provided either or both of these treatments to Employee; however, Employee declined both. That is noted by Dr. Lennard in his report. Employee confirmed that she declined injections and traction from Dr. Lennard in her testimony at hearing.

On August 12, 2012, Employer's attorney sent Dr. Lennard's report to Employee's attorney, specifically pointed out that further treatment had been declined by Employee, thus Employee had been placed at MMI, with the exception of a prescription for medication being

Employee: Carmelita Estes

Injury No : 12-037180

needed for six months. Employer/Insurer's attorney stated a prescription card would be provided to Employee in order to be able to obtain the prescriptions. The evidence presented at the hearing demonstrates that a prescription card (Exhibit Q and Exhibit T) was sent to Employee at her address.

Employee's attorney did not respond to the August 12, 2012, letter until after a second letter by Employer's attorney was sent on November 8, 2012, inquiring about an announcement by Employee's attorney a pre-hearing conference that Employee was treating. Employee's attorney responded on November 16, 2012, that Employer had denied further treatment, so Employee was treating with Dr. Lampert. Employee offered no evidence of anyone who denied her medical treatment after she was released at MMI by Dr. Lennard. All representatives from Employer and CARO testified that they were never asked to provide and that they never denied Employee medical treatment to her neck. I do not find any evidence that Employee asked Employer or CARO to provide her treatment after the release from Dr. Lennard, until March 17, 2014, at which time Employee provided Employer Dr. Parmet's report and asked for Employer to provide the treatment recommended therein.

I find that Employer was not afforded the opportunity to provide medical treatment to Employee. I find that the treatment obtained after May 7, 2012, and prior to March 17, 2014, other than with Dr. Lennard, was at Employee's choosing, and, therefore, is at her own expense.

Regarding treatment after the March 17, 2014, demand for treatment recommended by Dr. Parmet, I find and conclude that Employer/Insurer offered treatment to Employee pursuant to the demand; but Employee declined that treatment and instead again chose to treat with doctors of her own choosing, and, therefore, at her own expense.

As Employer/Insurer's attorney noted in a December 4, 2014, letter, it is somewhat "'baffling" that after sending a specific demand for treatment and writing that Employee "calls upon the Department of Public Safety to provide this treatment" in the March 17, 2014, letter, then after Employer/Insurer schedules that treatment, Employee's attorney states that "Employer had waived the right to select medical treatment." (November 24, 2014, letter from Employer's attorney). Employee apparently based part of her claim that Employer denied treatment on Employee's belief that Employer never sent the prescription card so that she could obtain the medication prescribed by Dr. Lennard, or at least never told her attorney they were going to. I find and conclude that neither of those assertions is correct. Employer/Insurer's attorney stated in an August 12, 2012, letter to Employee's attorney that CARO would be sending a prescription card to Employee for her to obtain the Meloxicam prescribed by Dr. Lennard. Additionally, other records and testimony in evidence show that the prescription card (Exhibit Q and Exhibit T) was sent to Employee at her address.

Employee's attorney also wrote in one of his letters that "Employer did nothing about intervening in medical treatment (after Lennard's visit in August 2012) until after the evaluation by Dr. Allen Parmet on March 6 ${ }^{\text {th }}, 2014$." (November 24, 2014 letter). While I find this statement to be true, I find no evidence that either Employer or CARO were asked to provide any treatment between those dates. That letter ends by asserting that "Employee is well within her rights to proceed with medical treatment prescribed by Dr. Lampert and to place CARO responsible for the eventual costs." Employee asked Employer to provide the treatment in March 2014, and requested a hardship hearing, which was denied, because Employer/Insurer were providing or willing to provide the treatment Employee had requested.

Employee: Carmelita Estes

Injury No : 12-037180

Given all testimony and evidence, I find and conclude that Employer timely responded to the request for additional treatment made by Employee on March 17, 2014. I find that Employer was ready and willing to provide the RFA recommended by Dr. Parmet and sought by Employee in October 2014. Employee, however, decided to get that treatment with a doctor of her own choosing; and, thus, I find and conclude pursuant to $\S 287.140 .1$ that such treatment was at her own expense. I find and conclude that Employer/Insurer have remained ready and willing to provide treatment including RFA with a doctor authorized by them through 2016, when Dr. Lampert's office contacted Employer/Insurer about an authorization for RFA. While Employer denied the treatment with Dr. Lampert, the same treatment was again offered immediately by Employer/Insurer with Dr. Workman. Instead, Employee chose to receive such treatment with the doctor she chose, Dr. Lampert. As a result, I deny Employee's claim that Employer/Insurer is responsible for any past medical bills related to her neck.

5) Whether Employer is responsible to provide Employee with future medical care related to her neck and/or her right shoulder.

Employer is responsible to provide Employee with ongoing medical care if she has proven to a reasonable degree of probability that she needs future medical care directly related to the work injury. Sullivan v. Masters Jackson Paving Co., 35 S.W 3d 879 (Mo.App. S.D. 2001).

With respect to her neck condition, the only condition I have found related to Employee's work-related injury, Dr. Parmet opined that Employee will need RFA into the future to help cure and relieve her of the symptoms associated with her complaints of pain. Dr. Lennard agrees with that need as well. As a result, I find and conclude that Employee is entitled to future medical care to be provided by and at the expense of Employer/Insurer. Employer maintains the right to direct that care pursuant to Chapter 287. As a result, I order future medical care be left open. I

Employee: Carmelita Estes

Injury No : 12-037180

order Employer/Insurer to provide such medical care as is reasonable to cure and relieve Employee of the effects of the injury to Employee's neck.

I allow Employee's attorney, Patrick Platter, an attorney fee of 25 percent of all amounts awarded herein as a reasonable fee for necessary legal work performed on behalf of Employee, which fee shall constitute a lien upon this award.

Robert House

Administrative Law Judge

Division of Workers' Compensation

Signed 11-28-16