Joel Adams v. City of Kansas City, Missouri

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 10-067514

Employee: Joel Adams

Employer: City of Kansas City, Missouri

Insurer: City of Kansas City, Missouri

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

In his award, the administrative law judge states that the parties did not identify future medical care as an issue prior to the hearing. The administrative law judge did, however, enter an award of future medical care because, in his view, the evidence compelled this result. Employer appeals.

Notably, employer's application for review challenges only the evidentiary basis for the award of future medical care, and does not argue that the administrative law judge went beyond the scope of the issues identified for hearing.

Turning to the transcript of the hearing before the administrative law judge, we note the following exchange, just before the record was closed:

THE COURT: So you're not asking for any future medical, past medical, anything like that?

MR. WICKERSHAM: Well, he's under a doctor's care for the condition, so I suppose it's an issue.

Transcript, page 55.

As seen above, counsel for employee suggested that future medical care may have been an appropriate issue for the administrative law judge's determination. Counsel for the employer did not make any objection to the suggestion from employee's counsel in this regard.

We would be remiss if we did not caution that a precise, unequivocal, and complete identification of the parties' stipulations and disputed issues should be undertaken, on the record, at the outset of every hearing before an administrative law judge. This helps to ensure the "simple, informal, and summary" proceeding guaranteed the parties pursuant to $\S 287.550$ RSMo, and prevents the considerable confusion and multiplication of proceedings that may result when appeals are taken following hearings where the issues and stipulations are not clearly and precisely identified on the record. See, e.g., Hutson v. Treasurer of Mo., 365 S.W.3d 269 (Mo. App. 2012).

Here, given that employer now makes no argument that the administrative law judge went beyond the scope of the issues identified for trial, but rather suggests the issue is properly before us for review, we decline to consider whether the administrative law judge erred in reaching the issue. We further conclude that the issue is properly before us on appeal.

Turning to employer's substantive argument, we note that employer states, in its application for review, that employee did not present any evidence at the hearing indicating he required additional medical care. We disagree. In fact, employee testified at the hearing that he remains in near-constant, severe abdominal pain, and that he takes pain-relieving, muscle-relaxing, and anti-depressant medications, including Tizanidine, Lyrica, Cymbalta, Meloxicam, Flexeril, and Trazadone, which his treating physicians have prescribed for his work injury and its sequelae.

There is no evidence on this record to suggest (let alone prove) that the use of analgesics or other pain-control medications is contra-indicated for the medical conditions shown to have resulted from the work injury, and it appears to be within the realm of lay understanding (and we so find) that where a compensable work injury is shown to result in symptoms of continual, severe pain, the ongoing use of pain-relieving medications to help alleviate such symptoms is reasonable and necessary for purposes of § 287.140 RSMo.

Employee's testimony is not the only evidence demonstrating a reasonable probability that he has an ongoing need for future medical care that flows from the effects of the work injury. The authorized treating physician, Dr. Eden Wheeler, suggested in her note of August 25, 2011, that future treatment in the form of more aggressive pain management, including additional surgery, may be appropriate to address employee's symptoms referable to the work injury. See Transcript, page 531. We acknowledge that Dr. Wheeler backed away from that opinion, somewhat, in her letter to employer's counsel of September 27, 2014, wherein she cited the considerable risk of further complications or worsening of symptoms should employee undergo additional surgery. Dr. Wheeler did not, however, suggest in that letter that employee should not continue to receive prescription medications to relieve his symptoms; instead, her opinions appear to be rendered in the context of whether employee's condition could be permanently improved or cured by additional procedures. In this regard, no less

authority than the Supreme Court of Missouri has declared that the fact an employee has reached maximum medical improvement in no way precludes an award of future treatment:

Future care to relieve [the employee's] pain should not be denied simply because she may have achieved maximum medical improvement. The statute entitles her to medical treatment as may be reasonably required "to cure and relieve from the effects of the injury." Section 287.140.1. "This means treatment that gives comfort or relieves even though restoration to soundness [a cure] is beyond avail." Sullivan v. Masters Jackson Paving Co. 35 S.W.3d 879, 888 (Mo. App. 2001)(brackets in original). Therefore, the finding that [the employee] has reached maximum medical improvement $\ldots$ is not inconsistent with a need for future medical treatment.

Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. 2003).

By the same token, this employee's reasonable decision to forego more aggressive treatments in order to avoid possible risks and complications should in no way preclude his access to additional modalities that may be identified or become available in the future. As the administrative law judge correctly observed, "an employer has an absolute and unqualified statutory duty to provide an employee with treatment that gives comfort or relief from pain, even though a cure is not possible." Martin v. Town \& Country Supermarkets, 220 S.W.3d 836, 847 (Mo. App. 2007).

For the foregoing reasons, and because employer has not provided us with any briefing or additional argument to expand upon the suggestion of error indicated in its application for review, we are not persuaded to disturb, in any fashion, the administrative law judge's award of future medical care.

We note that on page 2 of the administrative law judge's award, in the paragraph numbered 14, the administrative law judge states as follows: "Nature and extent of any permanent disability: Permanent partial disability as to the employer." We hereby correct this obvious typographical error as follows: "Nature and extent of any permanent disability: Permanent total disability as to the employer."

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

The award and decision of Administrative Law Judge Lawrence Rebman, issued February 17, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

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

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

Given at Jefferson City, State of Missouri, this 15th day of August 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Joel Adams

Injury No: 10-067514

Dependents: N/A

Employer: City of Kansas City, Missouri

Insurer: City of Kansas City, Missouri

Additional Party: N/A

Hearing Date: November 22, 2016

Checked by: LGR/pd

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: July 28, 2010
5. State location where accident occurred or occupational disease was contracted: Kansas City, 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: Employee was working within the scope and course of his employment when he attempted to turn a line valve. He felt a pull in his groin while turning the valve.
12. Did accident or occupational disease cause death? No

Date of Death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Joel Adams

1. Part(s) of body injured by accident or occupational disease: Groin
2. Nature and extent of any permanent disability: Permanent partial disability as to the employer.
3. Compensation paid to-date for temporary disability: $\ 25,974.92
4. Value necessary medical aid paid to date by employer/insurer? $\ 25,953.16
5. Value necessary medical aid not furnished by employer/insurer? None
6. Employee's average weekly wages: $\ 1,134.00
7. Weekly compensation rate: $\$ 756.00 / \ 418.58
8. Method Wages computation: Stipulation of parties.

1. Amount of compensation payable from the Employer:

Employer is ordered to pay of $\ 756.00 per week for the life of the claimant or until he is no longer permanently and totally disabled.

1. Second Injury Fund Liability: N/A
2. Future Medical Care: Employer is liable for any future medical care or treatment to cure and relieve the effects of his medical conditions arising from the July 28, 2010 injury.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments here under in favor of Mr. Steven K. Wickersham for necessary legal services rendered to the Claimant

Employee: Joel Adams

Injury No: 10-067514

Dependents: N/A

Employer: City of Kansas City, Missouri

Insurer: City of Kansas City, Missouri

Additional Party: N/A

Hearing Date: November 22, 2016

Checked by: LGR/pd

On November 22, 2016, the Employee and Employer appeared for hearing. The Division has jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Joel Adams, appeared in person with counsel, Steven K. Wickersham. The employer appeared through counsel, Anthony G. Bush.

Prior to the hearing, the parties stipulated to the following issues:

1. That the Employer, City of Kansas City, Missouri, was an employer operating under and subject to the provisions of the Missouri Workers' Compensation Law on July 28, 2010;
2. That Employer's liability was fully insured through self insurance;
3. That Joel Adams was its employee;
4. That Joel Adams was working subject to the law in Kansas City, Jackson County, Missouri on July 28, 2010;
5. That Joel Adams sustained an accident arising out of and in the course of his employment;
6. That Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law;
7. That Employee's average weekly wage was $\ 1,134.00, resulting in a compensation rate of $\ 756.00 for temporary total disability benefits

and permanent total disability benefits, and $\ 418.58 for permanent partial benefits;

1. That the E