Marleta Boykins-Walls v. Normandy School District

On February 22, 2017, the employee, Marleta Boykins-Walls, filed a timely application for review alleging the administrative law judge erred:

1) In finding the employee did not sustain any permanent partial disability in that the substantial and competent medical evidence shows that there was permanent disability to both the left and right knees, supported by the medical records, objective testing and treatment (ultrasound, MRI and injections) and deposition testimony of the doctors and testimony of the employee.

2) In finding the employee is not entitled to TTD from March 5, 2014, to March 17, 2014 in that the ALJ erroneously uses an incorrect legal standard, one that is not contained in the statute and not supported by case law.

3) In finding that the employer/insurer is not responsible for unpaid medical expenses totaling $\ 4,561.00, again using an incorrect legal standard that is not supported by statute or case law.

4) In finding that the employer/insurer is not responsible for future medical expenses for the employee in that the weight of the medical evidence supports an award for future medical treatment and the employee testified to her need and desire for additional medical treatment in the future.

For the reasons set forth below, we modify the award and decision of the administrative law judge referable to the issue of unpaid past medical expenses.

Section 287.140. RSMo controls with respect to the issue of past medical expenses. This statute provides, in relevant part:

1. In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance, and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense. . .
2. The employer shall have the right to select the licensed treating physician, surgeon, chiropractic physician, or other health care provider; provided, however, that such physicians, surgeons or other

Injury No.: 13-098181

Employee: Marleta Boykins-Walls

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health care providers shall offer only those services authorized within the scope of their licenses.

As the court held in *Downing v. McDonald's Sirloin Stockade*, 418 S.W.3d 526 (Mo. App. 2014):

> *'[A]n employer's duty to provide statutorily-required medical aid to an employee is absolute and unqualified.' That is, [§ 287.140] requires an employer to provide an injured employee medical care but allows the employer to select the medical provider.' Thus, '[a]n employer is held liable for independent medical treatment incurred only when the employer has notice that the employee needs treatment, or a demand is made on the employer to provide medical treatment, and the employer refuses or fails to provide the needed treatment* (emphasis added).' *Id.* 529.

In this case, the employer admits that on December 6, 2013, the employee sustained an injury arising out of and in the course of her employment. Employer referred the employee to Concentra Medical Center the day of her injury for treatment. Concentra physician Dr. Gary Gray discharged the employee from his care on December 26, 2013.

The employee had an obligation to make reasonable efforts to notify employer of her need for additional medical care after her December 26, 2013, release by Concentra. The employer is not liable if it did not know and reasonably could not have known of the employee's need for additional medical care. Furthermore, brief delays in scheduling appointments other than in emergency situations do not render employer/insurer liable for unauthorized care.

We find that the employee's testimony regarding her attempts to notify employer of her need for additional medical care after her December 26, 2013, release from Concentra is so vague that employer had no liability to provide additional medical treatment until after the employee, through her attorney, filed a claim for compensation on or about January 10, 2014, acknowledged by the Division of Workers' Compensation on January 14, 2014. We find claimant's claim for compensation notified employer of her need for additional medical treatment as of January 15, 2014, by specifically stating, "Employee is in need of and officially demands medical treatment."

On January 28, 2014, employer advised employee's attorney that employer scheduled an appointment for the employee at Concentra Medical Center on Thursday, January 30, 2014, at 1:30 p.m. However, when the employee reported to Concentra forty minutes early for her appointment that day, Concentra refused to provide treatment, citing a lack of authorization from employer to reopen the employee's case.

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1 *Transcript*, 291.

2 *Id.* Employer and Insurer's Exhibit A, 368-371.

3 *Id.* 370.

4 *Id.* Employee's Exhibit 10, 328.

5 *Id.* 324-325.

532, 545 (Mo. App. 2014). We conclude employer is liable for charges by Dr. Droege for treatment during the period January 17, 2014, through January 27, 2014, in the amount of $\ 783.00.

The award of the administrative law judge is modified.

Employer is liable to employee for $\ 783.00 in past medical expenses.

This award is subject to a lien in favor of Crista Johnson, Attorney at Law, in the amount of 25 % for necessary legal services rendered.

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

The award and decision of Administrative Law Judge Joseph P. Keaveny, issued February 3, 2017, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $\qquad 13 3^{\text {th }}$ day of November 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? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: $\quad 12 / 06 / 2013$
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 slipped while walking on ice and fell onto both knees
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: left knee, right knee, back (alleged)
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? $\ 6,115.48

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 337.50
3. Weekly compensation rate: $\ 225.00 for TTD AND $\ 225.00 for PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

None.

1. Second Injury Fund liability:

None

Uninsured medical/death benefits: None

TOTAL:

$\ 0.00

1. Future requirements awarded: N/A

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

On November 21, 2016, the parties appeared for a hearing. Claimant appeared in person and with counsel, Attorney Crista Johnson. The Employer/Insurer was represented by Attorney Elizabeth S. Shocklee.

1) The Employer was operating subject to Missouri's Workers' Compensation Law on or about December 6, 2013.

2) Claimant was employed at all times relevant herein.

3) The Employer was provided notice of the employee's alleged injury and the Report of Injury was timely filed.

4) The City of St. Louis is the proper venue.

1) Nature and Extent of permanent partial disability.

2) Whether Employee is entitled to temporary total disability benefits from March 5, 2014 to March 17, 2014.

3) Whether Employer/Insurer is responsible for unpaid medical expenses totaling $\ 4,561.

4) Whether Employer/Insurer is responsible for future medical expenses.

Claimant was 33 years old at the time of the accident and 36 years old at the time of the hearing. She started working for Normandy School District (employer) in 2008 as a substitute

teacher and remained there until 2014. She went to work at Cooperative Home Healthcare in March 2016 as a home healthcare assistant where she was working on the date of the hearing.

On December 6, 2013, Claimant was working as a substitute teacher for Normandy School District at the senior high school. As she was walking to the east building, she fell on ice and snow, striking both knees and bracing the fall with her hands. After visiting the school nurse, she was referred to Concentra Medical Centers for evaluation. Claimant was treated at Concentra Medical Centers from December 6, 2013 through December 26, 2013. She was treated for bilateral knee contusions, left greater than right. Treatment consisted of x-rays (negative), ice packs, pain medication and a course of physical therapy. She was released from care as of December 26, 2013, with full flexion and extension of the knees, no swelling, normal gait and no ongoing complaints. Claimant returned to work full duty.

On January 7, 2014, claimant presented to Dr. William Droege, D.C. Dr. Droege recommended she undergo an MRI of the left knee. This was performed on January 15, 2014. Dr. Droege referred claimant to Dr. Naseem Shekhani for evaluation. Dr. Shekhani examined her on January 22, 2014 and ruled out any internal derangement. Dr. Droege treated her from January 7, 2014 through January 27, 2014, with one additional visit on May 8, 2014. The treatment from Dr. Droege, the MRI and the treatment from Dr. Shekhani were not authorized by the employer.

Employer arranged for Claimant to be seen by Dr. Michael Milne, an orthopedic surgeon, on February 10, 2014. Dr. Milne injected her knees and saw her in follow up on February 25, 2014 and March 10, 2014. She sought additional unauthorized treatment in the emergency room at DePaul Hospital on February 24, 2014 where she insisted they x-ray her knees, again. On March 10, 2014 Dr. Milne noted normal objective physical findings and referred her to Dr. Doll.

Dr. Doll examined her on March 12, 2014 and she was sent for a course of physical therapy. She was placed at MMI as of April 1, 2014 with a completely normal physical examination. While claimant was being treated by Dr. Doll, she sought additional unauthorized treatment at the Myrtle Hilliard Comprehensive Health Center, Inc. on March 5, 2014.

In addition to treatment provided by Employer, Claimant sought unauthorized treatment with Dr. Droege, obtained an unauthorized MRI on the recommendation of Dr. Droege, unauthorized treatment with Dr. Shekhani, an unauthorized emergency room visit at DePaul Hospital and unauthorized treatment at Myrtle Hilliard Davis Comprehensive Health Center. The total cost for the unauthorized treatment is stipulated at $\ 4,561.00.

Claimant was deposed on August 11, 2015. When asked for her height and weight, she responded " 5 ' 1 " and a half. And my weight is 195." When asked if she had any major fluctuations in her weight over the past couple of years, she responded "No." However, Dr. Droege's records indicated that, on January 7, 2014, she weighed 260 pounds. Claimant had lost 65 pounds from January 7, 2014 to August 11, 2015. When asked what hobbies that you can't participate in as a result of the accident, Claimant responded that she can't play basketball. Claimant stated that she played basketball "about two days, three days out of the week." When asked where she played basketball, Claimant responded "at Forest Park." When asked "Where are the hoops in Forest Park?" Claimant responded "I can't remember." In Claimant's direct testimony at the hearing on 11/21/2016, she stated that she could not remember which park but it was on the south side of St. Louis. Claimant's failure to note such a drastic weight reduction in over 19 months and identification of Forest Park as the place where she played basketball " 2 or 3 times per week," when Forest Park has no basketball hoops, compels me to find Claimant's testimony not credible.

Dr. Doll

Employer/Insurer offered the deposition testimony of Dr. James T. Doll, M.D. as Exhibit B. He was deposed on March 23, 2016. During his deposition he spoke of his review of the records of Dr. Gary Gray from Concentra. Dr. Gray's diagnosis as of December 6, 2013, which was the date of the injury, was bilateral knee contusion, left greater than right. When Dr. Gray saw her last on December 26, 2013, he indicated in the subjective portion of his report that the left knee was also doing well, in addition to the right knee doing well. She walked with a normal gait at that time and had no complaints. Dr. Gray released Ms. Boykins-Waller from care on December 26, 2013.

Also, Dr. Doll reviewed the MRI that was taken at the recommendation of Dr. Droege. It revealed anteromedial subcutaneous soft tissue edema (swelling) that may represent soft tissue contusion. It also revealed no evidence of internal derangement.

Dr. Doll reviewed and commented on the corticosteroid injection that was performed by Dr. Milne. Ms. Boykins-Walls reported no improvement whatsoever from the injections. This would be consistent with the MRI study that does not show internal derangement that there was not an injured body part or a symptomatic body part inside that joint. Dr. Milne, an orthopedic surgeon, had no active treatment recommendations.

Dr. Doll performed a physical examination of Ms. Boykins-Walls on March 12, 2014. He indicated that Ms. Boykins-Walls had diffuse tenderness on her knees. He explained "When someone is having diffuse tenderness, it's not located over any particular structure. Reporting pain with very light touch and there's no outside evidence of a rash or other symptomatic skin condition, it's an inconsistency." The lack of correlation between clinical findings that cause those symptoms and that pattern of complaints make diagnosis problematic. Dr. Doll found no erythema (redness), ecchymosis (bruising) or edema (swelling).

Dr. Doll's physical examination of Ms. Boykins-Walls was objectively normal. His diagnosis was bilateral knee contusions slash strains on Decenber 6, 2013. This diagnosis was consistent with all of the doctors that previously examined her. Dr. Doll's treatment recommendation was an anti-inflammatory medication and additional physical therapy. He also recommended that she work at her full-duty capacity as a substitute teacher without any restrictions.

During a follow up evaluation conducted on March 12, 2014, Dr. Doll examined Ms. Boykins-Walls and provided the following report, in part:

"PHYSICAL EXAMINATION: Ms. Boykins-Walls is a pleasant 33-year old female with a reported height of five feet one and a half inches and a weight of 268 pounds. She is morbidly obese. Her lumbar range of motion was full in all directions without discomfort. There was no tenderness to palpation in the lumbar paraspinal musculature. Slump test was negative, straight leg raise test negative bilaterally.

On inspection of her knees, there was diffuse tenderness to light palpation around both knees. There was no erythema, ecchymosis, nor edema. There was no focal joint line tenderness, nor ligamentous laxity. There was no calf tenderness and Homan's sign was negative bilaterally. Deep tendon reflexes were intact and symmetric. There were no

sensory deficits in either lower extremity. There was no abnormal tone, not muscle atrophy, in the lower extremities. Full 5/5 strength was demonstrated throughout bilateral lower extremities. She was observed ambulating without antalgia."

Dr. Droege

Claimant offered the deposition of William Droege M.S, D.C. as Exhibit 1. Dr. Droege examined Ms. Boykins-Walls on January 7, 2014. Ms. Boykins-Walls complained only of the left knee. Dr. Droege examined the left knee and recommended an MRI. As stated above, the January 15, 2014 MRI revealed anteromedial subcutaneous soft tissue edema which means swelling of the soft tissue. No evidence of internal derangement but a soft tissue contusion. Dr. Droege saw Ms. Boykins-Walls seven times in 2014 providing various modalities. He assigned no permanent restrictions. He stated there was nothing more that could be done for her conservatively. He wrote a report dated January 12, 2015 and gave her a rating of twenty-five percent of the left knee (and twenty percent of the right knee). At this time he assigned an array of permanent restrictions.

Section 287.190.6(2) provides "Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those demonstrable on physical examination or by appropriate tests or diagnostic procedures."

Claimant has filed a Claim for permanent partial disability in both knees. She offers the findings of Dr. Droege to support this claim. Dr. Droege focused his examination and treatment solely on Claimant's left knee. He ordered an MRI on the left knee. The MRI was negative.

Dr. Droege's report and testimony are not credible. While the right knee may have had a contusion on the December 6, 2013, it resolved shortly after the incident. Claimant complained of the right knee to Dr. Milne and Dr. Doll, but never mentioned it to Dr. Droege. Dr. Droege, never examined the right knee nor did he treat it, yet, he issued a report of twenty percent permanent partial disability to the right knee. This is not a credible conclusion.

With regard to the left knee, Concenta (Dr. Gray), Dr. Milne and Dr. Doll each examined and treated it. Each of these doctors released the claimant to full duty with no restrictions. It is not credible that Dr. Droege determine a twenty-five percent permanent partial disability to the left knee when the three other physicians that treated found zero permanent partial disability. Neither of Dr. Droege's PPD ratings are credible. The record does not support an award of permanent partial disability

Whether Employee is entitled to temporary total disability benefits from March 5, 2014 to March 17, 2014.

Section 287.149.1 provides Temporary total disability or temporary partial disability benefits shall be paid throughout the rehabilitative process. While an employee is under care for a work related injury, an employer's liability for TTD is not triggered until and unless an authorized treating physician has taken that employee off work due to the injury. Here Claimant

sought medical care on her own at Myrtle Hilliard Davis Comprehensive Health Center while simultaneously undergoing authorized medical care from Dr. Milne. At no time, did a treating physician take Claimant off work. Employer is not liable for TTD benefits from the period of March 5, 2014 to March 17, 2014.

Whether Employer/Insurer is responsible for unpaid medical expenses totaling $\ 4,561.

Section 287.140.1 provides, in part: In addition to all other compensation paid to employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense.

Section 287.140.10 provides: The employer shall have the right to select the licensed treating physician, surgeon, chiropractic physician, or other healthcare provider; provided, however, that such physicians, surgeons or other healthcare providers shall offer only those services authorized within the scope of their licenses.

Employer provided treatment through Concentra Medical Centers from December 6, 2013 through her release from care on December 26, 2013. Claimant then requested additional medical care and was authorized treatment by Dr. Milne, who then referred her to Dr. Doll. All treatment was reasonable to cure and relieve her diagnosis of knee contusions. Indeed, Claimant's own expert neither criticized Employer's treatment nor found any new treatable problems.

It is clear from the evidence presented that Claimant, as is her right under the statute, sought additional medical treatment on her own and at her own expense. Therefore, Employer is not liable for the medical bills incurred with Dr. Droege, the MRI ordered by Dr. Droege, Dr. Shekhani or the emergency room visit to SSM DePaul Health Center.

Claimant treated with Concenta, had physical therapy and was placed at maximum medical improvement with no recommendations for ongoing care. Dr. Droege treated and released her on January 27, 2014 with no recommendations for ongoing care. Then, in a report issued a year later, Dr. Droege made a general statement that future medical care may be necessary. She was treated by Dr. Milne. He determined she was not a surgery candidate and referred her to Dr. Doll. Dr. Doll treated the claimant, placed her at maximum medical improvement with no recommendation for additional medical care let alone future medical care.. Nothing in the record suggests any basis for an award of future medical treatment. No future medical benefits are awarded in this matter.

Claimant filed a Claim for bilateral knee contusions. Employer provided all necessary medical care through several providers. When Claimant requested additional medical care, Employer sent her to Dr. Milne and then, Dr. Doll. Each of the treating physicians had the same diagnosis and each provided treatment and released claimant with no future restrictions. Employer does not owe any additional benefits to the Claimant and is not liable for unauthorized medical bills, temporary total disability, permanent partial disability or medical treatment.

Made by: $\qquad$

Joseph P. Keaveny

Administrative Law Judge

Division of Workers' Compensation