Elford Crafton v. UPS Freight

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 11-101164

**Employee:** Elford Crafton

**Employer:** UPS Freight

**Insurer:** LM Insurance Corporation

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund (Open)

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties stipulated to the following:

1. Employee was employed by the employer and sustained an accident on December 15, 2011, which arose out of and in the course of his employment.
2. Employer and employee operated under the Missouri Workers' Compensation law.
3. Employer's liability was fully insured by LM Insurance Company.
4. Employer had proper notice that an injury occurred.
5. A claim for compensation was timely filed.
6. Employee's average weekly wage was 761.68 and resulted in the following compensation rates: 507.79 for Temporary Total Disability (TTD) benefits and $425.19 per week for Permanent Partial Disability (PPD) benefits.
7. Employer paid TTD benefits totaling 20,298.28 and medical benefits totaling 53,027.52.
8. Employer agreed to pay $521.11 for an underpayment for TTD benefits.

An additional preliminary matter relates to Exhibit H, submitted by employer, (May 24, 2013, letter from Attorney Brent Neumeyer to Attorney Daniel Walkenhorst). Employee initially objected to the exhibit, but later that objection was withdrawn. The exhibit was admitted into the record at transcript page 76. (Award, page 4) The transcript index prepared after the hearing does not show that this exhibit was admitted into the record. This is an error.

Employer requests that the Commission reverse the evidentiary ruling by the administrative law judge on the admission of its Exhibits I and J. The judge sustained objections to these exhibits on hearsay grounds. Employer suggests these two letters authored by its attorney, dated August 7 and August 13, 2013, show that employer's counsel documented his position that Dr. Coyle's opinion was meant to be a "tie

Injury No.: 11-101164

Employee: Elford Crafton

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breaker," and therefore, the letters should be considered exceptions to the hearsay rule (business records). In its brief, employer made a passing reference to the import of the exhibits but did not provide citation to authority that would support admissibility. We do not find these exhibits relevant to any issue in dispute before us and deny their admission on this basis.

**Issues Presented**

The parties asked the administrative law judge to determine the following issues: (1) whether employer waived the right to direct medical treatment after September 30, 2012; (2) whether medical treatment received after September 30, 2012, was reasonable and necessary to cure and relieve the effects of employee's work injury; (3) whether employer is liable for past medical expenses after September 30, 2012, totaling $239,408.94; (4) whether employer is liable for temporary total disability (TTD) benefits totaling $14,218.55 (covering October 1, 2012 - January 28, 2013, and April 22, 2014 - July 11, 2014 (28 3/7 weeks); (5) the nature and extent of employer's liability for either permanent partial disability (PPD) or permanent total disability (PTD) benefits, if any.²

The administrative law judge determined as follows: (1) employer waived its right to direct medical treatment after September 30, 2012; (2) medical treatment received after September 30, 2012, was reasonable and necessary to cure and relieve the effects of employee's work injury, including his spinal surgery; (3) employer is liable for past medical expenses after September 30, 2012 totaling $241,404.04; (4) employer is liable for TTD benefits for the periods of October 1, 2012 to January 28, 2013 and April 22, 2014 to July 11, 2014; (5) employer is liable for PPD benefits rated at 30% of the body as a whole referable to his low back.

Employer filed a timely application for review with the Commission alleging the administrative law judge erred in (1) concluding that the surgery and treatment employee underwent after September 30, 2012, was reasonable and necessary to cure and relieve the effects of the work injury and that employer was liable for medical expenses after that date; (2) that employer/insurer waived the right to direct treatment after September 30, 2012 and that Dr. Coyle's opinion that no further treatment was needed was not binding on the parties; (3) in awarding TTD after September 30, 2012, because the credible evidence was that employee was at maximum medical improvement on September 30, 2012, and was employable on the open labor market; and (4) in awarding 30% permanent partial disability to the body as a whole referable to the low back.

For the reasons stated below, we modify the award and decision of the administrative law judge referable only to the issue of temporary total disability for the period of October 1, 2012 through January 28, 2013.

1 But see the administrative law judge's footnote number 1 on page 2, correcting that amount to 241,408.04. As explained herein, we have corrected that amount to 241,408.94.

2 The administrative law judge stated the issue of nature and extent as related to the Second Injury Fund (number 5, page 3 of the Award). This is an obvious typographical error, as the liability of the Second Injury Fund was left open at the time of hearing. We have correctly stated the issue as presented at the hearing relative to the employer's liability for PPD or PTD. (T. 3)

Injury No.: 11-101164

Employee: Elford Crafton

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**Corrections**

Employer points out some minor discrepancies in the factual findings of the administrative law judge. We note what appears to have been a typographical error on page 5 of the Award in the judge's finding that the employment relationship began in 2001. The evidence shows the employment relationship began in October 2011. (Transcript, 9)

Aside from this, we do not find any of the purported inaccuracies identified in employer's brief to be of any significance to the result and they do not affect our confidence in the administrative law judge's Award.³

At page 16 of the Award, we agree with the administrative law judge's analysis that claimant met his burden to establish that the medical bills presented in evidence are related to, and are the product of his work injury; and are for the professional services rendered, as shown by the medical records. *Cook v. Missouri Highway & Transp. Comm'n*, 500 S.W. 3d 917, 929 (Mo. App. 2016) However, we note that footnote 14 of the Award suggests that *Cook* was superseded by statute, on other grounds. *Cook* has not been superseded; however, a case relied on in the *Cook* decision, *Martin v. Mid-America Farm Lines, Inc.*, 769 S.W.2d 105, 111-12 (Mo. banc 1989), was superseded by statute on other grounds by § 287.160.3. Employer did not contest the relativity of any of the medical bills, aside from its position that treatment was unnecessary and unauthorized after September 30, 2012. The administrative law judge identifies the medical bills to be paid on the chart on page 12 of the Award. We find these bills are related to and necessary for treatment and relief of the December 15, 2011, work-related accident and resulting disability, and that employer is liable for these bills. However, relying on the totals presented in the chart, our calculations result in the sum of $241,408.94. We find this is the amount due in past medical bills and correct any references within the Award to comport with this finding.⁴

Employee's Date of Birth was December 29, 1978.

**Discussion**

**Credibility and Weight of Medical Opinions**

Employer asserts the administrative law judge improperly relied on the medical opinions of employee's experts, Dr. David Robson, Dr. R. Peter Mirken, and Dr. Dwight Woiteshek. Employer further asserts that the opinion of Dr. James J. Coyle should outweigh all other medical opinions because the parties agreed to be bound by an order

---

³ Examples of the points of factual error identified by the employer are: The administrative law judge indicated employee visited the emergency room the day after he returned to work. (Award at 5) It was in fact the second day after he returned to work, Sunday, December 18, 2011. (T. 19, Exhibit 8). Employer also indicates the record was unclear as to the length of time employee was employed at US Express and therefore, the administrative law judge was inaccurate in finding that employee worked for the subsequent company in January until May 2013. (Award at 6) Employer's attorney confirmed the dates with employee through his cross-examination at hearing as inclusive of the period from January 29, 2013 into May 2013. (T. 54-57)

⁴ Discrepancies in the total sum of medical bills is noted at pages 2, 3, and 6, and is hereby corrected. We note the sum is also incorrect in Claimant's summary. (Exhibit 23, page 1375)

Injury No.: 11-101164

Employee: Elford Crafton

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of Administrative Law Judge Strange⁵ to allow Dr. Coyle to be the "tie-breaker" on the issue of whether additional medical treatment was necessary. After careful consideration of the record, we reject employer's positions attacking the credibility of Dr. Robson, Dr. Mirken and Dr. Woiteshek on the need for surgery and elevating the opinion of Dr. Coyle on that issue. We afford Dr. Coyle's opinions great weight, in part because we afford great weight to the opinion of a doctor appointed by an administrative law judge to conduct an independent examination, (as distinct from the parties' hired experts). However, it would be inappropriate to view his opinion as dispositive with regards to findings and conclusions that are within the purview of the administrative law judge or the commission. Furthermore, we note the provision allowing the appointment of an outside independent medical examination (IME) does not address the weight of such an opinion. (§ 287.120.4) We do not find Dr. Coyle's opinion to be determinative on the issues of causation or reasonableness and necessity of treatment. We are not persuaded to disturb the administrative law judge's reliance on the opinions of Drs. Robson, Mirken and Woiteshek.

**Employer's liability for treatment after September 30, 2012**

Because we find credible the opinions of Dr. Robson, Dr. Mirken, and Dr. Woiteshek that the surgical intervention was reasonable and necessary to cure and relieve the effects of the work injury, employer is liable for the costs of that treatment, despite the finding of Dr. Chabot that employee was at maximum medical improvement (MMI) by September 30, 2012.

Employer was aware of employee's request for further medical treatment in the form of spinal surgery, well in advance of the April 2014 surgery. Employer denied further treatment and thereby relinquished its right to control treatment after September 30, 2012. Employer is liable for the medical costs incurred after September 30, 2012.

Although employer advanced a failure of "authorization" defense (regarding continued medical treatment) in its brief and at oral argument, the record shows employee made demands upon employer for additional medical treatment. The Case History record shows the parties were disputing continued treatment before the Division of Worker's Compensation at least as early as the February 26, 2013 mediation, (T. 1733, Exhibit K), based on Dr. Robson's opinion of December 12, 2012, recommending surgery. This recommendation was noted by employer's doctor, (Chabot) in January 2013.⁶ Prior to this time, employee had made requests of the employer by contacting supervisors. (T. 26-27) Employee's attorney had addressed the request for continuing treatment prior to Dr. Coyle's examination and report of May 15, 2013, and repeated that request in writing on June 20, 2013. (Exhibit 24, T. 1377) Employer rejected employee's requests. "If the employer is on notice that the employee needs treatment and fails or refuses to provide it, the employee may select his or her own medical provider and hold the

⁵ As pointed out in Employer's brief (page 11), the Division's Case History record is in evidence as Exhibit K. Whether the administrative law judge presiding over the session in which an IME was discussed was Judge Strange or some other appointed judge, the fact remains that there is no documented order or written stipulation that confirms the employer's position that Dr. Coyle's opinion would be accepted as the final word on the subject of MMI and the need for surgery.

⁶ Dr. Chabot prepared an addendum report dated February 6, 2013, noting Dr. Robson's opinion on medical status and the need for surgery. (T. 1661)

Injury No.: 11-101164

Employee: Elford Crafton

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employer liable for the costs thereof." *Reed v. Associated Elec. Coop., Inc.*, 302 S.W.3d 693, 700 (Mo. App. 2009). The rationale is that an employer "waives" its statutory right to direct care if it denies medical treatment for an injury that is later determined to have been compensable. *Shores v. General Motors Corp.*, 842 S.W.2d 929, 931 (Mo. App. 1992).

Employee was not required under the law to continually demand additional treatment from employer after its authorized treating physician, Dr. Chabot, released him. Employer made clear that it intended to rely on Dr. Chabot's opinion, (and later Dr. Coyle's) that employee didn't need additional treatment. Certainly, employer was entitled to rely on Dr. Chabot and deny additional compensation, but likewise, employee was entitled to disagree with Drs. Chabot's and Coyle's opinions and seek further treatment for his work injury. At that point, both parties assumed the risk inherent in their respective positions.

Simply stated, if employer wished to control employee's medical treatment, it could have authorized that treatment when employee requested it. Ultimately, we are persuaded (and we so find) that employer had notice and a reasonable opportunity to provide medical treatment, but that employer failed to take advantage of that opportunity. We conclude, therefore, that employee is entitled to, and employer is obligated to pay the past medical expenses related to the surgery and rehabilitation thereafter.

**Employee is Entitled to Temporary Total Disability for a Limited Period.**

The administrative law judge awarded TTD for two additional and distinct periods of time. She found employee was entitled to TTD from October 1, 2012 to January 28, 2013, and for the period of his surgery and recovery from April 22, 2014 to July 11, 2014.

Employee was released by Dr. Chabot, as being at MMI on September 30, 2012. The permanent restrictions that Dr. Chabot set for employee at that time were: occasional lifting of 50 pounds, frequent lifting of 25 pounds, driving, sitting or walking for 8 hours or more, standing for up to 6 hours, climbing up to 8 feet, and infrequent squatting and bending. (Exhibit G at 1665-68, T. 1566) Employer would not employ employee with these restrictions. The weight limit required for employee's former job was in the range of 100 pounds, according to employee's recollection. (T. 57, 67) However, these recommended restrictions were not such that employee was prohibited from all manner of work. Employee had prior management experience and other work history outside of driving a truck. The test of whether one is totally disabled is not whether the employee can do the same work but whether an employee is able to compete in the open labor market under his physical condition.

7 *Shores, Id. - (over-ruled in part on other grounds) - Hampton v. Big Boy Steel Erection*, 121 S.W. 3d 220, 229 (Mo. 2003)

8 The parties stipulated that employer paid $20,298.28 in TTD following the work accident, which equates to approximately 40 weeks prior to the September 30, 2012, MMI date.

9 The factual findings of the administrative law judge reference an MMI date set by Dr. Chabot on September 30, 2012. She also refers to the date of October 4, 2012, as the MMI date set by Dr. Chabot. (Award, page 8). This minor discrepancy may be explained by the fact that Dr. Chabot had a follow up examination with employee on September 30, 2012, after a functional capacity evaluation, and at that time formulated the opinion that employee was at MMI and authored a letter of the same date. On October 4, 2012, Dr. Chabot authored an additional letter after employee appeared for "re-evaluation." He repeated his opinion that employee was at MMI on September 30, 2012. (Exhibit 13 at 806)

Injury No.: 11-101164

Employee: Elford Crafton

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In January 2013, employee requested Dr. Chabot provide him with a release to work that would encompass the requirements of a new job. Dr. Chabot detailed the job duties in his Addendum Report after employee's request to him in January 2013. (T. 1662) Those duties included lifting up to 48 pounds,10 crouching and squatting, among others. Dr. Chabot declined to provide the requested release because he was aware that employee had chosen to consult with a new doctor as of that time, Dr. Robson. (T. 1662) Employee was employed by U S Express on or prior to January 29, 2013 and into May 2013. In order to drive for U S Express, employee passed a medical exam presumably commensurate with the requirements of the job. The record does not establish the pay rate, nor the precise end date or reason that employment ended. Employee acknowledges he did work during this period and maintains that he had some pain in doing so. Employee has not clearly established that he was involved in rehabilitative processes after September 30, 2012, aside from the consultation with Dr. Robson. It was not shown that he sought further intervention after Robson's recommendation until December 2013.

The administrative law judge found that Dr. Chabot's conclusion that employee had reached MMI by September 30, 2012, was not persuasive in light of Dr. Robson's opinion that employee had not reached MMI on December 5, 2012, and because Dr. Robson recommended surgery. (Award, 17) The administrative law judge went on to conclude that because she was not persuaded by Dr. Chabot's MMI date, the restrictions he imposed as of September 30, 2012, were not "instructive." (Award, 17) For these reasons and in reliance on Dr. Robson's opinion that employee would benefit from surgery, she found that TTD should be awarded from October 1, 2012 to January 28, 2013. We are not so dismissive of Dr. Chabot's observations and recommendations regarding appropriate restrictions. We also note that we find no clear indication from Dr. Robson regarding recommended work restrictions during this period. Employee asserts this is so, however employee's brief does not identify any citations to the evidence supporting TTD for this time period, such as ongoing treatment. We will not parse the transcript to piece together evidence to support employee's position that he was engaged in the rehabilitative process or was unable to work. To do so would put us in the role of advocate.

We conclude that the administrative law judge's Award in regard to the TTD period starting October 1, 2012, requires a level of speculation as to the employee's condition and the nature of appropriate restrictions. We cannot endorse an award of benefits premised upon speculation. Employee's testimony that he had pain while working the US Express job is noted. However, the length of that employment was not firmly established and we will not speculate whether its end was related to his medical condition. Employee's subjective assertion that he was not able to work is some evidence, but we conclude in this set of circumstances, it is not enough evidence.

We also note that following the doctor's release from treatment after surgery in

10 Employee testified that lifting was generally not required at the U S Express job. Dr. Chabot lists the job requirements of this new job in his February 6, 2013 report (Employer Exhibit 2, T. 1662)

**Employee: Elford Crafton**

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July 2014, employee sought no employment, because "[he was] waiting to find out how everything is going to turn out." (T. 40) On the other hand, he confirmed that he felt physically ready to work. The surgery was successful according to Dr. Mirken and the employee acknowledged a "good result." (T. 33, 69) Dr. Mirken released employee without restriction on July 11, 2014.

Employee has not met his burden to show he was unable to compete on the open labor market or that he was engaged in the rehabilitative process from October 1, 2012 until he chose to undergo surgery on April 22, 2014. At the point that he obtained the surgery, which alleviated symptoms caused by the work injury, we find he was in the rehabilitative and healing period until release by Dr. Mirken on July 11, 2014. (11 3/7 weeks) Therefore, he is entitled to TTD for that additional period of compensation at the stipulated rate ($507.79). He is not entitled to TTD for October 1, 2012 through January 28, 2013. *Greer v Sysco Food Services*, 475 S.W. 3d 655, at 666-67 (Mo. 2015)

We modify the award of the administrative law judge as to the issue of temporary total disability.

Employee is entitled to, and employer is hereby ordered to pay, temporary total disability benefits for the period from April 22, 2014 to July 11, 2014, at the stipulated rate of $507.79.

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

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

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

Given at Jefferson City, State of Missouri, this _2nd_ day of May 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

**VACANT**

Member

Curtis E. Chick, Jr., Member

Secretary

Employee: Elford Crafton

Injury No.: 11-101164

Dependents: N/A

Before the

Employer: UPS Freight

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Additional Party: Second Injury Fund (Open)

Insurer: LM Insurance Corporation c/o Gallagher Bassett Services

Hearing Date: November 15, 2016

Checked by: SC/JJ

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: December 15, 2011

1. State location where accident occurred or occupational disease was contracted: Jefferson County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured his low back as a result of a motor vehicle accident.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Low back

1. Nature and extent of any permanent disability: 30% permanent partial disability referable to the low back

1. Compensation paid to-date for temporary disability: $20,298.28

1. Value necessary medical aid paid to date by employer/insurer? $53,027.52

WC-32-R1 (6-01)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-101164

Employee: Elford Craftan

Injury No.: 11-101164

1. Value necessary medical aid not furnished by employer/insurer? 241,404.04

1. Employee's average weekly wages: 761.68

1. Weekly compensation rate: $507.79/$425.19

1. Method wages computation: Stipulated

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

1. Second Injury Fund liability: Open

**TOTAL:** $307,387.40

1. Future requirements awarded: None

Said payments to begin and to be payable and be subject to modification and review as provided by law. The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Attorney Daniel Walkenhorst^{3}

^{1} Claimant reported the amount of unpaid medical bills related to the motor vehicle accident total 239,408.94. However, the unpaid bills in evidence total 241,408.04 (See page 12 of this award).

^{2} TTD from October 1, 2012 to January 28, 2013 = 17 weeks x $507.79 = $8,632.43. TTD from April 22, 2014 to July 11, 2014 = 11 week and 3 days = 11.428 weeks x $507.79 = 5,803.02. 8,632.43 + $5,803.02 = $14,435.45.

^{3} At the start of the hearing, Attorney Ellen Morgan entered her appearance for Claimant and tried the case but stated attorney Walkenhorst should receive the attorney fee, if Claimant prevails.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-101164

Employee: Elford Crafton

Injury No.: 11-101164

Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

On November 15, 2016, Mr. Elford Crafton ("Claimant") appeared at the Missouri Division of Workers' Compensation St. Louis Office in person for a hearing to determine the liability of the UPS ("Employer") and LM Insurance Company for workers' compensation benefits. At the start of the hearing, Attorney Ellen Morgan entered her appearance for Claimant and represented him at the hearing. Attorney Daniel Walkenhorst also appeared for Claimant. Attorney Brent Neumeyer appeared for the Employer and Insurer. Mr. Tom Heitert, risk manager for UPS, was also present. The record closed after presentation of all the evidence. The proceeding was transcribed by Court Reporter Stacy Benoist. The parties submitted a memorandum of law on December 12, 2016. The Second Injury Fund remains open at the Claimant's request.

The parties identified five issues for disposition:

1. Did the Employer waive the right to direct medical treatment after September 30, 2012?
2. Was medical treatment received after September 30, 2012, reasonable and necessary to cure and relieve the effects of Claimant's work injury?
3. Is Employer liable for past medical expenses after September 30, 2012 totaling $239,408.94?
4. Is Employer liable for temporary total disability ("TTD") benefits totaling $14,218.55? (October 1, 2012 - January 28, 2013, April 22, 2014- July 11, 2014 (28 3/7 weeks)?
5. What is the nature and extent of SIF liability for either permanent partial disability ("PPD") or permanent total disability ("PTD") benefits, if any?

At the start of the hearing, the parties stipulated to the following facts:

WC-32-R1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-101164

1. On December 15, 2011, the Claimant was employed by the Employer and sustained an accident in Jefferson County, Missouri, which arose out of and in the course of his employment;

1. Employer and Claimant operated under the Missouri Workers' Compensation Law;

1. Employer's liability was fully insured by LM Insurance Company;

1. Employer had proper notice that an injury occurred;

1. A claim for compensation was timely filed;

1. Claimant's average weekly wage was 761.68 and resulted in the following compensation rates: 507.79 for TTD benefits and 425.19 per week for PPD benefits;

1. Employer paid TTD benefits totaling 20,298.28 and medical benefits totaling 53,027.52; and

1. Employer agreed to pay 521.11 for an underpayment for TTD benefits.

Claimant's Exhibits 1-23 were admitted into evidence without objection. Exhibit 24 was admitted over the defense objection. Employer's Exhibits A-G, H, and K were admitted. Claimant's objection is sustained to the admission of Employer's Exhibits I and J and Employer made an offer of proof to show the parties agreed Dr. Coyle would provide a medical examination as recommended by Judge Strange. Any objections made during the hearing or contained in the depositions but not ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, they were made prior to becoming a part of this record and were not placed there by the undersigned administrative law judge.

Based on a review of all the evidence, Claimant met his burden to prove the following facts by a preponderance of the evidence:

4 Any reference to the Employer in this award also refers to the Insurer unless otherwise stated. Statutory references in this award are to the Revised Statutes of Missouri (RSMo Supp 2008) unless otherwise stated.

5 The parties stipulate Claimant was paid at the rate of 495.08 for 41 weeks and should have been paid 507.79 per week.

6 Initially, Claimant objected to the admission of Exhibit H, but later withdrew the objection. Employer contends Exhibits I and J fall within the business records exception as they were sent in the ordinary course of business.

WC-32-R1 (6-01)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-101164

At the time of the hearing, Claimant was separated from his spouse, and had custody of his two dependent children. Claimant smoked up to a pack of cigarettes a day from 1998 to 2014.

Prior to Claimant's employment with Employer, he treated with a chiropractor for a brief time for mid back pain after hitting golf balls at the driving range. He received muscle relaxers and a TENS unit. Claimant received no medical treatment for his back from a physician before the work injury.

Claimant's prior employment includes supervisory jobs with Advanced Auto Parts, Steak 'n Shake and Arby's. He worked for US Express driving a tractor trailer and handling freight, and had no back problems handling the freight.

In 2001, Employer hired Claimant as a part-time dock worker. Thirty days later he became a full-time employee. At that time, Claimant had no physical restrictions at work. Claimant's assignment included driving a hundred mile radius around St. Louis. Before the work accident, he worked on cars and performed many activities.

The work injury

On December 15, 2011, Claimant drove a straight cab truck. The truck was a large straight, semi-truck with a box sitting on the frame, 24 feet long with a lift gate, which carried a 6,000 pound load. He drove into an intersection, saw a car about to hit him and he tensed up when the cars collided. The car hit the truck twice, striking the rear tire and the lift gate. Claimant was wearing a seat belt at the time of impact. Claimant denied the tire took the brunt of the accident.

As Claimant exited the truck, his back felt sore. Claimant reported no significant physical damage to the truck or tires on the truck. After the accident, Claimant drove the truck to complete his deliveries for the day.

The next day, he asked for assistance with his load due to symptoms. Two hours into his shift, Claimant could no longer stand. The following day, Claimant was seen at the emergency room due to pain from his buttocks into his calf and inability to use the bathroom. Employer

During cross-examination, Claimant's deposition from March 28, 2016, was introduced and he reported no pain immediately following the accident. (Page 25 lines 6-14). On Page 26, line 17-Page 27 line 1, Claimant said the tire took most of the brunt. The rim had a nick. The car hit the lift gate but did not damage it. As far as Claimant knew, the other driver did not appear injured. Visible damage to the other car included a black streak from the fender to the driver's door along the body of the car from the truck tire, and the side mirror was removed.

Claimant questioned if the signature on Exhibit 4, page 3 was his. On Exhibit 4 he wrote the truck sustained no damage. He remembered taking pictures of the damage to the truck. Paint was chipped. The ladder had a dent. There was a nick on the rim of the tire. At the hearing, Claimant denied saying the truck sustained no damage from the accident.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-101164

authorized treatment with Drs. Chabot and Hurford, which included injections and physical therapy. Dr. Chabot released him with lifting restrictions. Claimant could not bend to tie his shoes. He wore slip-on shoes. Washing dishes was a problem and he could not operate a riding lawn mower because of the bumps in the terrain. He had problems getting his children ready for school.

After September 30, 2012, Employer denied Claimant's request for medical treatment and light duty work. Claimant's request for light-duty work was denied. Dr. Robson recommended surgery, however, it was not provided because Claimant had no health insurance. During this time, Claimant did not believe he could work because of low-back pain and spasms on both sides of his spine. Dr. Coyle examined Claimant but did not recommend surgery. Dr. Mirkin examined Claimant, recommended surgery and performed it. Dr. Mirkin's treatment was covered by auto insurance but the bills have not been paid.

Dr. Mirkin provided medical treatment from December 27, 2013 to August 12, 2015, through Claimant's mother's automobile insurance. The medical costs include:

- Signature Medical Group x-rays and an MRI

- DesPeres Hospital fusion surgery

- Anesthesia

- Medical West - Walker

- Mercy Hospital East -- physical therapy - Jefferson County

- Medications

At the hearing, Claimant reviewed the medical bills. A total of $239,408.94 was billed for Claimant's medical treatment and has not been paid, and there is no insurance to cover the bills. The treatment was related to Claimant's work injury on December 15, 2011. Other medical treatment included a spinal stimulator, which is still implanted. The Employer did not offer to provide additional medical treatment after September 30, 2012 or pay for the treatment Claimant obtained on his own.

After surgery, Claimant became more mobile, and the left leg pain resolved. From October 1, 2012 to January 28, 2013, Claimant was off work and did not receive TTD benefits or wages. During this period, Claimant could not work because of difficulty with bending and pain.

In January 2013, Claimant passed a medical examination to work for US Express as a full-time, over-the-road truck driver. Job duties included pre-trip inspections, latching the trailer to the truck, and driving long distances and hours with breaks as needed. He slept in the truck. The job required no lifting, although the job description required him to be able to lift up to 48 pounds. Claimant worked for the company until May 2013. Claimant has not worked since May 2013. He denied employment in 2014 that required him to lift more than 100 pounds.

9 The employment reference +was listed in a Mercy medical record.

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From April 22, 2014 to July 11, 2014, Dr. Mirkin had Claimant off work and he received no TTD benefits or wages. Dr. Mirkin released him with no restrictions. Claimant believes he can return to work.

Other documents in evidence

The Herculaneum Police Department responded to the scene of the motor vehicle accident on December 15, 2011. The reported contained the following information: The driver of the other vehicle drove a 1997 Lincoln Continental Town Car. Two witnesses reported the other driver drove at a high rate of speed onto Commercial Boulevard, crossed the center line, and struck the right rear tire of Claimant's vehicle. No injuries were reported at the scene. The other driver sustained minor vehicle damage. No damage was visible to Claimant's truck except scuff marks on the right rear outer tire. Both vehicles were driven away from the scene of the accident.

Claimant completed a UPS Vehicle Accident Report on December 15, 2011. He reported he was struck by another vehicle that entered the highway. The other driver sped across the line in an attempt to pass another vehicle and hit the side of Claimant's truck. The other driver reported his car was okay, but Claimant insisted on a police report. Claimant took pictures of the damage on his cell phone. He wrote: "THERE IS NO DAMAGE TO THE TRUCK I WAS DRIVING."

On June 20, 2013, Attorney Walkenhorst requested the Employer provide the treatment recommended by Dr. Robson. If no response within two weeks, Mr. Walkenhorst assumed the Employer waived the right to control medical treatment and refused to provide it. The Employer did not provide additional treatment.

Medical treatment for Claimant's low back

Four days after the accident, Claimant sought treatment from the Missouri Baptist Emergency Room and BarnesCare. Treatment included trigger point injections, therapy and medication prescribed by Dr. Hurford. After conservative treatment failed, Dr. Hurford recommended a surgical consultation in June 2012.

At the Employer's request, Michael C. Chabot, D.O., an orthopedic spine surgeon, evaluated and treated Claimant from July 2012 to February 2013 for low-back pain radiating into his right leg.

Physical therapists noted Claimant may experience pain and functional limitation and symptom magnification based on the length of his discomfort in July 2012. An MRI dated December 27, 2011, showed narrowing at L4-5 and herniations at L4-5 and L5-S1. A CT scan of the lumbar spine dated May 17, 2012, revealed a disc bulge at L4-5 and a calcified disc protrusion at L5-S1.

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Dr. Chabot diagnosed a low-back strain from the December 2011 accident, a disc bulge at L4-5, calcified disc at L5-S1, and sacroiliitis. Dr. Chabot injected the SI area and ordered medication patches and physical therapy.

Dr. Chabot and the physical therapist concluded Claimant's perceived disability was not supported by physical findings. Therapy records show two out of five positive Waddell's signs, which suggest a non physiologic or non organic basis for complaints. Also, Claimant scored 64 on the low back disability questionnaire, which suggests he perceives himself as severely disabled.

A functional capacity evaluation ("FCE") dated September 25, 2012, showed less than full participation and Claimant failed seven of fifteen performance criteria. Dr. Chabot concluded Claimant could not perform his past work duties at UPS which required lifting up to 70 pounds.

On September 30, 2012, Dr. Chabot released Claimant at maximum medical improvement ("MMI") with restrictions to lift an occasional 50 pounds, frequent lifting of 25 pounds and surgery was not recommended. He concluded Claimant could drive, sit or walk more than eight hours, stand up to six hours, and climb up to 8 feet, with infrequent squatting and bending.

After a review of additional medical records from Missouri Baptist, Drs. Robson, Coyle, Woiteshek, and Mirkin, and deposition testimony of Dr. Coyle and Claimant, Dr. Chabot's causation opinion did not change. He noted marked differences in findings from the examinations performed by Dr. Woiteshek and those performed by him and Dr. Coyle. Diagnostic tests revealed chronic findings not acute, and no sign of radiculopathy. Therefore, Dr. Chabot concluded Claimant's low-back problems existed before the motor vehicle accident and were not aggravated or accelerated by it.

He found Claimant reached MMI on October 4, 2012, and sustained 3% PPD of the lumbar spine for the December 2011 injury and 5% PPD for preexisting degenerative disease of the lumbar spine.

During deposition, Dr. Chabot testified the spinal fusion recommended by Dr. Robson was not reasonable and necessary to cure and relieve Claimant from the effects of the December 2011 motor vehicle accident.

In January, 2013, Dr. Chabot refused Claimant's request to submit a release letter so he could work as an over-the-road truck driver, and referred him to Dr. Robson, who recommended surgery.

David B. Robson, M.D. performed one IME on December 5, 2012, read medical records, viewed film, wrote two reports and testified at the request of Claimant's attorney. Claimant did

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not review the medical records of Drs. Coyle and Mirkin. Dr. Robson identified Claimant's vehicle as a UPS truck and the other vehicle as a Lincoln Town Car.

Examination did not reveal neurologic changes, radiculopathy, or positive straight leg raise testing. Range of motion was normal but an absent right ankle reflex was found. 10 Claimant walked with a limp. X-rays revealed reduced disc height at L4-5 and L5-S1 and calcification at L5-S1. Dr. Robson identified disc calcification which may have existed before the work injury or been caused by it.

Dr. Robson diagnosed lumbar instability at L4-5 and L5-S1, disc derangement, and absent right ankle reflex caused by the motor vehicle accident in December 2011. Dr. Robson testified the speed of the vehicles, point of impact and other events surrounding the motor vehicle accident did not change his causation opinion because Claimant was asymptomatic until the accident and became symptomatic for a herniated disc four days after the accident. Dr. Robson further testified it may take 72 hours after an accident for swelling and symptoms to start, which is consistent with Claimant's request for treatment four days after the accident.

Also, Dr. Robson noted Dr. Coyle failed to consider the position of Claimant's body on impact. The position of Claimant's body on impact can change under pressure and stress. After the accident, Claimant developed left leg and low-back pain which correlates with the diagnostics that show a herniation at two levels. Dr. Robson concluded Claimant had not reached MMI, and recommended a two-level fusion, which was delayed because Claimant did not have insurance.

R. Peter Mirkin, M.D., initially examined Claimant on December 27, 2013 at the request of his attorney. He did not know how fast the other driver drove, what type of vehicle Claimant drove at the time of the accident or if the vehicle was struck or sustained damage in December 2011. He testified the information may have changed his opinion. An MRI dated December 27, 2013, showed narrowing at L4-5 and L5-S1 with herniation at L4-5 and L5-S1. He diagnosed degenerative disc disease, stenosis, herniated discs and disc space collapse.

An MRI dated January 22, 2014, revealed disc height loss at L4-5 and L5-S1 which Dr. Mirkin concluded takes a year or more to be seen on an x-ray. Also found was degenerative changes at L4-5 and L5-S1, stenosis, and encroachment. However, no disc height loss was found on the MRI taken in December 2011. Dr. Mirkin did not have physical therapy records from July and August 2012, FCE results, or Dr. Chabot's records and did not know Dr. Chabot placed Claimant at MMI on September 30, 2012. Also, Dr. Mirkin did not know Claimant asked Dr. Chabot for a letter to permit him to work at the heavy demand level. He did not review records from Dr. Robson or Dr. Coyle.

10 Dr. Robson testified the absent right reflex correlates with disc pathology at L5-S1.

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Dr. Mirkin diagnosed herniations at L3-4, L4-5 and L5-S1. After conservative treatment failed he performed a two-level fusion with instrumentation on April 22, 2014. During surgery, Dr. Mirkin found large herniated discs with annular tears and extruded disc herniations with compression, which he believed could be caused by trauma. Given the extent of Claimant's damaged low back, even a low impact automobile accident could cause a herniation. He found Claimant's pain correlated to the accident.

On July 11, 2014, Dr. Mirkin released Claimant to return to work with no restrictions at his request. Dr. Mirkin concluded Claimant's need for medical care was related to the motor vehicle accident on December 15, 2011.

Based on diagnostics, Dr. Mirkin opined the desiccation on the 2011 MRI existed more than two weeks before the MRI was taken. Dr. Mirkin concluded Claimant's symptoms were caused by the accident, although he had degenerative disc disease before the accident. He opined Claimant's symptoms and the disc herniations "very likely" were caused by the accident or at least resulted in the need for treatment because of it. However, he possessed degenerative disc disease before the accident.

Dr. Mirkin opined Claimant's preexisting low-back problems made him more prone to have symptoms after the accident than someone without a herniated disc. Furthermore, the patient must meet three criteria to receive treatment: 1. Symptoms, 2. Lack of improvement over time, and 3. A condition that can be surgically repaired. According to Dr. Mirkin, Claimant met all three criteria.

After reading brief excerpts from Dr. Mirkin's report, Dr. Robson concluded the medical treatment he provided was reasonable and necessary to cure and relieve Claimant from the effects of the accident.

On May 15, 2013, James J. Coyle, M.D., an orthopedic spine surgeon, reviewed medical records and performed an IME at the Employer's request. Dr. Coyle interpreted the MRI to show disc narrowing and calcified herniations of the lumbar spine, which did not happen in the twelve days after the accident. He disagreed with Dr. Robson that Claimant had disc instability. He noted "substantial" degenerative changes at L4-5 and L5-S1, which Dr. Coyle concluded were chronic and due to other possible causes, i.e. smoking and heavy labor. He noted narrowed disc space due to desiccation and disc collapse, which is unusual for a person who is 34 years old. Dr. Coyle found multilevel degenerative disc disease without motor deficits in Claimant's lower extremities. Dr. Coyle concluded the FCE study was not valid because it did not represent Claimant's ability.

During examination, Dr. Coyle found no nerve root tension or nerve problems at L5-S1, no sensory deficits, no calf or quadriceps atrophy, and negative bilateral straight leg raise. He noted good motor strength. He read CT myelogram results to show disc protrusion at L5-S1.

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calcified, and disc protrusion at L4-5 with narrowing, which suggests disc space collapse. Calcification represents bone spurs that develop over years and calcify discs.

He diagnosed discogenic low-back pain from degenerative disc disease, and a lumbar strain related to the motor vehicle accident on December 15, 2011. He concluded Claimant's disc pathology preceded the motor vehicle accident.

Also, Dr. Coyle concluded the truck was swiped on the rear right side on the tire with no damage to the vehicle and minimal damage to the truck. Therefore, Dr. Coyle concluded the motor vehicle accident was not sufficient to cause the pathology seen on the MRI twelve days after the accident. Although Claimant was asymptomatic before the accident, Dr. Coyle did not believe his current symptoms developed from the car scraping the tire of Claimant's truck.

Dr. Coyle opined Claimant had reached maximum medical improvement from the December 2011 work injury and recommended Claimant lose about 75 pounds. He did not recommend surgery. Further, the doctor opined, if Claimant had surgery, it is doubtful he could return to his former employment and would be worse in the long run.

Dwight Woiteshek, M.D., an orthopedic surgeon, performed an IME on April 21, 2015, wrote a report, and testified at the request of Claimant's attorney. Examination was significant for moderate positive straight leg raise on the left.

At the time of the accident, Dr. Woiteshek did not know the type of vehicle Claimant drove, whether the car was moving, or if the vehicles sustained damage. Dr. Woiteshek testified his opinion would not change if Claimant's car sustained damage.

For the primary injury, Dr. Woiteshek testified the MRI on December 27, 2011, revealed traumatic herniation at L4-L5 and L5-S1 caused by the motor vehicle accident on December 15, 2011. Dr. Woiteshek concluded a herniated disc can only occur with trauma, not from degeneration. He noted the impact to Claimant's back is less important than whether he twisted in the seat before impact. A twisting motion could result in a herniated disc.

Also, for the primary injury, Dr. Woiteshek identified calcification on the CT myelogram in May 2012, which he concluded developed over a six-month period following the accident. However, he did not believe the accident caused disc space narrowing. To determine causation, Dr. Woiteshek looks at the total factors, including impact, and symptoms before and after the accident.

Dr. Woiteshek concluded Claimant reached MMI from the motor vehicle accident, and rated 55% PPD of the lumbar spine for residual symptoms. Dr. Woiteshek imposed the

11 Dr. Woiteshek defined a traumatic herniation as "a tear in the annulus with a herniated portion sticking out in the canal."

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following restrictions from the accident: Avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing, and similar tasks, no lifting over 35 pounds occasionally, no lifting overhead or away from his body or carry weight a long distance or uneven terrain. Claimant should change positions every 30 minutes, and rest in a recumbent fashion as needed.

For the preexisting disability, Dr. Woiteshek diagnosed multiple degenerative discs with desiccation, per the MRI dated December 27, 2011.

Claimant identified the following bills contained in Exhibit 1 and testified they were related to the December 2011 accident and remain unpaid. There is no insurance to cover these bills.

After careful consideration of the entire record, based upon the above testimony, the competent and substantial evidence presented during the hearing including Claimant's presentation, and the applicable law of the State of Missouri, the following findings are made:

Claimant asserts Employer waived the right to direct treatment when it declined to provide more treatment after Dr. Chabot released Claimant from care on September 2012. In a post-hearing brief, Employer contends the parties agreed to be bound by Dr. Coyle's opinion about Claimant's need for more medical treatment.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-101164

A claimant must prove all elements of the claim to a reasonable probability. *Cardwell v. Treasurer of State of Missouri*, 249 S.W.3d 902, 911 (Mo.App. 2008). "Probable" means founded on reason and experience which inclines the mind to believe but leaves room for doubt. *Mathia v. Contract Freighters, Inc.*, 929 S.W.2d 271, 277 (Mo.App. 1996) (citations omitted). Based on credible testimony by Claimant, Dr. Robson and Dr. Woiteshek, Claimant met his burden.

Section 287.140.1 (2005) provides the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, as may reasonably be required after injury or disability to cure and relieve from the effects of the injury.

The employer has the right to provide medical treatment, but may waive it by failing to provide necessary medical aid after receiving notice of the injury. *Hendricks v. Motor Freight Corporation*, 570 S.W.2d 702, 709[10] (Mo.App.1978). Where the employer with notice of an injury refuses or neglects to provide necessary medical care, the employee may make his own selection and have the cost assessed against the employer. *Hammett v. Nooter Corporation*, 264 S.W.2d 915, 919 (Mo.App.1954) (Citations omitted).

Claimant testified he asked Employer to provide more medical treatment after September 30, 2012, but the request was denied. In June 2013, Attorney Walkenhorst requested the treatment Dr. Robson recommended in December 2012; however, the Employer did not provide it.

Instead, the Employer relies on an order by Judge Strange to select Dr. Coyle for a medical evaluation and "tie breaker" opinion. However, the record contains no order from Judge Strange or corroborating evidence that the parties agreed to accept Dr. Coyle's opinion about additional medical treatment. Also, Employer denies notice because Claimant failed to provide Dr. Mirkin's opinion. However, Claimant informed Employer he would seek the medical treatment recommended by Dr. Robson if Employer did not provide it. Based on Claimant's credible testimony that he asked for more treatment and the letter sent by Attorney Walkenhorst requesting more treatment, Employer waived the right to control medical treatment after September 30, 2012.

1. Surgery was reasonable and necessary

Claimant asserts surgery was reasonable and necessary to cure and relieve the effects of two herniated discs caused by the motor vehicle accident. The Employer contends spine surgery

12 Several cases herein were overruled by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003) on grounds other than those for which the cases are cited. No further reference will be made to *Hampton* in this award.

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was not reasonable and necessary to cure and relieve the effects of the lumbar sprain caused by the motor vehicle accident.

First, it must be determined whether an employee has suffered a compensable injury "by accident arising out of and in the course of employee's employment." *Tillotson v. St. Joseph Med. Ctr.*, 347 S.W.3d 511, 517 (Mo.App. 2011), as discussed in Section 287.120.1. Second, if a compensable injury has been sustained, what is the appropriate compensation? *Id.*

Section 287.020.3(1) defines "injury" as one that has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor that caused the medical condition and disability. The "prevailing factor" is defined as the primary factor, causing both the resulting medical condition and disability. Here, the parties stipulated Claimant sustained an accident that arose out of and in the course of employment. Therefore, Claimant sustained a compensable injury.

The remaining question deals with the appropriate medical treatment, if any, for Claimant after September 30, 2012. In this case, Claimant's injury arose out of his employment. However, the parties disagree on the nature of injury Claimant sustained.

Section 287.140.1 states: "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 the effects of the injury." This section presumes a compensable injury occurred under Section 287.020.3(1). *Bowers v. Hiland Dairy Co.*, 188 S.W.3d 79, 83 (Mo.App. 2006).

To decide if medical treatment is "reasonably required" to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. *Id.* Once it is determined there is a compensable accident, an injured worker only needs to prove the need for treatment and medication flow from the work injury. *Id.* The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant. *Id.*

In *Stevens v. Citizens Memorial Healthcare Foundation*, 244 S.W.3d 234, 238 (Mo.App. 2008), the Court held the employer responsible for medical treatment if the care flows from the accident, via evidence of a medical causal relationship between the condition and the compensable injury. Here, Claimant continued to have shooting pain from his left buttock to his ankle, which increased with activity after Drs. Chabot and Coyle released him at MMI. He was unable to play ball with his child. Dr. Robson recommended surgery but Dr. Chabot disagreed. Surgery was delayed because Claimant did not have insurance.

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Where the condition presented is a sophisticated injury that requires surgical intervention or other highly scientific techniques for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding nor in the absence of expert opinion is the finding of causation within the competency of the administrative tribunal. *Silman v. William Montgomery & Associates*, 891 S.W.2d 173, 175 (Mo. App. 1995).[^13] When there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. *George v. Shop 'N Save Warehouse Foods, Inc.*, 855 S.W.2d 460, 462 (Mo. App. 1993).

Based on the evidence contained in the record, Dr. Robson's opinion is more persuasive than the opinions of Drs. Chabot and Coyle. Drs. Chabot and Coyle concluded Claimant sustained a strain/sprain from the accident, because the impact to the truck was too insignificant to cause two low-back herniations. However, Dr. Robson concluded the speed of the vehicles, impact on the tire and other events surrounding the accident were irrelevant because Claimant was asymptomatic before the accident.

Dr. Robson further noted Claimant only became symptomatic for a herniated disc four days after the accident. Dr. Robson reasoned it may take 72 hours before swelling sets in and symptoms start, which is consistent with Claimant's testimony that he sought treatment at the emergency room four days after the accident. Dr. Robson referred to two diagnostic tests to support his conclusion.

Dr. Robson further concluded Dr. Coyle failed to consider the position of Claimant's body during impact, which can affect his level of injury.

In addition, Claimant failed to make progress during physical therapy. Dr. Chabot and Dr. Woiteshek imposed permanent restrictions that were not in place before the accident and prevented Claimant from returning to his past employment. Dr. Coyle predicted Claimant would be worse with surgery, but Claimant's mobility improved after surgery.

Also, Drs. Chabot and Coyle concluded calcification and bone spurs seen on Claimant's diagnostic tests a short time after the accident were not caused by the accident because it takes years to develop. In contrast, Dr. Robson acknowledged Claimant had significant degenerative disc disease before the motor vehicle accident (along with 50 percent of the population), but he attributed Claimant's lumbar instability at L4-5 and L5-S1, disc derangement, and absent right ankle reflex to the motor vehicle accident in December 2011. He further concluded the absence of a right ankle reflex correlated with disc pathology at L5-S1.

[^13]: Several cases in this award were overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003). No further reference will be made to the *Hampton* case in this award.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 11-101164

Like Dr. Robson, Dr. Mirkin acknowledged Claimant had degenerative disc disease before the accident, but Dr. Mirkin concluded the preexisting low-back condition made Claimant more prone to have symptoms and develop herniations after an accident than someone without the disease. Therefore, Dr. Mirkin concluded the motor vehicle accident caused the lumbar herniations or at least the need to treat them. Dr. Mirkin is the only physician in this case that actually observed the discs during surgery. Dr. Mirkin noted three criteria were needed for a patient to receive treatment: 1. Symptoms, 2. Lack improvement over time, and 3. A surgical solution. He concluded Claimant met all three criteria.

Drs. Robson, Mirkin and Woiteshek agree the motor vehicle accident was the prevailing factor that caused the need for treatment to two discs in Claimant's lumbar spine. In addition, Drs. Robson and Woiteshek agree the fusion surgery performed by Dr. Mirkin was reasonable and necessary to cure and relieve the effects of the motor vehicle accident.

Based on credible testimony by Claimant and persuasive testimony by Drs. Robson, Mirkin, and Woiteshek, the Claimant met his burden to show the December 15, 2011 motor vehicle accident was the prevailing factor that caused herniations to his low back at L4-5 and L5-S1, and the fusion surgery performed by Dr. Mirkin was reasonable and necessary to cure and relieve the effects of the December 15, 2011 motor vehicle accident.

1. Employer is liable for past medical expense after September 30, 2012

Claimant asserts Employer is responsible for past medical bills incurred by Claimant for Employer's failure to provide the necessary medical care for the December 15, 2011 work injury. Employer denies liability because the medical treatment was not medically causally related to the work injury.

Section 287.140.3, RSMo requires a showing that all fees and charges be "fair and reasonable." A sufficient factual basis exists for the [fact finder] to award compensation for past medical expenses when: (1) the claimant introduces his medical bills into evidence; (2) the claimant testifies that the bills are related to and the product of his work injury; and (3) the bills relate to the professional services rendered as shown by the medical records in evidence. *Cook v. Missouri Highway & Transp. Comm'n*, 500 S.W.3d 917, 929 (Mo.App. 2016) (Citations omitted).[^14] When these three elements are met, the burden shifts to the employer to prove some reason the award of past medical expenses is inappropriate. *Id.*

Here, Claimant identified the medical bills contained in Exhibit 1 and testified they represent medical treatment he received for injuries sustained in the motor vehicle accident on December 15, 2011, while at work. He testified there is no insurance to cover the medical bills and Employer has not paid any of the bills incurred after September 30, 2012. Based on Claimant's credible testimony and the medical bills in evidence, Claimant met his burden to show Employer is liable for the bills. Employer offered no proof that the bills were

[^14]: Superseded by statute on other grounds by § 287.160.3 (Citations omitted).

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inappropriate or extinguished, therefore, Claimant is awarded past medical expenses related to the December 15, 2011, motor vehicle accident.

1. Employer is liable for TTD benefits

Claimant asserts Employer owes TTD benefits from October 1, 2012 to January 28, 2013, and April 22, 2014 to July 11, 2014. Employer denies liability for TTD benefits because Claimant's medical treatment and need for surgery were not medically causally related to the work accident.

When an employee is injured in an accident arising out of and in the course of his employment and is unable to work as a result of the injury, § 287.170 sets forth the TTD benefits an employer must provide to the injured employee. Section 287.020.6 defines the term "total disability" as the "inability to return to any employment and not merely mean the inability to return to the employment in which the employee was engaged at the time of the accident."

The test for entitlement to TTD "is not whether an employee is able to do some work, but whether the employee is able to compete in the open labor market under his physical condition." *Boyles v. USA Rebar Placement, Inc.*, 26 S.W.3d 418, 424 (Mo.App. 2000). Thus, TTD benefits are intended to cover the employee's healing period from a work-related accident until he can find employment or his condition has reached a level of maximum medical improvement. *Id.* Once further medical progress is no longer expected, a temporary award is no longer warranted. *Id.*

Claimant bore the burden to prove he is entitled to TTD benefits by a reasonable probability. *Cooper v. Med. Ctr. of Independence*, 955 S.W.2d 570, 574-75 (Mo.App.1997). Based on the evidence discussed below, Claimant met his burden.

Dr. Chabot's conclusion that Claimant had reached MMI by September 30, 2012, is not persuasive in light of Dr. Robson's opinion that Claimant had not reached MMI on December 5, 2012. Because Dr. Chabot's opinion about Claimant's ability to work is not persuasive, the work restrictions he imposed are not instructive. Also, Claimant's testimony that he could not work during that period of time due to low-back pain and spasms is consistent with Dr. Robson's opinion that more treatment was needed. Based on this evidence, Claimant met his burden to prove he could not compete in the open labor market in his physical condition from October 1, 2012 to January 28, 2013.

At the hearing, Claimant testified he worked for US Express from January 29, 2013 to May 2013. However, Dr. Mirkin performed surgery on April 22, 2014, and took Claimant off work following surgery until July 11, 2014, when Claimant requested a release to return to work. Based on this evidence, Claimant met his burden to prove he could not compete in the open labor market in his physical condition between April 22, 2014 and July 11, 2014.

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1. Employer is liable for permanent partial disability benefits

At the hearing, the parties asked the Court to address the nature and extent of Claimant's disability from the motor vehicle accident. In post-hearing briefs, Claimant and Employer agree he sustained some PPD from the December 15, 2011 motor vehicle accident. However, they disagree on the amount of disability Claimant sustained. In addition, the record contains no evidence Claimant is PTD and Claimant testified he wants to work and is motivated to work. Therefore, the issue of PTD is moot.

With regard to PPD, a loss of earnings is not an essential element of a claim for PPD benefits. *Rana v. Landstar TLC.* 46 S.W.3d 614, 626 (Mo.App. 2001). An award for PPD benefits is possible even if the injured party returns to work, if the injuries impair their efficiency in the ordinary pursuits of life. *Id.* [T]he [fact finder] has discretion to determine the amount of the award and how it is to be calculated. *Id.* The [fact finder] weighs the evidence and the other testimony to reach its' own conclusion about the percentage of disability suffered. *Id.* In a workers' compensation case, the injured party seeking benefits for PPD has the burden to prove a work-related injury occurred which resulted in disability. *Id.*

Here, Drs. Chabot and Woiteshek concluded Claimant sustained disability from the December 15, 2011 motor vehicle accident, and they imposed permanent restrictions on his ability to work in the future. As a result of the restrictions, Claimant did not return to work for Employer. Claimant's testimony about his residual complaints are consistent with the limitations imposed both physicians.

Based on credible testimony by Drs. Chabot and Woiteshek regarding disability and Claimant's testimony regarding his residual complaints, Claimant met his burden to prove he sustained 30% PPD of the body as a whole referable to his low back, as a result of the motor vehicle accident on December 15, 2011.

CONCLUSION

Employer waived the right to direct medical care. Surgery was reasonable and necessary to cure and relieve the effects of the work injury. Employer is responsible for past unpaid medical expenses, temporary total disability benefits, and permanent partial disability benefits as outlined in this award. The award is subject to a fee of 25% of the benefits awarded in favor of Claimant's attorney for legal services rendered. The Second Injury Fund is to remain open.

I certify that on 2-17-17 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By __________________________

WC-32-R1 (6-81)

Suizette Carlisle

Administrative Law Judge

Division of Workers' Compensation

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