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 Employee initially objected to the exhibit, but later that objection was withdrawn.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
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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 Strange<sup>5</sup> 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, 201