The parties asked the administrative law judge to determine the following issues: (1) Whether employee sustained a work-related accident on March 31, 2009; (2) Whether employee's injury was medically causally related to the alleged accident; (3) Nature and extent of permanent disability and liability of the employer or the Second Injury Fund; (4) Future medical; (5) The date the employee reached maximum medical improvement (MMI).
The administrative law judge determined as follows:
- The employee sustained an occupational disease, which arose out of and in the course and scope of his employment with employer and was medically causally related to his work activities;
- The employer is ordered to provide future medical treatment to the employee's right shoulder to cure and relieve the effects of the March 31, 2009, work injury;
- The employee is permanently and totally disabled as a result of his last injury alone; the Second Injury Fund is therefore not liable for the payment of any permanent partial or permanent total disability compensation;
- The employee achieved MMI on April 29, 2010, the date of Dr. Lieurance's office note. The employee is therefore entitled to temporary total disability from the employer/insurer from April 1, 2009, through April 29, 2010, and thereafter for
MNKOI 0000811657
Injury No.: 09-111523
Employee: Manuel Duarte
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permanent total disability benefits from employer/insurer for the employee's lifetime.¹
The employer/insurer filed a timely application for review alleging that the administrative law judge's award is erroneous for the following reasons:
- The finding that the employee sustained a compensable incident of occupational disease arising out of and in the scope of his employment with employer is not supported by the substantial and credible evidence in that employee suffers from pre-existing arthritis and degenerative joint disease of the right shoulder.
- The finding of permanent total disability against the employer and insurer in connection with the employee's March 31, 2009, shoulder injury, in isolation and alone, was not based upon credible and substantial evidence in that evidence from Dr. Parmet and vocational specialist Michael J. Dreiling in addition to employee's own testimony demonstrates that any permanent total disability is the result of employee's pre-existing conditions and his 2009 shoulder injury and therefore the responsibility of the Second Injury Fund.
- The award of future medical is not supported by competent and substantial medical evidence in that employee has not received any medical treatment related to his right shoulder since 2010; nor does the medical evidence support a need for medical treatment in the future.
- The administrative law judge's temporary total disability benefits is not supported by competent and substantial medical evidence in that such evidence indicates that employee was not temporarily totally disabled, although he may have had restrictions and been limited.
For the reasons stated below, we modify the award and decision of the administrative law judge relating to employee's entitlement to temporary total disability benefits.
Discussion
Date of Maximum Medical Improvement
After finding the employee permanently and totally disabled solely as a result of the last injury, the administrative law judge's award states:
[T]he question then becomes when Mr. Duarte achieved maximum medical improvement. Candidly, it is unclear from the medical records when Mr. Duarte achieved maximum medical improvement from his work injury of
¹ The parties stipulated to a weekly compensation rate of $283.21 for both temporary total and permanent total disability benefits. Transcript, 5.
Injury No.: 09-111523
Employee: Manuel Duarte
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March 31, 2009. It is clear that Mr. Duarte underwent a second surgery on his right shoulder on April 21, 2010, performed by Dr. Lieurance. The last medical record available in evidence from Dr. Lieurance's office was his medical note dated April 29, 2010. While it makes no substantive difference since I have found Mr. Duarte was permanently and totally disabled as a result of the injury to his right shoulder, in isolation, from the last injury alone, so as to distinguish the period of temporary total disability from permanent total disability, I find and conclude that based upon the medical records admitted into evidence at the hearing, that Mr. Duarte achieved maximum medical improvement April 29, 2010.
Based on his determination that the employee was at MMI as of April 29, 2010, the administrative law judge awarded temporary total disability from April 1, 2009, (the day after the employee's March 31, 2009 work injury), through April 29, 2010, and permanent total disability beginning April 30, 2010, for the employee's lifetime, to be paid by the employer/insurer.
The employer/insurer's application for review alleges error in the administrative law judge's award of temporary total disability, asserting the employee failed to prove MMI because "There was no date of maximum medical improvement ever stated by any physician and it is a guess and speculation to determine the date. Further, Employee accepted unemployment benefits, but the Administrative Law Judge provided an award of TTD benefits in violation of Section 287.170(3)."
We note the following medical evidence in the record:
- Dr. Lieurance's clinic note of April 29, 2010, summarized a follow up appointment with the employee following right shoulder arthroscopic surgery. Dr. Lieurance's memo documented an X-ray of the employee's right shoulder on that date. He noted that the employee's shoulder incision was healing well, that the employee was neurovascularly intact, and that he had good range of motion. Dr. Lieurance's April 29, 2010 office record does not reference MMI.
- Employer's expert, Dr. Allen Parmet, evaluated the employee on April 20, 2012 and January 16, 2015. Dr. Parmet's February 20, 2015, report suggests that the employee was likely at maximum medical improvement as of Dr. Parmet's April 20, 2012, exam but does not specifically so state.
2 Award, pp. 19-20.
3 Employer/Insurer's Application for Review, p. 6.
4 Claimant's Exhibit 1, Transcript, 235-236.
5 Employer/Insurer's Exhibit E, Id. 594-597.
Injury No.: 09-111523
Employee: Manuel Duarte
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- Employee's expert, Dr. David Volarich, evaluated the employee on June 12, 2013. Dr. Volarich's report of that date specifically cites his opinion that, based on treatment provided to date, the employee had achieved maximum medical improvement.6
Section 287.170 provides for payment of compensation for temporary total disability for not more than four hundred weeks. "Temporary disability awards are intended to cover a healing period ... TTD benefits should be awarded only for the period before the employee can return to work." *Greer v. Sysco Food Serv.*, 475 S.W.3d 655,667 (Mo. 2015). Consistent with *Greer* we interpret Dr. Volarich's June 12, 2013, evaluation and report as evidence that the employee was no longer engaged in the rehabilitative process and had reached his maximum treatment potential as of that date. Based on Dr. Volarich's credible opinion we conclude employee reached MMI on June 12, 2013, and was no longer eligible for temporary total disability as of that date.7 We note modification of the date the employee reached MMI does not change the amount of the employee's award, in that the rate for temporary total and permanent total disability benefits are the same.