Mark Odom v. Customer Engineering Services, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 12-046620

**Employee:** Mark Odom

**Employer:** Customer Engineering Services, LLC

**Insurer:** Mitsui Marine and Fire Ins. Co.

Mitsui Sumitomo Ins. Co. of America

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

At the hearing in this matter on September 19, 2017, employer/insurer offered into evidence its Exhibit L. Employee objected, and the administrative law judge sustained the objection and ruled that Exhibit L would not be admitted into evidence. *Transcript*, page 111. Ordinarily, the Division of Workers' Compensation (Division) would thereafter include Exhibit L as part of the transcript, while noting the administrative law judge's ruling, thus obviating the need for the proponent of the excluded evidence to make a formal offer of proof to preserve the issue for appeal. Here, however, the Division did not do so; the same has occurred with regard to employee's Exhibit 27, which was offered into evidence and ruled inadmissible by the administrative law judge. *Transcript*, page 13.

However, the copies of employer/insurer's Exhibit L and employee's Exhibit 27 that were marked by the court reporter at the hearing before the administrative law judge were retained by the Division, and have been included with the file sent to us. Rather than send the file back to the Division to take the formal step of correcting, and reissuing, the transcript, we instead attached copies of these exhibits to our order of April 12, 2018, and advised the parties that we would take up and rule upon the admissibility of employer/insurer's Exhibit L and employee's Exhibit 27, in our final award. Accordingly, we turn now to that issue.

Employer/insurer's Exhibit L consists of a one-page document that appears to be a letter of June 2, 2015, from Glenn Burns, employer's Vice President of Human Resources, to employee, advising employee that he is eligible to apply for any available position that matches his skill set; providing contact information and a link to apply online; and advising employee to contact Mr. Burns with any questions. Employee's counsel objected to this exhibit on the basis that it lacked foundation.

Injury No.: 12-046620

Employee: Mark Odom

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At the hearing, employer/insurer's counsel presented Exhibit L to employee and asked him if he'd received it. Employee testified that he did not recall Exhibit L. Employee agreed that he'd spoken to Mr. Burns, over the phone, about the possibility of coming back to work with employer, prior to June 2015. But he denied any memory of receiving Exhibit L in the mail after that phone call.

While it is true that workers' compensation proceedings do not strictly apply the technical rules of evidence, evidentiary foundation is not an overly technical rule of evidence, nor is it a rule of evidence that is suspended in workers' compensation proceedings.

*Burchfield v. Renard Paper Co., 405 S.W.3d 589 (Mo. App. 2013).*

Employer/insurer did not offer any testimony from Mr. Burns, or anyone else with employer, to authenticate Exhibit L, and employee's testimony does not provide such foundational showing. We conclude that employer/insurer failed to lay an adequate foundation for admission of Exhibit L. We affirm the administrative law judge's ruling that Exhibit L is not admitted into evidence.

Turning to employee's Exhibit 27, this two-page document appears to be a letter of November 5, 2011, from employee's counsel to employer/insurer's counsel pertaining to settlement negotiations. Employee offers this document as evidence he made a demand on employer for medical treatment. Employer objects, on the basis that the document is not authenticated, and consists of hearsay. The administrative law judge ruled Exhibit 27 was not admissible.

In his brief, employee does not challenge the administrative law judge's ruling with respect to Exhibit 27, nor has he directed us to evidence sufficient to authenticate Exhibit 27 or lay an adequate foundation for its admission into evidence. Consequently, as with Exhibit L, we are not persuaded to overturn the administrative law judge's ruling that Exhibit 27 is not admitted into evidence; we so hold.

Consequently, we have not considered the contents of Exhibits L or 27 in the course of reviewing the merits of this appeal.

*Past medical expenses - employer/insurer's "authorization" defense*

We wish to briefly address employer/insurer's argument, set forth in its brief, that an employee is required, in the context of a denied workers' compensation claim, to file for a hardship setting before an administrative law judge in order to obtain an award of past medical expenses in a final award. Employer/insurer fails to cite legal authority, statutory or otherwise, to support this argument; this is unsurprising, as none exists. Instead, it is well-settled in Missouri that "[i]f 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 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.

Injury No.: 12-046620

Employee: Mark Odom

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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 filed his claim for compensation with the Division on July 24, 2012. Therein, employee notified employer/insurer that he was making a claim for all compensation as provided in the Missouri Workers' Compensation Law relating to his injury. On August 6, 2012, employer/insurer filed its answer, admitting that employee had suffered an injury, but alleging that all necessary medical benefits had been provided. Employer's chosen treating physician, Dr. Ted Lennard, deemed it appropriate to release employee from authorized care on August 23, 2013, despite the fact employee continued to complain on that date of 7 out of 10 pain in his right upper extremity, weakness causing employee to drop objects, and loss of function. Because employee continued to suffer severe pain, he sought pain management treatment on his own.

Thereafter, the records of the Division (of which we hereby take administrative notice) reveal a remarkably difficult history of litigation in this claim, whereby the parties subjected one another (and the Division) to numerous requests for hearings, rulings, and intervention from administrative law judges on a multitude of disputed procedural issues. Within many of the parties' filings, employee's self-directed medical treatment was a specific topic of contention. All of the dates of service corresponding to employee's claim for disputed past medical expenses in this case are from 2014 forward.

Given these circumstances, we find employer/insurer's allegation of ignorance as to employee's claim for past medical expenses to be disingenuous. This is not a case like *Blackwell v. Puritan-Bennett Corp.*, 901 S.W.2d 81 (Mo. App. 1995) where the employee simply vanished and obtained treatment on his own before filing a claim for compensation, and did not otherwise make the employer aware of his position that he remained in need of treatment. Instead, this is a case where employer/insurer clearly decided to rely on the opinion of its authorized treating physician that employee didn't need any more treatment after August 2013.

At that point, both parties assumed the risk inherent in their respective positions. Employee assumed the risk that his additional treatment would not be deemed to be reasonably required to cure and relieve the effects of his work injury, with the result that he would ultimately have to pay for his own treatment. Employer/insurer, on the other hand, assumed the risk a fact-finder would not be persuaded by Dr. Lennard's choice to release employee from treatment when employee was still complaining of severe, disabling pain, and that employer/insurer's reliance on Dr. Lennard's opinion would be deemed a waiver of its right to direct care, with the result that it would be held liable for employee's self-directed care. We, like the administrative law judge, were persuaded by employee's evidence.

For the foregoing reasons, and because we otherwise agree with the administrative law judge's findings, analysis, and conclusions, we are not persuaded to disturb the award, but instead adopt it as our own, without further supplementation or comment.

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

The award and decision of Administrative Law Judge Kevin Elmer is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

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 3rd day of July 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

SEPARATE OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Impry No.: 12-046620

Employee: Mark Odom

I have reviewed the evidence, read the briefs of the parties, and considered the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's decision to award permanent total disability benefits and past medical expenses to this employee.

Employee's claim for permanent total disability benefits is premised almost entirely on his subjective reporting of ongoing severe pain in his right upper extremity referable to complex regional pain syndrome (CRPS). In a case where a disputed lifetime benefit turns so narrowly upon assessment of an employee's subjective reporting of symptoms, I would expect some corroborating evidence. Here, though, the objective evidence is not corroborative of employee's complaints of severe, disabling pain.

Employee underwent two functional capacity examinations (FCE) in this case. These were conducted in separate facilities by different practitioners, a year apart. Both FCEs concluded that employee is capable of medium capacity work, with limited restrictions to avoid lifting 5 to 10 pounds over the shoulder level. Both FCEs reveal that, so long as employee exercises caution using his right arm to work overhead, employee is capable of working a full day.

Employee is only 56 years old and has a college education. Employee has highly marketable, technical skills in the area of photo production technology, based on a long career in this industry. Employee admitted on cross-examination that employer has expressed a willingness to permit him to come back to work. Employee fails to persuasively explain why he has not pursued this opportunity.

I have further, grave concerns in this case about employee's chosen treating physicians keeping him on high dosages of fentanyl over a long period of time. The administrative law judge pointed to this treatment choice as evidence supporting an award of permanent total