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 disability benefits, owing to the numerous, debilitating side-effects of this extremely powerful opioid medication. Apparently, despite growing awareness of the dangers posed by opioids, it has not occurred to employee's doctors to try a different course of treatment, or to wean employee from this powerful anesthetic in favor of something that will allow him to function in the open labor market. Instead, employee's advocates seem content to consign him to a life of idle, drug-addled dependency, in favor of maximizing their own financial interests. Certainly there is a better solution for employee than this, and certainly we can do better in this case than send a message that questionable pain management practices provide a roadmap to total disability awards in Missouri.

The award of permanent total disability benefits should be modified to one of permanent partial disability benefits, consistent with the credible opinions from Drs. Lennard and Roeder.

Injury No.: 12-046620

Employee: Mark Odom

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**Employee is not entitled to his past medical expenses from employer/insurer**

I also disagree with the Commission majority's choice to affirm the administrative law judge's award of past medical expenses, based on their finding that employee gave employer adequate notice and an opportunity to provide him with disputed past medical treatment. The majority concludes this is not a case like *Blackwell v. Puritan-Bennett Corp.*, 901 S.W.2d 81 (Mo. App. 1995), and while I agree that certain facts are distinguishable, I believe we should not so quickly disregard the well-settled principle in Missouri that "the employer is held liable for medical treatment procured by the employee only when the employer has notice that the employee needs treatment, or a demand is made on the employer to furnish medical treatment, and the employer refuses or fails to provide the needed treatment." *Poole v. City of St. Louis*, 328 S.W.3d 277, 291 (Mo. App. 2010) (emphasis added).

I do not find sufficient evidence, on this record, to make a finding that employee provided the requisite notice or demand to employer to furnish medical treatment. The majority suggests employee's claim for compensation provided this notice/demand, but employer was still providing authorized treatment when employee filed his claim, and employee never filed an amended claim after Dr. Lennard released him, specifically notifying employer of his desire for further treatment. Instead, he silently pursued that treatment on his own, submitting the costs thereof to his wife's health insurance, and never made a demand on employer to resume treatment until after he had already incurred the disputed costs.

As a result, based on this record, I find that employee made a conscious choice to select his own providers at his own expense, something he had every right to do pursuant to § 287.140.1 RSMo. I conclude, therefore, that employer/insurer are not liable for the past medical expenses in connection with his self-directed care.

In sum, I would modify the award of permanent total disability benefits, and enter an award consistent with my finding that employee suffered, as a result of this work injury, a 5% permanent partial disability of the body as a whole referable to the lumbar spine, and a 15% permanent partial disability of the right upper extremity at the shoulder level. I would also modify the award to deny employee's claim for past medical expenses.

Because the majority has determined otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Mark Odom

Injury No. 12-046620

Dependents: N/A

Employer: Customer Engineering Services, LLC

Insurer: Mitsui Marine and Fire Ins. Co.

Mitsui Sumitomo Ins. Co. of America

Additional Party: N/A

Hearing Date: September 19, 2017

Checked by: KAE

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: June 21, 2012.
5. State location where accident occurred or occupational disease was contracted: Joplin, Jasper County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was moving a heavy piece of equipment when he sustained injury to his right upper extremity, back, and left knee.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right upper extremity, back and left knee.
14. Nature and extent of any permanent disability: Permanent Total Disability.
15. Compensation paid to date for temporary disability: $\ 46,772.48
16. Value necessary medical aid paid to date by employer/insurer? $\ 47,919.04
17. Value necessary medical aid not furnished by employer/insurer? $\ 36,539.99

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

1. Employee's average weekly wages: 1,231.86

1. Weekly compensation rate: 811.73 (TTD/PTD)/$425.19 (PPD)

1. Method wages computation: Stipulation by parties.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

Permanent total disability benefits from Employer beginning August 27, 2013, at the rate of $811.73 per week, for Claimant's lifetime.

1. Second Injury Fund liability: N/A

**TOTAL:** 37,807.63, PLUS 811.73 PER WEEK, EFFECTIVE AUGUST 27, 2013, AND CONTINUING FOR EMPLOYEE'S LIFETIME, PLUS FUTURE MEDICAL CARE.

1. Future requirements awarded: Yes

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

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: The Ryan E. Murphy Law Firm, LLC.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No. 12-046620

**Dependents:** N/A

**Employer:** Customer Engineering Services, LLC

**Insurer:**

- Mitsui Marine and Fire Ins. Co.

- Mitsui Sumitomo Ins. Co. of America

**Additional Party:** N/A

**Hearing Date:** September 19, 2017

**Checked by:** KAE

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on September 19, 2017. The parties were afforded an opportunity to submit briefs on or before October 20, 2017. Upon request by the Employer/Insurer's counsel, an extension was granted until October 26, 2017. After granting a second request for extension made by counsel for the Employer/Insurer, the parties' proposed awards were submitted to the undersigned on or about October 27, 2017, resulting in the record being completed at that time.

The employee appeared personally and through his attorney, Ryan E. Murphy, Esq. Employer, Customer Engineering Services, LLC, and its insurer, Mitsui Marine and Fire Ins. Co./Mitsui Sumitomo Ins. Co. of America, appeared through their attorney, Kevin Leahy, Esq.

The parties entered into a stipulation of facts. The stipulation is as follows:

1. On or about June 21, 2012, Customer Engineering Services was an employer operating under and subject to the terms and provisions of the Missouri Workers' Compensation Law and during this time was fully insured by Mitsui Sumitomo Ins. Co. of America.

1. On June 21, 2012, Mark Odom was an employee of the employer and was working under and subject to the Missouri Workers' Compensation Law.

1. On the date of injury of June 21, 2012, Mark Odom sustained an accidental injury arising out of and in the course and scope of his employment for the employer.

1. The above-referenced employment and accident occurred in Joplin, Jasper County, Missouri. The parties have agreed to venue in Springfield, Missouri. Venue is proper.

1. The employee notified the employer of his injury as required by §287.420 RSMo.

1. The claim for compensation was filed within the time prescribed by §287.430 RSMo.

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Confidential

Philip Morris v. ABC

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

1. At the time of the alleged injury of June 21, 2012, the employee's average weekly wage was 1,231.86, which is sufficient to allow a compensation rate of 811.73 for temporary total disability compensation and permanent total disability compensation and a compensation rate of $425.19 for permanent partial disability compensation.

1. Temporary disability benefits in the amount of $46,772.48 have been paid to date by the employer/insurer.

1. Necessary medical aid in the amount of $47,919.04 has been paid to date by the employer/insurer.

1. Parties agree to an underpayment of TTD benefits in the amount of $1,267.64.

1. The parties agree that maximum medical improvement was reached on August 26, 2013.

1. The attorney fee being sought by the Ryan E. Murphy Law Firm, LLC, is 25 percent.

The sole issues to be resolved by hearing include:

1. Whether the employer and insurer are obligated to pay for certain past medical care and expenses;

1. Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries;

1. Whether the alleged accident caused the injuries and disabilities for which benefits are now being claimed; and

1. Whether the employee sustained any permanent disability as a result of the accident of June 21, 2012; and, if so, what is the nature and extent of the disability?

EVIDENCE PRESENTED

The employee testified at the hearing in support of his claim. Also, the employee presented at the hearing of this case the testimony of his wife, Melissa Odom. In addition, the employee offered for admission the following exhibits:

Exhibit 1...............................................................................IME Report - Dr. Robert Paul: 4/8/2014

Exhibit 2...............................................................................IME Supplemental Report - Dr. Robert Paul: 3/17/2016

Exhibit 3...............................................................................IME Supplemental Report - Dr. Robert Paul: 7/10/2017

Exhibit 4...............................................................................Deposition Transcript - Dr. Robert Paul: 7/14/2016

Exhibit 5...............................................................................Deposition Transcript and Exhibits - Phillip Eldred: 10/18/2016

Exhibit 6. Medical records: Advantage Hand Therapy & Orthopedic Rehab; Certified 11/13/2013

Exhibit 7...............................................................................Medical records: Clay Therapy LLC; Certified 8/26/2013

Exhibit 8...............................................................................Medical records: Concentra; Certified 3/7/2013

Exhibit 9...............................................................................Medical records: Cox Family Medicine Associates; Certified 8/30/2013

Exhibit 10...............................................................................Medical records: Cox Family Medicine Associates; Certified 7/20/2015

Exhibit 11...............................................................................Medical records: CoxHealth; Certified 6/20/2017

Exhibit 12...............................................................................Medical records: Ferrell-Duncan Clinic; Certified 2/23/2017

Exhibit 13...............................................................................Medical records: OCH; Certified 3/14/2013

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

Exhibit 14

Medical records: Ozarks Community Hospital; Certified 7/1/2013

Exhibit 15

Medical records: Ozarks Community Hospital; Certified 9/5/2013

Exhibit 16

Medical records: Springfield Neurological Institute, LLC; Certified 8/29/2013

Exhibit 17

Medical records: Southwest Spine & Sports Medicine; Certified 3/14/2014

Exhibit 18

Medical records: Southwest Spine & Sports Medicine; Certified 7/20/2015

Exhibit 19

Billing records: Convenient Care Pharmacy; Certified 8/4/2015

Exhibit 20

Billing records: Convenient Care Pharmacy; Certified 6/14/2017

Exhibit 21

Billing records: CoxHealth; Certified 7/13/2017

Exhibit 22

Billing records: CoxHealth Regional Services; Certified 7/16/2015

Exhibit 23

Billing records: CoxHealth Regional Services; Certified 7/16/2015

Exhibit 24

Billing records: Family Pharmacy

Exhibit 25

Billing records: Ferrell-Duncan Clinic; Certified 3/13/2017

Exhibit 26

Demonstrative Exhibit - Medical Bills Chart

Exhibit 27

11/5/14 Demand letter to Kevin Leahy

Exhibit 28

Deposition Transcript - Mark Odom: 6/30/2014

Exhibits 1 through 18 were offered and admitted into evidence.

Exhibits 19 - 25 were offered into evidence, and Employer and Insurer objected to their admission.

Counsel for Employee asserted that Exhibits 19 - 25 are certified records and offered pursuant to §287.140.7. The objection was overruled, and Exhibits are 19 - 25 are admitted.

Exhibit 26 is admitted for demonstrative purposes only and not for the truth of the matter asserted.

Exhibit 27 was offered into evidence. Employer and Insurer objected. The objection was sustained, and Exhibit 27 was not admitted into evidence.

Exhibit 28 was offered into evidence. Employer and Insurer objected. The objection was overruled, and Exhibit 28 was admitted into evidence.

The employer and insurer presented one witness at the hearing of this case - Gary Olson, a service planning representative employed by the employer. In addition, the employer and insurer offered for admission the following exhibits:

Exhibit A

Medical Records: Concentra Medical Center; Certified 3/7/13

Exhibit B

Medical Records: Ozarks Community Hospital; Certified 9/6/17

Exhibit C

Deposition: Dr. Edwin Roeder - 3/27/15

Exhibit D

Deposition: Dr. Edwin Roeder - 5/27/17

Exhibit E

Deposition: Dr. Ted Lennard - 3/27/15

Exhibit F

Deposition: Dr. Ted Lennard - 9/18/17

Exhibit G

Deposition: Judy Brookover - 9/18/17

Exhibit H

Deposition: Judy Brookover - 7/15/16

Exhibit I

Medical Records: Sun River Orthopaedics; Certified 4/30/13

Exhibit J

FCE dated 8/26/2014

Exhibit K

Three photographs of Mr. Odom's bilateral upper extremities taken at the hearing

Exhibits A - I and K were offered and admitted into evidence.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

Exhibit J was offered into evidence, and Employee objected as the medical record being offered is not a certified record and that no foundation has been given. The objection was overruled, and Exhibit J was admitted into evidence.

Exhibit L was offered into evidence, and Employee objected as the proper foundation had not been laid. The objection was sustained, and Exhibit L was not admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which includes:

- Notice of Hearing

- Report of Injury

- Motion to Dismiss Second Injury Fund Without Prejudice

- Order of Dismissal - Second Injury Fund Without Prejudice

- Claim for Compensation

- Amended Claim for Compensation

- Answer to Claim for Compensation of Employer/Insurer

- Second Injury Fund Answer to Claim for Compensation

- 21-page packet from Employer and Insurer containing July 27, 2017, letter to Judges, Pottinger and Fowler with enclosures

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned Judge.

DISCUSSION

Background and Employment

The employee, Mark Alan Odom, is 56 years of age, having been born on December 22, 1960. Mr. Odom resides with his wife of 21 years, Melissa Odom, in Fair Grove, Missouri. Mr. Odom attended Logan Rogersville High School in Rogersville, Missouri, through his senior year and obtained his GED in 1979, the summer after his senior year. Mr. Odom has an associate's degree in photo production technology from Southern Illinois University.

In 1998 Mr. Odom began working for Fuji Photo Film USA. In 2007, Fuji Photo was outsourced and became partners with Customer Engineering Services. Mr. Odom has worked as a field support technician since 1998. His job duties required him to install, repair, and maintain photographic mini lab equipment located in photo labs in commercial businesses. He engaged in this employment for the employer for fourteen years until suffering an accident and injury while working on June 21, 2012. Following the June 21, 2012, accident and injury, Mr. Odom never returned to work for the employer, nor has he obtained other employment.

Accident

On June 21, 2012, while engaged in employment and performing his work duties for the employer, Customer Engineering Services, LLC, Mr. Odom and two men from a moving company

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

were lifting and moving a large ink jet photo printer from a pallet when he felt his right elbow pop and had a sudden onset of burning pain and dizziness. Mr. Odom had to quickly put his side of the printer down, while still standing in the packing materials and pallet, causing him to twist his back and his left knee to pop with immediate pain to both areas. The two men helping Mr. Odom move the printer witnessed the injuries.

**On June 21, 2012,** Mr. Odom presented to Dr. Anjum Qureshi, reporting an accident while lifting a 250-pound ink jet printer from a pallet to the floor with co-workers when he felt a pop in his right elbow and then a burning in his right lateral forearm. He also reported that he twisted his low back and left knee. The next day, he was seen by a therapist who indicated the patient's left knee injury was consistent with a meniscal tear. He returned to therapy, reporting a difficult weekend, especially when pain medicines wore off. He had a strong discomfort in the right shoulder, and the therapist noted that the patient was in pain and was guarded with the right upper extremity. There were deficits in the left knee as well. The therapist noted the patient's right elbow would lock and get spasms and was extremely painful. The right shoulder was painful with a strong ache. The left knee clicked and popped, and there was pain in the middle of his low back.

**On July 17, 2012,** Mr. Odom presented to Dr. Edwin Roeder at Orthopaedic Specialists of Springfield for right arm and elbow pain and left knee pain. On examination, Dr. Roeder noted weakness in the biceps with flexion strength and supination against resistance. Dr. Roeder wanted to proceed with surgery as soon as possible and issued restrictions of no pushing, pulling, or lifting more than five pounds with the right arm. An MRI was performed and showed moderate to severe tendinopathy with a small focal partial thickness tear.

**On August 2, 2012,** Dr. Lennard at Springfield Neurological and Spine Institute saw the patient, who reported constant pain in his low back that radiated into his bilateral hips and buttocks, left side greater than right, with pain aggravated by prolonged sitting.

**On August 8, 2012,** Dr. Roeder saw the patient, who had pain in his right elbow and left knee. Dr. Roeder noted the right elbow MRI scan showed a partial tear or tendinopathy at the right distal biceps tendon and a left knee MRI scan showed chondromalacia of the trochlea of the left knee.

**On September 5, 2012,** Dr. Roeder saw the patient and recommended right elbow surgery at this point because Mr. Odom's symptoms had not improved. Dr. Roeder recommended electrodiagnostic studies before proceeding. Dr. Lennard performed an EMG/NCV of the upper extremity, which showed right medial neuropathy at the wrist and right radial sensory neuropathy. Based upon these findings, Dr. Roeder, again, recommended surgery to the right upper extremity.

**On November 13, 2012,** Dr. Roeder saw the patient and noted the patient's pain had increased in his low back since he was assigned by his case manager to "volunteer work" in The Kitchen, helping with food preparation and dishwashing twenty hours per week. Mr. Odom's low back pain was aggravated with prolonged sitting, driving, bending, and turning. Dr. Lennard ordered an MRI of the lumbar spine, which was performed on November 13, 2012. The lumbar spine MRI showed (1) degenerative disc disease and facet joint arthropathy at L3-4, L4-5; (2) L5-S1 small left central zone disc protrusion with annular fissure and contact with the left S1 nerve root in the lateral recess without impingement.

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

On November 15, 2012, Dr. Roeder took the patient to surgery and performed a repair to the right distal biceps tendon. Following surgery, Dr. Roeder noted the patient was having problems with numbness on his radial wrist and forearm. Approximately three months post-op, Dr. Roeder noted discomfort in Mr. Odom's right shoulder, forearm, elbow, and hand. Mr. Odom continued to have burning paresthesias down the anterior lateral right arm and was irritated with clothes rubbing on it. Dr. Roeder felt Mr. Odom may be developing complex regional pain syndrome (CRPS). Dr. Roeder referred Mr. Odom to Dr. Baker for stellate ganglion blocks to help diagnose and treat CRPS. Mr. Odom presents to Dr. Baker at Ozarks Community Hospital, who examined Mr. Odom for complex regional pain syndrome of the right upper extremity. Dr. Baker gave the patient a right stellate ganglion block that day, and the blocks help patient's right arm pain. Dr. Baker diagnosed complex regional pain syndrome of the right upper extremity, noting the skin was cool to the touch and there was mottling present as well.

On April 22, 2013, Mr. Odom presented to Dr. Lennard for right forearm pain, noting the stellate ganglion block did reduce his shoulder pain and his right forearm and hand pain. Dr. Lennard continued him on restrictions of no lifting over five pounds with the right arm and no repetitive use of the right arm.

On May 5, 2013, Mr. Odom presented to Dr. Baker, noting a better range of motion in his right hand. Dr. Baker repeated the right stellate ganglion block. Dr. Baker saw the patient the next day and noted he did have improvement with his symptoms with his second block. A third block was conducted that day, including pulse rhizotomy to ablate the nerve fibers by using heat.

On May 13, 2013, Mr. Odom presented to Dr. Lennard for continued right upper extremity pain. Mr. Odom reported constant right hand pain radiating to the wrist, forearm, and shoulder. Dr. Lennard noted swelling and pain in his right forearm, wrist, and hand. The right upper extremity had diffuse tenderness over the radial side of the forearm, and there was pain with elbow extension and finger flexion. A month later, Dr. Lennard saw Mr. Odom again for continued complaints in his right arm. At that time, Mr. Odom reported he was dropping objects, had weakness in his upper extremity, and loss of function. Driving aggravated his pain and any prolonged position with the right upper extremity aggravated his pain. On August 26, 2013, Mr. Odom returned to Dr. Lennard for his final appointment before being released at maximum medical improvement. Dr. Lennard restricted him to lifting no more than five pounds occasionally and to avoid repetitious use of the right upper extremity.

After being released from authorized treatment by the employer/insurer, Mr. Odom sought continued medical treatment with Kristin Glover, M.D., his primary care physician. He reported right upper extremity pain, right biceps pain, and low back pain. She noted he had been released from work comp for what started as a right biceps tear that developed complex regional pain syndrome. She recorded hypersensitivity, pain, tingling, numbness, burning in the hand, elbow, and shoulder. She noted mottling and that the extremity felt cool at times. She noted his symptoms were aggravated by any kind of work or activity of the arm and that he was unable to wear long sleeves or have his right upper extremity under the covers. She referred Mr. Odom to Dr. Weatherhogg for treatment of right upper extremity pain and low back pain.

On February 25, 2014, Mr. Odom presented to Katie Weatherhogg, M.D., who noted his extensive medical and surgical history. On exam, Dr. Weatherhogg noted a mottled right hand compared to

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

the left and right hand/arm coolness compared to the left. She diagnosed impingement syndrome of the right shoulder, right hand pain, right arm pain, and complex regional pain syndrome. She began a treatment of medical pain management. Shortly thereafter, Dr. Weatherhogg left on maternity leave, and Mr. Odom's care was transferred to Dr. Russell Bond, a partner of Dr. Weatherhogg at Southwest Spine and Sports Clinic. Mr. Odom has remained under the care of Dr. Russell Bond for pain management from March 25, 2014, to the present time.

Preexisting Disability

Left Knee

Prior to the last injury, Mr. Odom sought medical treatment for symptoms in his left knee after he twisted the knee at a construction site. He experienced intermittent popping and mechanical locking of the left knee and pain with weight bearing. On January 8, 2010, Mr. Odom underwent arthroscopy of the left knee. Following surgery, the locking symptoms had resolved, but he continued to experience some pain in the left knee, but continued to work without restrictions.

Mr. Odom had an MRI of his low back in 2010. The low back MRI was conducted to see if his preexisting left knee symptoms were being caused by something in his lumbar spine. Mr. Odom had no preexisting low back injury and sought no medical treatment for the low back prior to the last injury of work on June 21, 2012.

Expert Testimony

Robert E. Paul, M.D.

Dr. Robert E. Paul, a physician practicing in the specialty of occupational medicine, provided testimony at deposition and through the submission of his complete medical report, as well as two supplemental reports. Dr. Paul performed an independent medical examination of Mr. Odom on December 13, 2013. At the time of his examination, Dr. Paul took a history from Mr. Odom, reviewed various medical records, and performed a physical examination of him. In light of his examination and evaluation of Mr. Odom, Dr. Paul opined that the accident that occurred on June 21, 2012, was the prevailing factor of Mr. Odom's right upper extremity, low back, and left knee complaints. Dr. Paul found Mr. Odom to be 100 percent permanently and totally disabled by virtue of the injury of June 21, 2012, in isolation. Dr. Paul noted post-operatively that Mr. Odom developed complex regional pain syndrome requiring extensive medical treatment. Dr. Paul opined Mr. Odom will require ongoing formal pain management for an indefinite time into the future for his right upper extremity CRPS problems; the specific treatment should be made by his pain management specialists, currently Dr. Bond, and the prevailing factor in the need for pain management is the job injury of June 21, 2012. Dr. Paul noted that Mr. Odom was having difficulty maintaining activities of daily living because of severe right arm pain. Dr. Paul issued permanent medical restrictions, limiting Mr. Odom to lifting no more than five pounds with his right hand and arm occasionally.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

Edwin Roeder, M.D.

Dr. Edwin Roeder, an orthopedic surgeon, provided testimony at two depositions and through the submission of an impairment rating report and two subsequent independent medical evaluation reports. In his first impairment rating dated October 18, 2013, Dr. Roeder noted Mr. Odom previously had treatment on his elbow by Dr. Lennard and was furnished with an impairment rating for that by Dr. Ted Lennard. Dr. Roeder went on to provide an impairment rating of 1 percent of the right upper extremity for Mr. Odom's persistent right shoulder pain and motion loss. On December 19, 2013, Dr. Roeder prepared an impairment rating report, finding a total right upper extremity impairment of the shoulder and elbow of 8 percent. He noted considerable post-operative problems with pain control. He noted Dr. Lennard was to provide a rating to patient's low back and that the low back was specifically not included in the rating of December 19, 2013.

On March 27, 2015, Dr. Roeder testified at his first deposition. He testified that during surgery he found Mr. Odom had substantial tearing of the biceps muscle where it inserted on the radius bone on the forearm, noting it was a pretty significant tear. (Deposition of Dr. Edwin Roeder of March 27, 2015, page 18.) Dr. Roeder testified that the best way to diagnose complex regional pain syndrome is to have an anesthesiologist perform a stellate ganglion block, and if it relieves symptoms of complex regional pain syndrome, then it is the best diagnostic tool. (Dr. Edwin Roeder deposition of March 27, 2015, page 30.) Dr. Roeder testified that at his request, Dr. Jay Baker, an anesthesiologist, performed a stellate ganglion block, noted it was effective, and diagnosed Mr. Odom with complex regional pain syndrome of the right upper extremity. (Deposition of Dr. Edwin Roeder, March 27, 2015, page 53.) Dr. Roeder testified that he released Mr. Odom and gave him a permanent limitation of no pushing, pulling, or lifting more than five pounds. (Deposition of Dr. Edwin Roeder, March 27, 2015, page 59.)

Dr. Roeder issued a third impairment rating dated August 26, 2015. Dr. Roeder noted Mr. Odom's extensive medical history and that he was currently under the care of Dr. Russell Bond, who was medically managing Mr. Odom's pain. During his examination, Dr. Roeder noted continued pain in the shoulder and wrist and that Mr. Odom was wearing a compressive wrap around the wrist over a Lidoderm patch. He noted Mr. Odom described numerous symptoms, including numbing, shooting pain down the radial aspect of the forearm, stiffness in his shoulders with virtually any motion, and an ability to perform some activities with his upper extremities followed by significant discomfort, noting that performance of such activities produced significant residual pain that would last for days.

Dr. Roeder gave a second deposition on May 25, 2017. He testified the FCE performed by Nancy Dickey showed Mr. Odom could do some things temporarily, but that such activities would result in a lot of pain that would last for days and were very difficult on Mr. Odom. Dr. Roeder acknowledged he had not treated Mr. Odom since April 10, 2013, a period of more than four years. Dr. Roeder testified he is familiar with fentanyl, a medication currently prescribed to Mr. Odom by his pain management specialist, Dr. Russell Bond, for treatment of his CRPS symptoms. Dr. Roeder acknowledged that a fentanyl patch delivers a very high dose of anesthetic and is one of the more potent opioids for treatment of pain. (Deposition of Dr. Edwin Roeder, May 25, 2017, page 39.) Counsel for employer and insurer asked about fentanyl and if someone needing fentanyl would demonstrate objective symptoms to require such a high dose narcotic. Specifically, counsel asked:

Page 10

TI17380181

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

Q. If a physician feels that he needs a high dosage of a high pain reliever like Fentanyl, as he described, and a high narcotic, would you expect that the pain that he is experiencing that requires such a high dose would then manifest itself in some of the clinical findings that you had on August 26, 2015? Would you have, then, if it was that painful expected some muscle atrophy, some - you know, some either surface manifestations of the skin, either cracking, dryness, sweatiness, discoloration, something if that pain was significantly objectively related to a condition that that required a high dose narcotic like Fentanyl?

A. Not typically. I mean, pain is typically a subjective response and refined or just limited to the -- the pain fibers in the body and you wouldn't necessarily have objective things with it.

Q. Doesn't always -

A. Particularly people with chronic pain who have been taking maybe some other stuff for a long time, they've been on medicines, they're getting tolerant, and it always goes that way. You know, you start with minor stuff. You might start with something that as time goes on you're taking more, and then your body develops tolerance to it and then you're taking more. Then you're getting on to real heavy stuff like Fentanyl patches. And you won't necessarily for those people like that. If I put a Fentanyl patch on anyone in this room, you'd all be passed out sleeping right now and you'd have obvious signs of what's going on with it. But for these people who've dealt with chronic pain and received a lot of medications, their response to it is -

Q. And so -

A. You won't see a lot of physical exam findings.

(Deposition of Dr. Edwin Roeder, May 25, 2017, page 40-42.)

Ted Lennard, M.D.

Ted Lennard, M.D., a physician specializing in the area of physical medicine and rehabilitation, testified by providing two impairment rating reports and two depositions at the request of the employer and insurer. Dr. Lennard examined Mr. Odom for the last time on August 27, 2013, when he issued a final impairment rating report. He noted that Mr. Odom was injured at work while unloading a 250-pound laser jet printer with co-workers when he experienced a pop in his right elbow and onset of immediate pain. He also noted the left knee and low back were injured in the same incident. His initial report states Mr. Odom suffered a 5 percent disability to the body as a whole at the low back due to the accident and injury of June 21, 2012.

Dr. Lennard testified at his first deposition on March 27, 2015 when he reported treating Mr. Odom for low back and right upper extremity pain resulting from a June 21, 2012, accident at work. Dr. Lennard testified Mr. Odom had swelling, discoloration, and hypersensitivity in the right hand and forearm during his examination of April 22, 2013, and felt his right upper extremity was

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

problematic for complex regional pain syndrome. Dr. Lennard testified Mr. Odom reported improvement with his right upper extremity following the stellate ganglion blocks which were diagnostically and clinically supportive of CRPS. Dr. Lennard testified that during his multiple visits with Mr. Odom he found him to be credible, reliable, and worthy of his belief. (Deposition of Dr. Ted Lennard, March 27, 2015, page 53.)

At the request of the employer and insurer, Dr. Lennard reviewed additional materials and issued a supplemental report on August 22, 2017. Dr. Lennard reviewed the extensive medical history, including the extensive pain management under the care of Dr. Bond. Dr. Lennard's report concluded Mr. Odom has demonstrated exam findings and complaints consistent with the diagnosis of CRPS. Dr. Lennard found medication management is the preferred treatment for Mr. Odom's residual symptoms. He found Mr. Odom will have a permanent activity limitation, to avoid prolonged and repetitive right hand and elbow use and no lifting more than five pounds.

Dr. Lennard testified during a second deposition conducted on September 18, 2017. Dr. Lennard testified that his final diagnosis of Mr. Odom based upon exam findings and subjective complaints was CRPS. He testified those symptoms were related to the work accident of June 21, 2012, and that medication management and activity was the preferred treatment for his residual symptoms and that Mr. Odom would have permanent restrictions. Dr. Lennard testified he's reviewed the pain management records of Dr. Bond and was aware that Mr. Odom was currently taking narcotic pain medication for CRPS, including fentanyl. Dr. Lennard confirmed that drowsiness is a well-known side effect of fentanyl and confirmed Mr. Odom would likely experience drowsiness or lethargy while on this medication.

Phillip Eldred, C.R.C.

Phillip Eldred, C.R.C., a certified vocational rehabilitation consultant, testified by deposition that he evaluated Mr. Odom on September 20, 2014, and issued a report based thereon on October 31, 2014. Mr. Eldred testified by deposition that he found Mr. Odom to be credible, reliable, and worthy of belief. He noted Mr. Odom has good days and bad days and that such unpredictable pain is a challenge for a reasonable employer to accommodate. In light of his examination and evaluation of Mr. Odom, Mr. Eldred opined that the restrictions and limitations governing Mr. Odom render him at less than a sedentary work level and that he is unemployable in the open and competitive, gainful employment market. Notably, in rendering this opinion, Mr. Eldred acknowledges that he is relying upon all medical opinions, including the opinion of Dr. Lennard, Dr. Roeder, and Dr. Paul. Further, Mr. Eldred opined that this permanent total disability is attributable solely to the work injury of June 21, 2012.

Vocationally, according to Mr. Eldred, prior to June 21, 2012, Mr. Odom did have an impairment, but it was not vocationally disabling such as to constitute a hindrance or obstacle to employment before June 21, 2012. Mr. Eldred opined that Mr. Odom had no transferable skills to engage in sedentary work, even if he could perform work at the sedentary level, he is not able to perform any of his past work, and that Mr. Odom would have problems being retrained in a formal training program due to his constant pain and narcotic pain medications. Thus, Mr. Eldred opined that a reasonable employer would not hire Mr. Odom given an understanding of his functional limitations, age, education, and work experience.

Page 12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

Mr. Eldred concluded that as a result of his pain, impairments, and vocational restrictions and use of narcotic pain medications it is unlikely an employer in the normal course of business would consider employing Mr. Odom. After reviewing Mr. Odom's medical history, records of past medical treatment, and the independent medical evaluations, he concluded Mr. Odom is permanently and totally disabled from the injury on June 21, 2012, in isolation.

Judy Brookover, C.R.C.

Judy Brookover, C.R.C., a vocational consultant, testified by deposition on behalf of the employer and insurer. Ms. Brookover performed a vocational evaluation of Mr. Odom on July 15, 2015. At the time of her evaluation, Ms. Brookover did not have any medical records of Dr. Bond, the physiatrist providing pain management for Mr. Odom's CRPS.

She reported a history of injury on June 21, 2012, when Mr. Odom was helping two other individuals move a machine weighing approximately 250 pounds off of a pallet when his right arm popped, and he also injured his low back and left knee. During deposition, she testified she observed Mr. Odom get up and stretch frequently for five minutes at a time to relieve pain. She testified that there were no jobs Mr. Odom could perform based upon the medical restrictions of Dr. Paul. She acknowledged on cross-examination that she did not have the permanent five-pound restriction imposed by Dr. Roeder upon Mr. Odom at the time she authored her report.

She acknowledged Dr. Roeder issued permanent work restrictions including no pushing, pulling, or lifting more than five pounds with the right arm. (Deposition of Judy Brookover, page 51.) She acknowledged Dr. Lennard released Mr. Odom at maximum medical improvement on August 26, 2013, and assigned permanent work restrictions of lifting no more than five pounds. (Deposition of Judy Brookover, page 52-53.) She acknowledged that Dr. Paul restricted Mr. Odom from lifting no more than five pounds. (Deposition of Judy Brookover, page 53.) When asked about the medical restrictions of each of the doctors, she gave the following testimony:

Q. The restrictions imposed by Dr. Lennard, Dr. Roeder, and Dr. Paul are fairly consistent. Would you agree?

A. Yes.

Q. [Mr. Odom] indicated he could lift a half gallon of milk, but could not extend his right arm while holding it. Is that correct?

A. Correct.

Q. We know a half gallon of milk, if it's full, weighs approximately four pounds?

A. I think, yeah, about that.

Q. I will represent to you -

A. I'll take your word.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

Q. -- a half gallon of milk, if full, weighs approximately four pounds. So that is consistent with the limitations of Dr. Lennard. Is that correct?

A. Yes, it is.

Q. It's consistent with the limitations of Dr. Roeder. Is that correct?

A. Yes, it is.

Q. It's also consistent with the limitations of Dr. Paul?

A. I believe so, yes.

(Deposition of Judy Brookover, page 53-54, 57)

***

Q. You had an opportunity to review Dr. Paul's report dated March 17, 2016. Is that correct?

A. Yes.

Q. And based upon that report, you found that there are no jobs that Mr. Odom would be able to perform. Is that correct?

A. Correct.

***

Q. And you testified earlier that the restrictions of Dr. Roeder and Dr. Lennard are substantially similar to the restrictions to Dr. Paul?

A. Yes, they are.

Q. And based upon the restrictions of Dr. Paul, he is unemployable in the open labor market correct?

A. The most recent report, yes.

(Deposition of Judy Brookover, page 74, 75)

Lay Witness Testimony

Melissa Odom

Melissa Odom, who has been married to Mark Odom for 21 years, testified on his behalf at the hearing of this matter. She testified on an average day Mark needs to lie down or take a rest period where he can recline and get his arm in a more neutral position. He is required to remain

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

like that for an hour or so to relieve pain before he can resume "normal" activities. She testified that on a bad day when Mark is having a flare-up, he is required to take additional medication and engage in significantly more rest periods, oftentimes remaining in a reclining or laying down position for most, if not all, of the day.

Gary Olson

Gary Olson, a service planning representative for Customer Engineering Services, testified on behalf of the employer and insurer. Mr. Olson testified that Customer Engineering Services has a customer service department and Mr. Odom possessed the required skills to be a technician. On cross-examination, he acknowledged Mr. Odom was released from medical care in August 2013 and that Mr. Odom had not been offered a job as a service technician by Customer Engineering Services.

Current Complaints

Mr. Odom has not returned to work since June 21, 2012. He does not believe he can work due to the chronic pain, spasms, and aching associated with his right upper extremity, low back, and left knee. He currently experiences instability in the left knee, particularly when going down stairs. The left knee feels like it will pop or "give way" at any time when pressure is placed on the left knee. Mr. Odom experiences daily aching in his low back, whether he is sitting or standing. If he sits longer than thirty minutes, his left buttock will go to sleep. The numbness can be relieved with standing, but the ache continues. If he is required to stand longer than twenty minutes, he will experience pain in the low back and the groin area. He testified his low back pain is continuous and never goes away.

Mr. Odom experiences the greatest difficulty with his right upper extremity. Mr. Odom is right hand dominant and experiences symptoms from his fingers to his shoulder. Specifically, he experiences numbness, tingling, and aching in the index finger and thumb. The palm of his hand is sore, and the pads on the palm of the hand are painful and stiff. His right hand is often colder than the left and often of a different color. He has experienced decreased grip and dexterity in the right hand, which also swells with any activity, sometimes for three to four days afterward. He experiences numbness, spasm, sharp pain, and swelling in the right wrist. His right forearm experiences numbness, burning, and a tightness as if someone is clutching or grabbing from the inner forearm to his scar line. He experiences a sharp, stinging or burning sensation on the scar line of the right elbow. His right biceps experiences an aching and burning sensation, along with an occasional shooting pain. He experiences a sharp pain and an aching from the front of the shoulder to the area next to his pectoral muscle. The top of his shoulder has a sharp pain and burning sensation.

Mr. Odom testified that his pain is very unpredictable, causing him to have both good days and bad days. His bad days are often caused by increased activity, which flare up his symptoms for the next three to five days, requiring severely reduced activity to allow the burning, aching, and spasm in the right upper extremity to slowly subside to "normal" levels. Mr. Odom described having to be very careful about medicating himself when undergoing a flare-up and described a recent flare-up where he took the prescribed medication as directed by Dr. Bond to deal with his

Page 15

flare-up pain, which rendered him unable to drive his 16-year-old son to the emergency room. Mr. Odom testified he has a great deal of difficulty maintaining a train of thought due to his medications. He testified that the combination of medications that he takes on a daily basis makes him dizzy, sluggish, lethargic, and results in a lack of concentration and short attention span. He currently sees Dr. Bond every eight to ten weeks for management of his pain associated with his symptoms.

Mr. Odom testified that despite a demand for ongoing pain management to the employer and insurer, they refused to provide the treatment after he was released from Dr. Lennard, requiring him to seek pain management treatment on his own. Since early 2014, he has received medical treatment from Dr. Russell Bond in the form of drug therapy and pain coping technique therapies. He is currently taking tramadol, Lyrica, fentanyl patches, Lidoderm patches, Cymbalta, Zanaflex, and over-the-counter ibuprofen.

1. Whether the employer and insurer are obligated to pay for certain past medical care and expenses.

The evidence is supportive of a finding, and I find and conclude that on June 21, 2012, while carrying a 250 -pound ink jet printer with two other people, Mr. Odom sustained significant injuries to his right upper extremity, left knee, and low back. The nature and severity of these work injuries necessitated medical care from the date of the injury and ongoing to the present time.

Mr. Odom seeks payment of past medical care and expenses in the amount of $\ 36,539.99. In support of this claim, Mr. Odom presented evidence of medical records and bills related to treatment of his multiple injuries. As identified in the medical records and billing records, these expenses are in the amounts as follows:

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Mark Odom

Page 17

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

PROVIDER TOTAL

27,436.52

GRAND TOTAL

36,539.99

Notably, in causing Mr. Odom to incur these expenses, the employer and insurer contested liability for CRPS and the necessary ongoing medical treatment and elected to forego exercising the employer's right to select the health care provider.

Section 287.140, RSMo. requires the employer to provide such medical treatment as is reasonably necessary to cure and relieve from the effects of the employee's injury. See *Landers v. Chrysler Corp.*, 963 S.W.2d 275 (Mo. App. 1997). Once the employee has admitted evidence of the medical bills and records and presented his testimony that the treatment was for the work-related injury, then the burden shifts to the employer and insurer to prove that the medical bills were unreasonable and unfair. *Esquivel v. Days Inn of Branson and Cox Medical Center*, 959 S.W.2d 486, 489 (Mo. App. 1998). If an employer refuses to provide medical treatment, then the employer loses control over selection of the health care provider, and the employee may seek reimbursement for related expenses at the hearing. *Martin v. Town and Country Supermarkets*, 220 S.W.3d 836, 844 (Mo. App. 2007).

Accordingly, in light of the foregoing, I find and conclude that as a consequence of the accident of June 21, 2012, and resulting injuries, Mr. Odom incurred medical care and expenses in the amount of $36,539.99. The aforementioned medical care was reasonable, necessary, and causally related to the June 21, 2012, accident. Further, the medical expenses were fair and reasonable.

Therefore, the employer and insurer are ordered to pay to the employee, Mr. Odom, the sum of $36,539.99 in medical expenses for treatment resulting from the work injuries of June 21, 2012.

1. Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries.

Mr. Odom seeks an award for future medical care. In order to receive an award of future medical benefits under Chapter 287 RSMo, an employee does not need to show "conclusive evidence" of a need for future medical treatment. Instead, the employee need only show a "reasonable probability" that because of his work related injury, future medical treatment will be necessary. *Stevens v. City of Citizens Memorial Healthcare Foundation*, 244 S.W.3d 43 (Mo. App.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

2008). In this context, it must be shown that the need for future medical care "flows from the accident". *Landers v. Chrysler Corp.*, 963 S.W.2d 275 (Mo. App. 1997). Further, the phrase "to cure and relieve" has been construed to mean treatment that "gives comfort even though restoration to soundness is beyond avail." *Mathia v. Contract Freighters, Inc.* 929 S.W.2d 271, 277 (Mo. App. 1996).

In considering the question of future medical care, Mr. Odom's examining physician, Dr. Robert Paul, opined that Mr. Odom will require ongoing formal pain management for an indefinite time into the future for his right upper extremity CRPS problems. The employer and insurer's physician, Dr. Ted Lennard, also addresses the issue of future medical care finding that Mr. Odom suffers from CRPS related to the work accident of June 21, 2012. Dr. Lennard testified that medication management and activity limitations were the preferred treatment for Mr. Odom's symptoms. The medical records support the need for future medical care. There is no medical opinion to the contrary. This issue is thus resolved in favor of Mr. Odom.

Therefore, the employer and insurer are ordered to provide the employee, Mark Odom, with such medical care as may be reasonable, necessary, and casually related to the work injuries of June 21, 2012, and consistent with the medical opinions of Dr. Bond, Dr. Paul, and Dr. Lennard.

1. Whether the alleged accident caused the injuries and disabilities for which benefits are now being claimed.

The parties stipulated that on June 21, 2012, Mark Odom sustained an accidental injury arising out of and in the course and scope of his employment for the employer. Dr. Ted Lennard opined the accident caused a lumbar strain to Mr. Odom's lumbar spine. Dr. Lennard testified that Mr. Odom, based upon exam findings and subjective complaints, has CRPS and those symptoms are related to the work accident of June 21, 2012. (Deposition of Dr. Lennard, page 18-19).

Dr. Edwin Roeder opined Mr. Odom sustained disability to the right upper extremity due to the work accident of June 21, 2012.

Dr. Robert Paul opined Mr. Odom sustained disability to the right upper extremity at the 232-week level for the surgically-repaired biceps tendon and subsequent complex regional pain syndrome, disability to the left knee, and disability to the low back as a result of the work injury of June 21, 2012.

Accordingly, after consideration and review of the evidence, I find and conclude that the accident of June 21, 2012, caused injury and disability to Mr. Odom's right upper extremity, including the subsequent development of CRPS, left knee, and low back.

1. Whether the employee sustained any permanent disability as a result of the accident of June 21, 2012; and, if so, what is the nature and extent of the disability?

Mr. Odom contends that as a consequence of the accident of June 21, 2012, and the resulting injuries, he is rendered permanently and totally disabled. The inability to return to any employment means the inability to perform the usual duties of the employment in a manner that such duties are customarily performed by the average person engaged in such employment. *Gordon v. Tri-State Manner Co.*, 908 S.W.2d 849 (Mo. App. S.D. 1995). In determining whether

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Mark Odom

Injury No.: 12-046620

the employee can return to employment, the Missouri law allows the consideration of employee's age and education, along with physical abilities. *VAXI v. United Technologies Automotive*, 956 S.W.2d 340 (Mo. App. E.D. 1997). While "total disability" does not require the employee to be completely inactive or inert, *Sifferman v. Sears, Roebuck and Co.*, 906 S.W.2d 823, 826 (Mo. App. S.D. 1996), overruled on other grounds, *Hampton v. Big Boy Steel Erection*, 121 S.W.2d 220 (Mo. Banc 2003), it does require a finding employee is unable to work in any employment in the open labor market, and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. *Sullivan v. Masters Jackson Paving Co.*, 35 S.W.3d 879, 884 (Mo. App. S.D. 2001), overruled on other grounds, *Hampton v. Big Boy Steel Erection*, 121 S.W.2d 220 (Mo. Banc 2003). The central question is: In the ordinary course of business, would an employer reasonably be expected to hire the employee in his physical condition? *Ransburg v. Great Plains Drilling*, 22 S.W.3d 726, 732 (Mo. App. W.D. 2000), overruled on other grounds *Hampton v. Big Boy Steel Erection*, 121 S.W.2d 220 (Mo. Banc 2003).

"The term 'total disability' as used in this chapter shall mean the inability to return to any employment and not merely inability to return to the employment in which the claimant was engaged at the time of the accident." Section 287.020.7 RSMo 1994. "The test for permanent and total disability is whether, given the claimant's situation and condition, he or she is competent to compete in the open labor market. {Citation omitted} The question is whether the employer in the usual course of business would reasonably be expected to hire the claimant in the claimant's present physical condition, reasonably expecting the claimant to perform the work for which he or she is hired." *Reiner v. Treasurer of the State of Mo.*, 837 S.W.2d 363, 367 (Mo. App. 1992).

In the present case, the accident on June 21, 2012, caused the employee, Mark Odom, to sustain significant injuries to his right upper extremity, left knee, and low back. The nature and severity of these work injuries causes Mr. Odom to live in significant pain on a day-to-day basis with extremely painful flare-ups that can last for days or weeks following activity. The extreme nature of his pain requires management with fentanyl, a potent opioid, which causes Mr. Odom to present with cognitive deficits, including alteration of his cognition and communication skills, as well as drowsiness and lethargy. Physically, he is governed by significant permanent medical restrictions and limitations set forth by Dr. Lennard, Dr. Roeder, and Dr. Paul.

The evidence is supportive of a finding that Mr. Odom is governed by limitations and restrictions that render him unemployable and totally disabled. Mr. Odom appeared at trial and provided testimony regarding his medical conditions, restrictions, and daily activities. This testimony includes statements by him that he continues to experience ongoing difficulties and problems as a result of the injury of June 21, 2012. He complains of pain and inability to engage in full-time employment. This evidence is supported by the medical opinion of Dr. Lennard, Dr. Roeder, and Dr. Paul, as well as the medical records. I find Mr. Odom credible in his testimony.

Accordingly, after consideration and review of the evidence, I find and conclude that the limitations and restrictions caused by the accident of June 21, 2012, render Mr. Odom unemployable in the open and competitive labor market. I thus find and conclude that as a consequence of the accident of June 21, 2012, considered alone, Mr. Odom is permanently and totally disabled.

Therefore, the employer and insurer are ordered to pay to the employee, Mark Odom, the sum of $811.73 per week for the employee's lifetime. The payment of permanent total disability

Page 23

TI50811664

**Employee:** Mark Odom

**Injury No.:** 12-046620

Compensation by the employer and insurer is effective as of August 27, 2013, when Mr. Odom reached maximum medical improvement and his condition was rendered permanent.

An attorney's fee of 25 percent of the benefits ordered to be paid is hereby approved and shall be a lien against the proceeds until paid. Interest as provided by law is applicable. The award is subject to modifications as provided by law.

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**I certify that:**

- 12-18-17

- 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:** __________________________

**My:** __________________________

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**Made by:** __________________________

**Kevin A. Elmer**

Administrative Law Judge

Division of Workers' Compensation

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