The parties asked the administrative law judge to determine the following issues: (1) medical causation; (2) nature and extent of employee's permanent disability; (3) employee's average weekly wage; (4) responsibility of the employer/insurer for past medical aid, including mileage and out-of-pocket expenses; (5) responsibility of the employer/insurer for past due temporary total disability benefits; (6) responsibility of the employer/insurer for past temporary partial disability benefits from February 5, 2008, through April 30, 2008; (7) past nursing services for employee from and after March 23, 2011; (8) whether employee is entitled to future medical aid to cure and relieve the effects of his injuries; (9) whether employee is entitled to future nursing services to cure and relieve from the effects of his injuries; and (10) whether employee's temporary disability ended and his disability became permanent.
The administrative law judge determined as follows: (1) employee's post-traumatic stress disorder and depressive condition are medically causally related to the work accident of July 17, 2007; (2) employee is permanently and totally disabled as a result of the work injury; (3) employee's average weekly wage in this case is 728.94, resulting in weekly compensation rates of 485.96 for temporary total and permanent total disability, and $389.04 for permanent partial disability; (4) employer/insurer is liable for 7,874.54 in past medical aid, 1,238.75 in medical mileage, and $754.33 in out-of-pocket expenses; (5) employer/insurer is liable for past due temporary total disability benefits, in the amount of 153,077.40, subject to a credit in the amount of 479.81 for an overpayment; (6) employer/insurer is liable for temporary partial disability benefits in the amount of $2,731.65; (7) employee's claim for past nursing services of his wife is denied; (8) employee is entitled to future medical aid, including nursing care, to cure and relieve the effects of his injuries; (9) employee reached maximum medical improvement on November 19, 2014, and his disability became permanent on that date; and (10) employee's wife, Betty Reynolds, was a total dependent of employee at the time of the work injury, and has been totally dependent upon him continuously from that date through the date of the final hearing on March 16, 2016.
MNKOI 0000811657
Injury No.: 07-065590
Employee: Ronald Reynolds
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Employee filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in denying employee's claim for past nursing expenses after March 23, 2011; and (2) in finding employee's average weekly wage was $728.94.
Employer/insurer filed a timely application for review with the Commission alleging the administrative law judge erred in finding employee to be permanently and totally disabled.
For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issue of past nursing care. We additionally supplement the administrative law judge's award to allow the reader to locate the operative findings of fact and conclusions of law that we have adopted from the administrative law judge's award.
**Discussion**
**Affirmative findings vs. summaries of the evidence**
Section 287.460.1 RSMo tasks the administrative law judge in a workers' compensation case to issue an award "together with a statement of the findings of fact." Here, the administrative law judge did provide factual findings, but they are interspersed throughout a 136-page decision that includes lengthy summaries of the evidence (including many pages consisting entirely of block quotes from the transcript itself) without accompanying analysis or commentary from the administrative law judge as to how he viewed such evidence. The decision also includes exhaustive recitations of numerous statutory, regulatory, and case law authorities applicable in Missouri workers' compensation proceedings.
The courts have strongly cautioned us against issuing or approving these kinds of decisions:
> Here, there are literally pages of testimony summarization. There are also pages of substantial discussion of abstract legal theory. The ALJ certainly diligently summarized all of the evidence as an impartial and uncritical scrivener. No doubt it was a useful reference tool for the ALJ's own use in understanding the facts. But because of the absence of findings (that is, the lack of critical evaluation and the failure to draw pertinent inferences from the evidence), the summaries, with all due respect, are of little value to this court. ... We need to know what the Commission actually found to be operative and significant as it reviewed the testimony.
*Stegman v. Grand River Reg'l Ambulance Dist.,* 274 S.W.3d 529, 532 (Mo. App. 2008)(emphasis added).
In *Stegman,* the court concluded the award, as written, failed to comply with the requirements under § 287.460.1, and that the court was therefore constrained to vacate it and remand the case to the Commission to provide an appropriate statement of the facts. *Id.* at 537. Here, we believe the award ultimately contains findings of fact and
Injury No.: 07-065590
Employee: Ronald Reynolds
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conclusions of law sufficient to permit judicial review, should this matter be subject to further appeal. However, because the findings are interspersed throughout lengthy summaries and recitations of the type the courts have specifically cautioned us against, we discern a need to briefly summarize below the operative findings of fact and conclusions of law with respect to the issues identified at the hearing, which findings and conclusions we are hereby affirming and adopting as our own:
**Medical causation**
Dr. Stanley Butts provided credible and persuasive testimony (and we so find) that the July 2007 accident was the prevailing factor causing employee to suffer the resulting medical condition of post-traumatic stress disorder (PTSD), depression, and associated disability. *Award, pages 38, 74.*
**Nature and extent of permanent disability**
Employee provided credible and persuasive evidence regarding his considerable mental difficulties and complaints attributable to the accident; these are exhaustively catalogued in the administrative law judge's award at pages 61-70. Dr. Butts credibly testified (and we so find) that employee is permanently and totally disabled as a result of the July 2007 accident. *Award, pages 39, 43, 85.* We deem such testimony more persuasive than the contrary opinion from Dr. Dale Halfaker. *Award, pages 13, 87.* There is insufficient evidence to persuade us to make a finding that employee suffers from dementia or Alzheimer's disease, or that his inability to work is a result of such conditions. *Award, page 87.* The vocational expert Gary Weimholt also provided persuasive testimony (and we so find) that employee has a total loss of access to the open competitive labor market and is totally vocationally disabled from employment. *Award, pages 52, 88.*
**Average weekly wage**
The 13 calendar weeks immediately preceding the week in which employee was injured correlates to the time period of April 15, 2007, through July 14, 2007. *Award, page 75.* Employee's evidence is insufficient to persuade us to make a finding that he was absent five regular or scheduled work days during the 13 calendar weeks immediately preceding the week in which he suffered the work injury. *Award, page 78.* Instead, we find, in light of what we deem to be extraordinary facts concerning employee's receipt of a lump sum for vacation pay during the relevant period, and his work of driving various routes rather than working a consistent hourly schedule, that employee's average weekly wage is fairly and justly determined pursuant to § 287.250.4 RSMo by dividing the gross amount of 9,476.18 paid during the 13 weeks by 13, resulting in an average weekly wage of 728.94. *Award, pages 78, 79.*
Injury No.: 07-065590
Employee: Ronald Reynolds
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**Past medical expenses - non-nursing care**
Employer was aware of employee's injury and his contention that he remained in need of medical care, but did not authorize any treatment for employee between May 1, 2009, and November 21, 2011. *Award*, page 117-19. Employee provided the relevant medical records, medical bills, and testimony linking the disputed treatment to the bills. *Id.* Dr. Butts credibly testified (and we so find) that the disputed past medical services employee received were necessary to cure and relieve the effects of the work injury. *Award*, pages 35, 118. Employer did not provide any evidence to suggest (or prove) that employee is not required to pay the billed amounts, that his liability for the disputed amounts has been extinguished, or that employee has ceased to be liable for write-offs or fee adjustments from the providers. *Award*, page 120. We conclude that employee is entitled to $7,874.54 in past medical expenses from employer/insurer. *Id.* Employee is also entitled to $754.33 as reimbursement for out-of-pocket expenses he incurred in connection with disputed medical treatment, as well as $1,238.75 for mileage. *Award*, pages 122-25.
**Temporary total disability benefits**
Employee was not underpaid temporary total disability benefits from July 18, 2007, through February 4, 2008, or from May 1, 2008, through November 5, 2008, based on our finding that the appropriate rate for temporary total disability benefits is $485.96. *Award*, page 109. Instead, employer/insurer is entitled to a credit of $479.81 for its overpayment of temporary total disability benefits at the weekly rate of $494.55 during this time period. *Id.* Employee has been unable to work since November 5, 2008, and was engaged in the rehabilitative process through November 19, 2014. *Award*, page 112. Accordingly, employee is entitled to temporary total disability benefits for the period November 5, 2008, through November 19, 2014. *Id.*
**Temporary partial disability benefits**
Employee worked light duty for employer for 12 weeks and 4 days after the accident. *Award*, page 115. During this period of disability, employee was unable, with the exercise of reasonable diligence, to secure earnings commensurate with what he was earning before the accident; we so find. *Award*, pages 60, 113. We conclude, therefore, that employee is entitled to $2,731.65 in past temporary partial disability benefits. *Award*, page 115.
**Future medical expenses**
Based on the credible testimony of Dr. Butts, we find that there is a reasonable probability that employee will require treatment in the future to cure and relieve the effects of his work injury. *Award*, pages 40, 128. Accordingly, employer/insurer is liable for future medical treatment to cure
Injury No.: 07-065590
Employee: Ronald Reynolds
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and relieve employee from the effects of the work injury. Award, page 128.
**Future nursing care**
Based on the credible testimony of Victoria Powell, we find that if Mrs. Reynolds becomes