I have reviewed and considered all of the competent and substantial evidence on 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 award affirming the administrative law judge (ALJ) in this case.
The ALJ declined to award future medical care for employee's 2005 work-related back injury, finding:
> No medical expert has testified Claimant is in need of treatment to cure or relieve her from the effects of the primary injury. In addition, her own expert, Dr. Woiteshek, placed her at MMI [maximum medical improvement] when he examined her on February 20, 2013. The Court finds Claimant has received all medical treatment necessary to cure and relieve her from the effects of the primary back injury, and Employer is not liable for any future medical treatment.
I disagree with the above finding. On April 7, 2009, employer authorized Dr. James J. Coyle to evaluate the employee subsequent to Dr. Mirkin's October 20, 2005, back surgery. Dr. Coyle noted that the employee "notes that she never got relief from this surgery... She is now almost four years out from her surgery and still considers herself significantly disabled." At that time, Dr. Coyle declined to suggest further surgery. He instead recommended conservative treatments including aquatic therapy and an epidural steroid injection. He further suggested evaluation of the employee's pain medications.
Less than two months later, on May 27, 2009, Dr. Coyle saw employee for follow up treatment. On that date, he noted that employee's pain appeared to be both mechanical and positional and that she had nondermatomal dysesthesia in both lower extremities. He noted, "[W]e are running out of nonsurgical options for her." Approximately eight months later, on February 2, 2010, Dr. Coyle opined that the employee could get relief from a surgical reconstruction procedure and indicated a willingness to offer employee that option. At that time, Dr. Coyle specifically stated his impression that the proposed reconstruction "would be related to [the employee's] injury of May 5, 2005 and subsequent failure."
The employee scheduled reconstructive surgery with Dr. Coyle for April 22, 2010. While visiting employee in the hospital pre-op holding area that day, Dr. Coyle learned that she had declined to have ureteral stents placed and complained that she had not been informed of the details of the surgery. The employee stated that her experience that day reminded her of her prior surgery by Dr. Mirkin four and a half years earlier. Describing employee as hysterical, crying, and distraught, Dr. Coyle determined she was not predisposed toward surgery and discharged her to go home. Dr. Coyle's discharge summary concluded, "She will follow up in the office for further evaluation and treatment (emphasis added)."
1 Award, 8-9.
2 Transcript, 276.
3 Id. 274.
4 Id. 273.
5 Id. 305.
Implyyee: Linda Ford
- 2 -
The ALJ's award includes the following testimony regarding employee's current physical complaints:
Claimant describes her typical day with an inability to sleep comfortably the night before and that back pain will awaken her after two hours of sleep. When she arises in the morning she takes her medications, which take up to three hours to take effect.
Claimant performs only minimal activities during the day such as watching television and reading. She is required to lie down or recline once or twice during the day to alleviate back pain. Claimant spends most of her day in a recliner with her feet up or on a couch with her legs up on the couch to take pressure off her ailing back. 6
Employee produced records of her primary care physician Dr. Brockman documenting continued treatment for pain management. At the September 20, 2017, hearing, employee testified that she had discontinued Fentanyl for almost a year but continued to take Lyrica for nerve damage, a muscle relaxer, and oxycodone for breakthrough pain.
Section 287.140.1 RSMo places on the claimant the burden of proving entitlement to benefits for future medical expenses. The claimant satisfied this burden, however, merely by establishing a reasonable probability that he will need future medical treatment. Nonetheless, to be awarded future medical benefits the claimant must show that the medical care "flows from the accident".7
The majority's determination that the employee attained MMI as of June 6, 2006, does not preclude a finding that she is in need of future medical. The above described evidence in the record, including employer's offer of a second, reconstructive surgical procedure and employee's rejection of same, demonstrates a reasonable probability that claimant is in need of additional medical treatment and that this need flows from her compensable injury of May 5, 2005.
Because the majority concludes otherwise, I respectfully dissent.
Curtis E. Chick, Member
6 Award, p.8.
7 Conrad v. Jack Cooper Transp. Co. 273 S.W.3d 49, 51 (Mo App 2008).
TI1671-0301
Issued by DIVISION OF WORKERS' COMPENSATION
Injury No.: 05-061902
AWARD
Employee: Linda Ford
+
Dependents: N/A
+
Employer: Pauwels Transformers
+
Additional Party: SIF
+
Insurer: Liberty Mutual Insurance
+
Hearing Date: September 20, 2017
Injury No.: 05-061902
Before the
Division of Workers'
Compensation
Department of Labor and Industrial
Relations of Missouri
Jefferson City, Missouri
Hearing Date: September 20, 2017
Checked by: LJB
FINDINGS OF FACT AND RULINGS OF LAW
- Are any benefits awarded herein? Yes
- Was the injury or occupational disease compensable under Chapter 287? Yes
- Was there an accident or incident of occupational disease under the Law? Yes
- Date of accident or onset of occupational disease: May 5, 2005
- State location where accident occurred or occupational disease was contracted: Franklin County, MO
- Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
- Did employer receive proper notice? Yes
- Did accident or occupational disease arise out of and in the course of the employment? Yes
- Was claim for compensation filed within time required by Law? Yes
- Was employer insured by above insurer? Yes
- Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant
injured he lower back when trying to move a heavy transformer that was stuck on an assembly line.
- Did accident or occupational disease cause death? No
- Part(s) of body injured by accident or occupational disease: Low back/Body as a whole
- Nature and extent of any permanent disability: 35% of the body as a whole at the level of the lumbar spine
- Compensation paid to-date for temporary disability: $6,131.54
- Value necessary medical aid paid to date by employer/insurer? $87,112.20
WC-32-R1 (6-81)
Page 1
Issued by DIVISION OF WORKERS' COMPENSATION
Injury No.: 05-061902
- Value necessary medical aid not furnished by employer/insurer? N/A
- Employee's average weekly wages: 577.92
- Weekly compensation rate: 385.28/$354.05
- Method wages computation: By agreement
**COMPENSATION PAYABLE**
- Amount of compensation payable: 35% permanent partial disability of the BAW at the lumbar spine by Employer
49,567.00
- Second Injury Fund liability: Denied
TOTAL: 49,567.00
- Future requirements awarded: Denied
Said payments to begin 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 an attorneys' lien in the amount of 25% of all payments. Three-fourths of the total attorneys' fees awarded are hereunder in favor of attorney Jeffrey Gault for necessary legal services rendered to the claimant and one-fourth of the total attorneys' fees awarded are hereunder in favor of the attorney Mark Rudder for necessary legal services rendered to the claimant.
WC-32-R1 (6-81)
Page 2
Issued by DIVISION OF WORKERS' COMPENSATION
Injury No.: 05-061902