Thomas Miles v. Fred Weber

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 11-058211

**Employee:** Thomas Miles

**Dependent:** Sharon Miles

**Employer:** Fred Weber

**Insurer:** Fred Weber, Inc.

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, listened to the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, modifications and clarifications set forth below.

The parties asked the administrative law judge to determine the following issues: (1) whether employee sustained an accident arising out of and in the course of his employment; (2) whether employee's injury was medically causally related to the accident; (3) whether employer was liable for past medical expenses in the amount of $44,812.48; (4) whether employer was liable for temporary total disability from July 25, 2011 through July 29, 2011; (5) the nature and extent of any permanent disability; and (6) whether there is any liability against the Second Injury Fund.

The administrative law judge determined as follows: (1) employee sustained a work-related accident on July 22, 2011, that arose out of and in the course of his employment; (2) employee's heat exhaustion and dehydration suffered on July 22, 2011, was medically causally related to employee's accident; (3) employer is not ordered to pay the medical bills that employee incurred in the amount of $44,812.48; (4) no temporary total disability was awarded; (5) employee sustained a 5% permanent partial disability to the body as a whole at the 20-week level as a result of the dehydration and heat exhaustion sustained while working; and (6) there is no liability for the Second Injury Fund.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred in ruling that: (1) employer was not liable for certain reasonable and necessary medical treatment costs; (2) that employee was not entitled to temporary total disability; (3) that employee is not permanently totally disabled; and (4) that there is no Second Injury Fund liability.

For the reasons stated below, we modify the award and decision of the administrative law judge referable only on the issue of temporary total disability. We additionally supplement the administrative law judge's decision with respect to the issues of medical causation and past medical expenses.

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The parties stipulated that if employee was found to have sustained a work injury, the agreed amount of temporary total disability benefits was the amount of $231.92. Although the administrative law judge found employee had sustained a work injury, he did not award any temporary total disability benefits.

The rules of the Department of Labor and Industrial Relations, in particular, 8 CSR 50-2.010(14), provide: "... Prior to hearing, the parties shall stipulate uncontested facts and present evidence only on contested issues." It is well established that stipulations are controlling and conclusive, and the courts are bound to enforce them. *Boyer v. Nat'l Express Co.*, 49 S.W.3d 700, 705 (Mo. App. 2001). The administrative law judge and the Commission are limited to deciding only those issues in contention. The parties stipulated to a nominal figure of $231.92 for what appears to be a brief period of temporary total disability following the work injury. This was negotiated by the parties prior to hearing and as further discussed at the hearing. We conclude the record supports a finding that temporary total disability benefits are warranted as agreed in the parties' stipulation.

We modify the award to include temporary total disability (TTD) benefits in the amount of $231.92.

Section 287.020. RSMo provides in relevant part:

> 3. ... the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. (emphasis in original)

Employee has proven his exposure to excessive heat at work on Friday, July 22, 2011, was the prevailing factor in causing a single episode of heat exhaustion. After that episode, employee travelled home, stopping at an event along the way. Later that day, he had an episode which required medical attention and he was air-lifted to the hospital. Because employee had a history of cardiac problems, he was attended by his private cardiologist at the hospital. Employee was released from the hospital on Monday, July 25, 2011, with a final diagnosis of dehydration and renal failure (resolved). On July 29, 2011, employer's doctor, Cynthia Byler, authorized employee to return to work. He was cleared to return to work by his cardiologist as of Monday, August 1, 2011.

We note the administrative law judge found employee at maximum medical improvement (MMI) after leaving the worksite. We understand this reference to MMI¹ by the administrative law judge as a finding that employee did not prove any of the subsequent injurious events of that day were caused by his accident.

¹ Technically speaking, however, the concept of MMI is to assist the fact-finder in determining when permanent disability for an injury may be assessed and when TTD benefits should cease. *Cardwell v Treasurer, State of MO*, 249 S.W. 3d. 902, 910 (Mo. App. E.D. 2008) Because the parties stipulated to the TTD benefits, we do not address the MMI date further, but note the return to work dates authorized by employer's doctor (Cynthia Byler) and employee's cardiologist, on July 29, 2011 and August 1, 2011, respectively.

Injury No. 11-058211

Employee: Thomas Miles

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We agree with the administrative law judge's finding that employee suffered a work injury on July 22, 2011, in the nature of heat exhaustion, and that some residual effects of that event resulted in a limited permanent partial disability in the nature of 5% to the body as a whole. His exposure to excessive heat at work on that day caused an unusual strain, resulting in objective symptoms of heat exhaustion secondary to dehydration. This event was the prevailing factor in causing the medical condition and disability of ongoing heat intolerance in excessive temperatures.

We agree with the administrative law judge's analysis that the subsequent events of that day were intervening injurious events which broke the causation chain resulting from the work injury. The administrative law judge ruled that employee did not prove that his work injury caused him to sustain posttraumatic stress disorder or other psychological or neurological disorder. In explaining his reasoning, the administrative law judge cited the "two hours of work activities on July 22, 2011," Award, page 11, which led up to his heat exhaustion event. The administrative law judge was inaccurate in reciting the employee's theory of recovery on these aspects.

The employee's theory of recovery on this aspect is not as narrowly framed by the administrative law judge. The employee asserts that the causal factor for psychological injury, was that in the course of treatment after heat exhaustion at work, employee had a life threatening experience when treated by paramedics later in the day. We wish to make clear that we understand employee's theory, however, we are not persuaded for the reasons stated herein.

The administrative law judge correctly concluded that the reported conditions of posttraumatic stress disorder, anxiety, depression and evidence of dementia, were not proven to have arisen out of and in the course of the employment. We agree the credible evidence did not support the claim that employee had a permanent psychological or neurological disability arising out of and in the course of the employment. These claimed injuries did not flow from the work injury of heat exhaustion. In so finding, we adopt the administrative law judge's conclusions that Dr. Jay Liss, was not persuasive in his opinion, for the reasons identified by the administrative law judge. Furthermore, no objective evidence was identified to support the doctor's conclusions. In rendering his initial opinions he did not rely on any objective testing such as the Minnesota Multiphasic Personality Inventory (MMPI). 2 This further undermined his opinion, as compared with Dr. Michael Oliveri's more thorough review and evaluation, which included this and other testing.

Past Medical Expenses

Finally, we note the administrative law judge's ruling at page 11 of the Award that "claimant's heat exposure at work was not the prevailing factor in his need for medical treatment upon or after his arrival in Iron City on the afternoon of July 22, 2011." We discern a need to clarify that ruling to more precisely state the law with regard to whether medical expenses are recoverable.

Section 287.140 RSMo provides for compensation for such medical care "as may reasonably be required after the injury to cure and relieve from the effects of the injury." Therefore, employee must only prove the compensation for treatment, as described by the Act, was reasonably required to cure and relieve the effects of the single heat exhaustion episode earlier in the day. Employee is not required to show the work injury was the prevailing factor prompting the extended medical treatment. Once a compensable injury is found, (in this case heat exhaustion), we next turn to the calculation of the extent of compensation, including payment of medical treatment under § 287.140, and other provisions of the statute. As clearly stated in

2 We refer to the MMPI, a widely recognized psychological testing process with established criteria for evaluation of psychological conditions.

Improvee: Thomas Miles

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Tillotson v. St. Joseph Medical Center, "each of these statutes presumes that the prevailing factor test described in section 287.020.3(1) has already been applied to permit the conclusion that a compensable injury has occurred." Tillotson v. St. Joseph Medical Center, 347 S.W. 3d 511, 517 (Mo. App. W.D. 2011). Therefore, the appropriate inquiry is not whether the work injury was the prevailing factor resulting in the subsequent medical treatment, but whether the treatment was reasonably required to cure and relieve the effects of the compensable injury.

We conclude employee has not proven that the subsequent medical treatment "upon or after his arrival in Iron City on the afternoon of July 22, 2011..." (Award, page 11) or any subsequent medical treatment after he left work that day, was reasonably required to cure and relieve the effects of the single episode of heat exhaustion suffered early in the day on July 22, 2011, at the worksite.

**Conclusion**

We modify the award of the administrative law judge only as to the issue of temporary total disability. We further supplement the Award relative to the reasoning on the issues of Medical Causation and Past Medical Expenses.

Employee is entitled to, and employer is hereby ordered to pay, temporary total disability benefits in the amount of $231.92.

The award and decision of Administrative Law Judge Lorne J. Baker is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administra