Cheryl Hayden v. S.W. Center for Independent Living

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 16-104167

**Employee:** Cheryl Hayden

**Employer:** S.W. Center for Independent Living

**Insurer:** Missouri Employers Mutual Insurance

**Additional Party:** Lester E. Cox Medical Centers (Direct Pay Medical Fee Dispute 16-01266)

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 Temporary or Partial 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 temporary award and decision of the administrative law judge with this supplemental opinion.

Employer raised due process and equal protection under the law issues for the first time in its brief before the Commission filed on July 9, 2018. Employer asserts the award of $824,242.26 pursuant to § 287.510 RSMo (Temporary or Partial Awards) is in violation of its protections under the Missouri and the United States Constitutions. Specifically, employer argues it is a taking of property without due process and that it denies employer and insurer equal protection under the law.

An administrative commission is not empowered to determine the constitutionality of statutes. *Tadrus v. Missouri Board of Pharmacy*, 849 S.W.2d 222 (Mo. App. 1993). The employer did not raise these issues at hearing or in its application for review. Nevertheless, we note for the record that employer has raised such issues and employee has provided response to the issues by a brief filed July 12, 2018.¹

We note that the employer is challenging the statutory scheme which limits the ability to appeal beyond the administrative level until a final award is issued. A final award is one which disposes of the entire controversy between the parties. This Temporary and Partial Award does not dispose of the entire controversy. This challenge has already been addressed and overruled in several Missouri Courts of Appeal decisions.² The Workers' Compensation statute is a comprehensive body of law, which has been

¹ However, employee objects to employer's inclusion of this issue in its brief, as not raised in its application for review and as not timely raised in the proceeding. We leave these issues to a reviewing court at the appropriate time should they be raised by the parties.

² See *Motor Control Specialties, Inc. v. Labor & Industrial Rels. Commission*, 323 S.W.3d 843, (Mo. App. W.D. 2010); *Norman v. Phelps Cty. Reg'l Med. Ctr.*, 256 S.W. 3d 202, 205 (Mo. App. S.D. 2008); and *Leech v. Phoenix Home Care*, 547 S.W. 3d 572 (Mo. App. S.D. 2018).

Injury No.: 16-104167

Employee: Cheryl Hayden

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amended by the legislature on several occasions. The 2005 amendments to the statute clearly instruct us to "strictly construe" its provisions. § 287.800 RSMo. "Under the clear terms of section 287.495, appellate courts only have the authority to review 'final awards.'" *AB Electric Inc. v. Franklin*, 559 S.W. 3d 38, 42, (Mo. App. W.D. 2018).

Employer asks the Commission to provide a remedy of deeming the Temporary Award in this matter as a "final" award, which would then be subject to appeal to the Court of Appeals, under § 287.495 RSMo. The law does not authorize any mechanism whereby we might provide the relief requested by the employer. We must, therefore deny employer's request.

Employer has asked us to credit it with reductions in medical bills to which the employee is entitled. The administrative law judge ruled that the evidence did not clearly establish that employee was assured any reductions in her medical bills at this time and therefore denied the employer's request. We agree with the administrative law judge on the state of the evidence in the record before us. However, additional evidence brought before the administrative law judge during the course of proceeding may change that ruling. We affirm the administrative law judge's ruling on this issue, without prejudice to the employer/insurer to provide additional significant evidence prior to a final award. See *Jennings v. Station Casino St. Charles*, 196 S.W.3d 552, 558 (Mo. App. E.D. 2006).

The amount of the unpaid medical expenses, which includes the Direct Payment medical fee request by Lester E. Cox Medical Centers (16-01266) is not consistently stated throughout the Award.

Specifically at page 2 of the Award, line 6, reads:

Unpaid medical expenses: 813,947.67

This amount includes 136,461.34 which Employer/Insurer is to pay directly to Lester E. Cox Medical Centers to satisfy the Direct Pay Medical Fee Dispute. It also includes the amount that Claimant is to pay to satisfy the outstanding Medicaid Lien, less attorney's fees as discussed in the Award. (Emphasis ours)

10,294.59

TOTAL 824,242.26

On the other hand, page 9, under the heading *Cost of Medical Care*, 2nd and 4th paragraphs and page 12 (bottom paragraph) and page 13 (top line) identify the figure

3 The Award at page 12, under the heading Direct Pay Medical Fee, refers to the Missouri Supreme Court case, *Curry v. Ozarks Electric Corporation* and references an incorrect page number. We correct the citation reference to 39 S.W. 3d 494 (Mo banc 2001) overruled on different grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W. 3d 220 (Mo. 2003)

Injury No.: 16-104167

Employee: Cheryl Hayden

- 3 -

as $136,421.26, as testified (and certified) by the custodian of records for the medical center.

Meanwhile, page 15 -- "Summary" returns to the figure $136,461.34, as the amount to be paid directly to Lester E. Cox Medical Centers.

We find the more accurate figure is $136,421.26. We correct the Award to reflect this figure in all relevant references throughout and correct the Award consistent with this finding.

**Conclusion**

We affirm and adopt the Temporary or Partial Award of the administrative law judge as supplemented and corrected herein. This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued May 16, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental/corrected decision.

We approve and affirm the administrative law judge's allowance of 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 7th day of March 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

SEPARATE OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Secretary

Injury No.: 16-104167

Employee: Cheryl Hayden

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 believe the decision of the administrative law judge should be reversed.

I do not believe the employee has proven a compensable injury under the Missouri Workers' Compensation Law for which the employer is liable. While her situation is sympathetic, this unfortunate accident is not something that arose out of and in the course of her employment. This was a trip she was taking, as would any employee, in going to work, and such a commute has long been considered not compensable.

"In general, 'an employee does not suffer injury arising out of and in the course of employment if the employee is injured while going or journeying to or returning from the place of employment.'" (quoting *McClain v. Welsh Co.*, 748 S.W.2d 720, 724 (Mo. App. E.D. 1988)). "This is true because in most circumstances, 'a trip to or from one's place of work is merely an inevitable circumstance with which every employee is confronted and which ordinarily bears no immediate relation to the actual services to be performed.'" (quoting *McClain v. Welsh Co.*, at 724, as cited in *Custer v. Hartford Ins. Co.*, 174 S.W.3d 602, 610-611 (Mo. App. 2005)).

The employee must prove that an injury sustained outside the workplace has "occurr[ed] within a period of employment at a place where the employee; may reasonably be fulfilling the duties of employment." *Harness v. Southern Copyright, Inc.*, 291 S.W.3d 299, 305 (Mo. App. 2009). Employee was driving to begin her work, and as such, she was in much the same position as anyone commuting to their workplace. She had just finished dropping her child off at school. The general rule is a commute to one's daily place of work does not arise out of and in the course of employment. She was not within a period of employment at that moment, and she was not fulfilling the duties of employment, while she was traveling to begin her work day.

Further evidence that employee was not within a period of employment or fulfilling her employment duties are the fact that employee knew she was not to be paid for the drive to work; and the fact that it never occurred to her to request that the employer cover her medical care, until much later when she consulted an attorney.

To show that her injury arose out of and in the course of her employment, the accident must be "caused by a specific event during a single work shift." § 287.020.2 RSMo. The evidence shows employee's work shift had not yet started. By a strict reading of the statute's definition, employee's injury did not arise as a result of an accident during a work shift. Furthermore, a car accident such as this tragic event, is something to which a worker "would have been equally exposed outside of and unrelated to the employment in normal nonemployment life." § 287.020.3 (2) (b) RSMo. As guided by the Missouri Supreme Court in *Johme v. St. John's Mercy Healthcare*, 366 S.W.3d 504, 511 (Mo. 2012), "it is not enough that an employee's injury occurs while doing something related to or incidental to the employee's work; rather, the employee's injury

Injury No.: 16-104167

Employee: Cheryl Hayden

- 2 -

is only compensable if it is shown to have resulted from a hazard or risk to which the employee would not be equally exposed in normal nonemployment life."

I would not find that employee has suffered a compensable injury as covered by the Missouri Workers' Compensation Act, because her travel to her workplace was not in the course of her employment and was not from a hazard to which she had any greater exposure than in her nonemployment life. Because I would find her injuries noncompensable, all other issues are moot.

I respectfully dissent and would vote to reverse the administrative law judge's temporary award of compensation.

Reid K. Forrester, Member

**Employee:** Cheryl Hayden

**Department:** Not applicable

**Employer:** S.W. Center for Independent Living

**Address:** 16000 W. 1st Floor, New York 10, N.Y. 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**Address:** 16000 W. 1st Floor, New York 105801, U.S.A.

**FINDINGS OF FACT AND RULINGS OF LAW**

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: October 7, 2016.
5. State location where accident occurred or occupational disease contracted: Springfield, Greene 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 happened or occupational disease contracted: Employee was involved in a motor vehicle accident while going to a client's home to provide home health services.
12. Did accident or occupational disease cause death? No. Date of death? Not applicable.
13. Parts of body injured by accident or occupational disease: Left leg amputation below the knee.
14. Compensation paid to-date for temporary disability: None.
15. Value necessary medical aid paid to date by employer/insurer? None.
16. Value necessary medical aid not furnished by employer/insurer? $813,947.67.

WCC-327

Page 1

Issued by DIVISION OF WORKERS' F *IMPENSATION

Employee: Cheryl Hayden

Injury No.: 16-104167

1. Employee's average weekly wages: Sufficient to yield the following rates of compensation.

1. Weekly compensation rate: $165.66 for temporary total disability/$177.00 for permanent partial disability.

1. Method wages computation: By agreement.

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: 813,947.67

This amount includes 136,461.34 which Employer/Insurer is to pay directly to Lester E. Cox Medical Centers to satisfy the Direct Pay Medical Fee Dispute. It also includes the amount that Claimant is to pay to satisfy the outstanding Medicaid Lien, less attorney's fees as discussed in the Award.

1. Second Injury Fund liability: Not applicable.
2. Future requirements awarded:

Employer/Insurer shall provide future medical care to cure and relieve the effect of the work injury.

Employer is entitled to a credit from the third-party action in the amount of $18,615.81. This credit shall be reduced by the unpaid temporary total disability in the amount of 10,294.59, leaving a balance of 8,321.22, which shall serve as a credit against any future permanent partial or temporary disability that may accrue on behalf of the employee until the $8,321.22 is extinguished.

This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

This Award 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: David A. Childers.

WC-32T

Page 2

Employee: Cheryl Hayden

Injury No. 16-104167

Dependents: Not applicable

Employer: S.W. Center for Independent Living

Additional Party: Not Applicable

Insurer: Missouri Employers Mutual Insurance

Medical Fee Dispute

(Direct Pay): 16-01266

Hearing Date: February 20, 2018

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: VRM/va

On February 20, 2018, the undersigned Administrative Law Judge, Victorine R. Mahon, conducted a temporary/partial hearing in the above-referenced case. Attorney David A. Childers appeared with and on behalf of Claimant, Cheryl Hayden. Employer, S.W. Center for Independent Living, and Insurer, Missouri Employers Mutual Insurance, appeared by Attorney Matthew W. Murphy. Jason N. Shaffer appeared on behalf of Lester E. Cox Medical Centers which had filed a Direct Pay Medical Fee Dispute. Following the hearing, the parties were afforded an opportunity to submit briefs. The parties stipulated to certain facts and narrowed the issued as follows:

1. On or about October 7, 2016, Southwest Center for Independent Living was an employer operating under and subject to The Missouri Workers' Compensation Law and during this time was fully insured by Missouri Employers Mutual Insurance.

1. On the alleged injury date of October 7, 2016, Cheryl Hayden was an employee of Employer and was working under and subject to The Missouri Workers' Compensation Law.

1. The above-referenced employment and alleged accident occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue and jurisdiction are proper.

1. Claimant notified Employer of her injury as required by §287.420, RSMo.

1. The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

1. At the time of the alleged accident, Claimant's average weekly wage was sufficient to allow a compensation rate of 165.66 for temporary disability compensation and a compensation rate of 177.00 for permanent disability compensation.

WC-327

Page 3

Issued by DIVISION OF WORKERS' CIIPENSATION

Employee: Cheryl Hayden

Injury No.: 16-104167

(7) Temporary disability benefits have not been provided to Claimant in this claim.

(8) Employer and Insurer have provided no medical treatment and have paid no medical expenses in this claim.

ISSUES

(1) Whether Claimant sustained an accident on or about October 7, 2016; and, if so, whether the accident arose out of and in the course of employment.

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

(3) Whether Employer and Insurer are obligated to pay for certain past medical care and expenses.

(4) Whether Claimant has sustained injuries that will require additional medical care in order to cure and relieve Claimant of the effects of the injuries.

(5) Whether Claimant is entitled to temporary total disability benefits, both past and future.

(6) Whether Lester E. Cox Medical Centers is allowed direct payment for medical bills of $139,461.34.

(7) Whether Claimant's attorney, David A. Childers, and the Childers Law Firm is entitled to a 25 percent fee in regard to any monies ordered to be paid as past benefits in this award.

(8) Whether Claimant Cheryl Hayden should be assessed a penalty in regard for the alleged failure to use a seatbelt.

(9) Whether Employer and Insurer are entitled to a credit for any write-offs and fee reduction in regard to any medical bills.

EVIDENCE PRESENTED

In addition to her live testimony, Claimant submitted the following exhibits which were received into evidence:

Exhibit 1: Rusk Rehabilitation Medical Records

Exhibit 2: Cox Health Medical Records

Exhibit 3: University of Missouri Health System Medical Records

Exhibit 4: Jordan Valley Community Health Center

Exhibit 5: Dr. Russell R. Bond, D.O. Ferrell Duncan Clinic Billing Records

Exhibit 6: Dr. Russell R. Bond, D.O. Letter dated May 3, 2017

Exhibit 7: Dr. Russell R. Bond, D.O. Curriculum Vitae

Exhibit 8: Deposition of Dr. Russell Bond, D.O.

Exhibit 9: Affidavit of Billing Custodian of Records - University of Missouri

Exhibit 10: Affidavit of Missouri Hospital Account Transaction History

WC-32T

Page 4

Issued by DIVISION OF WORKERS' IMPENSATION

Employee: Cheryl Hayden

Injury No.: 16-104167

Exhibit 11 University Physicians Account Transaction History

Exhibit 12 Medicaid Lien from the State (pending)

Exhibit 13 (No exhibit offered at hearing)

Exhibit 14 Payroll records of Cheryl Hayden 12-17-17 to date of trial

Exhibit 15 Photograph of Cheryl Hayden with prosthetic device

Exhibit 16 Photograph of Cheryl Hayden with interior of prosthetic device

Exhibit 17 Photograph of Cheryl Hayden's amputated leg

Exhibit 18 Photograph of Cheryl Hayden's amputated leg with sores

Exhibit 19 Photograph of Cheryl Hayden's amputated leg with scars from prior sores

Exhibit 20 CoxHealth Medical Center Billing Records

Exhibit 21 Rusk Rehabilitation Center Billing Records

Exhibit 22 University of Missouri Hospital Billing Records

Exhibit 23 Ozark Anesthesia Associates Billing Records

Exhibit 24 Litton & Giddings Radiological Associates, P.C. Billing Records

Exhibit 25 Deposition of Loralee Hutson

Exhibit 26 Cox Medical Center Episode of Care Detail for Cheryl Hayden

Exhibit 27 Deposition of Rachelle Poulin

Exhibit 28 Deposition of Olivia Wright

Exhibit 29 Dr. Edwin M. Roeder Billing

Exhibit 30 Certified Copy of Judgment/Docket Sheet in Cheryl A. Hayden v. Rachel L. Witty, et al., Greene County, Case No. 1731-CC00110

Exhibit 31 Receipt of payment from Missouri Department of Social Services

Exhibit 32 Settlement check #1488 payable to Cheryl Hayden totaling $18,615.81

Employer/Insurer offered the following exhibits which were admitted into evidence:

Exhibit A Deposition of Claimant Cheryl Hayden of May 24, 2017

Exhibit B S.W. Center for Independent Living Summary of Employment and Agreement

At the request of the parties, the administrative law judge took official/administrative notice of the following documents on file with the Division of Workers' Compensation, which will be considered evidence in the case for all purposes:

- Medical Fee Dispute

- Claim for Compensation

- Answer of Employer/Insurer to Claim for Compensation

All exhibits appear as they were when received into evidence. The administrative law judge made no markings on any exhibit.

FINDINGS OF FACT

Cheryl A. Hayden (Claimant) testified at the hearing and by deposition. Unless otherwise specifically noted in this Award, I find Claimant's testimony credible.

At the time of the hearing, Claimant was 35 years old. She graduated from Central High School in Springfield, Missouri, in 2000. Her scholastic achievement was not the best. She worked part-time during school. After high school, she worked as a retail clerk, a telemarketer, and as a home health aide. She

WC-327

Page 5

Issued by DIVISION OF WORKERS' LITIGATION

Employee: Cheryl Hayden

Injury No.: 16-104167

eventually went to work for the S.W. Center for Independent Living in Springfield, Missouri, a position she had held about six months when she was injured in a work accident on October 7, 2016. When Claimant first began working for Employer, she was enrolled in the nursing program at Southwest Baptist University. Thus, her employment for Employer was only part time.

As a home health aide, Claimant's duties included basic housekeeping, cooking, bathing, and assisting patients with other basic care needs. She generally spent two to four hours with each patient and saw multiple patients in a day. The sequence in which Claimant traveled to various residences was based on the needs of the patients and was established by Employer.

Claimant maintained paper files on all of her patients in her home, which she reviewed prior to meeting with a patient. In addition to the patient files, she was required to keep blank forms in regard to care, treatment, mileage, and time records. Due to HIPAA compliance issues, Claimant was expected to secure all health forms and documents of the company in a secure place within her home. Claimant stored her files and the company material in her bedroom, which was secured by lock and key.

Claimant received patient assignments by phone call from the scheduler located in Employer's primary office at 2864 S. Nettleton Avenue, Springfield, Missouri. Because Claimant worked in the patients' homes on a predetermined schedule established by Employer, she did not normally travel to Employer's principal place of business prior to beginning work for the day. Unless the assignment was for a new patient, Claimant routinely would leave from her home to go directly to her first patient assignment. She kept her cell phone nearby to receive phone calls from Employer. She was subject to discipline if Employer was unable to reach Claimant by phone. Upon completion of her duly appointed rounds, Claimant would return home to complete all paperwork and timesheets and secure the records. Approximately once a week Claimant took her paperwork to Employer's main office. Sometimes she made a special trip from her home to Employer's office with the files she had on a date when she had no patients. Claimant had received training from Employer in regard to completing the paperwork for a patient when she was hired.

Claimant was required to furnish her own vehicle transportation from her home to the patients' homes. She received no mileage from her home to the first patient's residence, even though her activities traveling to her first patient were subject to Employer's direction and alteration. It was not unusual for Employer to notify her to discontinue her travel to a specific patient's resident even though she already was en route. This might occur if a patient no longer could afford the services. If Claimant was in route to a patient's residence and was redirected or already had arrived at the residence, she was supposed to have received an appearance fee from Employer. Otherwise, Claimant only was paid once she reached her first patient's home. Claimant was not paid wages for any work she performed on her patients' files at her home whether it was in the morning or the evening.

The Accident

On October 7, 2016, Claimant began her day by taking her son to school. After delivering her son to Reed Middle School, she returned to her house at 1847 N. Hillcrest, Springfield, Missouri. After completing the initial paperwork on her patients while at her home, she took three files to her vehicle and began her travel to her patients' homes in the order prescribed by Employer. She left her house driving her 1999 Chevrolet Suburban.

The portion of Hillcrest Street in Springfield, Missouri, where Claimant resided is not a through street. The Burlington Northern Santa Fe railroad had numerous railroad tracks and a rail yard to the north of

WC-32T

Page 6

**Employee:** Cheryl Hayden

**Injury No.:** 16-104167

Claimant's house. Hillcrest Street dead ended at the railroad yard. To exit the neighborhood to travel anywhere, one must travel south on Hillcrest to Division Street. If Claimant needed to reach Employer's main office from her home, Claimant would turn east on Division to Kansas Expressway and then south to Woodland. At Woodland, she would turn east and travel to Nettleton Avenue, wherein she would turn south for approximately one block to the entrance of her employer's primary office. On October 7, 2016, however, Claimant did not need to go to Employer's principal place of business prior to seeing her first patient, who resided in the 1700 block of Watermill Road. Claimant reasonably could have traveled north on Kansas Expressway to Interstate 44 or past the interstate to the less busy Norton Road which runs parallel to the interstate. Both were direct, logical routes to the first patient's home. Employer's principal office was in the opposite direction that Claimant was traveling at the time of the accident.

After leaving her home on the morning of the accident, Claimant turned south on Hillcrest to Division Street. She then turned east on Division Street and traveled to a point where Division intersected Kansas Expressway. Claimant turned north on Kansas Expressway over a large viaduct which crosses the railroad tracks. She descended from the viaduct and approached the intersection of Kansas Expressway and Atlantic Street. Claimant had a green light at the intersection and continued to proceed north on Kansas Expressway when another vehicle made a left-hand turn into the front side of Claimant's vehicle. Claimant's vehicle was knocked to the curb, began to roll over, and came into contact with a large pole in which the signal lights were suspended. Claimant's vehicle was thrown back in the opposite direction, and she was ejected from the vehicle. Claimant was thrown onto the shoulder of the road and her left leg was crushed between her vehicle and the ground. Claimant's leg was cut and bleeding and had substantial debris consisting of grass, gravel, and soil in the open wounds on her leg and foot. The accident occurred around 9:00 a.m.

Claimant did not have access to her cell phone while lying on the side of the road, but saw that her patients' files had been thrown about the street as a result of the impact. She prevailed upon bystanders to collect her files from the street and shoulder of the road and place them back into her vehicle. She also prevailed upon a bystander to contact her employer at the South Nettleton address, advise them of the accident, that she was being taken to the hospital, and that her patients' files had been placed back into her vehicle. She requested that someone retrieve her files and be assigned to see her patients on that date. After emergency surgery at Cox Medical Centers, Claimant personally contacted her Employer by phone to notify Employer of the motor vehicle accident.

Claimant described a violent collision where her vehicle started to roll over and hit a large street light pole causing it to reverse direction. At some point in time during the accident, Claimant's driver's side door was pulled away from the body of her vehicle and she was thrown out of the vehicle. The collision was sufficiently severe to deploy the car's airbags.

She did not have any bruises on her body consistent with being restrained from a seatbelt; however, Claimant indicated that she did not bruise easily. Claimant had given conflicting statements regarding her use of a seatbelt at the time of the accident. The accident report indicates that Claimant was not belted. Claimant initially had told the investigating officer that she was belted, but changed her account only after the officer insisted that she could not have been thrown out of the car if that was true. Claimant testified in her deposition, however, that she specifically recalled "the seat belt catching my hip when I was being thrown around." (Ex. A, p. 18). Employer presented no evidence of a separate safety rule requiring the use of a seat belt, and Claimant did not recall such rule.

WC-32T

Page 7

Issued by DIVISION OF WORKERS' CIIPENSATION

Employee: Cheryl Hayden

Injury No.: 16-104167

Claimant initially was taken from the scene of the accident to the Cox South emergency room by ambulance personnel who immobilized her cervical spine and splintered her left lower extremities. At the emergency room, Claimant had complaints of shoulder problems, and x-rays revealed acute fractures of the distal tibia and fibula of the leg with major distal fracture fragments. There also were displaced intra-articular fractures of the first metatarsal and severely commuted fractures of the medial tarsus fracture.

Five days later on October 11, 2016, after multiple surgeries, Claimant was transferred by ambulance to the University of Missouri Hospitals in Columbia, Missouri, in an effort to save Claimant's leg. Medical records substantiate that on October 13, 2016, Claimant had suffered a significant loss of soft tissue in the leg and foot. On October 20, 2016, Claimant's right latissimus dorsi muscle was removed from the right side of her back. Subsequent nursing notes indicate that Claimant's pain control was difficult and "patient was periodically not oriented." The note indicates that "patient is alert and oriented x3" and was having "less hallucinations." Records document that her family reported that Claimant had suffered "intermittent hallucinations." (Ex. 3, pp. 59, 61, 63, 67 and 70). Claimant was documented has having pain of 9 or 10 on a 10-point scale. By the end of October 2016, it became necessary to amputate Claimant's leg below the knee. Claimant continued to receive care at the University of Missouri Hospitals through November 30, 2016. She then was transferred to Rusk Rehabilitation Center in Columbia, Missouri. But she subsequently was re-admitted to the University of Missouri for additional surgeries to excise and irrigate the amputation wounds, which were not healing appropriately. Claimant continued to be seen in January and February of 2017 at the University of Missouri for examination of her wounds. She was referred to Dr. Russell Bond, physical rehabilitation medicine physician with Cox Medical Centers, to evaluate and oversee the procurement of a prosthetic device. Based on a review of the medical records, the depositions, and the live testimony at the hearing, it is apparent that the treatment Claimant received from the various providers were related to the vehicular accident on October 7, 2016.

From the date of the accident on October 7, 2016, and even after her discharge from the University of Missouri Hospitals on December 23, 2016, Claimant was confined to a wheelchair. Claimant was provided a prosthetic leg on May 5, 2017. But within a short period, the prosthetic became unstable due to continued shrinkage of the stump below the knee. This makes it difficult for Claimant to walk and causes sores on the stump. Claimant identified photographs of her amputated leg. Exhibit 18 illustrates the current sores on her stump. Additionally, Claimant suffers phantom limb sensations.

Claimant continues to have pain in her back, ribs, and shoulders resulting from the accident, which were not treated. Claimant received no physical therapy or training with regard to the use of the prosthetic device, nor has she received any physical rehabilitation or strengthening exercises or treatment for the removal of the latissimus dorsi muscle from the right side of her back. Her right dominant arm is weak, and she has had a loss of function in her arm following the surgery to remove this muscle from her back. She has pain and limited use of both her left and right shoulders. She asks that she be evaluated for alleged rotator cuff tears bilaterally and for numbness in her small and ring fingers on her right hand.

WC-327

Page 8

Issued by DIVISION OF WORKERS' 1PENSATION

Employee: Cheryl Hayden

Injury No.: 16-104167

Expert Opinions

Dr. Russell Bond, Jr., D.O., a physical medicine and rehabilitation specialist with the Bone and Joint Clinic in Springfield, Missouri, has opined that was a potential treatment for the phantom limb sensations. He believed Claimant needed treatment and rehabilitation for her thoracic and rib area based on his examination. As of March 2017 when Dr. Bond saw Claimant, he believed Claimant was not at MMI, but was temporarily and totally disabled. At the time of his deposition in August of 2017, he did not think Claimant was capable of returning back to gainful employment.

Claimant had not worked for more than a year after the accident on October 7, 2016. But despite Dr. Bond's expert opinion that she was totally disabled, Claimant went to Missouri Vocational Rehabilitation in the fall of 2017 to determine if that agency could find her some kind of employment. Through those efforts, Claimant began working on December 17, 2017, in a part-time, light-duty job with Preferred Family Healthcare, taking care of injured persons. She works on average at this employment at a higher wage than she made previously. Due to the continued complications with her prosthetic device, however, she is limited in the number of hours she can work.

Cost of Medical Care

Employer/Insurer contends that it has no responsibility for any past medical care because Claimant made no demand for treatment and Employer has authorized none. Claimant concedes she did not specifically demand treatment until her legal counsel filed the Claim for Compensation. Employer, however, was aware of the accident, injury, the need for emergency care, and ongoing medical care. As noted previously in this Award, Claimant personally notified her Employer by phone call from the hospital after emergency surgery (Ex. A, p. 36). There also were multiple subsequent phone calls between Employer's representative and Claimant regarding patient files and Claimant's ability to return to work while Claimant still was being treated by various healthcare providers. Claimant was not always lucid while undergoing her lengthy treatment. Medical records substantiate that Claimant has undergone multiple surgeries, was in intense pain, had been administered narcotic medication, and was subject to hallucinations. After the Claim for Compensation was filed, Employer/Insurer has continued to deny all liability.

Claimant has requested reimbursement of 813,947.67. The bulk of this amount includes the Medicaid lien of 67,448.64, an unpaid medical bill of Lester E. Cox Medical Centers amounting to 136,421.26, and the University of Missouri Hospitals bill of 605,297.77. The latter two bills were proven through the testimonies of their respective records' custodians, who indicated that the healthcare providers elected not to submit these bills to Medicaid. Both institutions expect to be paid the amount of these bills by Claimant if she receives an award in this workers' compensation action. Claimant had agreed to reimburse Cox Medical Centers and the University of Missouri Hospitals from any award entered in this case.

The records custodian on behalf of Cox Medical Centers, Loralee Hutson, credibly testified regarding the authenticity of these records in her deposition and submitted as Exhibit 25. Loralee Hutson produced and identified Exhibit 26, which reflects the episode of care detail history for Cheryl Hayden. The total for care at CoxHealth for dates of service from October 7, 2016 through October 11, 2016, totals 128,090.60 (Ex. 26, p. 5). Cox Emergency Room bill of critical care totals 777.96 (Ex. 26, p. 6). Transportation of Claimant to University Hospitals in Columbia, Missouri on October 11, 2016 totaled $7,552.70 (Ex. 26, p. 8). Other items in Exhibit 26 appear to have been submitted to Medicaid and are reflected in a Medicaid lien.

The amounts still due and owing to Cox Medical Centers, based on Exhibit 26 and the testimony of Loralee Hutson, total $136,421.26. The medical treatment for these bills is reflected in the 816 pages of medical

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Page 9

Issued by DIVISION OF WORKERS' C

UPENSATION

Employee: Cheryl Hayden

Injury No.: 16-104167

records (Ex. 2). Lester E. Cox Medical Centers has filed a Direct Pay Medical Fee Dispute in the amount of $139,461.34.

There are more than 5,500 pages of medical records reflecting the care Claimant received from the University of Missouri Health System and the University's physicians. Olivia Wright, an employee of the University of Missouri, testified by deposition regarding all of the charges for care provided for dates of service beginning October 11, 2016 through February 8, 2017. The charges for Cheryl Hayden's care while at the University Hospitals total $605,297.77.

Rachelle Poulin also testified through deposition (Ex. 27) regarding Claimant's bills with the University Physicians. She explained that Cheryl Hayden's bills from the University of Missouri Physicians totaled $74,258.65 (Ex. 1). Those bills were submitted to Medicaid and the University received $42,648.40 in regard to the Medicaid submission. I find that those bills are reflected in the Medicaid lien.

In addition, Claimant testified that she incurred bills from Ferrell-Duncan Clinic of Springfield, Missouri, and those bills also were submitted to Medicaid for payment and are reflected within the Medicaid lien.

Finally, Claimant submitted miscellaneous bills from Ozark Anesthesia Associates, Inc. (Ex. 23), Litton & Giddings Radiological Associates (Ex. 24), and Dr. Edwin Roeder (Ex. 29). Claimant testified credibly her belief that these bills were related to her treatment and are due and owing. These bills are included in Claimant's demand for payment.

Subrogation

Claimant instituted an action in the Circuit Court of Greene County against Rachel L. Witty, Third Party Tortfeasor. Claimant settled her third-party action against Rachel L. Witty for the policy limits of $50,000.00. After deduction of attorneys' fees and expenses, there was a balance due and owing to Claimant in the amount of $23,280.51, which was subject to the Medicaid lien. An Order was entered in the Circuit Court of Greene County by Judge Brown reducing Medicaid's lien from the third-party settlement to $4,664.70. Claimant's testimony and correspondence from Missouri Department of Social Services verifies that this amount was paid to the Missouri Department of Social Services to satisfy a portion of the Medicaid lien. Employer is entitled to a credit of $18,615.81.

RULINGS OF LAW

Claimant bears the burden of proving her case on all issues in dispute. *Walsh v. Treasurer of the State of Missouri*, 953 S.W.2d 632 (Mo. App. S.D. 1997) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). The burden of establishing any affirmative defense, however, is on Employer/Insurer. § 287.808 RSMo. Administrative Law Judges shall weigh the evidence impartially without giving the benefit of the doubt to any party, and all provisions of the Missouri Workers' Compensation Law are to be construed strictly. § 287.800 RSMo.

Course and Scope of Employment, Accident, and Injury

An injury arises out of the employment if it is a natural and reasonable incident thereof. *Custer v. Hartford Ins. Co.*, 174 S.W.3d 602, 610 (Mo. App. W.D. 2005). It is "in the course of employment" if the action occurs within a period of employment at a place where the employee may reasonably be fulfilling the duties

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Issued by DIVISION OF WORKERS' C

PENSATION

Employee: Cheryl Hayden

Injury No.: 16-104167

of employment. *Id.* Deciding whether an injury arises out of and in the course and scope of employment, Court must consider the particular facts and circumstances of each case. *Id.*

An accident occurring while an employee is going to and from work generally is not compensable. *Harness v. S. Copy Roll, Inc.*, 291 S.W.3d 299 (Mo. App. S.D. 2009). An exception to this general rule, known as the *Reneau* doctrine, "is generally interpreted to mean that an employee whose work entails travel away from the employer's primary premises is held to be in the course of employment during the trip, except when on a distinct personal errand." 291 S.W.3d at 305. The Court in *Harness* explained that the 2005 amendment to § 287.020.5 RSMo, abrogated the *Reneau* doctrine only to the extent that injuries in a company-owned or subsidized automobile are not compensable while traveling from: (1) the employee's home to employers' principal place of business; or (2) the employers' principal place of business to employee's home. The Court went on to explain that unless one of these circumstances applied, "the *Reneau* doctrine remains in effect to allow compensation." 291 S.W.3d at 304.

In this instance, Claimant was not traveling between her home and Employer's place of business on Nettleton Avenue in Springfield, Missouri. The *Reneau* doctrine is applicable to this case. The credible evidence established that on October 7, 2016, at the time of Claimant's motor vehicle accident, around 9:00 a.m., she was traveling north on Kansas Expressway on an anticipated route to her first assignment of the day. Claimant was acting reasonably both in terms of her route and the time of her travel. There is no credible evidence that Claimant was on a distinct personal errand. I find and conclude that her trip and subsequent injuries from the accident arose out of and was within the course of employment. Claimant's injuries are compensable. *See also, Campbell v. Trees Unlimited, Inc.*, 505 S.W.3d 805, 816 (Mo. App. S.D. 2016) (reaffirming the applicability of the *Reneau* doctrine apart from the specific statutory exception in § 287.020.5 RSMo).

Moreover, Claimant's travel on the date of her vehicular accident explicitly imposed an increased risk of injury over and above any risk to which Claimant was exposed in her normal non-employment life. It was exactly such employment risk of travel that resulted in her injury. *Compare Johme v. St. John's Mercy*, 366 S.W.3d 504 (Mo. banc 2012) (ruling that injury was not compensable since employee was equally at risk of falling off her shoes in her normal non-employment life.)

It also makes no difference that Employer chose not to pay Claimant for her time or mileage prior to arriving at the first patient's home. Claimant was traveling at a time and to a location solely for the benefit of Employer. That Employer chose not to compensate Claimant during this travel does not make her activities any less work-related under the facts of this case. Even an uncompensated volunteer can be considered an employee and entitled to workers' compensation benefits. *Talir v. Mid-West Area Agency on Aging*, 848 S.W.2d 517, 518 (Mo. App. E.D. 1993).

Past Medical Care/Medical Fee Dispute/Medicaid Lien

Section 287.140 RSMo, requires Employer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 249 (Mo. banc 2003). Medical records were submitted in evidence supporting the care provided to Claimant and the resulting medical bills.

Employer/Insurer contends that even if Claimant's case is compensable, it has no responsibility for any medical bills because it did not authorize any treatment and Claimant never demanded the treatment from Employer/Insurer. Employer/Insurer contends that Claimant chose to direct her own medical care.

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Issued by DIVISION OF WORKERS' C

EMPLOYEE: Cheryl Hayden

Injury No.: 16-104167

Pursuant to § 287.140.1 RSMo, if an injured employee desires, she has the right to select her own health care providers at her own expense.

The medical records, live and deposition testimony, and bills in evidence clearly indicate that Claimant required the treatment she received as a result of the vehicular accident on October 7, 2016. It is undisputed that Claimant suffered life-threatening injuries from a motor vehicle accident which necessitated her transportation from the accident scene to a hospital by ambulance. Thereafter, Claimant was treated at Cox Medical Center from October 7, 2016 through October 11, 2016, at which time Claimant then was transported to Columbia, Missouri, in an effort to receive additional emergency treatment aimed at saving Claimant's lower limb.

Merely because an injured employee is forced to obtain emergency medical treatment and reasonable follow-up care does not mean the employee has exercised her right to select the healthcare providers pursuant to § 287.140.1 RSMo. As discussed in Meyers v. Wildcat Materials, Inc., 258 S.W.3d 77, 80-81 (Mo. App. S.D. 2008), the statute requires that the injured employee "desire to choose one's own medical provider" before it can be determined that she voluntarily elected to forego Employer's obligation to provide related medical treatment. Given the circumstances of the medical care, the multiple surgeries, the pain medications, and hallucinations, Claimant was hardly in a position to affirmatively "choose" her treating healthcare provider. Conversely, Employer was well aware of Claimant's predicament, as Employer's representative called Claimant during her hospitalizations. Employer was put on notice that Claimant's care was continuing. Yet, Employer offered no care and since has continued to deny all liability. Claimant has proven that she is entitled to reimbursement and/or payment of $813,947.67. Of this amount, the following restrictions apply.

1. Medicaid Lien

Of the 813,947.67, there is a Medicaid lien totaling 67,448.64. Claimant shall satisfy the Medicaid lien amount out of her proceeds, after the offset of attorney's fees, which takes priority, as held in in Lake v. Levy 390 S.W.3d 885 (Mo. App. W.D. 2013).

1. Direct Pay Medical Fee

Lester E. Cox Medical Centers filed a Medical Fee Dispute and seeks a recovery of $139,461.34 directly from Employer/Insurer. Pursuant to § 287.140.13(6), when services are "authorized" but remain unpaid, the healthcare provider may file an application for direct payment. The term "authorization" was addressed by the Missouri Supreme Court in Curry v. Ozarks Electric Corporation, 39 S.W.3d 474 (Mo. banc 2001). Even though there was no express assurance to pay for medical treatment, the Court indicated that in an emergency situation, an Employer's responsibility to provide medical treatment for a work injury is not waived. In Esquivel v. Day's Inn of Branson, 959 S.W.2d 486 (Mo. App. S.D. 1998), the Court of Appeals held that the healthcare provider who has filed a medical fee dispute has the same rights as the employee. Here, Claimant needed emergency treatment which continued through the entire stay at Lester E. Cox Medical Centers. If an employee can recover on a claim for emergency services rendered without notifying the employer or without the employer choosing the healthcare provider, the healthcare provider may recover for service rendered to Claimant under the same factual circumstances.

There exists a discrepancy, however, between the amount sought by Lester E. Cox Medical Centers in its Direct Pay Medical Fee Dispute filed with the Division of Workers' Compensation ($139,426.34), and the outstanding bills certified by the facility's records custodian ($136,421.26). Counsel for the healthcare provider indicates in his brief that Lester E. Cox Medical Centers now seeks only the lesser amount. I find

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Page 12

Issued by DIVISION OF WORKERS' CMPENSATION

Employee: Cheryl Hayden

Injury No.: 16-104167

and conclude that Lester E. Cox Medical Centers is entitled to $136,421.26 in a direct payment from Employer/Insurer.

Future Medical Care

Section 287.140 RSMo, requires Employer/Insurer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 249 (Mo. banc 2003). Claimant must prove the need for treatment by "reasonable probability" rather than "reasonable certainty." *Downing v. Willamette Industries, Inc.*, 895 S.W.2d 650, 655 (Mo. App. W.D. 1995), *overruled on other grounds Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003). "Probable" means founded on reason and experience, which inclines the mind to believe, but leaves room for doubt. *Sifferman v. Sears, Roebuck & Co.*, 906 S.W.2d 823, 828 (Mo. App. S.D. 1995), *overruled on other grounds Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003). Claimant is not required to present evidence on the specific medical treatment which will be necessary in the future in order to receive an award of future medical care. *Aldredge v. Southern Missouri Gas Co.*, 131 S.W.3d 876, 883 (Mo. App. S.D. 2004).

The overwhelming evidence is that Claimant's requires additional medical treatment and she has not reached MMI. She continues to need an appropriately-fitting prosthetic device for her left leg, treatment of her back and ribs related to the removal of muscle tissue for her stump on her left leg, and evaluation of her shoulders due to injuries received in the motor vehicle accident. Employer/Insurer shall provide medical treatment to cure and relieve the effect of the injuries suffered by Claimant in the motor vehicle accident of October 7, 2016.

Temporary Disability Compensation

Claimant has the burden of proving entitlement to temporary total disability benefits. *Seeley v. Anchor Fence Company*, 96 S.W.3d 809, 821 (Mo. App. S.D. 2002), *overruled on other grounds Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003). The purpose of temporary total disability benefits is to cover the cost for a worker's healing period. 96 S.W.3d at 821. Temporary total disability is paid until the employee can return to work, her condition stabilizes, or she has reached a point where further progress is not expected. *Minnick v. South Metro Fire Protection Dist.*, 926 S.W.2d 906, 909 (Mo. App. W.D. 1996), *overruled on other grounds Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003). The test is whether an employee is able to compete in the open labor market, given the employee's present physical condition. *Cooper v. Medical Center of Independence*, 955 S.W.2d 570, 575 (Mo. App. W.D. 1997).

The record supports the determination that Claimant was totally disabled and unable to work from October 7, 2016 until December 17, 2017, when she found a part-time, light-duty position. This represents a period of 62 1/7 weeks of temporary total disability. At a compensation rate of 165.66, this would represent 10,294.59 in back temporary total disability.

Credit

Employer is entitled to a credit from the third-party action in the amount of $18,615.81. This credit shall be reduced by the unpaid temporary total disability in the amount of 10,294.59, which leaves a balance of 8,321.22. As this Award is only temporary or partial, it is appropriate that the balance serve as a credit.

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Page 13

Issued by DIVISION OF WORKERS' 14PENSATION

Employee: Cheryl Hayden

Injury No.: 16-104167

against any future permanent partial or temporary disability that may accrue on behalf of the Employee until the $8,321.22 is extinguished.

Claimant does not seek an offset against Employer/Insurer for any prepaid medical reflected by Claimant's payment of $4,664.70 to Medicaid pursuant to legal principal adopted in *McCormack v. Stewart Enterprises, Inc.*, 916 S.W.2d 219 (Mo. App. W.D. 1995), and *McCormack v. Stewart Enterprises, Inc.*, 956 S.W.2d 310 (Mo. App. 1997) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. App. banc 2003).

As noted in *Farmer-Cummings v. Pers. Pool of Platte Cty.*, 110 S.W.3d 818, 822-23 (Mo. banc 2003), Claimant has the burden of producing documentation of her past medical expenses, but as a defense, it is Employer which must establish whether any portion of the bills were extinguished. Claimant has met her burden in this case of establishing that her past medical expenses, as detailed earlier in the Award, were directly related to her compensable workplace injury. See *Martin v. Mid-America Farm Lines, Inc.*, 769 S.W.2d 105, 111-12 (Mo. banc 1989) (establishing the requirements for proving entitlement to the payment of medical bills in a workers' compensation case). These expenses, or bills, are still due and owing, except for the bills already satisfied by Medicaid. There is insufficient evidence to establish that Claimant's liability has been extinguished.

Section 307.178 RSMo mandates that drivers wear their seatbelt while operating a motor vehicle in Missouri. Violation of this provision by itself, however, is not sufficient to evoke a penalty under §287.120.5 RSMo, which provides as follows:

> Where the injury is caused by the failure of the employee to use safety devices where provided by Employer, or from the employee's failure to obey any reasonable rule adopted by Employer for the safety of employees, the compensation and death benefit provided for herein shall be reduced at least twenty-five but not more than fifty percent; provided, that it is shown that the employee had actual knowledge of the rule so adopted by Employer; and provided, further, that Employer had, prior to the injury, made a reasonable effort to cause his or her employees to use the safety device or devices and to obey or follow the rule so adopted for the safety of the employees.

Section 287.120.5 RSMo provides that an Employer/Insurer must demonstrate the following elements in order to enforce a safety penalty:

1. that the employer adopted a reasonable rule for the safety of employees;
2. that the injury was caused by the failure of the employee to obey the safety rule;
3. that the employee had actual knowledge of the rule; and
4. that prior to the injury the employer had made a reasonable effort to cause his or her employees to obey the safety rule.

*Carver v. Delta Innovative Servs.*, 379 S.W.3d 865, 869 (Mo. App. W.D. 2012).

I have accepted Claimant's testimony that she recalled wearing her seat belt at the time of the accident. Employer/Insurer presented no evidence that Claimant's failure to wear a seatbelt at the time of the injury was the proximate cause of Claimant's injuries. Employer/Insurer also presented no evidence that

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Issued by DIVISION OF WORKERS' C

1PENSATION

Employee: Cheryl Hayden

Injury No.: 16-104167

Employer had adopted a reasonable rule for the safety of employees that they wear their seat belts at all times while driving. Claimant testified that she was aware of no independent policy of Employer regarding the wearing of seatbelts while acting within the scope and course of her employment. For these reasons, I conclude that Employer/Insurer failed in sustaining their burden of proof on this affirmative defense. No safety penalty is awarded for the benefits of Employer/Insurer.

SUMMARY

Employer/Insurer shall pay Claimant temporary total disability in the amount $10,294.59, representing 62 and 1/7 weeks at the compensation rate of $165.66.

Employer is entitled to a credit from the third-party action in the amount of $18,615.81. This credit shall be reduced by the unpaid temporary total disability in the amount of 10,294.59, leaving a balance of 8,321.22, which shall serve as a credit against any future permanent partial or temporary disability that may accrue on behalf of the Employee until the $8,321.22 is extinguished.

Employer/Insurer shall pay $813,947.67 in past medical expenses. Of this amount, Employer/Insurer shall pay $136,461.34 directly to Lester E. Cox Medical Centers, which shall satisfy its Direct Pay Medical Fee Dispute. The remainder of the $813,947.67, shall be paid to Claimant. Out of those proceeds, Claimant shall satisfy all other medical bills and satisfy the Medicaid lien of $67,448.64, less amounts allowed pursuant to Lake v. Levy 390 S.W.3d 885 (Mo. App. W.D. 2013).

Employer/Insurer shall be responsible for the continued provision of medical care to cure and relieve the effects of the work injury. Employer retains the right to direct future medical care.

This Award 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: David A. Childers.

This Award is temporary or partial. The record shall remain open and is subject to further proceedings and to modifications as provided by law.

Interest as provided by law is applicable.

Failure to comply with this Award may result in the amounts being doubled should a Final award be consistent with this Temporary/Partial Award.

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Page 15

Issued by DIVISION OF WORKERS' f IPENSATION

Employee: Cheryl Hayden

Injury No.: 16-104167

I certify that on May 16, 2018,

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 Made by:

the executed award in the Division's case file.

Date: 2018-04-01

Victorine R. Mahon

Chief Administrative Law Judge

Division of Workers' Compensation

By

My