Mary Staab-Bernacki v. Sportsman Supply

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 13-093011

**Employee:** Mary Staab-Bernacki

**Employer:** Sportsman Supply

**Insurer:** Commerce & Industry Ins. Co. c/o AIG Claims, 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, 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, and modifications set forth below.

The parties asked the administrative law judge to determine the following issues: (1) nature and extent of employee's permanent partial disability and/or permanent total disability; (2) the liability of the Second Injury Fund; (3) whether the employer failed to provide medical treatment; (4) the proper amount of temporary total disability; and (5) the issue of future medical benefits.

The administrative law judge determined as follows: (1) employee had a 20% permanent partial disability, body as a whole, regarding her back and a 5% permanent partial disability regarding her knee; (2) the Second Injury Fund did not have any liability; (3) employer is not liable for non-work related treatment, such as the MRI and subsequent surgeries; (4) employee is entitled to temporary total disability payments for 27 3/7 weeks; and (5) employee does not require future medical treatment for the primary injury.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred in the following issues: (1) the administrative law judge erred in failing to order employer to pay for necessary treatment such as the initial MRI and subsequent surgeries; (2) the administrative law judge should have found permanent total disability; (3) the administrative law judge should have found Second Injury Fund liability; and (4) the administrative law judge should have awarded future medical benefits.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issue of employer's obligation to pay for the initial MRI. We additionally supplement the administrative law judge's decision with respect to the proper standard applied to this matter.

The administrative law judge stated that employee "failed to show by clear and convincing evidence [that] any of her surgeries were necessary to cure and relieve her work related injuries." Award, p. 20. The standard to prove medically necessary procedures is not the "clear and convincing" standard.

Section 287.808, RSMo, provides the evidentiary burden as follows (emphasis added):

MNKOI 0000714468

Injury No.: 13-093011

Employee: Mary Staab-Bernacki

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The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true.

Therefore, employee only has to show that more likely than not her medical treatment was "reasonably required after the injury or disability, to cure and relieve employee from the effects of the injury." This is a lower standard than a clear and convincing level of proof.

"For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true." *In re O'Brien, 600 S.W.2d 695, 697 (Mo. App. 1980)* (citation omitted).

Therefore, the administrative law judge held employee to a higher standard. In applying the correct standard of proof in this matter pursuant to § 287.808, RSMo, we reach a slightly different conclusion regarding what treatment was "reasonably required after the injury or disability, to cure and relieve employee from the effects of the injury."

The parties do not dispute that the primary injury relates to employee's back and consists of compression fractures at L2 and L4. However, the parties disagree on the treatment reasonably required to cure and relieve the effects of the primary injury. Dr. Benjamin Crane treated employee with physical therapy and pain medications, while Dr. Thomas Lee treated employee with surgery. The primary issue in this matter regards the extent of employer's liability for past medical treatment.

The primary injury occurred on December 3, 2013, when employee used a dolly to move boxes at employer's warehouse. While walking backwards, her feet slipped from underneath her and she fell on the concrete floor. Employee felt her back crack and the dolly hit her right leg. Employee went to the emergency room, where x-rays were taken of her back. The x-rays did not show any fractures.

Six days later, employee still had pain in her lower back and she talked to her primary care doctor, Dr. Justin Hugo. Dr. Hugo recommended an MRI of employee's lumbar spine. Employee informed employer about the MRI request. Instead of providing for an MRI, employer sent employee to Dr. Joseph Homan. Dr. Homan determined that an MRI was not required and that employee could return to work. Employee followed through with Dr. Hugo's recommendation for an MRI and paid $964.30 for an MRI on December 12, 2013. Employer refused to reimburse employee for the costs of the MRI. That initial MRI showed compression fractures at L2 and L4.

Due to the initial MRI results, employer sent employee to Dr. Crane, who on December 20, 2013, took employee off of work in order to allow time for the fractures to heal and ordered pain medication. Dr. Crane ordered a bone density study, which demonstrated osteopenia in the femur. Upon the next visit on January 31, 2014, Dr. Crane encouraged employee to walk as much as possible and to avoid heavy lifting. On March 3, 2014, Dr. Crane added an anti-inflammatory medication and started physical therapy. Dr. Crane did not feel that employee required any surgery. Dr. Crane ordered a repeat MRI, which was performed on April 30, 2014.

Injury No.: 13-093011

Employee: Mary Staab-Bernacki

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Upon review of the April 30, 2014 MRI, on June 9, 2014, Dr. Crane placed employee at maximum medical improvement and placed her work at a medium demand level. Dr. Crane found that employee's compression fractures had healed as of June 9, 2014. Dr. Crane also felt that employee was magnifying her symptoms during the June 9, 2014 visit. Dr. Crane did not recommend any further treatment for the primary injury, other than pain medication and home exercises.

Employee continued to experience back pain after June 9, 2014. Employee's primary care doctor, Dr. Hugo, referred employee to Dr. Lee, an orthopedic surgeon, for treatment. Dr. Lee prescribed lumbar epidural injections and on March 2, 2015, performed L2-3, L3-4, and L4-5 decompressive laminectomy procedures. After employee's symptoms persisted, on July 13, 2015, Dr. Lee performed L1-2, L2-3, and L3-4 lateral lumbar interbody fusions. On July 20, 2015, Dr. Lee performed L1-2, L2-3, and L3-4 posterior spinal fusions.

Regarding employer liability, the administrative law judge did not require employer to pay for the initial MRI that led to the discovery of the primary injury. We find no case on point to address employer's liability in this matter.

Section 287.140, RSMo provides, in relevant part, as follows:

> In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

We find that, as the initial MRI showed the compression fractures at L2 and L4, without the MRI, employer's doctors would not know that any significant injury occurred. Therefore, the MRI was necessary to determine what "medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines" was reasonably required to cure and relieve employee from the effects of the injury. Therefore, pursuant to § 287.140, RSMo, we hold that employer should pay $964.30 for the initial MRI.

However, we agree with the administrative law judge and find the opinions of Dr. Crane, Dr. Donald deGrange, and Dr. Russell Cantrell more persuasive that employee was at maximum medical improvement as of June 9, 2014 and that there was no "medical, surgical, chiropractic, [or] hospital treatment" reasonably required "after the injury or disability, to cure and relieve from the effects of the injury."

Dr. Crane only ordered physical therapy and pain medication in order to cure and relieve the effects of the primary injury; he did not feel that surgical intervention was appropriate. Dr. deGrange also opined on September 24, 2014, prior to Dr. Lee's surgeries, that further medical treatment was not needed regarding the primary injury. Similarly, Dr. Cantrell opined on March 14, 2017, "that the multi-level lumbar fusion was not necessitated by [employee's] work injury, but that the performance of this multi-level lumbar fusion has created greater disability than existed solely on the basis of the compression fractures." Tr., p. 1376

Similarly, Dr. Dwight Woiteshek, hired by employee, opined on January 22, 2014, that the primary injury consisted of the L2 and L4 compression fractures, as well as an injury to employee's knee. Dr. Woiteshek did not recommend any treatment for employee's back; he only recommended treatment for employee's knee. He stated that employee was receiving treatment for her back, but did not specify what treatment that was. The only treatment

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Injury No.: 13-093011

**Employee: Mary Staab-Bernacki**

performed at the time of Dr. Woiteshek's opinion was the physical therapy and medication ordered by Dr. Crane. Employee did not see Dr. Lee until August 19, 2014, almost 7 months after seeing Dr. Woiteshek.

Therefore, we agree with the administrative law judge that the surgeries performed by Dr. Lee were not reasonably required to cure and relieve employee from the effects of the injury. Furthermore, we agree with the administrative law judge regarding the remaining issues in this matter.

**Conclusion**

We modify the award of the administrative law judge as to the issue of employer's liability for the initial MRI. Employee is entitled to, and employer is hereby ordered to pay, past medical expenses in the amount of $964.30 for the initial MRI.

The award and decision of Administrative Law Judge Marvin O. Teer, Jr., issued July 31, 2018 is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

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 31st day of May 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Corke's, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Impry No.: 13-093011

Employee: Mary Staab-Bernacki

I have reviewed and considered all of the competent and substantial evidence on the whole record. I agree with the findings and the majority that emplo