Edward Sebelius v. Buccaneer Property Managers Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-018704

**Employee:** Edward Sebelius

**Employer:** Buccaneer Property Managers Inc.

**Insurer:** Uninsured

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 8, 2019. The award and decision of Administrative Law Judge Joseph P. Keaveny, issued January 8, 2019, is attached and incorporated by this reference.

The Commission further approves and affirms 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 **24th** day of July 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Comper, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Injury No. 15-018704

Employee: Edward Sebelius

The following facts are undisputed: Employee sustained a work injury on February 10, 2015, which resulted in a torn meniscus. That month, employer was in the process of transitioning to a new third party administrator (TPA). Employer understood that its workers' compensation insurance coverage would remain in place until a policy with a successor company went into effect on March 1, 2015. Unbeknownst to employer, its TPA terminated employer's workers' compensation insurance on February 9, 2015, the day before employee's work injury.

The sole issue on appeal to the Commission is employer's liability for past medical expenses of $35,681.23, relating to knee surgery performed by Dr. Corey Solman on July 14, 2015, and related post-surgery treatment necessitated by employee's work injury. Employer admits that it authorized employee to consult with Dr. Solman. There is further no dispute that employer's authorized health care provider, Concentra, agreed that employee needed the surgery Dr. Solman performed to repair his torn meniscus. Employer, nonetheless, insists that Dr. Solman's treatment was unauthorized because employer consistently referred employee to Concentra for treatment. Employer claims that employee acted unreasonably by failing to schedule his needed surgery through Concentra's provider network.

Employer's account with its designated health care provider, Concentra, became delinquent after employer's TPA stopped paying its bill. As a result, Concentra refused to schedule employee for the very surgery its own physicians agreed employee required. Employer's failure to carry workers' compensation insurance and its persistent failure to pay Concentra's bills made it impossible for employee to secure additional care within the Concentra network.

Employee credibly testified that employer's manager, Joan O'Dowd, suggested he use his personal health insurance to seek treatment and that employer would thereafter "make up the difference." Employee alleged Ms. O'Dowd further informed employee his injury wasn't compensable because he waited too long to report it, and that his knee problem "happens to everybody when they get to be that age" and was unrelated to work.

Employer now disavows its manager's alleged prior statements and attempts to shift the blame for its delinquent Concentra account to its third party administrator. However, an employer cannot shirk responsibility for the acts of its agents. See *Garnant v. Shell Petroleum Corp.*, 228 Mo. App. 256 (Mo. App. 1933).

This dispute stems directly from employer's illegal failure to maintain workers' compensation insurance to protect its employees and pay for medical care for their work-related injuries. Because of its failure to maintain workers' compensation insurance on the date of employee's injury, employer effectively denied employee treatment it was obligated to provide to cure and relieve his work injury pursuant to § 287.140 RSMo.

*Transcript, 16.*

*Id.*

MNKOI 0000213416

Injury No. 15-018704

Employee: Edward Sebelius

- 2 -

Where an employer fails to secure workers' compensation insurance, and fails to pay for care, they lose the right to direct care. In this case, by allowing its account with its designated health care provider Concentra fall into arrears, employer constructively authorized employee to seek his own medical treatment.

The majority's refusal to award employee's past medical expenses for surgery and related treatment that employer admits employee required to cure and relieve the effects of his compensable injury effectively sanctions employer's failure to maintain workers' compensation insurance. This result is contrary to law and public policy.

For these reasons, I dissent from the majority's award affirming the decision of the administrative law judge in this case.

Curtis E. Chick, Jr., Member

Issued by DIVISION OF WORKERS' COMPENSATION

**Injury No.:** 15-018704

**Employee:** Edward Sebelius

**Department:** INCA

**Department:** Buccaneer Property Managers, Inc.

**Address:** 12000 N/A, 12000 EAST, INCA, 027001, U.S.A.

**Address:** 12000 N/A, 12000 EAST, INCA, 027001, U.S.A.

**Injury No.:** 15-018704

**Before the Division of Workers' Compensation Department of Labor and Industrial Relations Of Missouri**

**Address:** 12000 N/A, 12000 EAST, INCA, 027001, U.S.A.

**Injury Date:** 10/10/2018

**Address:** 12000 N/A, 12000 EAST, INCA, 027001, U.S.A.

**Jefferson City, Missouri**

**Checked by:** JPK

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: 02/10/2015
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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? No, uninsured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While spreading rock salt, employee slipped on ice and tore the medial meniscus in his right knee.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Medial meniscus in right knee
14. Nature and extent of any permanent disability: 27.5% lower extremity at the right knee
15. Compensation paid to-date for temporary disability: Unknown
16. Value necessary medical aid paid to date by employer/insurer? $1,700.00 (disputed)

Revised Form 31 (3/93)

Page 1

1. Value necessary medical aid not furnished by employer/insurer: 35,681.23
2. Employee's average weekly wages: 730.00
3. Weekly compensation rate: $486.60 TTD/ $451.02 PPD
4. Method wages computation: Stipulated

1. Amount of compensation payable: 44 weeks PPD from employer: $19,844.88
2. Second Injury Fund liability: No

**TOTAL:** $19,844.88

1. Future requirements awarded: None

Said payments to begin immediately 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 a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mark Cantor

On 10/10/2018, the parties appeared for a hearing. Edward Sebelius ("Employee") appeared in person and with counsel, Mark Cantor. The Employer, Buccaneer Property Managers, Inc., was represented by David Bender. No insurance company was a party to this case.

1) The Employer, Buccaneer Property Managers, Inc., was operating subject to Missouri's Workers' Compensation Law on or about 02/10/2015. 2) Edward Sebelius was an employee at all times herein. 3) The Employer was provided notice of the employee's alleged injury and the Report of Injury was timely filed. 4) St. Louis, Missouri is the proper venue. 5) Applicable rates of compensation are $\ 486.60 for TTD and $\ 451.02 for PPD.

Claimant introduced, and had admitted into evidence, the following Exhibits:

1) Deposition of Dr. Corey Solman dated May 22, 2018 with attached exhibits: 2) Curriculum Vitae 3) Orthopedic Sports Medicine medical records 4) Correspondence from employer's counsel dated 5/18/2015 5) Correspondence to Dr. Corey Solman dated 6/30/2015 6) MRI photos - Medial Meniscus Tear - Right Knee 7) Orthopedic Sports Medicine billing records 8) Orthopedic Ambulatory Surgery Center of Chesterfield 9) Orthopedic Ambulatory Surgery Center of Chesterfield 10) Athletico Physical Therapy/PRORehab billing records and medical records 11) Greater Missouri Imaging billing records 12) Greater Missouri Imaging medical records

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-018704

12) K & S medical bill for compression wrap and pump

2) Independent Medical Evaluation of Dr. John A. Petrovich dated 9/19/2017

3) Medical bills Summary

4) Concentra - Certification of medical/billing records showing nothing paid

5) Correspondence from Buccaneer Property Managers to Claimant on 11/06/2015 advising of termination of employment

6) Employee Incident Statement

7) Concentra referral for MRI dated 03/02/2015

8) Correspondence to employer of 3/26/2015 demanding authorized MRI and TTD

9) Correspondence to employer of 04/01/2015 demanding MRI

10) Claimant's Demand for Orthopedic Consult and Care of 4/30/2015 enclosing MRI results of a torn meniscus

11) Non-Coverage Letter of 05/05/2015 indicated the employer was not covered on date of injury

12) Correspondence from employer's counsel of 5/18/2015 authorizing Claimant to seek orthopedic care, both in writing and voice message

13) Correspondence to employer's counsel of 6/10/2015 - Demand for TTD and surgery

14) Correspondence to employer's counsel of 6/29/2015 - Demand for TTD and payment for surgery

15) Operative Report - 7/14/2015 - Right knee

16) Correspondence to employer's counsel of 8/4/2015 - Demand timely payment of TTD and payment for surgery

17) Correspondence to employer's counsel of 8/17/2015 - Demand authorization of physical therapy at PRORehab

18) Correspondence to employer's counsel of 11/03/2015 - Demand for second surgery and for timely TTD payments

19) Correspondence to employer's counsel of 4/13/17 - Demand for additional care

20) Correspondence to employer's counsel of 6/14/2017

21) Request for Production of Documents

Employer introduced, and had admitted into evidence, the following Exhibits:

A) 5/18/2015 letter to Mark Cantor

B) 6/23/2015 letter to Mark Cantor

C) 7/01/2015 letter to Mark Cantor

D) 7/09/2015 letter to Mark Cantor

E) 7/22/2015 letter to Mark Cantor

F) 7/31/2015 letter to Mark Cantor

G) 8/11/2015 letter to Mark Cantor

H) 8/21/2015 letter to Mark Cantor

I) 11/11/2015 letter to Mark Cantor

J) 2/03/2017 letter to Mark Cantor

K) 4/13/2017 letter to Mark Cantor

L) Dr. Karre IME (4/25/2017), letter (5/09/2017)

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injury No.: 15-018704

M) 5/19/2017 letter to Mark Cantor

N) 7/20/2017 Dr. Rabenold IME and 8/17/2017 rating

O) 9/19/2017 Dr. Petrovich IME and rating

P) Administrative hearing file

ISSUES

1) Employer's liability of past medical expenses of: $35,681.23.

2) Employer's liability for temporary total disability.

3) Employer's liability for future medical treatment.

4) Employer's liability for permanent partial disability.

5) Employer's liability for failure to maintain Workers' Compensation Insurance.

FINDINGS OF FACT

At the time of the hearing, employee was 64 years old. He began working for the employer on 7/25/2011, doing building maintenance. Prior to that he did HVAC work for Ronnoco products for 16 years. His job duties were to maintain the apartments, which included heating, cooling and plumbing work.

Joni O'Dowd, employer's agent, testified that during the month of February, employer was terminating its relationship with ADP. ADP terminated the employer's workers' compensation insurance effective 2/9/2015. Employer maintained workers' compensation coverage, uninterrupted, since 1999. Employer believed that their coverage would continue until 2/28/2015. Therefore, employer ensured that the new policy would be in effect 3/1/2015 resulting in no lapse in coverage. Employer has provided a copy of said policy to this Court.

On 2/10/2015, while working maintenance for employer, employee was carrying a bucket of salt and slipped on a patch of ice. He states that he fell and hit his right knee with the bucket and twisted his knee. He had immediate pain in the right knee. Employee informed the supervisor of maintenance, Russ White, and the property manager, Anquay Barrett, of his injury. Mr. Barrett completed an injury report and, with employee's consent, "put it on hold" to see if the injury would resolve on its own.

Employee was seen by Dr. Zehid at Concentra Medical Center on 3/2/2015. He diagnosed a right knee strain and ordered modified work activity with no climbing stairs or ladders, no kneeling or squatting. He also referred employee for an MRI of the right knee. Employee was assigned to pool duty as a result of the restrictions imposed by Dr. Zehid.

Employee provided evidence of nonpayment of the Concentra bills. (Exhibit 4) However, this exhibit shows the employer as ADP. As ADP had previously dropped the insurance coverage, this Court would not expect them to pay these bills. In fact, the exhibit shows that the wrong client was billed. The exhibit further shows that the bills from the initial consult were rebilled on 3/7/2015, 4/7/2015 and 6/1/2015 presumably to the correct client.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-018704

On 5/18/2015, Buccaneer Property Managers, authorized employee to seek an orthopedic consult with respect to his right knee with a doctor of his choice. On 6/10/2015, employee saw Dr. Corey Solman for evaluation of his right knee pain. Dr. Solman noted that an MRI had been obtained which showed a right medial meniscus tear. In Dr. Solman's examination, he noted mild tenderness to palpation over the medial aspect of the right knee. He noted pain with forced flexion, and pain with McMurray's exam referable to the medial joint line. He also noted tenderness to palpation over the medial and the posterior joint line. He noted that the MRI of the right knee revealed a clear tear of the posterior and the mid horn of the medial meniscus and there did not seem to be any significant articular cartilage damage, although there was increased signal in the mid two posterior horns of the lateral meniscus but no evidence of an overt tear. Dr. Solman noted that his injury mechanism was consistent with the causation for a medial meniscus tear and that he's had no prior injury to the right knee and no arthritis. Dr. Solman recommended a right knee arthroscopy.

On 6/23/2015, Ms. Theresa Phelps (attorney for employer) notified Mr. Mark Cantor (attorney for employee) (Exhibit B) that employee's demand dated 6/10/2015, for authorization to undergo surgery, as set forth in the June 10, 2015 report from Dr. Corey Solman (Exhibit 13), Buccaneer (employer) authorizes employee to have the required surgery performed by one of the two orthopedic surgeons associated with Concentra.

On 7/1/2015, Ms. Phelps, in a letter to Mr. Cantor (Exhibit C), reiterated that employer did not authorize any treatment other than the initial consult with Dr. Solman. "Furthermore, the fact that Buccaneer authorized the initial consult does not mean that Buccaneer authorized Mr. Sebelious to receive treatment, including surgery, from the consulting physician (Dr. Solman)," she wrote. She re-iterated, that "Dr. Solman is not the treating provider and certainly has not been authorized beyond the initial consult." She stated further, "in the event employee had Dr. Solman perform the surgery, he will do so at his own cost, and employee will be solely responsible for the cost of that surgery, and for any resulting treatment."

On 7/9/2015, Mr. David Bender, in a letter to Mr. Cantor (Exhibit D), re-iterated again, that should employee proceed with obtaining treatment, including surgery from Dr. Solman, he will be doing so without the Employer's approval or authorization and in direct contravention to the employer's instructions. He stated, "Any treatment obtained by employee outside of Concentra's network is not authorized by Employer, constitutes the employee selecting his own treatment provider, and pursuant to applicable Missouri statutes, Employer shall have no liability to pay the cost or expenses of any such treatment."

On 7/14/2015, Dr. Solman performed an unauthorized right knee arthroscopy with partial medial meniscectomy on employee. There were no complications from the procedure. Dr. Solman prescribed post-operative physical therapy with PRORehab.

Employer notified claimant, by letter dated 7/31/15 (Exhibit F), that physical therapy was not authorized. Employer notified claimant by letter dated 8/11/2015 (Exhibit G), that physical therapy is authorized within the Concentra Network. By letter dated 8/21/2015 (Exhibit H), claimant was notified that PRORehab was not in the Concentra Network. On 11/11/2015 (Exhibit I), employer notified claimant that treatment by Dr. Solman and PRORehab was not authorized.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-018704

Employee testified that the right knee surgery, performed by Dr. Solmon, provided him with substantial relief. He still has some weakness and pain in the right knee. He takes Aleve and aspirin daily, depending on activity.

Employee saw Dr. Solman on 10/28/2015 because he was still having problems with his right knee. Dr. Solman, after examining employee, would only recommend "a diagnostic arthroscopy to determine if his meniscus had some more damage and/or a new tear or if he had some damage to the articular cartilage."

On 2/3/2017, employer authorized additional care for employee only within the Concentra Network. On 4/26/2017, employee was examined by Dr. Karre with the Concentra Network. Dr. Karre's conclusion was:

"Patient's symptoms consistent with complications from initial injury. Patient likely to have life-long symptoms due to complications and should have disability rating. Patient unlikely to benefit from further surgery or therapy at this time."

On 7/20/2017, employee was examined by Dr. Jason Rabenold. Dr. Rabenold reviewed an MRI of the right knee postoperatively dated 10/05/2015 which demonstrated normal postoperative changes. He did not visualize evidence of a meniscal re-tear. X-rays from 6/10/2015 did not demonstrate fracture, dislocation or arthritis of the right knee. He concluded:

"At this time, in my opinion within a reasonable degree of medical certainty, Mr. Sebellius has reached maximum medical improvement with respect to his right knee work injury sustained on 2/10/2015." "The postoperative MRI does not demonstrate evidence of pathology that would require further surgical intervention. I do not believe that further surgical intervention would be a benefit to the patient with respect to his injury sustained on 2/10/2015." "The patient may continue to benefit from use of over-the-counter anti-inflammatories for his ongoing symptoms."

After examination on 9/19/2017, Dr. John Petrovich concluded, "Given his ongoing right knee pain, at some point in the future he may very well require a repeat MRI and possible arthroscopy."

On 10/28/2015, Dr. Solmon gave the employee a Work Status Report that released the employee to work "seated duties." The doctor sent a copy of this report to the employee's attorney. The employee chose not to read the report. The employee did not have a good reason for not reading the report. The employee delivered the Work Status Report to the employer.

On 11/6/2015, after employee had not been at work for over a week since his release to "seated duties," employer sent employee a letter stating that it presumed that the employee quit his position, according to the employer's attendance policy. (Exhibit 5)

At a hearing, the Appeals Tribunal of the Division of Employment Security ruled that the employer met its burden of proof. The employee knew, or should have known, that the

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Injury No.: 15-018704

10/28/2015 Work Status Report released him to return to work. The employee also knew, or should have known, that the employer had work suitable for the employee. However, the employee did not return to work. He, therefore, knowingly disregarded the employer's interests and the standards of behavior which the employer expected of him. Therefore, the employer discharged the employee on 11/6/2015, for misconduct connected with work. (Exhibit P)

Opinion Evidence

Dr. Corey Solman

Claimant offered the deposition of Dr. Corey Solman (Exhibit 1). Dr. Solman is a board certified orthopedic surgeon. He first saw the employee on 6/10/2015. Employee had an MRI taken of his right knee. It showed that he had a medial meniscus tear. Dr. Solman stated that within a reasonable degree of medical certainty that the 2/10/2015 injury caused the meniscus tear. He recommended that employee undergo an arthroscopy of the right knee with partial resection of the medial meniscus and debridement. Dr. Solman issued work restrictions of "seated duties only and stay off of stairs and ladders." In preparation for surgery, on 6/26/2015, Dr. Solman took him off work completely. On 7/14/2015, Dr. Solman performed the surgery. He looked inside the knee with a camera and trimmed the torn medial meniscus tissue. Employee also had what, Dr. Solman felt, was some mild thinning of the cartilage around the area of the meniscus on the medial femoral condyle. Otherwise, the remainder of the knee appeared to have no damage, except for he had some mild fissuring in the cartilage on the center part of the kneecap. Additionally, Dr. Solman noted some age-related thinning of the cartilage medially or close to where the meniscus was.

On 7/22/2015, Dr. Solman saw employee for a follow-up after surgery. At this appointment, he referred employee to PRORehab for physical therapy. At another follow-up appointment on 8/14/2015, Dr. Solman took employee off work. At a 9/4/2015 appointment, Dr. Solman noted that employee was still doing physical therapy and has not returned to work. Dr. Solman said employee could alternate sitting and standing and no jumping activities, but seated work was okay. On 9/9/2015, employee was still having problems, so Dr. Solman took him off work, again. On 9/15/2015, employee was still having problems, so Dr. Solman injected some steroid and some numbing medication into the knee. Again, he took him off work. On 10/7/2015, Dr. Solman examined employee's knee and reviewed another MRI post-surgery. He explained that this second MRI did not show any of the more detrimental things that can happen to someone's knee menisectomy. Dr. Solman recommended an unloader brace. At a 10/28/2015 examination, Dr. Solman wrote that employee had no improvement after worsening of his knee. He recommended that employee undergo a diagnostic arthroscopy to determine if his meniscus had some more damage and/or a new tear or if he had some damage to the articular cartilage and he restricted employee's work activity to seated duties only. Dr. Solman stated that employee was not at maximum medical improvement and required another surgery.

Also, Dr. Solman stated that his total bill for treatment to employee was 11,290.69, the Orthopedic Ambulatory Surgery Center billed 8,598.00, PRORehab billed 14,620.03, Greater Missouri Imaging billed 227.39 and K & S billed 945.12 for a total of 35,681.23. Throughout his deposition, Dr. Solman stated that these bills were reasonable and necessary. Finally, Dr. Solman rated employee at 30% permanent partial disability at the level of the right knee.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-018704

Upon cross-examination, Dr. Solman testified that employee's health insurance paid the 11,020.00 balance down to 9,690.00. Dr. Solman stated that it is a standard in his industry to have specific contracts with specific insurance companies.

John A. Petrovich, M.D., F.A.C.S.

Claimant and Employer each introduced the Independent Medical Evaluation (IME) of John A. Petrovich, M.D., F.A.C.S. (Exhibit 2 and Exhibit O). He examined employee on 9/19/2017. Dr. Petrovich noted that employee continues to experience a constant dull aching sensation on the medial aspect of his right knee. The pain is increased with squatting, bending, walking up hills, and walking up and down stairs and ladders. His right knee pain often awakens him at night. He notes clicking and popping in the right knee with walking and some increased swelling with activity.

Dr. Petrovich concluded that Dr. Solman recommended a right knee arthroscopy and medial menisectomy which was performed on 7/14/2015. Employee continued to see Dr. Solman and was eventually released at MMI in February of 2017. He assigned a permanent partial disability rating of 32.5% of the right lower extremity at the level of the right knee.

Dr. Petrovich had the following treatment recommendations:

1. The use of non-steroidal anti-inflammatory medications for control of his right knee pain.
2. He should avoid squatting, kneeling, walking on uneven terrain, walking up stairs and carrying anything over 25 lbs.
3. He should engage in a program to maintain gentle active and passive range of motion.
4. Given his ongoing right knee pain, at some point in the future, he may very well require a repeat MRI and possible arthroscopy.

Jason Rabenold, M.D.

Employer introduced the IME of Jason Rabenold, M.D. (Exhibit N). Dr. Rabenold examined employee on 7/20/2017. He noted that employee has full active and passive range of motion of the right knee compared to the left. There is no effusion and no swelling in the right knee. There is no warmth or erythema. The knee has good ligamentous stability on varus, valgus stress testing and ACL and PCL testing. There is tenderness on palpation over the medial aspect of the patellar gutter and at the medial joint line. He has mild pain with McMurray testing medially and with patellar grind testing. There are no neurologic deficits.

At this time, Dr. Rabenold believes that employee has reached maximum medical improvement with respect to his right knee work injury sustained on 2/10/2015. It is his opinion that he has received the appropriate treatment for his injury. The postoperative MRI does not demonstrate evidence of pathology that would require further surgical intervention. He does not believe that further surgical intervention would be a benefit to the patient with respect to his injury sustained on 2/10/2015. It is his opinion that the patient may continue activity without restriction.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-018704

On 8/17/2017, Dr. Rabenold assigned a permanent partial disability with respect to the right knee of 5%. He does not attribute any of this rating to preexisting conditions. Employee does not have any permanent restrictions. He does not anticipate the need for future medical treatment including diagnostic testing, intervention, or prescription medication for this work injury.

Section 287.140 provides, in part:

1. 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. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense.

1. The employer shall have the right to select the licensed treating physician, surgeon, chiropractic physician, or other health care provider; provided, however, that such physicians, surgeons or other health care providers shall offer only those services authorized within the scope of their licenses.

1. (4) If a hospital, physician or other health care provider or a debt collector on behalf of such hospital, physician or other health care provider pursues any action to collect from an employee after such notice is properly given, the employee shall have a cause of action against the hospital, physician or other health care provider for actual damages sustained plus up to one thousand dollars in additional damages, costs and reasonable attorney's fees.

1. (5) If an employer or insurer fails to make payment for authorized services provided to the employee by a hospital, physician or healthcare provider pursuant to this chapter, the hospital, physician or other health care provider may proceed pursuant to subsection 4 of this section with a dispute against employer or insurer for any fees or other charges for services provided.

It is undisputed that employee suffered a work injury on 2/10/15 that resulted in a medical meniscus tear to his right knee. Employee gave notice to employer and delayed getting treatment to see if the injury would resolve on its own. On redirect, Ms. Joni O'Dowd testified that during the termination of a contract with ADP, the employer's workers' compensation policy was terminated early. Employer, in fact, had no workers' compensation insurance on the day of the work accident.

Employer's liability for claimed medical expenses of: $35,681.23

Employer directed employee to get evaluated at Concentra, which employee did on 3/2/2015. He was diagnosed with a strain to the right knee and an MRI was recommended. A

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review of the MRI revealed a medial meniscus tear. Employee was authorized to have Concentra perform the surgery to correct the tear. Concentra refused to schedule the surgery because there were outstanding bills from the initial evaluation. Employee scheduled the surgery with Dr. Solman.

Section 287.140.1 provides that the employer shall provide medical care. 287.140.13. (5) provides that the health care provider shall have a course of action against employer for nonpayment. However, it does not provide that the employee may unilaterally control which healthcare provider should provide the treatment in the case of nonpayment or no insurance. That responsibility rests with the employer. *Blackwell v. Puritan-Bennett Corp.* 901 S.W.2d 81 (1995), *Hendricks v. Motor Freight Corp.* 570 S.W.2d 702 (1978).

Employer repeatedly instructed employee and employee's attorney to have the surgery performed by orthopedic surgeons at Concentra. Employee testified that he called Concentra at least three times to schedule the surgery. He testified that Concentra would not schedule the surgery because of the outstanding bill for the initial consult.

I find employee's testimony unpersuasive. Despite repeated letters that employer would provide care through Concentra. Employer repeatedly warned that, should employee elect to have Dr. Solman perform the surgery, the employee would be responsible for payment. Employee's attorney ignored four directives from employer to have the surgery performed at Concentra. Employee elected to have Dr. Solman perform the surgery. The responsibility for payment for the surgery lies with employee. The claim for past medical expenses is denied.

Employer's liability for temporary total disability

Employee testified, on cross-examination, that he received payments directly from employer equal to the amount that he would have received for temporary total disability. He stated that the payment amount was sometimes "wonky" and it was attributed to his payroll deductions. These payments continued from the date of his surgery until the date that he was terminated. Therefore, I find no additional temporary total disability payments are due employee.

Employer's liability for future medical treatment

By letter, on 1/18/2017, Mr. Cantor demanded additional care for employee and employer authorized such care on 2/3/2017, within the Concentra Network. After reviewing Dr. Karre's report dated 4/26/2017, stating that a second surgery would not be beneficial, employer offered permanent partial disability benefits.

After reviewing the evidence, I find that employee has failed to meet his burden of proof to order future medical care. None of the expert witnesses could definitively state that a second operation was necessary. The claim for future medical care is denied.

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Employer's liability for permanent partial disability

On 9/19/2017, Dr. Petrovich provided permanent partial disability of 32.5% of the right lower extremity at the level of the right knee.

On 8/17/2017, Dr. Rabenold provided permanent partial disability with respect to the right knee at 5%.

At his 5/22/2018 deposition, Dr. Solman provided a permanent partial disability rating of 30% of the right lower extremity at the level of the right knee.

Post-surgery, employee and Dr. Solman, stated that his recovery was proceeding very well. It was not until a month after surgery that employee started to voice complaints about his right knee. After reviewing the post-surgery MRI, Dr. Solman noted that he could really see no clinical reason for the lingering complaints so the only treatment that he could recommend was a diagnostic surgery. Each of the experts could not find a definitive reason for employee's complaints. It is reasonable, and so I find, employer is liable and that employee suffered a 27.5% permanent partial disability of the right lower extremity at the level of the right knee.

Insurance

Claimant failed to enunciate a competent insurance issue over which this Court has jurisdiction. No section in chapter 287 permits an award of sanctions for failing to maintain workers' compensation insurance. Claimant's evidence suggests relief under Sections 287.128 (7 & 8) RSMO (2000), criminal misdemeanors, over which this court lacks jurisdiction.

Nevertheless, judicial economy compels the discernment of any insurance issue within its jurisdiction, i.e. coverage. Section 287.280 RSMO (2000) provides that every employer, subject to the Act, "must insure his (sic) entire liability" under the Act.

At trial claimant presented:

A) Exhibit 3 Medical bills summary: $35,681.23 outstanding.

B) Exhibit 4 Concentra - Certification of medical billing records.

C) Exhibit 11 Non-coverage letter of 5/5/15 - indicating employer was not covered on date of injury.

Employer admitted:

1) Exhibit E Letter from Employer's attorney to claimant stating, "the sole reason Buccaneer did not have coverage at the time of Mr. Sebilius's alleged injury is due to a technical oversight by ADP, the benefits provider, which caused coverage to lapse the day before Mr. Sebilius's injury."

Also, during cross-examination Joni O'Dowd, testified that employer was uninsured on the date of the accident.

WC-32-R1 (6-81)

Page 12

Issued by DIVISION OF WORKERS' COMPENSATION

June 15, 2000

Therefore, employer is found to be uninsured under Section 287.280 RSMO (2000).

Employer is liable for 44 weeks of permanent partial disability. Employee's claim for claimed medical expenses is denied. Employee's claim for additional temporary total disability payments is denied. Employee's claim for future medical benefits is denied. Employee's claim for sanctions for failure to maintain workers' compensation insurance is denied.

I certify that on **1-8-19** 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 the executed award in the Division's case file.

By **_******_******_***______


**1/4/19**