Keith Persley v. The Parking Spot

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 14-079573

**Employee:** Keith Persley

**Employer:** The Parking Spot

**Insurer:** Chubb Indemnity Insurance

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 record¹, we find that the 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 award and decision of the administrative law judge with this supplemental opinion.

The administrative law judge's award precisely sets forth "findings" of fact beginning at page 4. The administrative law judge's rulings of law regarding the legal issues presented, is set forth beginning on page 11 of the award. (§ 287.460.1 RSMo). We adopt the administrative law judge's findings and rulings as our findings of fact and conclusions of law, as supplemented herein.

We agree with the finding of the administrative law judge that Dr. C. Craig Satterlee is credible and most persuasive in his opinion that the work accident was the prevailing factor in causing the work injury, an acute subscapularis tear, and the resulting disability. All doctors agreed that the reverse shoulder replacement surgery was the most appropriate course under the circumstances. We find that the reverse shoulder replacement surgery was reasonably required after the work injury and resulting disability to cure and relieve the effects of the work injury.²

The record adequately supports the reimbursement of medical expenses as reasonable and customary, as ordered by the administrative law judge. Her ruling was based on her consideration of the certified bills and records which were admitted without objection; the credible testimony of employee linking the bills to treatment; and as supported by the record as a whole. Because the record did not establish that employee's obligations for the medical bills identified by the administrative law judge

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¹ In reviewing the record of hearing, we note there are extraneous handwritten marks on some of the exhibits, in particular, on deposition transcripts. The origin of the marks is unclear. They were not made by anyone at the Commission review level.

² Claimant's work accident resulted in a compensable injury and disability. Therefore, by definition, it was established that the accident was the prevailing factor in causing the medical condition and disability. (§ 287.020.3 RSMo). In *Tillotson v. St. Joseph Med. Center*, 347 S.W. 3d 511, 519, (Mo. App. W.D.2011), the employee had preexisting arthritis in her knee and then a work injury causing a tear of her meniscus. Lesser medical treatment was ruled out in the circumstances. In reviewing whether the medical treatment was reasonably required to cure and relieve the effects of the work injury, the Court found that further analysis of a "prevailing factor" was immaterial. The fact that the treatment may also benefit a preexisting condition is irrelevant.

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Injury No.: 14-079573

and been extinguished, she properly ruled them as reimbursable. *Farmer-Cummings v. Pers. Pool of Platte County*, 110 S.W. 3d 818, 823 (Mo. 2013). Employee met his burden of proof to show the claimed medical bills related to and were the product of the injury. Employer makes no showing that the bills are not reasonable. *Martin v. Mid-America Farm Lines, Inc.*, 769 S.W. 2d 105, 111-12 (Mo. 1989).

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Emily S. Fowler, issued July 6, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental 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 25th day of July 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Keith Persley

Injury No. 14-079573

Dependents: N/A

Employer: The Parking Spot

Insurer: Chubb Indemnity Insurance

Additional Party: N/A

Hearing Date: May 18, 2018

Checked by: ESF/1h

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: September 4, 2014
5. State location where accident occurred or occupational disease was contracted: Kansas City, Platte 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 occurred or occupational disease contracted: While in the course and scope of his employment, Employee slipped and fell causing the injury to his left upper extremity at the shoulder.
12. Did accident or occupational disease cause death? No

Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

1. Part(s) of body injured by accident or occupational disease: Left upper extremity at the shoulder.

1. Nature and extent of any permanent disability: 35% permanent partial disability to the left upper extremity at the shoulder.

1. Compensation paid to date for temporary total disability: $0.00

1. Value necessary medical aid paid to date by employer/insurer? $1,115.29

1. Value necessary medical aid not furnished by employer/insurer? 75,125.85

1. Employee's average weekly wages: 336.21

1. Weekly compensation rate: $224.14/$224.14

1. Method wages computation: by stipulation

Compensation payable

1. Amount of compensation payable: Employer owes to Employee 35% permanent partial disability to the left upper extremity, which equates to 81.2 weeks at 224.14 per week for a total of 18,200.17. Employer shall also pay to Employee the sum of $2,881.81 as and for temporary total disability compensation.

Employer also owes to Employee the sum of $75,125.85 as and for unpaid medical bills

1. Second Injury Fund liability: NA

1. Future requirements awarded: Employer to provide all medical treatment, which shall cure or relieve the injuries from which Employee suffers to his left upper extremity at the shoulder.

The Court awards attorney fees in the sum of 25% of all benefits herein to Mr. John Christiansen, attorney for Employee.

WC-32-R1 (6-81)

Page 2

Employee: Keith Persley

Injury No. 14-079573

Dependents: N/A

Employer: The Parking Spot

Insurer: Chubb Indemnity Insurance

Additional Party: N/A

Hearing Date: May 18, 2018

Checked by: ESF/1h

On May 18, 2018, the parties appeared for final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Keith Persley, appeared in person and was represented by his attorney Mr. John Christiansen. The Employer/Insurer appeared through counsel, Mr. Jeffrey Bloskey.

The parties stipulated to the following:

1. That the employer, The Parking Spot, was an employer operating subject to the provisions of the Missouri Workers' Compensation law on September 4, 2014, and was fully insured by Chubb Indemnity Insurance;
2. That Keith Persley was its Employee and he was working subject to the law in, Kansas City, Platte County, Missouri;
3. That Employee sustained an accident arising out of and in the course of his employment;
4. That Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law;
5. That Employee's average weekly wage was $\ 336.21 making a temporary total and permanent partial disability rate of $\ 224.14;
6. That the Employer has paid $\ 0.00 in temporary total disability benefits and has paid $\ 1,115.29 for medical care.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

ISSUES

The issues to be resolved by this hearing are as follows:

1. Whether the Employee sustained an injury by accident arising out of and in the course of employment;
2. Whether the accident is the prevailing factor in causing Employee's injury of September 4, 2014;
3. Whether the Employee is entitled to temporary total disability benefits from May 6, 2015 through August 3, 2015 representing 12 6/7 weeks for temporary total disability benefits totaling $2,881.81;
4. Whether the employer must reimburse the Employee for medical expenses totaling $75,125.85;
5. Whether the employer must provide Employee with additional medical care;
6. Whether Employee suffered any disability and, if so, the nature and extent of the Employee's disability.

FINDINGS

The Employee, Keith Persley, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

Exhibit A - Dr. Stuckmeyer Independent Medical Evaluation

Exhibit B - Dr. Satterlee Independent Medical Evaluation

Exhibit C - Dr. Stuckmeyer deposition and attached exhibits

Exhibit D - Drisko Fee & Parkins medical records

Exhibit E - Providence Medical Center records

Exhibit F - Encompass medical records

Exhibit G - Urgency Room records

Exhibit H - Diagnostic Imaging Center MRI

Exhibit I - North Kansas City Hospital records

Exhibit J - Drisko Fee & Parkins bills

Exhibit K - NKC bills

Exhibit L - Encompass bills

Exhibit M - Providence Medical Center bills

Exhibit N - Dr. Satterlee deposition and attached exhibits

The Employer did not call any witnesses but offered the following exhibits, all of which were admitted into evidence without objection:

Exhibit 1 - Wage records

Exhibit 2 - Report of Dr. Clymer (60 Day Notice), 6/20/2016

Exhibit 3 - North Kansas City Physical Therapy records

Exhibit 4 - 4/11/2017 deposition of Claimant

Exhibit 5 - 4/12/2018 deposition of Dr. Lingenfelter

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Keith Persley

Injury No: 14-079573

Based on the above exhibits and the testimony of Employee, I make the following findings:

Keith Persley (hereinafter referred to as Employee) is a 69-year-old man who began working for the employer, The Parking Spot, in 2013. His job duties included driving a bus around the airport, picking up passengers and dropping them off. This also required that he lift and carry luggage of the customers, placing it on the bus and then taking it out and placing it in their vehicles. He was also required to take between 35 and 40 cases of water in the bus to the main office. He would have to load these cases up into the bus, then unload them, and stack them at the employer's office. Each package of water weighed between 8-9 pounds. He would stack them in the bus and when he delivered them to the office, he would have to carry and restack them there. He noted that the most he had to lift and carry was generally around 70 pounds. Occasionally he would lift hard cases that weighed more than 100 pounds. Generally, he would be lifting in excess of 50 pounds on a repetitive basis throughout the day. Some of the customers would have only 1 or 2 bags but others would have as many as 8 to 9 bags. As well as loading them onto the bus, at times he was also required to lift these bags and put them in