Gabrielle Graham v. Rosewood Health and Rehabilitation Center, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 14-073249

**Employee:** Gabrielle Graham

**Employer:** Rosewood Health and Rehabilitation Center, LLC

**Insurer:** Health Care Facilities of Missouri

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 resolve the following issues: (1) employee's average weekly wage and appropriate wage rate for permanent partial disability benefits; (2) employer/insurer's liability for past medical expenses totaling $13,962.60; (3) employer/insurer's liability for future medical; and (4) nature and extent of disability.

The administrative law judge rendered the following determinations: (1) employee sustained 10% permanent partial disability of the body as a whole; (2) employee's average weekly wage was 324.90, resulting in a compensation rate of 216.60; (3) employer/insurer is not liable for past medical expenses or future medical care.

The employee filed a timely Application for Review with the Commission alleging the administrative law judge erred:

- By construing § 287.250.3 RSMo as limiting employee's weekly wage to thirty hours in that the statute does not restrict calculation of a part-time employee's weekly wage to thirty hours per week.

- By finding that medical expenses incurred for treatment employee received on her own were unreasonable and unfair and in denying future medical treatment based a finding that employee's expert Dr. James Stuckmeyer was less credible than employer/insurer's medical expert because he made no distinction between treatments related to the work injury and treatments not related, in that the evidence demonstrates that Dr. Stuckmeyer did make such a distinction.

For the reasons explained below, we modify the award of the administrative law judge on the issue of employee's average weekly wage and resulting rate of compensation for permanent partial disability benefits.

Injury No.: 14-073249

Employee: Gabrielle Graham

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Section 287.250 RSMo provides the framework for calculating an employee's average weekly wage, and provides, in relevant part, as follows:

1. Except as otherwise provided for in this chapter, the method of computing an injured employee's average weekly earnings which will serve as the basis for compensation provided for in this chapter shall be as follows:

(4) If the wages were fixed by the day, hour, or by the output of the employee, the average weekly wage shall be computed by dividing by thirteen the wages earned while actually employed by the employer in each of the last thirteen calendar weeks immediately preceding the week in which the employee was injured or if actually employed by the employer for less than thirteen weeks, by the number of calendar weeks, or any portion of a week, during which the employee was actually employed by the employer. For purposes of computing the average weekly wage pursuant to this subdivision, absence of five regular or scheduled work days, even if not in the same calendar week, shall be considered as absence for a calendar week.

1. If an employee is hired by the employer for less than the number of hours per week needed to be classified as a full-time or regular employee, benefits computed for purposes of this chapter for permanent partial disability, permanent total disability and death benefits shall be based upon the average weekly wage of a full-time or regular employee engaged by the employer to perform work of the same or similar nature and at the number of hours per week required by the employer to classify the employee as a full-time or regular employee, but such computation shall not be based on less than thirty hours per week.

Citing § 287.250.1(4) as the controlling statutory provision for determining employee's average weekly wage, the administrative law judge calculated employee's average hourly rate based on employer/insurer's wage statement showing employee's pay for the thirteen full pay periods prior to her July 15, 2014, injury. The administrative law judge excluded the pay period ending June 21, 2014, from her calculation because that period represented a time when employee was absent from work a significant amount of time. No party disputes the administrative law judge's calculation of employee's average hourly wage rate as $10.83.

The administrative law judge then found "Consistent with Claimant's testimony and all other evidence in this claim Claimant never worked 80 hours over a two-week term and

Injury No.: 14-073249

Employee: Gabrielle Graham

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was clearly a part-time employee."1 Based on this finding the administrative law judge applied § 287.250.3 to calculate employee's average weekly wage. Noting that § 287.250.3 requires the use of at least thirty hours per week when determining the average weekly wage of a part-time employee, the administrative law judge concluded, "As the Court determined the Claimant's hourly rate to be 10.83, using the 30 hour rule, Claimant's average weekly wage is 324.90 resulting in a compensation rate of $216.60 for purposes of determining permanent partial disability."2

Employee testified that employer hired her as a part-time Certified Nursing Assistant (CNA) and that she worked between twenty and forty hours per week. She further testified that full-time CNAs worked forty hours per week. Employee's hearing testimony regarding the number of hours worked per week by full-time CNAs was uncontroverted.

We agree § 287.250.3 governs employee's average weekly wage, because employee was a part-time worker. However, we find no case law that supports the administrative law judge's apparent assumption that calculation of a part-time employee's average weekly wage under this provision, colloquially known as the "thirty-hour rule," must be limited to thirty hours. Such an interpretation is inconsistent with the plain language of the statute, which clearly states, "[S]uch computation shall not be based on less than thirty hours per week [emphasis added]."

In *Martin v. Mid-America Farm Lines, Inc.*, 769 S.W.2d 105 (Mo. Banc, 1989), in construing an earlier and substantially differently worded version of § 287.250, the court stated:

> The court of appeals held that the claimant's compensation should be computed on a reduced basis because she was a part-time employee. Our cases consistently hold that there is no distinction between full-time and part-time employees and that all injured employees are to be compensated on the basis of annualized earnings, in accordance with one of the subdivisions of § 287.250.

The court of appeals observed that, under the commission's award, this claimant stands to receive substantially more in compensation than she would have received in earnings had she not been injured. This concern is misplaced. The workers' compensation laws provide a substitute for the common law action which an employee might otherwise maintain against an employer. Workers' compensation is designed to provide compensation for loss of earning capacity, which is a proper element of common law damages and is allowable without regard to the time worked in the past, prospects for future employment, or plans for working in the future. If part time employees were relegated to reduced compensation they would not be made whole for their loss. *Id.* at 109.

1 Award, p. 8.

2 *Id.*

TI16780181

Injury No.: 14-073249

Employee: Gabrielle Graham

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Consistent with the public policy expressed in *Martin, supra*, encouraging equitable compensation rates for part and full-time employees, and the absence of any authority that expressly restricts calculation of a part-time employee's weekly wage to thirty hours per week, we find that a fair and just computation of employee's average weekly wage in this case should be based on the forty-hour work week of a full-time CNA.

Based on an average weekly wage of $433.20, pursuant to § 287.190.5(5), employee's compensation rate is $288.80 for purposes of determining permanent partial disability. Based on 10% of the body as a whole, employee is entitled to forty weeks of compensation. We modify the administrative law judge's award to allow employee 11,552.00 (288.80 X 40) for permanent partial disability benefits.

The administrative law judge's findings relating to the issue of past medical state, in part:

> If the employee provides notice to the employer of his or her need for medical treatment and obtains medical treatment on his or her own and later demands reimbursement, the burden shifts to the employer to establish that the medical treatment was unreasonable or unfair. The burden is upon Employer to establish that the unauthorized medical treatment Claimant sought was not reasonably related to cure and relive [sic] the effect of her work injury.³

We supplement the above findings in the administrative law judge's award to clarify that, even if an employer refuses to provide treatment to cure and relieve the effects of an employee's work injury, as required by § 287.140, employee must still establish a right to reimbursement for claimed medical expenses by producing (1) the medical bills, (2) the medical records reflecting treatment giving rise to the bill, and (3) testimony establishing that the treatment flowed from the compensable injury.⁴

Employer/insurer's expert, occupational physician Dr. Chris Fevurly concurred with the opinion of employer's authorized treating physician Dr. Atul Patel that as of April 16, 2015, employee was able to return to work without restrictions and had reached maximum medical improvement. Dr. Fevurly testified that employer's authorized medical treatment from the date of employee's July 15, 2014, injury until April 16, 2015, was much longer than the six to eight week time period normally required for a person to recover from an injury similar to employee's, or even shorter for someone of employee's age (employee was twenty-eight years old as of the March 28, 2019, hearing).

The administrative law judge discredited employee's medical expert, orthopedic surgeon, Dr. James Stuckmeyer, on the issue of reasonableness of medical treatment employee sought on her own after Dr. Patel's April 16, 2015, release. The administrative law judge found "Dr. Stuckmeyer's testimony related to the unauthorized

3 Award, p. 9.

4 *Martin v. Mid-Am. Farm Lines, Inc.*, 769 S.W.2d 105, 111-12 (Mo. banc 1989).

MNKOI 0000816257

Injury No.: 14-073249

Employee: Gabrielle Graham

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medical treatment [was] less credible [than employer's expert] because he makes no distinction between treatments related to the work injury and those unrelated medical treatments and billings. Her award implies that Dr. Stuckmeyer's deposition testimony regarding employee's past medical bills was inconsistent with his September 6, 2017, independent medical examination report which stated that "all of the medical treatment and medical billings related to the patient's ongoing symptoms and pain and dysfunction in the cervical spine, thoracic spine, and lumbar spine were reasonable, usual and customary, and the prevailing factor for the medical billings would be the work place injury occurring on July 15, 2014 (emphasis added)."

Dr. Stuckmeyer's December 11, 2017, deposition included the following exchange between employee's attorney and Dr. Stuckmeyer:

Q. "Are the medical bills in Exhibits H through I -- 347 in Exhibit F and 12,350.10 in Exhibit G - reasonable, necessary, and caused by the prevailing factor of Ms. Graham's July 15, 2014, work injury?

A. Yes, sir. That was my opinion.

Unfortunately, the exhibits referenced in the above exchange by employee's attorney were not included with the deposition, nor do they correlate with the numerically identified Claimant's exhibits included in the record.

In conclusion, the administrative law judge found:

[Employee's] Exhibits 1, 2, 6 and 7 contain a mixture of unauthorized medical treatment [related to employee's July 15, 2014 work injury] and treatment for conditions wholly unrelated to this claim which were received after June 24, 2015. I do not find any of these medical treatments and their corresponding bills to be reasonably calculated to cure and relieve Claimant of the effects of her July 15, 2014 injury. And they are further found to be unreasonable and unfair expenses.

We concur with the above reasoning of the administrative law judge and affirm her denial of employee's claim for reimbursement for past medical expenses.

Future Medical

We affirm the administrative law judge's denial of future medical based on her evaluation of Dr. Stuckmeyer's credibility, as discussed, supra, and further considering the opinion of employer/insurer's expert, occupational physician Dr. Chris Fevurly, that employee would not benefit from any future medical treatment.

---

5 Award, p. 10.

6 Transcript, 604.

7 Id. 615.

8 June 24, 2015, was the effective date of employee's demand for treatment. Transcript, 645.

9 Award, p. 10.

Injury No.: 14-073249

Employee: Gabrielle Graham

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**Award**

We modify the award of the administrative law judge as to the issue of the appropriate average weekly wage and resulting rate of compensation for permanent partial disability benefits.

Employer owes employee $11,552.00 for permanent partial disability benefits.

The award and decision of Administrative Law Judge Angela C. Heffner, issued June 7, 2019, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees in the amount of 25% of all payments awarded 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 January 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

SEPARATE OPINION FILED

Reid K. Forrester, Member

SEPARATE OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Appendix No.: 14-073249

Employee: Gabrielle Graham

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 would affirm the decision of the administrative law judge as written.

Specifically, I concur with the administrative law judge's reasoning with regard to the calculation of employee's average weekly wage as a part-time worker, and her decision that the employee's permanent partial disability compensation rate, based on § 287.250.3, is $216.60. I respectfully dissent from that portion of the majority's award that increases the employee's compensation rate for permanent partial disability based on an interpretation of § 287.250.3 that is unsupported by any reported case law.

Reid K. Forrester, Member

I have reviewed the evidence, read the briefs of the parties, and considered 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 concur with the Final Award Allowing Compensation, Modifying the Award and Decision of the Administrative Law Judge on the issue of employee's average weekly wage and wage rate for permanent partial disability benefits, as well as the issue of employer's liability for past medical expenses.

I write separately to dissent from the Award insofar as it affirms the administrative law judge's denial of future medical treatment in this case.

Section 287.140 allows for the cost of future medical treatment. An employee is not required to present evidence of any specific medical treatment which may be needed in the future, and need not produce conclusive testimony or evidence to support her claim for future medical benefits; rather, it is sufficient for the employee to show a reasonable probability that she is in need of additional medical treatment as a result of her work-related accident. *Mihalevich Concrete Const. v. Davidson*, 233 S.W.3d 747 (Mo. App. 2007).

The employee testified that she continues to have pain in her back, chest, and neck, and pain radiating down her arms and legs. Medical evidence in the record documented the same pain after employee's release at maximum medical improvement on April 16, 2015. Furthermore, Dr. James Stuckmeyer opined that:

> Based on the persistent symptoms of thoracic back pain with radiating pain into the chest wall, persistent lower back pain with subjective complaints of radicular pain into both lower extremities, I would opine within a reasonable degree of medical certainty that considering the chronicity of the patient's symptoms, an MRI scan of the thoracic spine and the lumbar spine is warranted to rule out potential underlying disc pathology. Based on the outcome of these studies, additional treatment recommendations would be rendered to include referral to [a] pain management clinic for consideration of facet injections, [and] epidural injections.

Employer's expert theorized that any future medical treatment after employee's April 16, 2015, maximum medical improvement date would be unproductive. However, courts have held that future medical should not be denied because an employee may have reached maximum medical improvement. See *Greer v. Sysco Food Services*, 475 S.W.3d 655 (Mo. 2015), citing *Pennewell v. Hannibal Reg'l Hosp.*, 390 S.W.3d 919, 926 (Mo. App. 2013).

*Transcript*, 604. See also, *Transcript*, 620.

Injury No.: 14-073249

Employee: Gabrielle Graham

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Dr. Stuckmeyer, an orthopedic surgeon, is better qualified and more credible than employer's experts on the issue of employee's need for future medical treatment related to her cervical, thoracic, and lumbar spine based on conditions he identified in his August 21, 2017, independent medical examination.

For these reasons, I dissent from the majority's decision affirming the administrative law judge's denial of employee's claim for future medical treatment.

Curtis E. Chick, Jr., Member

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabrielle Graham

Injury No. 14-073249

FINAL AWARD

Employee: Gabrielle Graham

Injury No: 14-073249

Employer: Rosewood Health and Rehabilitation Center LLC

Insurer: Heath Care Facilities of Missouri

Hearing Date: March 28, 2019

Checked by: ACH/pd

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: July 15, 2014

1. State location where accident occurred or occupational disease was contracted. Independence, Jackson County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was stooped down to position a patient's catheter when the patient's leg slipped off of its support and struck Employee in the back and neck.

1. Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Body as a whole

1. Nature and extent of any permanent disability. 10% permanent partial disability body as a whole

WC-32-R1 (S-81)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabrielle Graham

Injury No. 14-073249

1. Compensation paid to-date for temporary disability: $580.16
2. Value necessary medical aid paid to date by employer/insurer? $14,588.39
3. Value necessary medical aid not furnished by employer/insurer? 13,962.60
4. Employee's average weekly wages: 324.90
5. Weekly compensation rate: $216.60
6. Method wages computation: Determined by the undersigned Administrative Law Judge pursuant to Missouri statute.

**COMPENSATION PAYABLE**

Amount of compensation payable: Employer is ordered to compensate Employee for permanent partial disability of 10% to her body as a whole, which equals $8,664.00.

Said payments to begin as of the date of this award 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% all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mav Mirfasihi

WC-32-R1 (6-81)

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabrielle Graham

Employee: Gabrielle Graham

Injury No: 14-073249

Employer: Rosewood Health and Rehabilitation Center LLC

Insurer: Heath Care Facilities of Missouri

Hearing Date: March 28, 2019

Checked by: $\mathrm{ACH} / \mathrm{pd}$

On March 28, 2019 the Employee and Employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Gabrielle Graham (hereinafter Employee or Claimant), appeared in person and with counsel, Mav Mirfasihi. The Employer, Rosewood Health and Rehabilitation Center LLC, and Insurer, Health Care Facilities of Missouri (hereinafter Employer), appeared through counsel, Joe Ebbert.

The parties stipulated to the following:

1. That on or about July 15, 2014, Rosewood Health and Rehabilitation Center LLC was an employer operating subject to Missouri Workers' Compensation law with its liability fully insured by Health Care Facilities of Missouri;
2. That Ms. Graham was its employee working subject to the law in Independence, Jackson County, Missouri;
3. That Ms. Graham notified Employer of her injuries and filed her claim for compensation within the time allowed by law;
4. That Employer paid Ms. Graham temporary total disability compensation totaling $\ 580.16 for the time period of March 9 , 2015 to April 18, 2015; and
5. That Employer has provided Ms. Graham with medical care costing $\ 14,588.39.

1) Determining the Employee's average weekly wage and compensation rate for purposes of permanent partial disability.

2) Whether the Employer must reimburse the employee for medical expenses totaling $\ 13,962.60.

3) Whether the Employer must provide the Employee with future medical care.

4) Whether the Employee suffered any disability and, if so, the nature and extent of the Employee's disability.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabrielle Graham

Injury No. 14-073249

Ms. Graham testified on her own behalf, and offered the following exhibits which were admitted into evidence without objection:

1. Encompass Medical Group records
2. Truman Medical Center records
3. KC Bone & Joint records
4. Back & Neck Pain Center records
5. U.S. Healthworks records
6. Encompass Medical Group bill: $347.00 (10/06/15 unrelated)
7. Truman Medical Center bills: $12,350.10 (1/24/17 unrelated)
8. Back & Neck Pain Center bills: 1,265.50
9. U.S. Healthworks bills: 14,672.82
10. Dr. James Stuckmeyer's IME
11. Dr. James Stuckmeyer's Deposition
12. Request for treatment (6/03/15)
13. Attorney-Client Contract

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

A. Deposition of Grabrielle Graham 5/19/17

B. Deposition of Dr. Chris Fevurly 3/4/19

C. Wage Statement

D. Payroll Records of Employee for 1/1/14 to 3/8/16

E. Printout of TPD paid to Employee

F. Printout of Medical Expenses paid by Employer/Insurer

G. Letter from M. Mirfasihi to C. Werner 6/3/15

H. Time Card Report for Employee with Employer from 7/16/14 to 2/15/16

At the time of the hearing, Claimant was 28 years old. She is a high school graduate. On July 15, 2014 injury, she was employed part-time as a Certified Nursing Assistant (CNA) at Rosewood Health and Rehabilitation Center, LLC. Claimant testified that her work-related injury occurred at the end of shift on July 15, 2014. She was squatting down in front of a patient who was sitting on the edge of her bed. The patient was obese and had one leg. Claimant was moving her catheter so she could help the patient transfer from the bed to the wheelchair when the patient's leg dropped on Claimant's neck, shoulder and back. When the patient's leg struck the Claimant, she fell to her knees from the squatting position she had been in. Claimant testified that she felt immediate pain and could not breathe or move. She immediately tried to find a nurse which took approximately 30 minutes to locate the nurse to notify her she had been injured. Claimant also notified the house supervisor that she had been injured on July 15, 2014.

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabrielle Graham

Injury No. 14-073249

Employer authorized medical treatment and referred Claimant to U.S. Healthworks for initial treatment for cervical and thoracic spine pain. X-Rays were obtained at this initial evaluation and did not reveal any acute abnormalities. Claimant was assessed as having a cervicothoracic strain caused by her workplace accident and restricted to no lifting over 10 pounds or overhead work. Claimant's treatment at U.S. Healthworks continued until August 24, 2014 and included prescription medications, physical therapy and work restrictions. Claimant complained that her pain was continuing and increasing in severity which resulted in a referral to a pain management clinic.

Claimant was referred to Dr. Atul Patel for treatment for neck and chest pain. Dr. Patel assessed Claimant as having symptoms consistent with a neck strain, myofascial pain, chest wall pain and thoracic stenosis. He opined that her symptoms were caused by muscle sprains with spasms but added that it was unclear why she was having neurological symptoms in her hands. On October 16, 2014, Dr. Patel conducted electrodiagnostic studies that did not suggest acute cervical radiculopathy, plexopathy or other peripheral nerve injury in the upper limbs. (Ex. 3) Dr. Patel examined Claimant on a monthly basis and treated her conservatively. On April 16, 2015, Dr. Patel released Claimant from his care without any restrictions and declared her to be at maximum medical improvement.

Claimant testified that she was surprised when Dr. Patel released her from his care. She went to the Human Resources Department and requested additional medical treatment. Claimant testified that a person in Human Resources told her to use FMLA time to seek her own treatment. Claimant was unsure of the date and who she talked to in Human Resources. Her attorney also requested additional medical treatment in a June 3, 2015 letter he sent to Employer's attorney. (Ex. 12) Employer's position is that any and all medical treatment Claimant incurred after April 16, 2015 is unauthorized care and was not reasonably calculated to cure and relieve the Claimant of the effects of any condition caused by the July 15, 2014 injury.

Claimant testified that she sought medical treatment on her own at Encompass and Truman Medical Center after Employer declined to authorize additional medical treatment. From August of 2015 through March 2017, Claimant continued to complain of pain in her cervical region, left shoulder region and low back with tingling in her toes and fingers of the right upper extremity with spasms. She underwent several sets of X-rays which were all normal. Dr. Sand provided a neurology consultation regarding Claimant's bilateral hand numbness. He performed a second electrodiagnostic study which revealed mild right ulnar nerve compression at the elbow but no evidence of radiculopathy. An MRI of her cervical spine was conducted on January 10, 2017 which did not reveal any abnormalities. Additionally, an MRI of her brain was obtained which did not reveal any evidence of intracranial masses. Claimant testified at hearing that she was not sure why an MRI of her brain had been performed.

Claimant testified that prior to her July 15, 2014 injury, she did not have any injuries to her neck, back or shoulders and was able to perform all of her with job duties. When the accident first happened, Claimant testified that the pain in her back was a 10 out of a 10 on the pain scale. She felt shooting pain and pins and needles. Currently, she testified that her pain is a 3 out of a 10 on the pain scale. Her pain increases if she sleeps on her left side. In general, she finds it difficult to sleep. She has pain from her neck down to her buttocks. Sitting for long periods of time and bending also makes her pain increase. Claimant can't use her shoulders like

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabrielle Graham

Injury No. 14-073249

she did prior to the injury. Raising her arms over her head hurts and she feels clumsy now. Claimant testified that the sensation in fingers is gone and she drops things. She feels her movement is limited and experiences chronic pain in her neck.

Claimant testified that she missed work because of the injury and that she called in twice a week because she was unable to work. Due to her absenteeism, she was forced to go to an "as needed" status at Rosewood. Eventually, she decided to resign her position at Rosewood because she was in too much pain to do her job duties. She was unemployed for approximately one month before accepting a CNA position at Truman Medical Center. Claimant testified that she can perform the CNA duties at Truman Medical Center because she is a "sitter" and does not have to do lifting or heavy physical duties. Of note, on cross-examination, Claimant admitted that she worked more hours following her work injury than she had been working prior to the injury in direct conflict with her claim that she called in unable to work twice a week.

Employed as a part-time CNA, Claimant testified that she earned $10.45 per hour and a night differential of 50 cents per hour and a weekend differential of $1.00 an hour if she worked night, weekend, holiday or overtime hours. However, on cross-examination, Claimant identified on Ex. D that she had worked 68.5 hours from July 11, 2014 to July 24, 2014, the two-week period around her July 15, 2014 injury and earned a base hourly rate of $9.75 plus a differential. However, she did not know how often she worked hours with differential pay and did not look at her paychecks when she received them to calculate her differential pay. For the two-week time period of July 11, 2014 to July 24, 2014, she was paid 667.88 which represents payment for 68.5 hours at an hourly rate of 9.75 with no differential pay.

Medical Experts

Dr. Fevurly performed an independent medical examination of the Claimant at the Employer's request on February 26, 2019. Based on her medical examination and prior medical records, he opined that as a result of the work-related accident she had on July 15, 2014, it resulted in a contusion and strain, soft tissue injuries, without permanent anatomical or structural change in any aspect of her body. He addresses her long lasting complaints, "[t]he chronic report of generalized pain is more likely to be explained by underlying psychosocial, behavioral, and environmental issues rather than pathologic injury in any location of the claimant's body." (Ex.B) He concurs with Dr. Patel's determination that Claimant reached maximum medical improvement on April 16, 2015. Dr. Fevurly does not find any reasonable indication or expected benefit from further medical treatment in any form. In fact, he opines that additional MRI testing of other spinal segments is likely to result in potentially more harm than benefit.

In Dr. Fevurly's deposition testimony, he opines that her physical examination was relatively unremarkable with some tenderness in her muscles noted. He does not think it is likely the July 15, 2014 work-related injury is the cause of her pain today.

Dr. Fevurly rated Claimant's permanent partial disability as follows, "[t]he chronic nature of her cervicothoracic and thoracolumbar pain without anatomical or structural pathology or change identified as the source of pain results in a 1% whole person PPD." (Ex.B)

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabrielle Graham

Injury No. 14-073249

Dr. Stuckmeyer performed an independent medical examination at the Employee's attorney's request on September 6, 2017. He concludes that as a result of her July 15, 2014 work-related injury, she has chronic cervical, thoracic and lumbar pain. His diagnosis is based on Claimant's subjective complaints of tenderness. Dr. Stuckmeyer recommends an MRI of her thoracic and lumbar spine be done to rule out underlying disc pathology. He explains that Claimant is a 26-year-old woman with a history of a work injury with a three-year history of seeing a multitude of physicians for the same complaints and that an MRI of those segments of her spine may explain the cause of her complaints.

Dr. Stuckmeyer assessed her permanent partial disability to be 20% to her body as a whole.

RULINGS OF LAW

Determining the employee's average weekly wage and compensation rate for purposes of permanent partial disability

Section 287.250.1(4) RSMo is the controlling statutory provision for determining Claimant's average weekly wage. It states:

If the wages were fixed by the day, hour, or by the output of the employee, the average weekly wage shall be computed by dividing by thirteen the wages earned while actually employed by the employer in each of the last thirteen calendar weeks immediately preceding the week in which the employee was injured or if actually employed by the employer for less than thirteen weeks, by the number of calendar weeks, or any portion of a week, during which the employee was actually employed by the employer. For purposes of computing the average weekly wage pursuant to this subdivision, absence of five regular or scheduled work days, even if not in the same calendar week, shall be considered as absence for a calendar week. If the employee commenced employment on a day other than the beginning of a calendar week, such calendar week and the wages earned during such week shall be excluded in computing the average weekly wage pursuant to this subdivision;

Claimant testified that she was a part time employee and earned $10.45 plus a shift differential. And while there is a dispute between the Employee and Employer about the exact hourly dollar amount she was paid, there is no dispute that she was paid by the hour. According to the Claimant's Wage Statement (Ex. C), Claimant was paid based on 14 day or two week terms. The Wage Statement covers a period of 16 weeks which are broken into two-week pay periods. For the pay period ending June 21, 2014, Claimant worked 30.25 weeks and earned $316.32. This pay period represents a time when Claimant was absent from work a significant amount of time compared to the other pay periods where she works at least 20 more hours a pay period. The Court will not consider this pay period in its calculation of average weekly wage. The pay period ending in March 29, 2014 represents a period when Claimant worked 56.50 hours over two weeks and earned $608.50. In order to comply with the statute and determine average weekly wage based on 13 weeks, the Court will divide this pay period by two to reach a number

WC-32-81 (8-51)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabrielle Graham

Injury No. 14-073249

of hours and earnings for one week. Therefore, for the 13th week, the number of hours worked is 28.25 hours and the earnings for the 13th week are $304.26.

Therefore, the pay periods ending July 5, 2014; June 7, 2015; May 24, 2014; May 10, 2014; April 26, 2014; April 12, 2014, and the one week average as calculated above for March 29, 2014 will be used to calculate average weekly wage. For the above thirteen weeks, Claimant worked a total of 375.25 hours and her gross earnings were 4,065.14 resulting in an average hourly rate of 10.83.

Consistent with Claimant's testimony and all other evidence in this claim, Claimant never worked 80 hours over a two-week term and was clearly a part-time employee. Thus, Section 287.250.3 RSMo. is the controlling statutory provision to address her part-time employment status. Sections 287.250.3 states:

If an employee is hired by the employer for less than the number of hours per week needed to be classified as a full-time or regular employee, benefits computed for purposes of this chapter for permanent partial disability, permanent total disability and death benefits shall be based upon the average weekly wage of a full-time or regular employee engaged by the employer to perform work of the same or similar nature and at the number of hours per week required by the employer to classify the employee as a full-time or regular employee, but such computation shall not be based on less than thirty hours per week.

This statutory provision also known as the "30 hour rule" requires the use of at least 30 hours per week when determining the average weekly wage of a part-time employee. As the Court determined the Claimant's hourly rate to be 10.83, using the 30 hour rule, Claimant's average weekly wage is 324.90 resulting in a compensation rate of $216.60 for purposes of determining permanent partial disability.

Whether the Employer must reimburse the employee for medical expenses totaling $13,962.60.

The statutory provision related to the Employer's obligation to provide medical care is Section 287.140.1.

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.

As a general rule, an employer is given control over the selection and direction of an injured employee's medical providers and treatment. However, if an employer is on notice that an employee needs medical treatment and fails or refuses to provide it, the employee may select

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabrielle Graham

Injury No. 14-073249

his or her own medical provider and attempt to hold the employer liable for the costs of obtaining the medical treatment. If the employee provides notice to the employer of his or her need for medical treatment and obtains medical treatment on his or her own and later demands reimbursement, the burden shifts to the employer to establish that the medical treatment was unreasonable or unfair.

Employer provided and paid for authorized medical care from July 15, 2014 until April 16, 2015 when Dr. Patel released Claimant to full duty without restrictions and found her to be at maximum medical improvement. Claimant testified that she was surprised that she was being released because she was still having pain and other complaints. She testified that she went to Human Resources and asked about more medical treatment and someone advised her to use FMLA and seek treatment on her own. Claimant did not testify about the date or who she spoke to when she asked for more medical treatment. Her attorney sent a letter to the attorney who represented Employer on June 3, 2015 demanding additional treatment and put Employer on notice that additional medical care was being demanded and that if additional medical care was not authorized by June 24, 2015, he would assume treatment was denied. For purposes of satisfying the notice requirement for alerting the Employer that additional medical treatment was being demanded, the Court will use June 24, 2015.

The burden is upon Employer to establish that the unauthorized medical treatment Claimant sought was not reasonably related to cure and relive the effects of her work injury.

Employer's expert, Dr. Fevurly, testified that the authorized medical treatment Claimant received from the date of the accident until April 16, 2015 was much longer than one would expect for the type of injury Claimant sustained. Dr. Fevurly concurred with Dr. Patel's determination that Claimant reached maximum medical improvement on April 16, 2015 and terminated medical treatment. He also testified that given the nature of the injury that he would expect the normal time frame for someone to recover from a similar injury would be six to eight weeks or even shorter for someone of an age similar to the Claimant's age.

Employer argues that Claimant testified that none of the medical treatment, authorized and unauthorized, provided her relief from her work-related injury on July 15, 2014 to support a finding that none of the unauthorized medical treatment was reasonable to cure and relieve the Claimant from the effects of her work injury. Indeed, many of the medical examinations and treatments were repetitive to the treatments Claimant had previously received. And none of the medical providers recommended any additional medical treatment. Claimant's testimony was that she has not found much, if any, improvement or relief from the medical treatment she has received over the last four and a half years.

Claimant's expert, Dr. Stuckmeyer, testified in his deposition that all of the medical records and bills contained in Deposition Exhibits F, G, H and I were reasonable, necessary and caused by the prevailing factor of Ms. Graham's July 15, 2014 work injury. Deposition Exhibits F, G, H and I are the same as Exhibits 6, 7, 8 and 9 as admitted into evidence at hearing. While Dr. Stuckmeyer's September 6, 2017 Independent Medical Examination specifies that his opinion is that the medical treatment and billing related to the Claimant's ongoing symptoms of pain and dysfunction in the cervical spine, thoracic spine and lumbar spine were reasonable, usual and customary and prevailing factor for the billings was the workplace injury, I do not find

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabrielle Graham

Injury No. 14-073249

Dr. Stuckmeyer's testimony related to the unauthorized medical treatment and past medical bills to be as credible as Dr. Fevurly's testimony. I find Dr. Stuckmeyer's testimony related to the unauthorized medical treatment and corresponding medical bills to be less credible because he makes no distinction between treatments related to the work injury and those unrelated medical treatments and billings.

By the Claimant and Claimant's attorney's own admission, several of the medical bills and medical records are not related in any way to this present work-related claim. The inclusion of medical bills and records that have no relevance or bearing on the determination of this claim is unnecessary and confusing.

Claimant presented medical records and medical billing documents from the unauthorized treatment Claimant received beginning in May 2015. Exhibits 4 and 8 contain medical records and medical bills for treatment sought between May 12, 2015 and June 11, 2015 which are all prior to June 24, 2015, the date Employer was on notice. The demand for reimbursement of the Back & Neck Pain Center bills is denied based on lack of notice.

Exhibits 1, 2, 6 and 7 contain a mixture of unauthorized medical treatment and treatment for conditions wholly unrelated to this claim which were received after June 24, 2015. I do not find any of these medical treatments and their corresponding bills to be reasonably calculated to cure and relieve Claimant of the effects of her July 15, 2014 injury. And they are further found to be unreasonable and unfair expenses.

Whether the Employer must provide the Employee with future medical care.

Pursuant to Section 287.040 RSMo, an employer shall provide such medical treatment as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. "To receive an award of future medical benefits, a claimant need not show 'conclusive evidence' of a need for future medical treatment." *Stevens v. Citizens Memorial Healthcare Foundation*, 244 S.W.3d 234, 237 (Mo.App. S.D.2008) (quoting *ABB Power T & D Co. v. Kempker*, 236 S.W.3d 43, 52 (Mo.App. W.D.2007)). "Instead, a claimant need only show a 'reasonable probability' that because of her work-related injury, future medical treatment will be necessary. A claimant need not show evidence of the specific nature of the treatment required." *Id.*

Employer's medical expert, Dr. Fevurly, and Dr. Patel who provided authorized medical treatment to the Claimant concur that she reached maximum medical improvement on April 16, 2015. Dr. Fevurly does not believe she will benefit from any medical treatment in the future.

Based on the Claimant's persistent symptoms of thoracic and lower back pain and Employee's medical expert, Dr. Stuckmeyer, opines that an MRI scan of the thoracic and lumbar spine is warranted to rule out potential disc pathology; and based on the outcome of these studies, additional treatment recommendations would be rendered to include pain management.

As discussed above, Dr. Stuckmeyer's deposition testimony regarding the Claimant's unauthorized medical treatment records and bills did not distinguish between bills for services related to the work injury and bills for services unrelated to the work injury. Because there is no

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gabrielle Graham

Injury No. 14-073249

distinction between the two types of medical services and corresponding bills, Dr. Stuckmeyer's analysis of the relevant medical conditions and medical treatment for these conditions is less reliable than Dr. Fevurly's analysis. The Court finds Dr. Fevurly's opinion regarding future medical treatment to be more credible than Dr. Stuckmeyer's opinion.

Employer is not required to provide Claimant with future medical care.

Whether the Employee suffered any disability and, if so, the nature and extent of the Employee's disability.

Determining the amount or percentage of disability due to the Claimant is a finding of fact within the province of the Administrative Law Judge. Hawthorne v. Lester E. Cox Medical Center, 165 S.W.2d 587, 594-595 (Mo. Ct. App. 2005). The Administrative Law Judge has discretion as to the amount of the permanent partial disability to be awarded and how it is to be calculated. Ran v. Land Star TLC, 46 S.W. 3d 614, 626 (Mo. App. W.D. 2001).

Employee presented a September 6, 2017 report of Dr. Stuckmeyer. The Employer offered the report of Dr. Fevurly dated February 26, 2019. "[T]he question of nature and extent of permanent partial disability is one for medical testimony. "Elliott v. Kansas City, Mo., Sch. Dist., 71 S.W.3d 652, 658 (Mo.App. W.D.2002).

Dr. Fevurly rated Claimant's permanent partial disability as follows, "[t]he chronic nature of her cervicothoracic and thoracolumbar pain without anatomical or structural pathology or change identified as the source of pain results in a 1% whole person PPD." (Ex.B)

Dr. Stuckmeyer rated Employee's permanent partial disability as a global 20% to her body as a whole. (Ex. 10)

As discussed above, Claimant testified that she has significant ongoing complaints as it relates to her body as a whole, referable her neck, shoulders, back, hands and feet. She has chronic pain in her neck down to her buttocks, trouble sleeping and difficulty using her shoulders.

Upon review of the medical evidence and Claimant's testimony concerning the limitation of her body as a whole, I hereby award Claimant 10% permanent partial disability of the body as a whole at the 400-week level. This equals 40 weeks of compensation. Claimant's compensation rate is $216.60. As such, the total amount of compensation to Claimant for permanent partial disability $8,664.00.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of Mav Mirfasihi.

I certify that on 10-7-19

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

WCC-32-81 (6-81)

Made by:

Angela C. Heffner

Administrative Law Judge

Division of Workers' Compensation

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