The parties asked the administrative law judge to resolve the following issues:
- The nature and extent of employer's liability for employee's permanent disability.
- Second Injury Fund liability.
- Whether employee is entitled to additional temporary total disability benefits after July 18, 2011.
- Whether employer is required to pay employee $47,785.05 in additional medical expenses.
- Whether employer is required to provide employee with future medical treatment.
On October 7, 2019, an administrative law judge issued an award finding employer and the Second Injury Fund liable to employee for permanent total disability. The administrative law judge determined that employer was liable for 5% permanent partial disability for employee's cervical injury for 20 weeks, 5% permanent partial disability for employee's lumbar injury for 20 weeks, 5% permanent partial disability to employee's right shoulder for 11.6 weeks, 5% permanent partial disability to employee's left shoulder for 11.6 weeks, 2.5% permanent partial disability to employee's to right knee for 4 weeks, and 5% permanent partial disability for her psychiatric disability for 20 weeks. This resulted in a total of 10,137.87 for 87.2 weeks of disability at 116.26 per week. The administrative law judge also found the Second Injury Fund liable for permanent total disability for 116.26 per week beginning on July 19, 2011, but shall have an offset of 116.26 for 87.2 weeks and, thereafter, shall pay $116.72 per week for as long as employee remains permanently and totally disabled.
The administrative law judge additionally determined that employee was not entitled to additional temporary total disability benefits after her July 18, 2011 date of maximum medical improvement. The administrative law judge also determined that employer did not owe employee temporary total disability payments after employee's date of maximum medical improvement. The administrative law judge further determined that employee's subsequent medical care was not related to her February 14, 2011 injury and, therefore, is not the responsibility of the employer. The administrative law judge also found employer not liable to employee for $47,785.05 in additional medical expenses after her date of maximum medical improvement, and future medical care.
On October 24 and 25, 2019, Second Injury Fund and employee, respectively, filed timely applications for review with the Labor and Industrial Relations Commission (Commission).
Injury No.: 11-010136
Employee: Helen Baker
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The Second Injury Fund's application for review argued that the administrative law judge erred in finding the Second Injury Fund liable to employee for permanent total disability benefits because employee was working full time before the primary injury. Employee's medical expert Dr. P. Brent Koprivica opined that her restrictions from the primary injury made her permanently and totally disabled in isolation. Employee's vocational expert Mr. Micheal Dreiling opined that employee was unemployable even without her pre-existing conditions.
Employee's cross application for review appealed the administrative law judge's determinations regarding the nature and extent of her disability from employee's February 14, 2011 injury that is attributable to the employer and the Second Injury Fund, as well as employer's liability for temporary total disability, additional medical expenses, and future medical treatment.
**Findings of Fact**
The administrative law judge's award sets forth the stipulations of the parties and the administrative law judge's findings of fact as to the issues disputed at the hearing. We adopt and incorporate those findings to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact pertinent to our modifications herein.
We agree with the Second Injury Fund's argument that but for the February 14, 2011 injury, employee would still be able to perform in the labor market. Even though employee was 72 years of age at the time of her injury, she was still able to perform her job at employer until the February 14, 2011 injury in spite of her preexisting disabilities. Additionally, vocational expert Mr. Dreiling opined that employee was unemployable in the open labor market. Mr. Dreiling also opined that if you ignore employee's psychological disabilities, and only consider her age, vocational background, and current physical limitations, employee was unemployable in the labor market. We believe that Mr. Dreiling's testimony negates the testimony of psychological expert Dr. Allan Schmidt's that employee was permanently and totally disabled from the combination of her preexisting psychological disability in combination with the psychological disability resulting from the February 14, 2011 injury. Dr. Koprivica also believed that employee was unlikely to obtain gainful employment and determined that employee was permanently and totally disabled from the February 14, 2011 injury alone or, hypothetically, from the combination of the pre-existing psychological disability with the February 14, 2011 injury. Therefore, we believe that the administrative law judge was incorrect in her assessment of the nature and extent of employee's February 14, 2011 injury. We also find that there is a causal connection between employee's compensable injury and medical treatment.
We also disagree with the administrative law judge's determination that the Second Injury Fund is liable to employee. The administrative law judge stated in her award that she determined that the Second Injury Fund was liable based in part on the testimony of Drs. James Zarr and Alexander Bailey. However, we could not find anything within the record in which Dr. Zarr explicitly stated that he believed that employee was permanently and totally disabled from the combination of the February 14, 2011 injury and her preexisting disabilities. Dr. Bailey did state that employee's inability to work was due to her February 14, 2011 injury in combination with her preexisting disabilities. Dr. Schmidt also opined that employee's February 14, 2011 injury was the prevailing factor in the aggravation of her preexisting psychological disability. Dr. Koprivica opined that employee was permanently and totally disabled from the February 14, 2011 injury in isolation, and added an alternative hypothetical opinion to explain how employee could be permanently and totally disabled from the combination of her February 14, 2011 injury and her preexisting disabilities. Dr. Koprivica placed numerous restrictions on employee's ability to stand, walk, sit, and crawl, all because of her February 14, 2011 injury. Additionally,
Injury No.: 11-010136
Employee: Helen Baker
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employee testified that she could perform her job as a waitress, and perform physical activities such as dancing every weekend, up until her February 14, 2011 injury.
Dr. Schmidt, employee's psychological expert, opined in his psychological evaluation report that employee's February 14, 2011 injury was the prevailing factor in the aggravation of employee's preexisting psychological disability. He also opined that employee will need psychological medication for an indefinite period of time, due to her 2011 injury in combination with her aggravating preexisting psychological disability. Employee has a 25% psychological disability rating, in which 10% of it is preexisting, and the other 15% is due to her 2011 injury.
**Discussion**
We adopt and affirm the administrative law judge's conclusions that (1) employee was not entitled to additional temporary total disability benefits after her July 18, 2011 date of maximum medical improvement, (2) employer did not owe employee temporary total disability payments after employee's date of maximum medical improvement, and that (3) employer was not liable to employee for $47,785.05 in additional medical expenses after her date of maximum medical improvement.
**Second Injury Fund Liability**
We find that the evidence in the record supports a finding that employer is liable for employee's permanent total disability from the February 14, 2011 injury in isolation, and modify the administrative law judge's award on this point. We find Dr. Koprivica's opinions to be more credible and persuasive than the other experts on this issue. Therefore, we find employer liable to employee for permanent total disability in the amount of $116.26 per week beginning on July 19, 2011 and for as long as employee remains permanently and totally disabled. The weekly payments shall continue for employee's lifetime, or until modified by law.
**Future medical care**
The administrative law judge rendered the following conclusion regarding the issue of future medical care: "Because there is no evidence in the record tending to indicate a reasonable probability that future medical treatment is necessary, Employee has not met her burden of establishing future medical treatment is necessary. Therefore, the employer is not liable for any future medical benefits."
$287.140 provides, in relevant part:
> [T]he 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.
In order for a claimant to be entitled to an award of future medical benefits, a claimant must demonstrate a causal connection between the original compensable injury and the medical treatment. The burden is on the claimant to prove her entitlement to an allowance for future medical treatment.
1 See Transcript, page 268, and Award, page 8.
2 Transcript, page 1222.
3 Transcript, page 1223.
4 Award, page 14.
5 Conrad v. Jack Cooper Transp. Co., 273 S.W.3d 49, 54 (Mo. Ct. App. 2008).
6 Dean v. St. Luke's Hosp., 936 S.W.2d 601, 603 (Mo. Ct. App. 1997).
TI11680189
Injury No.: 11-010136
Employee: Helen Baker
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We disagree with the administrative law judge's conclusion, and modify the administrative law judge's award on this issue. Employer is obligated to provide any and all future medical treatment (including psychological medication) that may reasonably be required to cure and relieve the effects of the work injury.
**Conclusion**
We modify the award of the administrative law judge as to the issues of Second Injury Fund liability, and future medical care.
Employer is obligated to provide future medical treatment that may reasonably be required to cure and relieve the effects of the work injury.
Employer is liable to employee for permanent total disability in the amount of $116.26 per week beginning on July 19, 2011 and for as long as employee remains permanently and totally disabled. The weekly payments shall continue for employee's lifetime, or until modified by law.
The Second Injury Fund is not liable to employee.
The award and decision of