William Beavers v. St. John's Mercy Medical Center

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 07-123519

**Employee:** William Beavers

**Dependent:** Arthur Schon (Alleged)

**Employer:** St. John's Mercy Medical Center

**Insurer:** Mercy Hospitals East Communities

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

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 December 2, 2019. The award and decision of Administrative Law Judge John K. Ottenad, issued December 2, 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 **16th** day of November 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

Injury No.: 07-123519

Employee: William Beavers

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 disagree with the majority's decision to affirm the administrative law judge's (ALJ) award. The ALJ erred in finding that employee's December 24, 2007 work injury (2007 injury) "was not the prevailing factor in causing any disc pathology, need for surgery, or any treatment after the surgery[.]1

I believe that employee's surgery and treatment after being released by Dr. Russell Cantrell at maximum medical improvement were reasonably necessary to cure and relieve the effects of employee's 2007 injury, and employee would have been found to be permanently and totally disabled (PTD) either due to the 2007 injury alone, or in combination with his preexisting disabilities. I find that employee has sustained his burden of proving his entitlement to future medical care. Dr. Robert Poetz opined that employee will continue to require ongoing future medical care. Employee also has a prosthetic cord stimulator installed in his back. Additionally, I believe that employee is entitled to past medical benefits from employer in the amount of $161,268.14. Employer wrongfully denied responsibility for all treatment after employee's release from Dr. Cantrell. Employee's bills for his surgery and cord stimulator were related to the 2007 injury and should have been paid by employer. The total amount employee alleged for medical treatment against the employer was $161,268.14. Employer produced no evidence to dispute the reasonableness of these bills. Dr. James Coyle testified that the surgery performed by Dr. Armond Levy was reasonable. The ALJ erred in finding the date of maximum medical improvement of August 13, 2008, which was prior to employee's low back surgery, and by not awarding any temporary total disability (TTD) from December 5, 2009 through January 26, 2010. Employee was still engaged in the "rehabilitative process" under §287.149 due to his 2007 injury. Employee did not work from December 5, 2009 through January 26, 2010 due to the surgery performed by Dr. Levy, and was therefore still engaged in the rehabilitative process requiring TTD. Dr. Coyle and Dr. Poetz both opined that Dr. Levy's surgery was reasonable. Therefore, I find that employee is owed TTD from December 5, 2009 through January 26, 2010 in the amount of $4,568.57.

Employer did not assert post injury misconduct until the day of the ALJ hearing, and should therefore be precluded from amending their answer. I also find that the ALJ was incorrect in finding that Dr. Poetz was not as credible as employer's doctors solely due to the focus of their medical practice. I also believe that employee proved that he was PTD due to the 2007 injury alone. Dr. Poetz was the only medical expert who reviewed and opined as to both the 2007 injury and all of employee's pre-existing conditions, and to consider the synergy and combination of the 2007 injury and employee's preexisting disabilities. Additionally, I find that Arthur Schon was employee's dependent, and is entitled to collect benefits under Schoemehl v. Treasurer of the State of Missouri.2 Employee and his partner, Arthur Schon, have cohabitated in a homosexual relationship and have acted as though they were married since 2005. They were

1 See Award, page 36.

2 217 S.W.3d 900 (Mo. 2007).

RJRT004359116

Injury No.: 07-123519

Employee: William Beavers

-2-

together at the time of the accident and the ALJ hearing. Employee considers Mr. Schon to be his spouse. They have continuously cared for one another as if they were married. Although employee does not have a marriage license, I do not believe that this alone should preclude him from dependency benefits.

To summarize, I believe that the ALJ's award should be reversed, and found in favor of employee for PTD benefits against employer with TTD from December 5, 2009 through January 26, 2010 in the amount of 4,568.57, medical aid not furnished by employer in the amount of 161,268.14, dependency benefits in favor of Arthur Schon, and lifetime future medical treatment against employer. The ALJ should not have allowed employer to amend its answer to include the issue of post injury misconduct. Because the majority has determined otherwise, I respectfully dissent.

S. Kiki Curls

Shalonn K. Curls, Member

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 07-123519

AWARD

Employee: William Beavers

Dependents: (Alleged) Arthur Schon

Employer: St. John's Mercy Medical Center

Additional Party: Second Injury Fund

Insurer: Mercy Hospitals East Communities

C/O Sisters of Mercy Health System

Hearing Date: July 15, 2019

Record Closed August 14, 2019

Injury No.: 07-123519

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

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: December 24, 2007

1. State location where accident occurred or occupational disease was contracted: St. Louis County

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: Claimant

worked for Employer as a nurse and injured his low back and body as a whole, when he was attempting to lift

and move a 200-pound patient up in bed with a co-worker, and he felt a grinding pain in his low back with

pain down his legs.

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: Lumbar Spine

1. Nature and extent of any permanent disability: 12.5% of the Body as a Whole—Lumbar Spine

1. Compensation paid to-date for temporary disability: $3,693.59

1. Value necessary medical aid paid to date by employer/insurer? $24,105.57

Revised Form 31 (3/97)

Page 1

1. Value necessary medical aid not furnished by employer/insurer? (Alleged) 161,268.14
2. Employee's average weekly wages: 905.26
3. Weekly compensation rate: $603.51 for TTD/ $389.04 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

1. Second Injury Fund liability:

**TOTAL: $28,636.27**

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: Ronald D. Edelman.

On July 15, 2019, the employee, William Beavers, appeared in person and by his attorney, Mr. Ronald D. Edelman, for a hearing for a final award on his claim against the employer, St. John's Mercy Medical Center, and its insurer, Mercy Hospitals East Communities C/O Sisters of Mercy Health System, as well as the Second Injury Fund. The employer, St. John's Mercy Medical Center, and its insurer, Mercy Hospitals East Communities C/O Sisters of Mercy Health System, were represented at the hearing by their attorney, Mr. Christopher T. Archer. The Second Injury Fund was represented at the hearing by Assistant Attorney General Adam T. Sandberg.

To allow the parties time to prepare and file their proposed awards or briefs in this matter, the record did not technically close until August 14, 2019. Although we did not go back on the record or take any further evidence in this matter after the initial hearing date, the record was, then, closed on that date and the briefs were submitted by the parties by September 9, 2019, after extensions beyond the initial due date for the briefs were requested by Claimant and the Second Injury Fund, and granted.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about December 24, 2007, William Beavers (Claimant) sustained an accidental injury arising out of and in the course of employment, when he was working as a nurse (RN) for Employer, and, when, while lifting a patient, and as a result thereof, he suffered injury to his back/lumbar spine. 2) Claimant was an employee of St. John's Mercy Medical Center (Employer). 3) Venue is proper in the City of St. Louis. 4) Employer received proper notice.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 07-123519

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage of 905.26, resulting in applicable rates of compensation of 603.51 for total disability benefits and $389.04 for permanent partial disability benefits.

7) Employer paid temporary total disability (TTD) and temporary partial disability (TPD) benefits in the amount of $3,693.59, representing a period of time from