Rodney Battles v. Heptacore Inc./Bloomsdale Excavating

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. . .
2. 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. . .

As the court held in Downing v. McDonald's Sirloin Stockade, 418 S.W.3d 526, 529 (Mo. App. 2014), "[A]n employer's duty to provide statutorily-required medical aid to an employee is absolute and unqualified." (emphasis added) That is, [§ 287.140] requires an employer to provide an injured employee medical care but allows the employer to select the medical provider.'" (citing Martin v. Town and Country Supermarkets, 220 S.W.3d 836, 844 (Mo. App. S. D. 2007).

The parties stipulated that Mr. Battles was an employee of the employer, working subject to The Workers' Compensation Law of Missouri, and that on October 5, 2016, the employee sustained an injury arising out of and in the course of his employment. No party disputes that the employee underwent two back surgeries, and that the employer thereafter authorized Dr. Patricia A. Hurford to treat the employee for "Statuspost anterior lumbar fusion L4-5 with persistent post-laminectomy pain symptoms in the back and chronic left lower extremity radiculopathy in the L5 distribution."1 The employee produced receipts representing charges for medication prescribed by Dr. Hurford from August 2, 2021 through December 8, 2021, totaling \120.04. { }^{2}$

The employer has advanced no evidence that would demonstrate that the employee is not required to pay the billed amounts, that his liability for the disputed amounts was extinguished, and that the reason such liability was extinguished does not otherwise fall within the provisions of $\S 287.270$ RSMo. See Farmer-Cummings v. Pers. Pool of Platte Cnty., 110 S.W.3d 818 (Mo. 2003), and Maness v. City of De Soto, 421 S.W.3d 532, 545 (Mo. App. 2014). We conclude that the employer is liable to the employee for charges for prescription medication ordered by its authorized provider, Dr. Hurford, during the period August 2, 202, through December 8, 2021, in the amount of $\ 120.04.

We find that the employee did not establish the elements of his claim for reimbursement for mileage expenses associated with medical treatment, because his documentation did not identify any of the medical providers or facilities from which he sought treatment

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[^0]: ${ }^{1} Transcript, p. 1334.

{ }^{2}$ Id., pp. 1036-1052.

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and specified no mileage reimbursement rate. We further note that the employee's brief included no argument on this issue.

The award of the administrative law judge is modified.

Employer is liable to the employee for $120.04 in past medical expenses.

This award is subject to a lien in favor of Dean Christianson, Attorney at Law, in the amount of 25% for necessary legal services rendered.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Bruce Farmer is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this _2nd_ day of February 2023.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Rodney J. Campbell, Chairman

SEPARATE OPINION

Shalonn K. Curls, Member

Kathryn Swart, Member

Attest:

*Kathryn Swart*

Secretary

I have reviewed the evidence, read the parties' briefs, and considered the whole record. Based on my review of the evidence and consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find as follows:

I concur with the majority's award to the extent that it denies the employee's Motion to Strike the Employer's Responsive Brief and accepts the Substitute Brief of Employer/Respondent Bloomsdale Excavating.

I further agree that although Mr. Battles' work-related disabilities preclude him from returning to heavy labor employment, he is not permanently and totally disabled from employment in the open labor market as defined by the relevant statutes and case law.

I dissent from the majority's award to the extent that it affirms the administrative law judge's (ALJ's) finding of 20\% permanent partial disability (PPD) of the body as a whole. I would find that Dr. David Volarich's ultimate assessment of disability of 60\% of the body as a whole merits a higher PPD award.

I concur with the majority's opinion to the extent that it finds the employer liable to reimburse the employee for medicine prescribed by the employer's authorized treating physician Dr. Patricia Hurford.

I disagree with the majority's denial of the employee's workers' compensation mileage claim. The record includes an e-mail from the employee to his attorney dated August 23, 2021, correlating his mileage claim with trips to the pharmacy. ${ }^{3}$ The employee should be awarded reimbursement for mileage at the 2021 IRS mileage reimbursement rate based on mileage claim forms submitted into evidence as Claimant's Exhibit 21, the employee should be awarded reimbursement for 766 miles at the 2021 IRS mileage reimbursement rate of 56 cents per mile, a total of $\ 428.96.

I dissent from the majority's award because it affirms the ALJ's denial of the employee's claim for future medical. The ALJ unfairly assailed the employee's credibility based on surveillance videos purporting to show that the employee engaged in activities that exceeded limitations imposed by his medical providers. This evidence does not demonstrate any deceitfulness on the employee's part because the employee expressly admitted to all of these activities in his deposition and hearing testimony. (See Transcript, pp. 29, 32-34, 1355-1356, and 1358). Furthermore, the employer's videotapes fail to accurately portray the extent of the employee's disability because they fail to include the employee's need to recover from the exertion involved in performing the activities in question for a limited time.

The employer/insurer's payment of $\ 170,310.41 for past medical treatment connotes a significant injury. The ALJ's denial of needed future medical treatment to treat the employee's chronic back pain, including a spinal cord stimulator, based solely on his negative assessment of the employee's credibility, is against the weight of the evidence. The employee can never return to hard labor, the only work he has ever performed,

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[^0]: ${ }^{3}$ Transcript, p. 1031.

Improve: Battles, Rodney

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because of his work-related disability. He now suffers chronic pain due to a failed discectomy and subsequent unsuccessful back fusion performed by the employer's designated physicians in a failed effort to cure and relieve his compensable injury. The ALJ's denial of needed future medical treatment, based solely on his condemnation of the employee's character, appears retaliatory.

**Conclusion**

I concur with the majority's order denying the employee's Motion to Strike the Employer's Responsive Brief and accepting the Substitute Brief of Employer/Respondent Bloomsdale Excavating.

I concur with the majority's award of reimbursement for past medical expenses relating to prescription medication ordered by the employer's authorized provider Dr. Hurford.

I dissent from the majority's limitation of employer/insurer's liability for permanent partial disability to 20% of the body as a whole, as awarded by the ALJ.

I also dissent from the majority's denial of reimbursement for past medical-related mileage expenses and future medical treatment consistent with the ALJ's award.

Shalonn K. Curls, Member

Issued by DIVISION OF WORKERS' COMPENSATION

AWARD

Employee: Rodney Battles

Injury No.: 16-082564

Dependents: N/A

Employer: Heptacore Inc./Bloomsdale Excavating

Additional Party: Second Injury Fund

Insurer: Arch Insurance Co.

Hearing Date: December 13, 2021

Briefs filed: February 7, 2022

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

FINDINGS OF FACT AND RULINGS OF LAW

1. Are 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: October 5, 2016
5. State location where accident occurred or occupational disease was contracted: Callaway 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:

Employee bent over to pick up a 10-pound form and felt a pop in his back.