Wednesday, September 2, 2009

Limitations on future medical awards

Future medical may include specific modalities
The Commission affirmed a finding that claimant  was entitled to medical care from a specific physician "as prescribed by Dr. Bernabe or another physician" and  required future medical care for her back injury including treatment at a pain clinic,  narcotics, non-narcotics, physical therapy, epidural steroid injections, foraminal nerve blocks, trigger point injections and radiofrequency ablation procedures based on the uncontroverted opinion of her non-treating medical expert.  Barnhart v Eldon Nursing Home, 2014 MO WCLR Lexis 64 (May 6, 2014).  The Commission finds that the employee is   "entitled to any or all of them that she chooses to pursue and that any doctor contemporaneously recommends" and that "we will not endorse such a result" to allow  the employer to dispute the reasonableness of such care by obtaining a contrary  medical opinions.

Claimant alleges injuries arising from a Sept. 2011 accident lifting a 450 pound resident in her capacity as a certified nurse's aide.  The employer offered no evidence in the final hearing contesting the extent of disability.  The employer lost its defense at a temporary hearing and was sanctioned $4100 because it did not "offer a reasonable explanation for the cessation of TTD benefits in this case as well as an inadequate effort at procuring appropriate medical care for Claimant."  Claimant testified about her concerned that the employer would not comply with the award or allow her to continue pain management for degenerative disc disease.  The ALJ had awarded 25% based on a rating from claimant's expert.

The decision departs from precedent that a future medical award does not generally designate a specific provider or specific forms of treatment.   The result might be explained by findings of noncompliance by the employer of abdicating its statutory right to select a medical provider. 

ALJ  Ruth
Atty:  McDuffey, Reidy
Expert:  Volarich
Order to return to former doctors when 2nd opinion jeopardized claimant's medical recovery

Claimant established he was unemployable when a building collapsed on him while he was suppressing a fire, resulting in PTSD and sympathetic pain disorder.  Held v City of St. Louis, 2014 Mo WCLR Lexis 50 (April 10, 2014) Claimant underwent surgery to his ankle and elbow, and a spinal cord stimulator  and was unable to return to his former duties due to permanent restrictions.

The ALJ noted the employer abandoned providing  treatment after 5 years when it sent claimant to a different pain specialist who told him to wean off of his narcotics.  The ALJ found this encounter   jeopardized claimant's life, health and recovery and ordered future medical care through specific designated former medical providers:   Dr. Guarino and Dr. Bassett. The employer had provided more than $300,000 in medical benefits and continued  salary for two years to the 45-year old claimant before he qualified for a service-connected disability. 

 The ALJ concluded the last accident alone rendered the claimant totally disabled based in part due to medication caused by the last accident, even though prior conditions contributed to his total disability based on expert opinion. 

ALJ  Ottenad
Atty: Wagner, Goeddel
Experts:  Musich, Graham
Treaters:  Guarino, Bassett, Ritchie

Future medical, as directed or recommended by Dr. X

The commission modified a future medical  award that designated a specific treating psychiatrist and concluded that there was sufficient basis to award 70% disability of the hand and reduced an award for psychiatric disability and concluded a finding of PPD was not premature despite the need for further care. 
Bauer v LE Squer Machine, 2013 Mo WCLR Lexis 198 (Oct 3, 2013); affirmed 2014 Mo App. Lexis 714.
ALJ Denigan
Experts:  Schlafly, Rotman
Treater:  Bassett

The commission modified an award and found an order reversible error when it stated:  ""Employer is hereby ordered to provide such medical treatment as Dr. Brockman or any physician to whom the Claimant is referred by Dr. Brockman which is medically reasonable in order to cure and relieve   the effects of the injury Claimant suffered on January 18, 2009" as in the facts of this case the Division could not order psychiatric care as directed by a specific person.  Rainbolt v Audrian, 2013 MO WCLR Lexis 161 (August 23, 2013).

The commission affirmed a PTD award  but found an order reversible when it stated "future medical care to be directed by employee's primary care physician, Dr. Salmon."  The Commission award contains several typographical errors referring to chapter "297."  Leonard v Branson Granite,  2013 Mo WCLR Lexis 164 (August 29, 2013).
ALJ  Holden

Future medical awarded, but no waiver
The commission modified an award of future medical care with a  provider designated by the ALJ and found no statutory authority to appoint a physician, only authority to order a change in a physician based on certain findings, all of which were not present in this case.    Bush v Westchester House, 2-13-2013. 
ALJ Denigan

The Commission modified an award of future medical and found the employer did not waive its right to select future medical providers.  Demore v Demore Enterprises, 2012 Mo WCLR Lexis 170 (Sept 27, 2012).
ALJ  Wilson

Future medical with specific doctor , but visits limited
Claimant is a welder with myofascial shoulder pain and established entitlement to past medical bills and future medical for "nonsurgical treatment" with a specific named provider for "up to four visits per calendar year." Claimant had a "strong" doctor-patient relationship with the named provider.  Curan v Johnson Controls, 2012 MO WCLR LEXIS 72 (3-29-2012)
ALJ  Allen
Atty:  Whipple
Experts:  Egea, Rhoades

Future medical, claimant picks own doctor
The Commission modified an award for future medical which allowed claimant to pick his own doctor and found the employer had not waived its statutory right to designate a provider.  Joplin v Gates Rubber Co., 2012 Mo WCLR Lexis 33 (3-8-12)

Future medical, except for Dr. (fill in the blank)
The Commission modified an award for future medical in a temporary award when the ALJ attempted to exclude a specific back surgeon, when the award contained no findings that the expert endangered claimant's life, health or recovery.  Thompson v Lone Star Steakhouse, 2011 MO WCLR Lexis 229  (Nov. 8, 2011) 
ALJ Denigan
Atty:  Hamby, Klug
Experts:  Volarich, Chabot

Future medical, "as designated by Dr. (fill in the blank)"
An award for future medical is limited to reasonable and necessary care, and the Commission modified an award when designated as treatment recommended by claimant's expert.  Arnold v Mo Dept. of Corrections,  2011 mo wclr lexis 201    See also:  Duever v All Outdoors Inc., 2011 Mo. WCLR Lexis 207
ALJ  Tilley.

By contrast, the commission awarded  treatment as recommended by claimant's expect, preceded by an
order for re-evaluation by claimant's expert, a spine surgeon,  to assess any  "pre-myelopathic" findings.  No other expert  had found such a condition to support a symptomatic cervical disc and the employer's expert indicated that diagnosis of pre-myelopathy was not generally recognized  in spinal surgery.  Farley v Embarq/Century Link, 3-21-2013. 

Future medical awarded, even without evidence of cure or relieve
Claimant received an award for PTD benefits related to disc surgery with ongoing symptoms requiring a pump, but court rejects "unique" defense that employer didn't owe for treatment since it didn't help claimant cure or relieve symptoms. The Commission noted ALJ Herschel made unnecessary findings related to SIF liability, as claimant was found to be PTD. Snider v Cooperative Workshop, 2009 MO WCLR Lexis 194.

Future Medical, OTC meds advised
Hampton v Champion Precast, 2-24-2012, concluded that the claimant met his burden proving entitlement to future medical care based on need for over the counter analgesics modifying the original award.

Green v Platte County, 2009 MO WCLR Lexis 136, concluded claimant met his burden for future medical care based on periodic use of over the counter medication and recommendation that claimant may require diagnostic studies in the future despite the absence of any current need for care. 

In Hargis v Ree’s Contract Service, 2004 Mo WCLR Lexis 176 the ALJ attempted to limit the future medical award to prescription medication only, a limitation the Commission removed on appeal.

Prior degenerative condition defense rejected, surgery awarded
Claimant established that an unauthorized multi-level 360 fusion was reasonable and necessary to "cure or relieve" him, based on testimony that it "gave him hope", even though claimant still asserted he was in way too much pain to ever work again. The employer provided treatment including back surgery with a neurosurgeon following a 2001 back injury. Claimant was told to seek treatment on his own. Dr. Gornet performed anterior and posterior fusions at L2-L5 due to stenosis, representing over $148,000 in disputed medical expenses. At the time of surgery Dr. Gornet asserts he found small disc herniations and annular tears. Dr. Gibbs concluded such treatment was not indicated. The administrative law judge found the surgery cured or relieved claimant based on clamant's testimony that Dr. Gornet "saved his life" and "gave him hope." Claimant was found PTD because after the surgery he still experienced pain in his low back and legs that was of such severity it was unlikely any employer would hire him. The court rejected the employer's defense that the second surgery was unnecessary or related solely to degenerative conditions, when claimant asserted he had no prior problems. The case is Reed v Associated Electric Cooperative, 302 S.W.3d 393  (Mo. App. 2009).

Employer liable for complications of authorized surgery.
In  Meyer-Linquist v Shugart, Thompson & Kilroy, 2009 MO WCLR Lexis 98, A 38-year old legal assistant claims she could never work again due to extreme complications following a carpal tunnel release and thoracic outlet surgery. She had a history of prior carpal tunnel releases who stated she developed carpal tunnel again transcribing tapes. Dr. Graham, the employer's expert, criticized the decision to proceed in the absence of abnormal EMG studies.The employer subsequently authorized a thoracic outlet surgery, which Judge Cain considered unrelated. The employer was still found liable for complications related to the TOS. Namely: "Claimant alleged that as a complication of the authorized treatment including the first rib resection, she developed RSD/CRPS, required a cervical sympathectomy during which a nerve to her arm was severed, developed Horner’s Syndrome, and that she was prescribed more than 20 stellate ganglion blocks. She alleged that she developed an infection due to the ganglion blocks and that she required a hemilaminectomy from C4 to C7 to remove the abscess."Judge Cain found claimant's assertion that she was PTD unconvincing and awarded 50% BAW with open medical, but conditioned her benefits on attending a detox program. Dr. Koprivica, her expert, indicated that he was unable to touch her to perform a physical exam due to extreme pain, although video evidence suggested she over-stated her symptoms. Claimant also represented that she was unable to work, but continued to run a bond company and involved with bounty hunters tracking down criminals. .

Employer liable for injury in therapy.
Judges can assess credibility in many ways to determine what a case is worth, but clothing is usually not often cited as a factor. In the recent decision Sater v MTC Construction, 2009 MO WCLR Lexis 139, ALJ Vacca awarded claimant 15% for a disc bulge and 30% for an operated shoulder, representing over $50,000 in disability benefits, noting that claimant "was a credible witness who appeared in a suit and tie, well dressed, well groomed, having served his country in the Gulf War and he testified directly, succinctly and most credibly." Claimant, a 33 year old iron worker, alleges he tore his shoulder in therapy while treating for a shoulder strain