Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge

with Supplemental Opinion) Injury No.: 14-058646 Employee: Matthew Hembree Employer: John Jamison & Co., LLC Insurer: Missouri Employers Mutual Insurance Company This 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, read the parties’ briefs, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion. Discussion Future medical care The parties asked the administrative law judge to determine whether employee is entitled to future medical care provided by the employer pursuant to § 287.140 RSMo, which states, in relevant part, as follows:

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. … … 10. 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. For the purpose of this subsection, subsection 2 of section 287.030 shall not apply.

The administrative law judge thoroughly discussed and capably sorted through the conflicting expert medical testimony with respect to this issue, and found employee’s expert, Dr. Mitchell Mullins, more credible. The administrative law judge additionally credited employee’s testimony with regard to the nature of his ongoing complaints. Consistent with these findings, the administrative law judge ordered employer to provide employee with such additional or future medical care as recommended by Dr. Mullins, and which is reasonable, necessary, and causally related to the work injury. Employer appeals, arguing that the administrative law judge, in specifically incorporating the recommendations from Dr. Mullins, has deprived employer of its statutory right to

Injury No.: 14-058646 Employee: Matthew Hembree

- 2 - select the authorized treating physician. We disagree. The administrative law judge did not order that employee’s future medical treatment must be directed by a particular physician or medical provider; rather, the administrative law judge merely satisfied his fact-finding duty with regard to the conflicting evidence, and determined that Dr. Mullins provided the more credible account of the future medical requirements employee may reasonably require as a result of the work injury. Of course, employer is obligated, pursuant to the award, to select and authorize physicians and other medical providers that will accept the facts of this case as found by the administrative law judge, including his findings with regard to the nature and severity of the injury employee suffered, as well as the determination (consistent with Dr. Mullins’s recommendations and testimony) that employee remains in need of ongoing care. While this may constrain, somewhat, employer’s choice of provider (e.g. employer obviously cannot comply with the award by sending employee to a provider, like Dr. Woodward, who believes employee has no further need for treatment as a result of the work injury), this is the practical result of every award of future medical treatment issued against an employer, where conflicting evidence is advanced with regard to whether the employee needs any treatment at all. Stated simply, acceptance of Dr. Mullins’s testimony and recommendations by the administrative law judge was not only appropriate to resolve the issue, but also serves to provide necessary guidance for the parties as to the manner in which employer may satisfy its obligations with respect to the award of future medical treatment. For these reasons, we decline to disturb, in any fashion, the administrative law judge’s well-reasoned findings, analysis, conclusions, and award with respect to future medical care. Rate of compensation The parties asked the administrative law judge to determine the appropriate average weekly wage and corresponding rates of compensation. The administrative law judge noted that employee was paid by the hour, and accordingly applied § 287.250.1(4) RSMo to determine the appropriate average weekly wage. In his calculations, the administrative law judge excluded one week, owing to the evidence that employee was absent 5 or more regular or scheduled work days during the applicable time period. Specifically, employee’s Exhibit 2 suggests employee was absent at least 5 regular or scheduled work days, and employee’s Exhibit 3 (admitted without objection) makes clear that employee was absent a total of 7 days during the applicable 13-week period. As employee’s credible testimony makes clear, these absences were the product of employer sending employee home without pay on days that he, nevertheless, showed up to work his regularly scheduled shift. In light of this evidence, the administrative law judge reasoned he was authorized to exclude one week from his calculations pursuant to the caveat under § 287.250.1(4) that “[f]or 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.” The administrative law judge accordingly divided employee’s gross earnings during the 13-week period preceding the injury by 12, rather than 13, to account for such absences.


- 3 - Employer appeals, arguing that the “absences” mentioned in the above-quoted provision refer only to an employee’s failure to report for regularly scheduled work. Employer notes the uncontested evidence that employee showed up for work every regular and scheduled workday; employer argues, therefore, that employee was never “absent,” and the days employer failed to provide him with gainful work cannot be excluded from our calculations. We are not persuaded. As the parties are well aware, we must strictly construe the language of § 287.250.1(4), pursuant to the mandate under § 287.800.1 RSMo. “[A] strict construction of a statute presumes nothing that is not expressed.” Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. App. 2009). Employer essentially asks us to add language to § 287.250.1(4) specifying that the “absences” in question must be caused by some failure on the part of the employee to make himself available for regularly scheduled work. But this presumes a meaning the legislature did not express. Instead, the legislature instructed that all absences, for whatever reason, shall be excluded from our calculations. In our view, when an employee shows up for a regularly scheduled workday, but the employer does not make any work available, and sends the employee home without pay, an “absence” has unquestionably occurred. In the alternative, we would view employer’s failure to provide employee with work each day he reported as “exceptional facts,” and would deem the administrative law judge’s calculation of employee’s average weekly wage to be both “fair” and “just” pursuant to § 287.250.4, which provides as follows:

If pursuant to this section the average weekly wage cannot fairly and justly be determined by the formulas provided in subsections 1 to 3 of this section, the division or the commission may determine the average weekly wage in such manner and by such method as, in the opinion of the division or the commission, based upon the exceptional facts presented, fairly determine such employee's average weekly wage.

For all of the foregoing reasons, we decline to disturb the administrative law judge’s well-reasoned findings, analysis, conclusions, and award with respect to the issue of employee’s average weekly wage and corresponding rates of compensation. Corrections The administrative law judge states, in the first full sentence in the first paragraph on page 22 of his award, as follows: “Although Mr. Hembree testified that physical therapy has been recommended, he is unable to afford such care.” Also, in the second sentence of the first full paragraph on page 9 of his award, the administrative law judge states as follows: “Additionally, Mr. Hembree states that the employer provided him with menial task work assignments, such as cleaning the company shop[.]” In its brief, employer argues that these findings were in error, as the employee provided no such testimony at the hearing. In employee’s responsive brief, he restates, as fact, the above-quoted statements from the administrative law judge, but fails to cite the


- 4 - transcript to where such testimony or other supportive evidence might be found. We have carefully reviewed employee’s hearing testimony, and we agree with employer that employee’s testimony does not support the above-quoted statements by the administrative law judge. Accordingly, we hereby disclaim them. It does not appear that these isolated errors materially affected the administrative law judge’s overall analysis. In any event, we agree with the administrative law judge’s ultimate conclusions with regard to the disputed issues. For this reason, we affirm and adopt the remainder of the administrative law judge’s award and decision as our own. Conclusion We affirm and adopt the award of the administrative law judge as supplemented herein. The award and decision of Administrative Law Judge L. Timothy Wilson, issued June 30, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision. We approve and affirm 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 13th day of March 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman VACANT Member Curtis E. Chick, Jr., Member Attest: Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

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AWARD

Employee: Matthew Hembree Injury No. 14-058646 Dependents: N/A Employer: John Jamison & Co., LLC Insurer: Missouri Employers Mutual Insurance Company Additional Party: N/A Hearing Date: April 27, 2016 Checked by: LTW

FINDINGS OF FACT AND RULINGS OF LAW 1. Are any 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: June 25, 2014 5. State location where accident occurred or occupational disease was contracted: Christian County, Missouri

(The parties agree to venue lying in Greene County, Missouri. Venue is proper.) 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: While

engaged in employment and performing his work duties with Employer, Employee was loading supplies and tools in the back of a pickup truck. As Employee attempted to load a large propane cyclinder, weighing approximately 200 pounds, in the back of the truck the metal to metal contact caused the cylinder to start slipping sideways. The slipping of the heavy cylinder while Employee was holding onto the cylinder caused Employee to maneuver and twist his body in order to maintain control of the cylinder. As a consequence of this lifting incident, Employee sustained an injury to his low back

12. Did accident or occupational disease cause death? No Date of death? N/A 13. Part(s) of body injured by accident or occupational disease: Low Back & Right Lower Extremity 14. Nature and extent of any permanent disability: 25% PPD BAW

15. Compensation paid to-date for temporary disability: $7,522.55

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Matthew Hembree Injury No. 14-058646

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16. Value necessary medical aid paid to date by employer/insurer? $20,729.29 17. Value necessary medical aid not furnished by employer/insurer? $4,628.98 18. Employee's average weekly wages: $606.86 19. Weekly compensation rate: $404.57 (TTD / PPD) 20. Method wages computation: Adjudication

COMPENSATION PAYABLE

21. Amount of compensation payable: Unpaid medical expenses:………………………………………………………………….………… $4,628.98 20 and 1/7 weeks (141 days) of temporary total disability compensation:………………….………… $626.65

Employee is entitled to temporary total disability compensation in the amount of $8,149.20. Having paid $7,522.55 in temporary total disability compensation to Employee, Employer and Insurer thus owe an additional $626.65 in temporary total disability compensation. Therefore, Employer and Insurer are ordered to pay to Employee the sum of $626.65, which represents an underpayment of temporary total disability compensation.

100 weeks of permanent partial disability from Employer / Insurer:……………………...……….. $40,457.00

Weeks of disfigurement from Employer / Insurer:………………………………………………………… N/A 22. Second Injury Fund liability: N/A TOTAL: ……………………………………….. $45,712.63, PLUS FUTURE MEDICAL CARE 23. Future requirements awarded: Medical Care (See Award) 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Paul Reichert, Esq.


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FINDINGS OF FACT and RULINGS OF LAW: Employee: Matthew Hembree Injury No. 14-058646 Dependents: N/A Employer: John Jamison & Co., LLC Insurer: Missouri Employers Mutual Insurance Company Additional Party: N/A The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on April 27, 2016. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about May 23, 2016. The employee appeared personally and through his attorney Paul Reichert, Esq. The employer and insurer appeared through their attorney, Lance A. Roskens, Esq. The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about June 25, 2014, John Jamison & Co., LLC, was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Missouri Employers Mutual Insurance Company.

(2) On the alleged injury date of June 25, 2014, Matthew Hembree was an

employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about June 25, 2014, the employee, Matthew Hembree, sustained an

accident, which arose out of and in the course of his employment with the employer.

(4) The above-referenced employment and accident occurred in Christian

County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(5) The employee notified the employer of his injury as required by Section

287.420, RSMo. (6) The Claim for Compensation was filed within the time prescribed by

Section 287.430, RSMo. (7) Temporary total disability compensation has been provided to the

employee in the amount of $7,522.55, representing 141 days in disability


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benefits, payable for the period of August 11, 2014, through December 29, 2014, at the compensation rate of $373.45.

(9) The employer and insurer have provided medical treatment to the

employee, having paid $20,729.29 in medical expenses. (10) The employee reached maximum medical improvement on December 29,

2014, relative to the accident and injury of June 25, 2014. The issues to be resolved by hearing include:

(1) Whether the employer and insurer are obligated to pay for certain past medical care and expenses?

(2) Whether the employee has sustained injuries that will require additional or

future medical care in order to cure and relieve the employee from the effects of the injuries?

(3) What is the applicable compensation rate? (4) Whether the employee is entitled to additional temporary total disability

compensation? (The employee seeks payment of temporary total disability compensation payable for the period of August 2, 2014, through August 10, 2014. Also, the employee seeks payment of additional temporary total disability compensation payable for the period of August 11, 2014, through December 29, 2014, premised on contention that the prior payment of temporary disability compensation was based on a lower and inaccurate wage rate.)

(5) Whether the employee sustained any permanent disability as a

consequence of` the accident of June 25, 2014; and, if so, what is the nature and extent of the disability?

EVIDENCE PRESENTED

The employee testified at the hearing in support of his claim. Also, the employee presented at the hearing of this case the testimony of his girlfriend, Tamra Davis. In addition, the employee offered for admission the following exhibits:

Exhibit 1 ........................................... Medical Report of Mitchell C. Mullins, D.O. (Inclusive of Attached Exhibits) Exhibit 2 ................................................................. Earnings Records of Employee Exhibit 3 ....................................................................... .Wage Summary Statement Exhibit 4 ........................................................................... Medical Bills & Invoices Exhibit 5 .................................................... W-2 (Wage & Tax Statement for 2013) Exhibit 6 ................................................... W-2 (Wage & Tax Statement for 2014) Exhibit 7 ................................................... Deposition of Mitchell C. Mullins, D.O. (Inclusive of Deposition Exhibits)


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Exhibit 8 ............................................................... Copy of Section 287.250, RSMo Exhibit 9 ............................................................... Copy of Section 287.190, RSMo

The exhibits were received and admitted into evidence. Exhibit 3 was received and admitted as a demonstrative exhibit only and not for the truth to the matter asserted. Similarly, Exhibits 8 and 9 were received and admitted as demonstrative exhibits; while the undersigned took administrative or judicial notice of Section 287.250, RSMo and Section 287.190, as amended and applicable to the facts of this case. The employer and insurer did not present any witnesses at the hearing of this case. However, the employer and insurer offered for admission the following exhibits:

Exhibit A ................................................... Deposition of Jeffrey Woodward, M.D. (Inclusive of Deposition Exhibits) Exhibit B ............................................. Rating Report of Jeffrey Woodward, M.D. Exhibit C ..............................Physical Therapy Discharge Summary for Employee

The exhibits were received and admitted into evidence. In addition, the parties identified several documents filed with the Division of Workers’ Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

• Notice of Hearing • Order of Dismissal of Second Injury Fund • Motion to Dismiss Second Injury Fund • Notice of Commencement / Termination of Compensation • Answer of Second Injury Fund to Amended Claim for Compensation • Answer of Employer/Insurer to Amended Claim for Compensation • Amended Claim for Compensation • Answer of Employer/Insurer to Original Claim for Compensation • Original Claim for Compensation • Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

DISCUSSION Background & Employment

The employee, Matthew Hembree, is 45 years of age, having been born on May 13, 1971. Mr. Hembree resides in a home with acreage in Reeds Spring, Missouri, which he and his girlfriend, Tamra Davis, share and own together. Notably, Mr. Hembree and Ms. Davis have lived together for over 22 years and have three children, all of whom are grown and emancipated.


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Mr. Hembree graduated from high school in Crane, Missouri. Following graduation from high school, Mr. Hembree obtained employment as a laborer working for Tyson Foods, a chicken processing plant located in Monett, Missouri. For the past 10 to 15 years Mr. Hembree has worked in construction, performing primarily roofing work, as well as setting up of mobile homes. The setting up of mobile homes included work involving transporting of mobile homes to a lot site, as well as “trimming out” the mobile homes. Additionally, the setting up of mobile homes included site leveling and preparation of the site for accommodating the mobile home. In or around May 2008 Mr. Hembree obtained employment with the employer, John Jamison & Co., LLC, working initially as a roofer. The roofing work performed by Mr. Hembree involved primarily roofing construction work for commercial roofs, which involved mostly flat roofs. In describing the nature of this construction work, Mr. Hembree noted that this type of roofing work involved installation of large membrane rolls, and the subsequent mopping of the rolls with hot tar. Mr. Hembree describes this work as hard manual labor. In performing this work he was required to perform on a daily basis a lot of heavy lifting, climbing ladders, completing work activities while bending and stooping for long periods of time. Accident On June 25, 2014, while engaged in employment and performing his work duties with the employer, John Jamison & Co., LLC, Mr. Hembree was loading supplies and tools in the back of a pickup truck. As he attempted to load a large propane cylinder, weighing approximately 200 pounds, in the back of the truck the metal to metal contact caused the cylinder to start slipping sideways. The slipping of the heavy cylinder while Mr. Hembree was holding onto the cylinder caused Mr. Hembree to maneuver and twist his body in order to maintain control of the cylinder. As a consequence of this lifting incident, Mr. Hembree sustained an injury to his low back, causing him to experience immediate onset of intense pain in his low back. Subsequent to sustaining this injury, on June 25, 2014, Mr. Hembree reported the incident to his employer. Initially, the employer did not offer or provide Mr. Hembree with any medical care, hoping that over the course of the workday Mr. Hembree’s discomfort would resolve and alleviate need for treatment. Mr. Hembree thus continued the workday without securing or obtaining medical care. On the following day, Mr. Hembree returned to work and reported to his employer that he was continuing to experience severe pain in the middle of his lower back with radiating pain and numbness into his right lower extremity. In light of these presenting symptoms, Mr. Hembree requested the employer to provide him with a medical evaluation and repeated this request over the next two days without success. Mr. Hembree thus continued to report to work, and despite the continuing pain and symptoms completed the workweek, which ended on Friday June 27, 2014. Medical Treatment

On Saturday, June 28, 2014, while continuing to present with intense unresolved pain, and in light of the employer having declined to provide Mr. Hembree with medical care, Mr. Hembree presented to Cox Health-Branson medical clinic for evaluation and treatment. At the


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time of this visit, the attending physician, Thomas Legg, D.O., took a history from Mr. Hembree, which included the following statement:

CHIEF COMPLAINT: Lower right back strain Duration of symptoms: 4 day(s) HISTORY OF PRESENT ILLNESS: 4 days ago was lifting 100 pounds propane tank twisting to the left and felt right back pain. Has radiation to the right knee. Increase with Valsalva. Bowel and bladder function is intact. Pain is improved with hip flexion in the supine position. Pain is a 10/10 at times especially with movement.

Based on this exam, Dr. Legg diagnosed Mr. Hembree with a lumbosacral strain and prescribed Prednisone and pain medications. Also, Dr. Legg advised Mr. Hembree to perform lumbar exercises.

On Wednesday, July 2, 2014, Mr. Hembree returned to Cox Health-Branson reporting no improvement of his severe back and leg pain. At that time, he was seen by a Physician’s Assistant, Ellen Barton, and was given a steroid injection, oral steroid, and muscle relaxants. Notably, during the workweek of June 30, 2014, Mr. Hembree continued to report to work and continued to request his employer to provide him with medical treatment.

Finally on July 8, 2014, the employer offered to provide Mr. Hembree with medical care, and directed him to OCH Nixa Walk In Clinic. In presenting to this clinic on the same day with severe low back pain Mr. Hembree was examined by Lacy Donnelly, a nurse practitioner. At the time of this examination Nurse Practitioner Donnelly took a history from Mr. Hembree, where she notes the following:

The patient is a 43 year old white male who presents for a history of lumbar region pain which began 12 days ago. He describes the pain as severe in severity, and radiating into the right leg. The onset of the back pain was sudden and was precipitated by lifting. There are no aggravating factors that are identified. There are no alleviating factors identified. He states that the pain does wake him from sleep and the pain is much worse in the morning. He has no additional complaints. He denies fecal incontinence and urinary incontinence. His past medical history is noncontributory.

Based on this exam, Nurse Practitioner Donnelly prescribed Ibuprofen for pain and a muscle relaxer, Cyclobenzaprine.

On July 28, 2014, Mr. Hembree returned to the OCH Nixa Walk In Clinic, and was again evaluated by Nurse Practitioner Donnelly. At the time of this examination, Mr. Hembree continued to present with severe pain, including pain and numbness in his right lower extremity. Notably, at the time of this exam Nurse Practitioner Donnelly noted that Mr. Hembree “isn’t able to lift things due to the pain in his back and hip. Based on this exam, Nurse Practitioner Donnelly


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discussed with Mr. Hembree the need for an MRI; yet this healthcare provider did not undertake to order or cause Mr. Hembree to undergo an MRI.

On the evening of July 31, 2014, Mr. Hembree presented to the emergency room of Cox Medical Center with complaints of severe and increasing low back pain. The attending physician ordered an MRI, and this diagnostic study revealed a large right paramedial L4-L5 disc extrusion with cephalad extension, impinging upon the L4 nerve root. Also, this study revealed a mild broad based left paramedial disc protrusion at L5-S1. In light of these findings, the attending physician prescribed pain medications and referred Mr. Hembree to Charles Mace, M.D., a neurosurgeon.

In the interim, the employer apparently contacted the insurer, Missouri Employers Mutual Insurance Company, resulting in the insurer accepting coverage, and then initiated the process of implementing and providing Mr. Hembree with medical care. As part of this authorized medical care, on August 11, 2014, Mr. Hembree presented to Dr. Mace for examination and evaluation of his low back injury. Following this exam, Dr. Mace referred Mr. Hembree to Jeffrey Woodward, M.D., a physician practicing in the specialty of physical medicine and associated with the medical office of Dr. Mace. In light of this referral, on August 14, 2014, Mr. Hembree presented to Dr. Woodward for evaluation and treatment. Dr. Woodward provided Mr. Hembree with conservative care, including an epidural steroid injection on August 19, 2014.

The conservative care provided by Dr. Woodward did not alleviate or resolve Mr. Hembree’s low back pain and symptoms. Consequently, Mr. Hembree returned to see Dr. Mace on September 10, 2014. At the time of this examination, and in light of continuing unresolved pain and symptoms, Dr. Mace diagnosed Mr. Hembree with a right L4-L5 disc herniation with severe right L5 radiculopathy. Further, based on this diagnosis Dr. Mace recommended that Mr. Hembree proceed with immediate surgery.

On September 11, 2014, Mr. Hembree underwent low back surgery in the nature of a right L4-5 hemi-laminectomy and micro-discectomy. Dr. Mace performed this surgery and provided post-operative follow-up care. Also, follow-up care included a referral back to Dr. Woodward and a course of physical therapy. Additionally, this post-operative care included a repeat MRI diagnostic study.

On December 29, 2014, Mr. Hembree presented to Dr. Woodward for follow-up

examination. At the time of this examination Mr. Hembree presented with continuing complaints of low back pain, with the pain being at best a 0, and at worse a 4, on a scale of 0 to 10. Additionally, Mr. Hembree continued to present with radiating pain and numbness into his right lower extremity, referral to the right lateral and right posterior thigh. Based on this exam, and in light of the MRI diagnostic study, Dr. Woodward determined that Mr. Hembree presented with “overall good gradual postop healing with residual lumbar spine pain and right lumbar radicular symptoms.” As such, Dr. Woodward released Mr. Hembree from his medical care, and permitted Mr. Hembree to return to work and “resume full time regular work duties.”

Subsequently, on January 16, 2015, Dr. Woodward issued a final rating report. In this

report Dr. Woodward noted that at the time of Mr. Hembree’s release from medical treatment, Mr. Hembree continued to present with an “abnormal right lower extremity.” Further, Dr.


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Woodward noted that the EMG study performed post-operatively demonstrated electrical evidence of “mild chronic L5 lumbosacral radiculopathy”; yet Dr. Woodward determined and noted in his final rating report that the medical condition did not warrant any additional or future medical care. In rendering an opinion as to the resulting permanent disability attributable to the June 25, 2014, accident and injury, Dr. Woodward opined that Mr. Hembree had sustained a permanent partial disability of 12 percent to the body as whole, referable to the lumbar spine. Present Complaints Mr. Hembree returned to his employment with the employer, John Jamison & Co., LLC, in January 2015. Unfortunately, according to Mr. Hembree, he was unable to put forth the same physical effort that he had been able to perform prior to the June 25, 2014 injury. Additionally, Mr. Hembree states that the employer provided him with menial task work assignments, such as cleaning the company shop; the employer did not provide him with opportunity to participate in any of the prevailing wage jobs. In January of 2016, the employer, John Jamison & Co., LLC, terminated Mr. Hembree’s employment, informing him that the employer no longer needed his services. Thereafter, Mr. Hembree filed for unemployment compensation, and proceeded to seek other employment. At the time of the hearing Mr. Hembree noted that while he has looked for work, he has not been able to obtain any employment.

In discussing the effects of the work injury upon him, Mr. Hembree testified generally that he has experienced a dramatic reduction in his pain since having surgery. However, he indicates that he continues to experience low back pain and numbness in his right lower extremity. As a consequence, Mr. Hembree notes that the residual pain and numbness has affected his ability to engage in employment that involves hard physical labor. Medical Opinions Mitchell C. Mullins, D.O. Mitchell C. Mullins, D.O., a physician practicing in the area of independent medical examinations and board certified in emergency medicine, testified by deposition on behalf of the employee. Dr. Mullins performed an independent medical examination of Mr. Hembree on April 22, 2015. At the time of this examination, Dr. Mullins took a history from Mr. Hembree, reviewed various medical records, and performed a physical examination of him. In light of his examination and evaluation of Mr. Hembree, Dr. Mullins opined that the lifting incident of June 25, 2014, was the prevailing factor in causing Mr. Hembree to sustain an injury to his lumbar spine, and this injury was in the nature of significant nerve root compression at the L4 nerve root. Dr. Mullins further opined that this injury necessitated receipt of medical care, including a surgical repair in the nature of a right sided L4-5 hemi-laminectomy and micro-discectomy. In considering the residual effects of this June 25, 2014, work injury, Dr. Mullins testified that the surgery and treatment received by Mr. Hembree provided limited relief, insofar as Mr. Hembree continued to suffer from numbness in his right lower extremity, as well as persistent low back pain. As such, Dr. Mullins opined that the work injury caused Mr. Hembree to be governed by restrictions and limitations sufficient to constitute a hindrance or obstacle to


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employment. In this context, and in contrast to the opinions of Dr. Woodward, Dr. Mullins imposes permanent restrictions upon Mr. Hembree. These permanent work restrictions include:

• Exertional Limitations:

1. Mr. Hembree is restricted to lifting/carrying 40 pounds occasionally and less than 10 pounds frequently.

2. Mr. Hembree is restricted to standing and/or walking 2 to 4 hours in an 8-hour workday.

3. Mr. Hembree is restricted to work environment that allows him periodically to

alternate sitting and standing to relieve pain and discomfort.

4. Mr. Hembree is limited in his capacity to push or pull with his lower extremities.

• Postural Limitations:

1. Climbing-ramps, poles, ladder, rope, scaffold…………….….………... Never 2. Climbing-stairs………………………………………………....... Occasionally 3. Balancing-narrow, slippery, moving surfaces………………....… Occasionally 4. Kneeling-bending legs to rest on knees………………………..... Occasionally 5. Crouching-bending downward, forward with legs & spine…..…. Occasionally 6. Crawling-moving on hands and knees…………………….….…. Occasionally 7. Stooping-bending at waist…………………………………..…… Occasionally

• Manipulative Limitations:

1. Reaching in all directions (including overhead)………….…………... Limited 2. Handling (gross manipulation)…………………….……….………. Unlimited 3. Fingering (fine manipulation)…………………………….….……... Unlimited 4. Feeling (skin receptors)………………………………..…………… Unlimited

• Environmental Limitations:

Mr. Hembree is restricted to work environment that avoids vibration.

(Dr. Mullins notes that the phrase “lifting/carrying” includes upward pulling. Also, Dr. Mullins notes that the term “frequently” is defined to include one-third to two-thirds of an 8-hour workday; and the term “occasionally” means occurring from very little up to one-third of an 8-hour work day. Further, Dr. Mullins defines an 8-hour workday to mean cumulatively, not continuously.) Further, Dr. Mullins opined and recommended that Mr. Hembree change occupations,

asserting that Mr. Hembree is no longer able to engage in heavy construction work such as roofing. In light of the foregoing, Dr. Mullins opined that the work injury of June 25, 2014, caused Mr. Hembree to sustain a permanent partial disability of 25 percent to the body as a


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whole, referable to the lumbar spine. Questioned about Mr. Hembree’s loss of employment opportunity, Dr. Mullins propounded the following comments:

Q. So it’s your recommendation he probably needs to find another line of work. A. It was, yes.

Q. Given the changes that he made or that have been made through his job, is it still your opinion that you believe he needs to leave that line of work or leave his current job?

A. Well, yes, it is.

Q. And why is that if he’s able to do the job that he currently has with the modifications that either he or his employer has allowed?

A. Well, I think you would have to get into the specifics of his job duties. You know, these guys are installing roofs, and he’s driving dump trucks, he’s -- you know, he’s delivering roofing material and using various hand tools. The low back injuries like that that are irritated are not going to be made better by lifting. He’s got buckets of tar he’s expected to deliver and I think that-if I remember correctly, that was the 70-pound item that he’s regularly having to deliver that they heat up and tar these roofs. Yeah, he’s shoving them off, but it’s just a matter of time before he’s in a situation where he’s challenged to do something, and no one else is around, and, you know, they -- we all cope in our own ways, but they’re not necessarily effective or healthy ways of coping or adapting.

In addition, Dr. Mullins opined that as a consequence of Mr. Hembree sustaining the June 25, 2014, injury to his low back, Mr. Hembree will need future medical care in order to cure and relieve him from the effects of the work injury. In identifying the form and nature of this medical care, Dr. Mullins testified that this future medical care includes injections in the lumbar spine and possibly additional physical therapy. When questioned about this medical care, Dr. Mullins noted that this additional healthcare, including physical therapy, is reasonable and necessary medical treatment, causally related to the work injury. In this context, Dr. Mullins propounded the following testimony:

Q. If we turn to page 13 of your report at the very bottom there, it looks to me as if you’re indicating that Mr. Hembree may need future medical care. Is that correct?

A. Yes.

Q. And you state that that would include injections in the lumbar spine and possibly further physical therapy. Correct?

A. Yes.

Q. For a patient like Mr. Hembree, would the regular course be to send him through physical therapy before any injections?

A. Yes.

Q. And if the physical therapy didn’t help, then you would try injections? Is that correct?

A. I would agree.


Page 12

Jeffrey Woodward, M.D. Jeffrey Woodward, M.D., provided initial conservative care to Mr. Hembree prior to his surgery. After the September 11, 2014, surgery provided by Dr. Mace, Dr. Woodward provided follow-up care and rehabilitation services. Testifying at the request of the employer and insurer, Dr. Woodward opines that the lifting incident of June 25, 2014, caused Mr. Hembree to sustain a minimal level of permanent disability, which he assessed at 12 percent to the body as a whole. However, Dr. Woodward opines that the effects of the work injury do not prohibit Mr. Hembree from engaging in any employment, and do not cause Mr. Hembree to be governed by any permanent work restrictions. Further, according to Dr. Woodward, the work injury does not require receipt of any additional or future medical care. On cross-examination, inquiry was made as to the effects of the work injury upon Mr. Hembree, including consideration of the continuing residual pain and numbness being experienced by Mr. Hembree. Responding to this inquiry, Dr. Woodward acknowledged that the treatment for Mr. Hembree’s injury did not result in him being symptom free, and that it would be in Mr. Hembree’s best interest to change occupations. In this regard, Dr. Woodward propounded the following comments: Q. Would it be your recommendation that he seek a lighter form of work?

A. That would be strictly up to him to decide. It’s possible that with a less heavy lifting or less squatting occupation, he would be more comfortable. But as I had told him and would say, he doesn’t need a permanent, formal medical restriction, and he has all his options available to him regarding future work.

Q. But it would your opinion that a lighter form of work would probably reduce his

symptomatology? A. Yeah. I don’t think I could say “probably”. That’s individual, and I hear some

patients have less back pain if they actually do more physically, and the opposite of that. It would just be an individual determination the patient would need to make.

Further, on cross-examination, when asked about the present and continuing receipt of

treatment being given to Mr. Hembree for his low back by Dr. Olds and Dr. Ballard, both of whom practice in the Cox healthcare system, Dr. Woodward offered the following opinions:

Q. When you released him, did he have any remaining symptoms that you would attribute to this injury?

A. Yes. Q. And what were those symptoms?

A. The patient had persisting residual, chronic low-back pain. And he had report of constant right-leg numbness and leg pain that was worsened with physical activity.


Page 13

On examination, physical examination, he did have the residual light-touch alterations in the right lower extremity, with intact reflexes and intact strength to manual muscle testing.

Q. Did you think he was magnifying his symptoms?

A. He indicated on my final visit that his maximum pain was 4 out of 10 in the back near the time of my visit that day, which would be moderate pain in the lumbar spine postoperatively which is believable and typical.

Q. Okay. So there were objective medical finding to substantiate his subjective

complaints? A. The objective abnormalities were the postoperative EMG/needle exam I

performed, which I did generate a written report November 5, 2014, which indicated mild chronic L5 nerve root injury. And that would be -- along with his postoperatively scar, would be the objective findings.

Q. Now, Doctor, with reference to Deposition Exhibit 4 from Dr. Olds and Dr.

Ballard, are you acquainted with either one of those physicians? A. No. Q. Is their clinic part of the Cox system? A. Yes.

Q. So to make sure I understand your testimony, are Dr. Olds and/or Dr. Ballard providing him ongoing treatment for chronic low-back complaints?

A. Yes. Q. In your opinion, is that unnecessary treatment they are providing him? A. Yes.

Q. So that they should not be treating him for chronic, ongoing low-back symptoms?

A. The treatments that I have seen that they have provided are not contraindicated; although it appears that they were -- had started and were providing the patient with daily chronic narcotic pain medication, which would not be medically recommended now, based on the past five years of medical research that indicates the side effects of chronic narcotic medications outweigh the benefits in this condition.

I believe there may be some other medications that are non-addicting they are providing the patient. As I said, it would not be contraindicated, but not medically necessary.

Q. How about the Flexeril or the cyclobenzaprine? That’s a muscle relaxer, isn’t it? A. Yes. Q. Is that one of these addictive -- A. No.


Page 14

Q. Okay. Would that be an appropriate medication prescribed for ongoing low-back

complaints? A. Typically and commonly is used for treatment of acute back strain episodes or

acute pain. As I said it’s not contraindicated for chronic use, but in my opinion is not medically necessary.

Q. Okay. What if these physicians had recommended ongoing physical therapy,

what would be your opinion of that recommendation by Dr. Olds and Dr. Ballard? A. The patient completed a postoperative physical therapy program which he

reported actually made his pain worse. Routinely, he was provided with a home postop lumbar spine exercise program which is, by far, the most important part of postop PT, which is to learn that self-directed exercise which would -- should be pursued long-term.

Repeated episodes or courses of physical therapy, as in this patient’s chronic condition, have not been shown to provide any significant lasting pain or functions improvement. So in that regard it would not be medically necessary.

Q. So you don’t think a few sessions with a physical therapist would benefit his

ongoing back complaints at all? A. It’s possible that those sessions could cause some very temporary pain

improvement or pain relief, which he could also get with possibly a heating pad or hot showers at home.

Again, the lumbar spine stretching and exercise program is one that he should be pursuing on his own without the therapist.

FINDINGS AND CONCLUSIONS

The burden of establishing any affirmative defense is on the employer. The burden of

proving an entitlement to compensation is on the employee, Section 287.808, RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800 RSMo.

I.

Accident & Injury The parties readily acknowledge, and the evidence is supportive of a finding that on June 25, 2014, the employee sustained an injury by accident, which arose out of and in the course of his employment with the employer, John Jamison & Co., LLC. Notably, on June 25, 2014, while engaged in employment and performing his work duties with the employer, John Jamison & Co., LLC, Mr. Hembree was loading supplies and tools in the back of a pickup truck. As he attempted to load a large propane cylinder, weighing approximately 200 pounds, onto the metal tailgate and slide it into the truck, the metal to metal contact caused the cylinder to start slipping sideways. As Mr. Hembree attempted to regain control of the cylinder and keep it from falling to the


Page 15

ground, he lifted, pushed and twisted his body. As a consequence of this lifting incident, which involved both a lifting and twisting maneuver, Mr. Hembree experienced immediate onset of intense pain in his low back. What is the nature of the Injury? Although the parties have stipulated to the employee sustaining an injury by accident on June 25, 2014, as described above, which arose out of and in the course of the employee’s employment with the employer, a questions remains: What is the nature of the injury caused by the accident of June 25, 2014? As to this issue, after consideration and review of the evidence, I find and conclude that the injury in question is an injury to the low back. As diagnosed by multiple physicians and confirmed by diagnostic studies, Mr. Hembree sustained an injury to his lumbar spine, and this incident was the prevailing factor in causing Mr. Hembree to sustain an injury in the nature of a significant nerve root compression at the L4 nerve root necessitating a right-sided L4-5 hemi-laminectomy and micro-discectomy. Further, as a consequence of this June 25, 2014, injury Mr. Hembree suffered and continues to suffer residual and chronic pain and discomfort in his low back and right lower extremity.

II. Wage Rate

In the present case, Mr. Hembree was employed by John Jamison & Co., LLC to work as a laborer, and he earned an hourly wage depending upon the nature of the work and the construction project. At times the employment involved prevailing wage construction work, which enabled Mr. Hembree to work at a higher hourly wage. In entering into this employment agreement the parties did not agree to a specific annual or weekly salary. At the time of the accident, Mr. Hembree had engaged in employment with the employer for approximately six years, since 2008. According to Mr. Hembree, his employer required him to report to work every week, Monday through Friday, early in the morning to receive his work assignment. The employer, John Jamison, and the office staff would be present and Mr. Hembree would receive instructions to either proceed to a work site, or spend the day working in the shop. If the employer did not have a work assignment for Mr. Hembree, he would return home. The employer’s offices and the employer were present to conduct company business Monday through Friday. It was the employer’s decision on a day-to-day basis as to whether Mr. Hembree received a work assignment.

Further, Mr. Hembree testified that since commencing employment with the employer in 2008, he never missed a day reporting to the employer’s offices and place of business. On cross-examination Mr. Hembree noted that if there was no work for him, he assumed there was no work for other employees. Yet, regardless of whether other employees engaged in work when Mr. Hembree was not offered work, the decision to give Mr. Hembree work was the decision of the employer and was made at the pleasure of the employer. Moreover, during the days Mr. Hembree was not offered work, the business continued to be open Monday through Friday to deal with customers and other company matters. Mr. Hembree only worked as an employee and was never placed in a supervisory position, which would allow him to decide or know which


Page 16

employee or employees were offered work or not offered work. John Jamison, the employer, and no other person, made the decision as to which employees worked on a day-to-day basis.

In light of the foregoing, Mr. Hembree provided testimony relative to the gross wages he

earned for the 13-week period preceding the date of injury. This testimony, supported by wage records (Exhibit 2), documents earnings in the amount of $7,282.27. Additionally, this evidence indicates that Mr. Hembree missed at least a total of 5 regularly scheduled days of work during this 13-week period. Notably, while the business operation occurred Monday through Friday, the payroll records indicate that the weekly payroll earnings period occurred Wednesday through Tuesday. Also, it is noted that the date of accident is Wednesday, June 25, 2014, which is the first day of a new work week. As such, Tuesday, June 24, 2014, is the last day of the preceding work work. This evidence is summarized below:

Number of Weeks

Work Week

Number of Hours

Worked Per Work Week

Gross Earnings

0 D of A: Wednesday, June 25, 2014 1 06-18-14 through 06-24-14 34 $ 767.21 2 06-11-14 through 06-17-14 34 $ 869.99 3 06-04-14 through 06-10-14 24 $ 336.00 4 05-28-14 through 06-03-14 29.30 $ 413.00 5 05-21-14 through 05-27-14 18.30 $ 259.00 6 05-14-14 through 05-20-14 36 $ 623.91 7 05-07-14 through 05-13-14 40 $ 714.17 8 04-30-14 through 05-06-14 28 $ 392.00 9 04-23-14 through 04-29-14 39.5 $ 655.78 10 04-16-14 through 04-22-14 38 $ 788.95 11 04-09-14 through 04-15-14 37 $ 518.00 12 04-02-14 through 04-08-14 40 $ 560.00 13 03-26-14 through 04-01-14 25 $ 384.26 Total: $7,282.27

The provisions of Section 287.250, RSMo govern the determination of the applicable compensation rate. Section 287.250, RSMo, in pertinent part, states:

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

* * *

(3) If the wages are fixed by the year, the average weekly wage shall be the yearly wage fixed divided by fifty-two; (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 by the day, hour, or output per day actually worked by the employee that such


Page 17

employee earned in the employ of the employer in the last thirteen consecutive calendar weeks immediately preceding the week in which the employee was injured…. 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 an 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; (5) If the employee has been employed less than the two calendar weeks immediately preceding the injury, the employee’s weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment at the time of the injury, except if the employer has agreed to a certain hourly wage, then the hourly wage agreed upon multiplied by the number of weekly hours scheduled shall be the employee’s average weekly wage; (6) If the hourly wage has not been fixed or cannot be ascertained, or the employee earned no wage, the wage for the purpose of calculating compensation shall be taken to be the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer;

* * *

3. 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. 4. If pursuant to this section the average weekly wage cannot fairly and justly be determined by the formulas provided in subsections 1 to 3 of this section, the division or the commission may determine the average weekly wage in such manner and by such method as, in the opinion of the division or the commission, based upon the exceptional facts presented, fairly determined such employee’s average weekly wage.

The parties appear to be in agreement that Section 287.250.1(4), RSMo governs the adjudication of the employee’s wage rate. Yet, the parties arrive at different conclusions. The employee argues that while he earned wages in the amount of $7,282.27 for the 13-week period immediately preceding the accident, he suffered an absence of five regular or scheduled work days during this 13-week period, which is sufficient to be considered an absence for a calendar week. The employee thus argues that the wage rate must be computed by dividing the earnings into 12 weeks, and not 13 weeks, which would give an average weekly wage of $606.86, and a compensation rate of $404.57 for both temporary total disability compensation and permanent partial disability compensation.


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In contrast, the employer and insurer assert that within the applicable 13-week period the employee did not miss a regularly scheduled work day, insofar as he never missed a day of work. In this context, the employer and insurer assert that Mr. Hembree, by his own testimony, since commencing employment with the employer in 2008, he never missed a day reporting to the employer’s offices and place of business. Although he was not always selected to work, each regular work day he showed up for work at the employer’s place of employment. Since he appeared for work each day, the employer and insurer argue, there cannot be an “absence of five regular or scheduled work days during the 13-week period.” Thus, the employer and insurer contend that that the average weekly wage is $560.17, which is sufficient to provide a compensation rate of $373.45 for both temporary total disability compensation and permanent partial disability compensation. The reasoning and argument of the employer and insurer are misplaced. Indeed, the argument advanced by the employer and insurer provide justification for finding that there was an absence of five regular or scheduled work days during the applicable 13-week period. The evidence of Mr. Hembree appearing for work each day, regardless of whether the employer selected him to work that day, provides proof that each day he appeared for work was a regularly scheduled workday. The evidence of Mr. Hembree not being selected to work and not being paid any compensation for that workday demonstrates an “absence” of a regularly scheduled workday. Accordingly, after consideration and review of the evidence, I find and conclude that the adjudication of this issue is governed by Section 287.250.4, RSMo. Further, I find and conclude that during the applicable 13-week period Mr. Hembree earned wages in the amount of $7,282.27, while being absent a minimum of five regular or scheduled work days. Consequently, during the applicable 13-week period Mr. Hembree was absent for a calendar week, and the wages earned in the amount of $7,282.27 must be divided by 12 in order to arrive at an average weekly wage. As such, the applicable average weekly wage is $606.86, which is sufficient to provide a compensation rate of $404.57 for both temporary total disability compensation and permanent partial disability compensation.

III. Medical Care & Expenses

Past Medical Expenses

The employee seeks payment of medical expenses incurred for treatment with multiple providers, who provided him with treatment for his work injury prior to the employer notifying the insurer and getting the insurer involved in the delivery of his medical care. Notably, upon notifying the employer of his injury on the day of the injury, the employer elected to not offer or provide Mr. Hembree with any medical care, hoping that over the course of the workday Mr. Hembree’s discomfort would resolve and alleviate need for treatment. On the following day, Mr. Hembree returned to work and reported to his employer that he was continuing to experience severe pain in the middle of his lower back with radiating pain and numbness into his right lower extremity. In light of these presenting symptoms, Mr. Hembree requested the employer to provide him with a medical evaluation and repeated this request over the next two days without the employer offering to provide him with medical care.


Page 19

Eventually, and prior to the insurer getting involved in the case, the employer offered to

provide Mr. Hembree with medical care, and directed him to OCH Nixa Walk In Clinic. In presenting to this clinic on the same day with severe low back pain Mr. Hembree was examined by Lacy Donnelly, a nurse practitioner. In this regard, Nurse Practitioner Donnelly evaluated Mr. Hembree on two occasions - July 8, 2014 and July 28, 2014. On the last visit, July 28, 2014, Mr. Hembree continued to present with severe pain, including pain and numbness in his right lower extremity. At the time of this exam Nurse Practitioner Donnelly discussed with Mr. Hembree the need for an MRI; yet this healthcare provider did not undertake to order or cause Mr. Hembree to undergo an MRI or refer Mr. Hembree to a specialist for treatment of the presenting symptomology.

On the evening of July 31, 2014, Mr. Hembree presented to the emergency room of Cox Medical Center with complaints of severe and increasing low back pain. The attending physician ordered an MRI, and this diagnostic study revealed a large right paramedial L4-L5 disc extrusion with cephalad extension, impinging upon the L4 nerve root. Also, this study revealed a mild broad based left paramedial disc protrusion at L5-S1. In light of these findings, the attending physician prescribed pain medications and referred Mr. Hembree to Charles Mace, M.D., a neurosurgeon. Subsequent to receipt of this medical care, the employer notified the insurer of the work injury, and the insurer got involved in the selection of the healthcare provider and payment of medical expenses. However, the employer and insurer did not pay or reimburse Mr. Hembree for the expenses incurred relative to him obtaining the aforementioned medical care on July 31, 2014.

The medical care and expenses incurred by Mr. Hembree, causally related to treatment of

his June 25, 2014, low back injury, and not paid by the employer and insurer are in the amounts and as follows:

Provider

Date of Service

Nature of Treatment

Amount

Billed

HCP

Adjustment

Employer / Insurer Payment

Amount Owed

CoxHealth Springfield (Cox Medical Center)

07-31-14 Cox Emergency Physicians Services

$ 369.00 $0.00 $0.00 $ 369.00

07-31-14 CoxHealth South

Emergency Department

$ 720.00 $0.00 $0.00 $ 720.00


In House MRI $ 3,075.00 $0.00 $0.00 $ 3,075.00


Pharmacy $ 5.27 $0.00 $0.00 $ 5.27

Sub-Total: $4,169.27


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Litton & Giddings Radiological Associates (Radiology Physicians)

07-31-14 Radiology Physician Services1

$ 379.00 $0.00 $0.00 $ 379.00

Sub-Total: $ 379.00 Lakeland Pharmacy 09-30-15 Prescription

Medication (muscle relaxants

& pain medication)

$ 80.71 $0.00 $0.00 $ 80.71

Sub-Total: $ 80.71 Total: $4,628.98

In discussing the medical expenses he incurred on July 31, 2014, Mr. Hembree testified

that he incurred these expenses for treatment of the June 25, 2014, injury and he is obligated to the pay the medical expenses. Further, he testified that he has not been reimbursed or received any money from the employer or insurer for payment of the expenses. Further, Mr. Hembree testified that during 2015 and subsequent to reaching “MMI”, he continued to need medications and healthcare services for treatment of his ongoing low back and lower leg symptoms related to the June 25, 2014, injury. As a consequence, on September 30, 2015, he purchased muscle relaxers and pain medications prescribed by his family physician, Elizabeth Ballard, M.D. (CoxHealth Center Branson West). This purchase was in the amount of $80.71, from Lakeland Pharmacy.

The medical records of Dr. Elizabeth Ballard indicate that the prescription medications prescribed on September 30, 2015, were ordered for the purpose of treating Mr. Hembree’s low back pain. Further, this treatment occurred as a consequence of the employer/insurer allowing Mr. Hembree’s care with the treating doctor to lapse, premised on Mr. Hembree being discharged from treatment. In this context, in presenting to CoxHealth Center Branson West on June 26, 2015, with complaints of low back pain, the attending physician propounded the following comments:

Patient complains of recent flareup of low back pain. The patient had a lumbar fusion back in September 2014 for some disc disease. He continues to have fairly significant back pain discomfort and stiffness generally more so at the end of the day after physical labor. … The doctor who did his surgery told him he needed to find a family doctor for his continued medical care. He is going to follow-up with the clinic with Dr. Ballard and will make an appointment.

After consideration and review of the evidence, including consideration of the medical treatment records, the Independent Medical Exam of Dr. Mullins and the testimony of Mr. Hembree, I find and conclude that the healthcare services he received and became obligated to pay for on July 31, 2014, were necessary for treatment of the injury. The employer and insurer thus owe to Matthew Hembree, the sum of $4,169.27 for reimbursement of the charges for healthcare services from Cox Medical Center South and $379.00 for reimbursement of necessary

1 The services provided by CoxHealth South for the “In House MRI” relates to services provided by the hospital for the services of technicians, equipment and supplies; while the services provided by Litton & Giddings relates to professional interpretation of tests provided by the radiology physicians of Litton & Giddings.


Page 21

healthcare services received on July 31, 2014, from Litton & Giddings Radiological Associates. I further find and conclude that medications purchased by Mr. Hembree on September 30, 2015, in the amount of $80.71 were necessary for treatment of Mr. Hembree’s continuing pain management, and were causally related to the residual effects of the June 25, 2014, injury. The employer and insure thus owe to Matthew Hembree the sum of $80.71 for reimbursement of the prescription medications.

Therefore, the employer and insurer are liable to the employee for payment of past medical care and expenses incurred as a consequence of the accident of June 25, 2014, and are ordered to pay to the employee, Matthew Hembree, the sum of $4,628.98 in past medical care and expenses. Future Medical Care

The employee seeks an award for future medical care. In order to receive an award of future medical benefits under Chapter 287, RSMo, an employee does not need to show “conclusive evidence” of a need for future medical treatment. Instead, the employee need only show a “reasonable probability” that because of his work-related injury, future medical treatment will be necessary. Stevens v. City of Citizens Memorial Healthcare Foundation, 244 S.W. 3d 43 (Mo. App. 2008). The parties offer differing medical opinions relative to this issue, including opinions from Dr. Woodward and Dr. Mullins.

In considering the question of future medical care Dr. Woodward, the physician selected by the employer and insurer, released Mr. Hembree from medical care and issued a final rating report, determining that Mr. Hembree’s medical condition did not warrant any additional or future medical care. Yet, in issuing this final report Dr. Woodward noted that at the time of Mr. Hembree’s release from medical treatment, Mr. Hembree continued to present with an “abnormal right lower extremity.” Further, Dr. Woodward noted that the EMG study performed post-operatively demonstrated electrical evidence of “mild chronic L5 lumbosacral radiculopathy.” Also, on cross-examination, Dr. Woodward acknowledged that relative to this work injury Mr. Hembree continues to present with “persisting residual, chronic low-back pain…. [as well as] constant right-leg numbness and leg pain that was worsened with physical activity.”

In contrast, the physician selected by the employee to perform an independent medical

examination, Dr. Mullins, opines that Mr. Hembree will need future medical care in order to cure and relieve him from the effects of the work injury. In identifying the form and nature of this medical care, Dr. Mullins testified that this future medical care includes injections in the lumbar spine and possibly additional physical therapy. When questioned about this medical care, Dr. Mullins noted that this additional healthcare, including physical therapy, is reasonable and necessary medical treatment, causally related to the work injury.

In evaluating the opinions set forth, I find Dr. Mullins to be more credible as to the issue

of whether future medical care will be required in order to cure and relieve the effects of the injury. In resolving this future medical care concern, I find Mr. Hembree credible and accept as true his testimony and history given to Dr. Mullins, on the issue of his ongoing chronic low back and right lower extremity complaints. Notably, as to this issue, Mr. Hembree testified, and treatment records confirm, he is receiving certain ongoing healthcare services from his family practice physician in Branson, Mo., Elizabeth Ballard, M.D. This treatment is limited care is in


Page 22

the form of opioid medications and muscle relaxers. Although Mr. Hembree testified that physical therapy has been recommended, he is unable to afford such care.

I agree with Dr. Woodward, that Mr. Hembree should avoid long-term use of opioids for pain control. However, as acknowledged by Dr. Woodward, other appropriate medications are available for Mr. Hembree’s pain management. Additionally, while Dr. Woodward asserts the belief that the home exercise training regiment given to Mr. Hembree is sufficient to control his pain, Mr. Hembree testified that he has continued to perform those exercises at home. Unfortunately, despite this home exercise program, he has not obtained any appreciable relief from his low back or right lower extremity pain and numbness. Accordingly, while I agree with Dr. Woodward that Mr. Hembree should not continue long-term opioid use for pain control, I do not find his opinion that additional healthcare services would not benefit the chronic pain conditions Mr. Hembree suffers as a result of the June 25, 2014, injury, credible. Similarly, Dr. Woodward’s testimony that the present treatment being provided by Dr. Olds and/or Dr. Ballard for Mr. Hembree’s low back “would not be contraindicated, but not medically necessary” lacks credibility. At best, Dr. Woodward appears to raise the level of “medically necessary” to the level of requiring care to be something more than “to cure and relieve.”

After consideration and review of the evidence, I find and conclude that as a consequence of the work injury of June 25, 2014, Mr. Hembree continues to suffer with chronic low back pain, as well as chronic right leg numbness and leg pain, which warrants continuing receipt of pain management in order to cure and relieve him from the effects of this work injury. This medical care is necessitated by and flows from the work injury. Therefore, for the foregoing reasons, the employer and insurer are ordered to provide the employee with such additional or future medical care as recommended by Dr. Mullins, and which is reasonable, necessary and causally related to the work injury of June 25, 2014.

IV. Temporary Total Disability Compensation

The parties are in agreement that relative to the accident and injury of June 25, 2014, the

employee was temporarily and totally disabled for the period of August 11, 2014, through December 29, 2014 (141 days or 20 1/7 weeks). The parties are in further agreement that the employer and insurer paid to the employee temporary total disability compensation in the amount of $7,522.55, payable for the period of August 11, 2014, through December 29, 2014, at the compensation rate of $373.45. The employee, however, seeks payment of additional temporary total disability compensation, premised on the contention that the employer and insurer utilized an incorrect wage rate, resulting in an underpayment of temporary total disability compensation. The disputed amount of temporary disability compensation thus relates to the disputed compensation rate, and not the period of temporary total disability.

Having adjudicated and determined the applicable compensation rate to be $404.57, I

find and conclude that the employee is entitled to temporary total disability compensation in the amount of $8,149.20. Having paid $7,522.55 in temporary total disability compensation to the employee, the employer and insurer thus owe an additional $626.65 in temporary total disability compensation. Therefore, the employer and insurer are ordered to pay to the employee the sum


Page 23

of $626.65, which represents an underpayment of temporary total disability compensation.

V. Permanent Disability Compensation

The evidence presented in this case is supportive of a finding that as a consequence of the June 25, 2014, incident, the employee, Matthew Hembree, sustained an injury by accident that arose out of and in the course of his employment with the employer. The evidence is further supportive of a finding that as a consequence of this accident, Mr. Hembree sustained an injury to his lumbar spine, in the nature of significant nerve root compression at the L4 nerve root. Further, the nature of this injury necessitated receipt of medical care, including a surgical repair in the nature of a right sided L4-5 hemi-laminectomy and micro-discectomy. As a consequence of this work injury, Mr. Hembree continues to suffer with chronic low-back pain, as well as chronic right leg numbness and leg pain.

Notably, the parties acknowledge and stipulate that Mr. Hembree sustained a compensable accident on June 25, 2014, and this incident caused him to sustain an injury to his lumbar spine. The parties, however, disagree as to the nature of the injury and extent of the permanent disability. Further, the parties offer competing medical opinions of the resulting disability.

In considering the residual effects of this June 25, 2014, work injury, Dr. Mullins testified that the surgery and treatment received by Mr. Hembree provided limited relief, insofar as Mr. Hembree continues to suffer from numbness in his right lower extremity, as well as persistent low back pain. As such, Dr. Mullins imposes upon Mr. Hembree permanent restrictions and limitations sufficient to constitute a hindrance or obstacle to employment. In this context, Dr. Mullins imposes permanent restrictions upon Mr. Hembree. Because of these restrictions and limitations, Dr. Mullins opined and recommended that Mr. Hembree change occupations, asserting that Mr. Hembree is no longer able to engage in heavy construction work such as roofing. In light of the foregoing, Dr. Mullins opined that the work injury of June 25, 2014, caused Mr. Hembree to sustain a permanent partial disability of 25 percent to the body as a whole, referable to the lumbar spine. Also, in describing the nature and effect of this injury upon him, Mr. Hembree testified that he is no longer able to work in heavy construction, which has resulted in him suffering a loss of earnings. In describing his loss of earnings, Mr. Hembree testified that prior to the injury; he was able to perform heavy and commercial construction work, which afforded to him the capacity to earn hourly wages in the amount of $14.00 to $31.00 per hour while working as a commercial roofer. Now, because he is limited in ability to perform manual or physical labor work, his capacity to earn a living has been reduced to $7.00 to $9.00 per hour. After consideration and review of the evidence, I resolve the differences in medical opinion and consideration of permanent disability in favor of Dr. Mullins. Further, I find and conclude that as a consequence of the accident and injury of June 25, 2014, the employee, Matthew Hembree is governed by permanent work restrictions and limitations as prescribed by Dr. Mullins. In addition, I find and conclude that as a consequence of this work injury, Mr. Hembree has sustained a loss of earning power as contemplated by Section 287.190.3, RSMo. The injury sustained by Mr. Hembree is an “other injury” as is referenced in Section 287.190(3).


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Mr. Hembree’s loss of earning power and physical injury are integral and inseparable parts of his injury and disability.

Accordingly, I find and conclude that the work injury of June 25, 2014, caused Mr. Hembree to sustain a permanent partial disability of 25 percent to the body as a whole referable to the lumbar spine (100 weeks). Therefore, the employer and insurer are ordered to pay to the employee, Matthew Hembree, the sum of $40,457.00, which represents 100 weeks of permanent partial disability compensation, payable at the compensation rate of $404.57 per week.

This award is subject to modifications as provided by law.

An attorney’s fee of 25 percent of the benefits ordered to be provided is hereby approved, in favor of Paul Reichert, Esq., and shall be a lien against the proceeds until paid. Interest as provided by law is applicable.

Made by: /s/ L. Timothy Wilson L. Timothy Wilson Chief Administrative Law Judge Division of Workers' Compensation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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