FINAL AWARD ALLOWING COMPENSATION
(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 99-069528
Employee: William Bowers
Employer: Hiland Dairy Company
Insurer: Old Republic Insurance Company
Additional Party: Treasurer of Missouri as Custodian
of Second Injury Fund
Date of Accident: February 25, 1999
Place and County of Accident: Phelps County, Missouri
The above‑entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to
§ 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 4, 2002. The award and decision of Administrative Law Judge Margaret Ellis Holden, issued November 4, 2002, is attached and incorporated by this reference.
The Commission further approves and affirms the administrative law judge’s allowance of attorney’s fee herein as being fair and reasonable.
Any past due compensation shall bear interest as provided by law.
Given at Jefferson City, State of Missouri, this _30th_ day of July 2003.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
Patrick Deaton, Acting Chairman
Ken Legan, Member
SEPARATE OPINION FILED
Attest: John J. Hickey, Member
Secretary
SEPARATE opinion
CONCURRING IN PART AND DISSENTING IN PART
I, John J. Hickey, believe that the decision reached by the Commission majority affirming the entire award and decision of the administrative law judge is in error. I agree with the findings and conclusions that William Bowers (claimant) suffered a work-related injury to his right shoulder and neck. I concur with the majority’s decision to affirm the award of permanent partial disability benefits. Since claimant also proved that he incurred additional medical expenses that remain unpaid by employer, as a result of these compensable work-related injuries, I would reverse those portions of the administrative law judge's award and decision that deny claimant’s claim for past medical treatment and future medical treatment.
I believe that the competent and substantial evidence supports the conclusion that claimant has meet his burden of separating the medications that he takes as the direct and immediate result of the February 25, 1999 work accident from those used to treat claimant’s preexisting rheumatoid arthritis. To receive future medical benefits under the Workers’ Compensation Laws of Missouri, a claimant has the burden of proving there exists a ”reasonable probability” future medical treatment is needed. Dean v. St. Luke’s Hosp., 936 S.W.2d 601, 603 (Mo.App. 1997). “‘Probable’ means founded on reason and experience which inclines the mind to believe but leaves room for doubt.” Id., at 604. (quoting Tate v. Southwestern Bell Tel. Co., 715 S.W.2d 326, 329 (Mo.App. 1986)). “In determining whether this standard has been met, the court should resolve all doubt in favor of the employee.” Dean, 936 S.W.2d at 604.
Both Dr. Raymond Cohen, DO, and Dr. Anthony H. Guarino, MD, testified that more probably than not the symptoms of claimant’s neck were caused by the injury on February 25, 1999. It is important to note that testimony that “speaks in terms of likelihood rather than certainty, is admissible and probative.” Id., at 605. “‘A doctor’s use of such words as ‘might’, ‘could’, ‘likely’, ‘possible’ and ‘may have’, coupled with other credible evidence of a non-medical character, such as a sequence of symptoms or events corroborating the opinion, is sufficient to sustain an award.’” Id. at 605 (quoting Martin v. City of Independence, 625 S.W.2d 940, 941 (Mo.App. 1981)). Dr. Guarino, a pain management specialist, noted that the claimant only started to use and needed to use various pain medications after the February 25, 1999 injury. It is clear from the medical records that claimant had not taken Prednisone for any prolonged period of time before the February 25th injury. However, since the injury, claimant has consistently taken 20 mg of Prednisone or Methylpredisolone to regulate his pain.
Claimant only sought treatment with Dr. Guarino because treatment was refused. He has not been reimbursed for any of these prescription medications. Claimant was first treated with botulinum toxin injections. When this form of neck therapy was unsuccessful, Dr. Guarino prescribed pain medications in the form of a Duragesic patch, Actiq suckers, Soma, and Hydrocodone. Dr. Guarino’s and Barnes Jewish West County Hospital’s treatment bills have not been paid by the insurer. These medical bills total $15,851.42. There is no doubt that Dr. Guarino’s treatment of claimant was the direct and immediate result of the February 25, 1999 injury.
Claimant remains in constant pain since the February 25, 1999 injury. He has difficulty ambulating in the morning and is sedentary for most of the day. The only thing that makes claimant’s life bearable is the medications that he takes to regulate his pain. Claimant should be allowed to continue treatment with Dr. Guarino. He has proven his need for additional medical care for his work-related injury in the form of pain management medication.
Respectfully, I must dissent from those portions of the award and decision that deny claimant’s claims for past and future medical treatment.
John J. Hickey, Member