Chambliss v. Lutheran Medical Center, 59864

• Decision Date: 03 December 1991
• Docket Number: No. 59864,59864
• Citation: 822 S.W.2d 926
• Parties: Catherine CHAMBLISS, Appellant-Claimant, v. LUTHERAN MEDICAL CENTER, Respondent-Movant.
• Court: Missouri Court of Appeals

Page 926

822 S.W.2d 926

Catherine CHAMBLISS, Appellant-Claimant, v. LUTHERAN MEDICAL CENTER, Respondent-Movant.

No. 59864.

Missouri Court of Appeals,

Eastern District,

Division Three.

Dec. 3, 1991.

C. Dennis Barbour, Florissant, for appellant-claimant.

Kortenhof & Ely, P.C., W.J. Glaser, St. Louis, for respondent-movant.

PUDLOWSKI, Presiding Judge.

Appellant-Claimant, [hereinafter claimant], appealed the Administrative Law Judge's ruling in her workers' compensation benefits claim to The Labor and Industrial Relations Commission. The Labor and Industrial Relations Commission adopted as its own the decision of the Administrative Law Judge and claimant appeals this decision.

Claimant alleges on appeal that the decision of the Labor and Industrial Relations Commission was erroneous because: (1) it failed to award certain medical expenses; (2) it failed to award future medical; (3) its determination of the percentages of claimant's permanent partial disability were too low; (4) it failed to award permanent partial disability for injuries to claimant's neck and head; (5) it failed to include a multiplicity factor; and, (6) the decision was not ripe for final adjudication. We affirm.

On February 21, 1986, the claimant, Catherine Chambliss, slipped and fell on the ice as she approached the entrance way of Lutheran Medical Center. Claimant was employed at the hospital and at the time of her fall she landed on her buttocks and then recoiled striking her head. Later that day the claimant went to the emergency room located at the medical center. The parties agreed that claimant's injuries arose out of and in the course of her employment and that the employer had notice of the injury.

The employer-insurer paid for the claimant's expenses at the emergency room and in addition paid for her to see Dr. Jesus Arcelona, a house doctor at Lutheran, Dr. Robert Kuhlman, an orthopedic surgeon, and Dr. Patrick Hogan, a neurologist. Unsatisfied with her recovery the claimant went to see Dr. Gregory Lewis, a chiropractor. Dr. Lewis referred the claimant to Dr. John Steuterman, an oral surgeon, Dr. Edward Eyerman, a neurologist, and Dr. Paul Young, a neurosurgeon. The visits to Dr. Lewis and the doctors he referred the claimant to were not authorized by the employer. The claimant also saw Dr. Harold Walters, a general surgeon hired by the employer, and Dr. James McFadden, a general surgeon retained by claimant in preparation of this case.

At the emergency room x-rays were taken of the claimant's left elbow, skull and coccyx. X-rays of the left elbow and head were negative. X-rays of the coccyx showed it was angled anteriorly although the x-rays showed that the osseous structures of the sacrum and coccyx were normal. The claimant was discharged from the emergency room with a diagnosis of multiple contusions of the body. She was given a head injury instruction sheet, a prescription for Tylenol and she was told to see Dr. Arcelona for follow up treatment.

Claimant first saw Dr. Arcelona on February 25, 1986, and his report indicates he prescribed further medication and applied heat to the affected areas. Claimant saw Dr. Arcelona again on June 28, 1986, and she continued to complain of pain in the coccyx area. Following the June 28 visit the claimant was referred to Dr. Kuhlman.

Claimant first saw Dr. Kuhlman on August 1, 1986, and was admitted to the hospital by him on August 18, 1986. Dr. Kuhlman discharged claimant from the hospital for further conservative treatment and she was to return to his office in two weeks. Claimant did not see Dr. Kuhlman again until July 16, 1987, and after his examination he concluded that claimant had "a small degree of diffuse degenerative changes throughout the lumbar spine" and "tenderness about the tip of the tailbone." Dr. Kuhlman rated claimant's disability as 5% permanent partial disability of the person as a whole as a result of persisting subjective complaints. He also stated that "she probably has another 5% permanent partial disability of the person as a whole related to pre-existing degenerative changes throughout the lumbar spine which have not been modified by the alleged incident." Although Dr. Kuhlman found claimant had no need for further treatment he saw her again on September 8, 1987.

After examining the claimant Dr. Kuhlman found she was unchanged from the last time he saw her. On March 21, 1988, Dr. Kuhlman wrote that he saw "no reasonable indication for additional physical therapy treatment and certainly no benefit could be derived from any form of chiropractic manipulation, particularly to the tailbone area." Dr. Kuhlman repeated that he felt the claimant had reached an end stage in her recuperation.

The claimant saw Dr. Hogan, a neurologist, on two occasions; September 30, 1987 and January 29, 1988. Dr. Hogan stated that he found "no neurological disease or disorder of the central or peripheral nervous system and no evidence of organic disorder." Dr. Hogan was the last physician the claimant saw who was authorized by the employer. On March 30, 1988, claimant began seeing Dr. Lewis, a chiropractor.

Claimant saw Dr. Lewis until October of 1988 and he testified at the hearing before the Administrative Law Judge. Dr. Lewis was of the opinion that the claimant's lower back injury, neck injury and temporomandibular joint disease (TMJ) were due to the accident in February of 1986. Dr. Lewis found the claimant's permanent partial disability (PPD) of the body as a whole due to her low back injury as being 40%. He found her PPD due to cervical spine injury as 15% and her PPD due to her TMJ as being 25%. In addition he recommended a 10% loading factor because of multiple injuries. Dr. Lewis' bill totaled $1,991.50 of which $866.00 was due on the TMJ. Dr. Lewis referred the claimant to Dr. Steuterman, an oral surgeon, because of her TMJ.

Dr. Steuterman saw the claimant on May 19, 1988, and on September 22, 1988. Dr. Steuterman stated that a fall on the ice with a subsequent blow to the head can reflect a whiplash injury to the TMJ. The doctor went on to state that claimant's symptoms were reflective of such an injury. Dr. Steuterman, however, did not believe surgery would be necessary. Dr. Steuterman's bill came to $450.00.

Dr. Lewis also referred the claimant to Dr. Eyerman, a neurologist, and Dr. Young, a neurosurgeon. Dr. Eyerman concluded that the claimant had an "upper level cervical sprain, with some element of an occipital neuralgia on the left." He was not clear as to what extent the TMJ was contributing to her headaches. He prescribed continued conservative care and exercise. Dr. Eyerman's bill was for $125.00. Dr. Young diagnosed the claimant as having spondylolysis and a slightly weakened disc and recommended that she continue her chiropractic treatment and do some exercises. Dr. Young's bill was for $131.00.

In preparation for the workers' compensation hearing the claimant saw Dr. McFadden, a general surgeon, at the request of her attorney. Dr. McFadden diagnosed the claimant as having severe contusions, sprains of the neck and back, TMJ, herniated discs and stress anxiety. He found that claimant had a 60% PPD of the person as a whole secondary to her lower back problems, 35% PPD of the person as a whole due to the head, neck and jaw complaints, and a 15% PPD rating because of stress anxiety and depression.

The claimant also saw Dr. Walters, a general surgeon, at the request of the employer in preparation of the hearing. Dr. Walters was of the opinion that the TMJ was due to malocclusion rather than the fall. He ruled the PPD due to TMJ as being 2% to 3%. With regard to the back, Dr. Walters rates her PPD as 5% of the body as a whole attributable to the degenerative arthritis which he says was not aggravated by this accident. Furthermore, the doctor found that claimant had a 2% to 3% PPD based upon subjective complaints. He felt there was no need for further treatment.

After reviewing the evidence at trial and the various medical reports the Administrative Law Judge found that the claimant's injuries to her low back, coccyx and the symptoms in her temporomandibular joints were causally connected to the accident in February of 1986. The judge found the PPD to the body as a whole referable to the low back as 7 1/2, the PPD as a whole referable to the coccyx as 5% and the PPD to the body as a whole referable to the jaw for the TMJ as 5%. The employer was to pay Dr. Steuterman's bill of $450.00, however, the bills of Dr. Lewis, Dr. Eyerman, Dr. Young and St. Louis Radiology were all found to be unauthorized medical care and was undertaken at the expense of the claimant. Finally, the judge found that no future medical care need be provided by the employer.

The four exclusive grounds for setting aside a decision of the commission are: (1) that the commission acted without or in excess of its power; (2) that the award was procured by fraud; (3) that the facts found by the commission do not support the award; and, (4) that there was not sufficient competent evidence in the record to warrant the making of the award. § 287.495 RSMo 1986. If conflicting evidence is presented the choice lies with the commission and is binding on this court. Low v. ACF Industries, 772 S.W.2d 904, 906 (Mo.App.1989). This court may not substitute its judgment upon issues of fact for the judgment of the commission. Id. Generally, when passing on the sufficiency of the evidence, we must view the record in the light most favorable to the findings. Id. Therefore, we disregard any evidence supporting a finding different than the commission's, even though the evidence would have supported a finding to the contrary. Id.

The claimant's first point on appeal alleges the commission erred in not awarding the claimant's costs of treatment by Dr. Lewis, Dr. Eyerman, Dr. Young and St. Louis Radiology. In its decision the commission found that injuries to the claimant's back, coccyx and TMJ were...