Customer Eng'g Servs. v. Odom, SD 35638
Decision Date | 11 March 2019 |
Docket Number | No. SD 35638,SD 35638 |
Citation | 573 S.W.3d 88 |
Parties | CUSTOMER ENGINEERING SERVICES, Appellant, v. Mark ODOM, Respondent. |
Court | Missouri Court of Appeals |
Appellant’s attorney: Kevin M. Leahy & Jeffrey W. Wright.
Respondent’s attorney: Ryan E. Murphy, Springfield.
Customer Engineering Services (CES) appeals a workers' compensation award to Mark Odom of past and future medical expenses and permanent total disability (PTD) benefits. For reasons stated herein, we grant in part CES’s challenge to past medical expenses, but otherwise affirm the award.
Odom, who installed and serviced photo-lab equipment for CES, injured his elbow, back, and knee in June 2012 while moving a 250-pound photo printer. CES provided medical treatment through Dr. Lennard and others, including surgery to repair Odom’s biceps tendon followed by physical therapy.
Odom’s discomfort continued. Suspecting complex regional pain syndrome
(CRPS), Dr. Lennard referred Odom for stellate ganglion block treatments and kept him on physical therapy, pain management, and work restrictions. Despite these interventions, Odom’s arm and shoulder pain, weakness, and loss of function persisted.
In August 2013, Odom’s physical therapist recommended discharging Odom "due to plateauing of symptoms." Dr. Lennard did so on August 26, 2013, stating that Odom had reached maximum medical improvement (MMI) and advising Odom to reduce his activity to see if his arm would improve.
Odom reduced his activity. His arm did not get better. He went to his primary-care physician, who referred him to doctors who confirmed CRPS and provided physical therapy and pain management through the September 2017 workers' compensation hearing. Odom submitted these medical expenses to his wife’s health insurance.
Due to chronic pain and physical limitations, Odom has never returned to work. A vocational rehabilitation consultant testified that Odom was unemployable in the open labor market. An ALJ, then the Commission by a 2-1 vote on application for review, awarded Odom PTD benefits plus past and future medical expenses.
CES appeals, charging that no sufficient competent evidence warranted the PTD, past medical, or future medical awards ( RSMo. § 287.495.1(4) ).1
Point 1 alleges that no sufficient evidence supports the PTD award. We can overlook the Rule 84.04(d) violation, but not the supporting argument’s failings.
Rule 84.04(e) requires an argument to support all factual assertions with "specific page references" to the record on appeal. Point 1’s argument, replete with factual assertions, has no such cites. We would have to do CES’s work to know if the record supports its arguments. Lombardo v. Lombardo , 120 S.W.3d 232, 247 (Mo. App. 2003). We cannot sift 2,200 pages for that purpose or to remedy CES’s violation without becoming a de facto advocate, which we cannot do. Eder v. Lawson’s Hardwood Floors , 403 S.W.3d 623, 625 (Mo. App. 2012).
Even with record references, Point 1 would still fail. A successful not-supported-by-substantial-evidence challenge involves three analytical steps:
CES disregards this rubric, effectively ignoring proof that supports a PTD award and focusing instead on its evidence. This approach strips CES’s argument of any analytical or persuasive value. Jordan , 383 S.W.3d at 95. For all these reasons, Point 1 fails.
We take Point 3 next. It seeks to reduce the award of future medical expenses, asserting that no substantial evidence supports the inclusion of pain management services. Again, the supporting argument lacks persuasive or analytical value because it ignores the three steps cited above. Id .
"Because conflicting medical theories present a credibility determination for the Commission to make, its decision as to which of the various medical experts to believe is binding on this Court." Morris v. Captain D’s , 537 S.W.3d 420, 424 (Mo. App. 2018). The Commission implicitly credited Dr. Paul "and we must defer to that credibility determination." Id . at 425. The future-medical award is supported by substantial and competent evidence, which defeats this point. Id .
CES claims the record does not support its liability for $36,539.99 in medical expenses that Odom incurred after Dr. Lennard released him.
As summarized in Poole v. City of St. Louis :
An employer is charged with the duty of providing the injured employee with medical care, but the employer is given control over the selection of a medical provider. It is only when the employer fails to do so that the employee is free to pick his own provider and assess those costs against his employer.
328 S.W.3d 277, 291 (Mo. App. 2010) (internal citations omitted). If the employee picks his own doctor, the employer must pay "only when the employer has notice that the employee needs treatment, or a demand is made on the employer to furnish medical treatment, and the employer refuses or fails to provide the needed treatment." Id . ; see also § 287.140.1, .10.
CES does not claim Odom’s medicals after Dr. Lennard’s August 2013 discharge were not fair, reasonable, or causally related to Odom’s work accident. So the narrow question is whether, and if so, when, CES received notice or demand that Odom needed such treatment. Poole , 328 S.W.3d at 291.
Odom admits that the earliest such notice was his deposition testimony on June 30, 2014, and that any award of earlier-incurred medical expenses was error. We agree. The Commission’s award erroneously included $2,510.93 in medical expenses predating June 30, 2014, so we grant Point 2 in part. Competent evidence of record supports an award of $34,029.06 for Odom’s medical expenses incurred after June 30, 2014, but not the additional $2,510.93 incurred prior to that date.
We reverse and remand for the Commission to reduce its award of past medical expenses to $34,029.06, and affirm the award in all other respects.3
CES seeks rehearing or transfer as to Point 1, asserting that the Rule 84.04(e) briefing requirements blatantly violated by CES "conflict with" and are overridden by Hampton v. Big Boy ’s call for reviewing courts to "examine the whole record" to determine if competent and substantial evidence supports a workers’ compensation award.1 Thus CES repeatedly insists that we are "required" to "review the whole record" regardless of briefing violations.
There is no conflict. Hampton and its progeny implicitly...
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