Dean v. St. Luke's Hospital, WD

• Decision Date: 14 January 1997
• Docket Number: No. WD,WD
• Citation: 936 S.W.2d 601
• Parties: Evelyn DEAN, Respondent, v. ST. LUKE'S HOSPITAL, Appellant. 52485.
• Court: Missouri Court of Appeals

Page 601

936 S.W.2d 601

Evelyn DEAN, Respondent, v. ST. LUKE'S HOSPITAL, Appellant.

No. WD 52485.

Missouri Court of Appeals,

Western District.

Jan. 14, 1997.

John R. Phillips, Blackwell Sanders Matheny Weary & Lombardi, Kansas City, for appellant.

Patrick W. Campbell, Campbell, Haley & Turner, Kansas City, for respondent.

Before BRECKENRIDGE, P.J., and LAURA DENVIR STITH and HOWARD, JJ.

LAURA DENVIR STITH, Judge.

Appellant St. Luke's Hospital appeals the Labor and Industrial Relations Commission's award of future medical aid to Respondent Evelyn Dean. St. Luke's claims that the award was not supported by substantial and competent evidence because Ms. Dean's doctor did not testify that it was more likely than not that she would require future medical treatment for the injury to her knee. We find that the doctor's testimony was probative and, when combined with other evidence, was adequate to show a reasonable probability of future injury. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Respondent Evelyn Dean was employed as a nurse by Appellant St. Luke's Hospital. On February 5, 1989, Ms. Dean injured her left knee when she attempted to lift a patient. Ms. Dean filed a Claim for Compensation for her knee injury in August 1992. The parties stipulated that the knee injury was caused by an accident arising out of and in the course of her employment, but disagreed as to the extent of her injury and the need for future medical treatment. Following an evidentiary hearing on those issues in August 1995, Administrative Law Judge ("ALJ") Rebecca S. Magruder awarded Ms. Dean temporary total and permanent partial disability benefits. She also awarded Ms. Dean past medical expenses and left open the award of medical benefits based on her finding that it was reasonably probable that Ms. Dean would need future medical aid in the form of prescription anti-inflammatory medication and other medical treatment.

The employer appealed only the award of future medical aid to the Commission. The Commission affirmed. This appeal followed.

II. STANDARD OF REVIEW

We review the decision of the Commission. Our scope of review of that decision is limited: we reverse, remand, or modify only if the Commission acted in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evident to support the award. § 287.495, RSMo 1994; Johnson v. Denton Constr. Co., 911 S.W.2d 286, 288 (Mo. banc 1995); Martin v. City of Independence, 625 S.W.2d 940, 941 (Mo.App.1981). We review the entire record in the light most favorable to the Commission's findings. Wright v. Sports Associated, Inc., 887 S.W.2d 596, 598 (Mo. banc 1994); Johnson v. City of Duenweg Fire Dept., 735 S.W.2d 364, 366 (Mo. banc 1987). We do not substitute our judgment for that of the Commission, and we defer to the Commission on issues such as the weight and credibility to be given to the witnesses' testimony. Johnson v. Denton Constr. Co., 911 S.W.2d at 288; Martin, 625 S.W.2d at 941.

III. THE COMMISSION'S AWARD OF FUTURE MEDICAL AID WAS SUPPORTED BY SUFFICIENT COMPETENT EVIDENCE

St. Luke's argues that the Commission's determination to award future medical aid to Ms. Dean was not supported by substantial and competent evidence because the only testifying physician could not state that it was more likely than not that Ms. Dean would require future medical treatment.

It is well-settled that "in permanent partial disability cases, the Commission's award may contain an allowance for the cost of future medical treatment." Polavarapu v. General Motors Corp. 897 S.W.2d 63, 65 (Mo.App.1995). As is true of the other material elements of her claim, the burden was on Ms. Dean to prove her entitlement to an allowance for such treatment. Meilves v. Morris, 422 S.W.2d 335, 339 (Mo.1968).

The standard for proof of entitlement to an allowance for future medical treatment cannot be met simply by offering testimony that it is "possible" that the claimant will need future medical treatment. See, e.g., Modlin v. Sun Mark, Inc., 699 S.W.2d 5, 7 (Mo.App.1985). Neither is it necessary, however, that the claimant present conclusive evidence of the need for future medical treatment. Sifferman v. Sears, Roebuck & Co., 906 S.W.2d 823, 828 (Mo.App.1995). To the contrary, numerous workers' compensation cases have made clear that in order to meet their burden claimants such as Ms. Dean are required to show by a "reasonable probability" that they will need future medical treatment. As Tate v. Southwestern Bell Tel. Co. stated The claimant does not have to absolutely establish the elements of her case. It is sufficient if she shows them by reasonable probability. "Probable" means founded on reason and experience which inclines the mind to believe but leaves room for doubt.

Tate, 715 S.W.2d 326, 329 (Mo.App.1986) (emphasis added). See also Sifferman, 906 S.W.2d at 828; Tibbs v. Rowe Furniture Corp., 691 S.W.2d 410, 413 (Mo.App.1985). In determining whether this standard has been met, the court should resolve all doubt in favor of the employee. Tibbs, 691 S.W.2d at 413; Ellis v. Western Electric Co., 664 S.W.2d 639, 641 (Mo.App.1984).

While the parties agree that the above standards govern, they disagree as to their application to this case. St. Luke's argues that the right to future medical aid must stand or fall solely on the medical testimony offered by Ms. Dean's treating physician, Dr. Charles Rhoades. St. Luke's says that because Dr. Rhoades was unable to state with certainty whether Ms. Dean was more likely than not to need future treatment, and because he could not assign a percentage to the likelihood that she would need future treatment, then his testimony is inadequate to support the award of future medical aid, and no other basis for awarding such aid was shown.

We disagree. We believe that Dr. Rhoades' testimony, in combination with that of Ms. Dean and of the medical records introduced below, was adequate to meet Ms. Dean's burden of proving a reasonable probability of a need for future medical aid. In so determining, it should be recalled that the Commission did not award Ms. Dean a specific sum to cover the cost of a specific anticipated future treatment or surgery. To the contrary, it simply left open the medical aid issue so that if, in the future, Ms. Dean has medical costs that she can show are causally related to the injury she suffered at work, then she will be able to recover their cost.

No doubt for this reason, a number of cases have recognized that "a claimant is not required to present evidence of specific medical treatment or procedures which will be necessary in the future in order to receive an award for future medical care." Polavarapu, 897 S.W.2d at 66. Such a requirement "may put an impossible and unrealistic burden upon the employee." Bradshaw v. Brown Shoe Co., 660 S.W.2d 390, 394 (Mo.App.1983). All that is required is that the finding of a need for future medical treatment be shown to be reasonably probable and be founded on reason and experience. Sifferman, 906 S.W.2d at 828.

We agree with the ALJ and the Commission that such evidence was offered here when the testimony of Dr. Rhoades is combined with that of Ms. Dean and with the evidence of Ms. Dean's need for prescription anti-inflammatories to control her injury. More specifically, Ms. Dean testified, and Dr. Rhoades' records showed, that when Ms. Dean first injured her knee in February 1989, he prescribed anti-inflammatory medication for her and referred her to a physical therapist for home exercises. This conservative treatment proved to be ineffective, however, and Dr. Rhoades was required to perform arthroscopic surgery to remove scar tissue from Ms. Dean's knee in April 1989.

In October 1989, Dr. Rhoades ordered Ms. Dean to undergo physical therapy. She continued to have pain, however, and her knee would periodically lock and catch. To relieve this situation, in December 1989, Dr. Rhoades performed lateral release surgery. After this second surgery, Ms. Dean testified that she did not have as much catching and locking, but she continued to suffer from popping in her knee and to experience persistent pain despite the fact that Dr. Rhoades again referred her to a...