DeLong v. Hampton Envelope Co.

• Decision Date: 09 November 2004
• Docket Number: No. ED 84418.,ED 84418.
• Citation: 149 S.W.3d 549
• Parties: Cindy DeLONG, Claimant/Respondent, v. HAMPTON ENVELOPE COMPANY, Employer/Appellant.
• Court: Missouri Court of Appeals

149 S.W.3d 549

Cindy DeLONG, Claimant/Respondent, v. HAMPTON ENVELOPE COMPANY, Employer/Appellant.

No. ED 84418.

Missouri Court of Appeals, Eastern District, Division Four.

November 9, 2004.

Scott A. Hassebrock, St. Louis, MO, for appellant.

Swaney, Ram, Wayman & Healey, St. Louis, MO, for respondent.

Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.

OPINION

PER CURIAM.

Hampton Envelope Company (Employer) appeals the final award of the Labor and Industrial Relations Commission (Commission), which adopted, in part, and modified, in part, the award of worker's compensation benefits to Cindy DeLong (Claimant) by the administrative law judge (ALJ). We affirm the award of the Commission and grant Claimant's motion for frivolous appeal and sanctions pursuant to Rule 84.19.

Facts

On April 17, 2001, Claimant was working for Employer when she sustained a work-related injury. While operating a punch press, Claimant suffered a traumatic amputation of her left-middle finger at the distal joint. Claimant's boss took Claimant to the hospital, where Dr. Harold E. Dunn (Dunn), a hand specialist, performed replantation surgery to reattach the finger. The procedure, however, was unsuccessful. On May 4, 2001, Dunn performed revision amputation surgery to remove the injured part of the finger. Claimant filed a claim for compensation with the Division of Workers' Compensation (Division) on April 27, 2001, ten days after her injury. Claimant did not return to work for Employer and did not work at all for approximately three-and-one-half months following her injury and subsequent surgeries. Employer paid Claimant temporary total disability benefits during the months she did not work.

Claimant remained under Dunn's care for approximately one year. During the course of treatment, Dunn referred Claimant to a physical rehabilitation facility for therapy on her affected hand. In April 2002, Dunn prescribed a custom-made prosthetic finger for Claimant. Employer and its insurance company, however, denied Claimant had any medical need for the prosthesis and refused to provide it. In June 2002, Claimant filed a motion for a hardship hearing in which she requested the Division to grant a temporary award directing Employer to pay for the prescribed prosthesis, but Employer maintained its refusal. In November 2002, Claimant filed a motion for uncontroverted benefit in which she requested the Division to compel Employer to pay for the prescribed prosthesis, but Employer continued to refuse to provide it.

In August 2003, at the hearing before the ALJ, the parties stipulated that Employer would pay Claimant disability benefits of $200 per week for 28.6 weeks and would pay any and all medical bills related to the treatment of Claimant's injury. The parties agreed that the only issues to be resolved by the ALJ were whether Employer would be required to provide Claimant with a middle-finger prosthesis and related care and maintenance for the rest of Claimant's life and whether Employer would be responsible for Claimant's attorney's fees and expenses. As evidence of her need for the prosthesis, Claimant offered her own testimony regarding her injury and subsequent treatment, the medical records of Dunn, the deposition of Dr. Bruce Schlafly (Schlafly), and exhibits concerning attorney's fees and expenses.

Claimant testified that she suffers from severe pain in the stump of the amputated finger during cold weather. She also testified that she has difficulty doing everyday activities, including sewing, tying her shoes, and turning pages in books and magazines. Claimant believes the prosthesis would give her "leverage, something to work with." Claimant further testified that she thinks about her amputation every day, and she typically wears a Band-Aid to cover the residual stump because she "feel[s] like people are either looking at [her] or talking about [the amputated finger]...." Claimant is self-conscious about whether a prospective employer will hire her because, if the prospective employer notices the amputated finger, "they may automatically think well, she can't do this job." Claimant stated that the prosthesis would help her physically, but it also would help her psychologically and emotionally to feel less embarrassed and would enhance her employment opportunities.

On cross-examination, Claimant testified that, when she performs her current job duties as a quality-control inspector, the remaining part of her finger is uncomfortable because it is very sensitive to heat and cold and is sore. Claimant further testified that in winter she experiences excruciating pain in the tip of the residual stump, and she wears mittens at times to help curb the sensitivity. On re-direct examination, Claimant stated that Dunn sent her to physical therapy with the objective of eventually obtaining a prosthesis. She also testified that Dunn had said Claimant could not be fitted for a prosthesis until the swelling in the residual stump subsided because the prosthesis would not fit correctly.

The medical records of Dunn, which included the written prescription for a custom-made prosthetic finger, corroborated Claimant's testimony and indicated that the prosthesis is necessary to protect the residual stump and to aid in the functioning of Claimant's affected hand and finger. Dunn's medical records also indicated that Claimant's treatment was focused on preparing Claimant for the prosthesis. In his notes, Dunn described Claimant's progress and ordered continued physical therapy in which Claimant's residual stump was to be measured for swelling. Dunn also monitored the finger for range of motion and healing. The deposition testimony of Schlafly indicated that Schlafly agreed with Dunn's recommendation for a prosthesis. Schlafly testified that the prosthesis could provide a functional benefit to Claimant by allowing Claimant's hand and the remaining part of the amputated finger to perform as a unit, by alleviating Claimant's anxiety about the appearance of the amputated finger, and by increasing the ease with which she performs daily activities.

In its defense, Employer argued that Claimant has no medical need for the prosthesis and that the prosthesis is not reasonably related to Claimant's care or intended to relieve her of the effects of the amputation. To support its position, Employer offered the deposition testimony of Dr. David Brown (Brown). Brown's testimony indicated that, while he did not believe the prosthesis is necessary to improve the functioning of Claimant's affected hand and finger, he believed the prosthesis could benefit Claimant emotionally and psychologically. Brown further testified that, like cosmetic surgery, a cosmetic prosthesis can camouflage an amputation and can help patients who have suffered a traumatic injury and disfigurement feel better about themselves.

Based on the evidence presented, the ALJ found that Claimant had sustained the amputation of her finger while working for Employer. The ALJ further found that Dunn had prescribed the prosthesis to help the functioning of Claimant's affected hand and finger, as well as to help Claimant cope with the psychological effects of the amputation. The ALJ found the evidence of Dunn's opinion and Schlafly's belief that Claimant should be provided with the prosthesis for the rest of her life "very credible." The ALJ further found Employer's refusal to provide Claimant with the prescribed prosthesis and associated medical care was without reasonable grounds, and, therefore, assessed the whole cost of the proceedings against Employer. In its award, the ALJ ordered Employer to: 1) provide Claimant with the prosthesis and pay all of the costs associated with the maintenance, care, and replacement of the prosthesis during Claimant's lifetime; 2) pay Claimant permanent partial disability benefits of $200 per week for 28.6 weeks; 3) pay Claimant disfigurement benefits of $200 per week for 10 weeks; 4) pay Claimant's attorney's fees and expenses as costs of the proceedings; and 5) pay all medical expenses relating to Claimant's injury, including the prosthesis and any other physical or psychological care calculated to cure or to relieve the physical or psychological effects of the amputation. The ALJ also granted Claimant's attorney a twenty-five percent lien on all the benefits included in the award.

Employer timely filed its application for review of the ALJ's award to the Commission. After reviewing the evidence, hearing the parties' arguments, and considering the whole record, the Commission found that the ALJ's award was supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act (Act). The Commission adopted the ALJ's finding that the prosthesis was prescribed to help the functioning of Claimant's hand and finger, not for only cosmetic purposes. The Commission also adopted the ALJ's conclusion that Employer is liable to Claimant for her injuries resulting from the work-related accident and has a duty to provide her with a prosthesis under Section 287.140 RSMo 2000¹.

The Commission gave Employer the benefit of the doubt regarding the legitimacy of its defense in the proceeding before the ALJ, reasoning that parties to a dispute over workers' compensation benefits should have an opportunity to present their legal theories, and reversed the ALJ's assessment of the whole cost of the ALJ proceeding against Employer. The Commission, however, subsequently found that, in light of the ALJ's "clearly articulated decision" concerning Employer's statutory duty to provide the prosthesis, Employer was without reasonable ground to further deny Claimant of benefits and to pursue appeal of the ALJ's decision to the Commission. As a result, the Commission: 1) assessed the whole cost of the proceeding before it against Employer and ordered Employer to pay Claimant's attorney's fees in the amount of $1,800...