Kurbursky v. Indep. In-Home Servs.

• Decision Date: 11 July 2022
• Docket Number: SD37103,SD37104
• Parties: JUANITA KURBURSKY, Appellant/Respondent, v. INDEPENDENT IN-HOME SERVICES, LLC., Respondent/Cross-Appellant, TREASURER OF THE STATE OF MISSOURI-CUSTODIAN 2ND INJURY FUND, Respondent.
• Court: Court of Appeal of Missouri (US)

JUANITA KURBURSKY, Appellant/Respondent,
v.
INDEPENDENT IN-HOME SERVICES, LLC., Respondent/Cross-Appellant,

TREASURER OF THE STATE OF MISSOURI-CUSTODIAN 2ND INJURY FUND, Respondent.

Nos. SD37103, SD37104

Court of Appeals of Missouri, Southern District, First Division

July 11, 2022

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

MARY W. SHEFFIELD, P.J.

Juanita Kurbursky ("Claimant") appeals the Labor and Industrial Relations Commission's ("the Commission") final award denying permanent total disability benefits, past medical care liability, and future medical care liability and awarding permanent partial disability benefits on her workers' compensation claim. Claimant raises six points on appeal. Points 1 through 3 challenge the Commission's denial of permanent total disability benefits. Point 4 argues the Commission misapplied the law

1

in calculating Claimant's average weekly wage for permanent partial disability benefits by not basing it on the average number of hours per week required by the employer to classify an employee as a full-time or regular employee as required by section 287.250.3.^[1] Point 5 argues the Commission erred by denying liability for past medical care. Point 6 argues the Commission erred by denying liability for future medical care. Because the Commission failed to make essential findings of fact on the issue raised in point 4, we reverse and remand for the Commission to make factual findings on the "average weekly wage of a full-time or regular employee engaged by the employer to perform work of the same or similar nature" and the number of hours used by Employer to classify an employee as a "full-time or regular employee" and then recalculate Claimant's award for permanent partial disability benefits based on those findings. § 287.250.3. In all other respects, we affirm the decision of the Commission.

Background

Claimant was employed by Independent In-Home Services, LLC ("Employer") as a home healthcare worker beginning in January 2011.^[2] On August 15, 2012, Claimant was visiting the home of one of her patients when she hit her head on a canoe that was on top of a car in the patient's driveway, causing her to fall on her back. Claimant experienced pain in her head and back, lightheadedness, and a headache.

2

Following her fall, Claimant received both emergency and follow-up treatment. Dr. James L. Jordan ("Dr. Jordan") diagnosed Claimant with a cervical strain, thoracic strain, lumbar strain, bilateral arm and forearm strains, and a left hip contusion and strain. He later reevaluated Claimant and determined she had reached maximum medical improvement ("MMI") for the symptoms of her work injury. Dr. Jordan determined that Claimant's injuries to her shoulder and lower back, both of which occurred weeks after her fall, were unrelated to her work injury.

Claimant received additional treatments with Dr. Glenn Kunkel ("Dr. Kunkel"), a pain management specialist. Dr. Kunkel ordered MRIs of Claimant's spine and administered steroid injections and radiofrequency thermocoagulation. Claimant discontinued treatment with Dr. Kunkel and began treatment with her primary care physician.^[3] She testified she still experienced pain in her neck and back, resulting in headaches, memory loss, and difficulty sitting or standing for extended periods of time. She also complained of difficulty sleeping but provided no medical records supporting that claim.

Claimant filed a workers' compensation claim for permanent partial disability benefits for the injuries to her head, neck, back, arms, legs, hips, tailbone, and shoulders, and identified previous injuries to her right foot, left foot, left knee, right hand, and right knee. During the hearing on her claim, the Administrative Law Judge ("ALJ") reviewed Claimant's medical records, the depositions of two doctors and three expert vocational witnesses regarding the degree of Claimant's disability, the need for past medical care, and the need for future medical care.

3

Dr. Robert Poetz ("Dr. Poetz"), an expert witness for Claimant, opined that Claimant was permanently and totally disabled "as a result of the combination of the August 15, 2012 work-related injuries and her pre-existing conditions . . . and will remain unemployable in the open labor market." According to Dr. Poetz, "[t]here is a twenty percent permanent/partial disability to the body as a whole measured at the head directly resultant from the August 15, 2012 work related injury. The combination of the present and prior disabilities results in a total which exceeds the simple sum by twenty percent." Dr. Poetz also believed Claimant was already at MMI and would need medical treatment and diagnostic testing in the future. Dr. Ted Lennard ("Dr. Lennard") opined Claimant was only permanently partially disabled from the work injury and was unlikely to benefit from additional treatment after her discharge by Dr. Jordan. The vocational experts, James England ("England"), Wilbur Swearingin ("Swearingin"), and Gary Weimholt ("Weimholt"), agreed that under Dr. Poetz restrictions, Claimant would be permanently and totally disabled, while under Dr. Lennard's restrictions Claimant would be capable of both obtaining and maintaining employment.

The ALJ awarded Claimant permanent partial disability benefits and additional temporary total disability benefits, but determined Claimant had not met her burden of proof to obtain benefits for past or future medical care, Second Injury Fund liability, or permanent total disability.^[4]

4

The ALJ found Dr. Poetz's testimony that Claimant was unemployable in the open labor market not credible; that Dr. Poetz's disability ratings were substantially inflated; and that England's opinion was less than credible and was not persuasive on the issue of permanent and total disability. The ALJ also found Dr. Poetz lacked credibility because he...