CUSTOMER ENGINEERING SERVICES v. MARK ODOM ( 2019 )

CUSTOMER ENGINEERING SERVICES, )
)
Appellant, )
)
vs. ) No. SD35638
)
MARK ODOM, ) FILED: March 11, 2019
)
Respondent. )
APPEAL FROM LABOR AND INDUSTRIAL RELATIONS COMMISSION
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
DIRECTIONS
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.
Background
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
1 Rule 84.04(d)(2) requires CES’s points to include three elements which “shall” be
presented substantially as follows:
The Commission erred in [identify the challenged ruling or
action], because [state the legal reasons for the claim of reversible
error, including the reference to the applicable statute authorizing
review], in that [explain why, in the context of the case, the legal
reasons support the claim of reversible error].
Although each of CES’s points omits the third element (“in that …”), we decline to
dismiss because we can discern these points challenge the sufficiency of evidence
to support the PTD, past medical, and future medical awards respectively.
Why then mention the violations? Because we must address CES’s claim that
its points are just fine as they are. CES acknowledges that “the ‘in that’ section of
the Rule 84.04 template is missing,” but blithely asserts that its list of “Statutes
and Supporting Cases” satisfies that requirement equally well. Needless to say,
CES cites no support for this ill-considered excuse for violating Rule 84.04,
compliance with which is mandatory. Scott v. King, 510 S.W.3d 887, 891-92
(Mo.App. 2017).
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Point 1 – PTD Benefits
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:
1. Identify a factual proposition needed to sustain the result;
2. Identify all favorable evidence in the record supporting that
proposition; and
3. Demonstrate, in light of the whole record, that the step 2
evidence and its reasonable inferences are so non-probative
that no reasonable mind could believe the proposition. 2
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.
Point 3 – Future Medical Expenses
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.
Further, to quote CES’s reply brief,
2See Maryville R-II Sch. Dist. v. Payton, 516 S.W.3d 874, 881 (Mo.App.
2017); Brune v. Johnson Controls, 457 S.W.3d 372, 377 (Mo.App. 2015);
Riley v. City of Liberty, 404 S.W.3d 434, 440 (Mo.App. 2013); Jordan v. USF
Holland Motor Freight, Inc., 383 S.W.3d 93, 95 (Mo.App. 2012).
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[CES’s] point is simply that the future medical award should be
modified to reflect the opinion of Dr. Lennard that “medication
management and activity limitations” are the preferred
treatment for [Odom’s] symptoms, as set out in [CES’s] Brief,
rather than “future pain management services” suggested by Dr.
Paul. Dr. Lennard is better positioned to determine the nature
and extent of [Odom’s] need for additional care.
“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.
Point 2 – Past Medical Expenses
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
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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.
Conclusion
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
DANIEL E. SCOTT, J. – OPINION AUTHOR
JEFFREY W. BATES, J. – CONCURS
MARY W. SHEFFIELD, J. – CONCURS
3 All pending motions and requests are denied.
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