Kent v. NHC Healthcare

621 S.W.3d 596

Justin KENT, Appellant,

v.NHC HEALTHCARE and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Respondents.

No. ED 108667

Missouri Court of Appeals, Eastern District, DIVISION THREE.

FILED: February 2, 2021

Application for Transfer Denied June 1, 2021

For Appellant: Thomas E. Fagan, 1010 Market St., Ste. 1480, St. Louis, MO 63101.

For Respondent NHC Healthcare: Kevin M. Leahy, 10805 Sunset Office Dr., Ste. 306, St. Louis, MO 63127.

For Respondent Treasurer of Missouri as Custodian of the Second Injury Fund: Madalyn J. Campbell, P.O. Box 861, St. Louis, MO 63188.

KURT S. ODENWALD, Judge

Introduction

Justin Kent ("Kent") appeals from the final award of the Labor and Industrial Relations Commission (the "Commission") ordering Kent's former employer, NHC Healthcare, to pay permanent partial disability ("PPD") benefits in the amount of $44,123.80, but reversing the findings and awards of the administrative law judge (the "ALJ") of permanent total disability ("PTD"), past medical expenses, and temporary total disability ("TTD"), which the ALJ had found in Kent's favor.

Kent raises six points on appeal. In Points One and Two, Kent challenges the Commission's findings and award of no PTD. In Point Three, Kent argues the Commission erred in declining to award him past medical expenses for the medical treatment Kent pursued at his own expense. In Point Four, Kent contends the Commission erred in denying additional TTD benefits because the evidence showed Kent was totally disabled during the time period at issue. In Points Five and Six, Kent raises evidentiary issues alleging the Commission erred in refusing to admit a report prepared by Dr. Benjamin Crane (the "Crane Report" and "Dr. Crane," respectively) and finding a report prepared by Dr. Alan Morris (the "Morris Report" and "Dr. Morris," respectively) and a report prepared by Dr. David Parks (the "Parks Report" and "Dr. Parks," respectively) were not in evidence.

Because the Commission's factual determinations are consistent with its finding of no PTD and because sufficient competent evidence supported the Commission's award of only PPD benefits, we deny Points One and Two. The record contains no evidence that Kent demanded medical treatment from NHC Healthcare after his termination of employment. Because the Commission reasonably could have found that Kent directed his own medical treatment at his own expense, we deny Point Three. Because sufficient competent evidence supports the Commission's finding that Kent did not suffer from TTD in excess of his original compensation, we deny Point Four. The record shows that Kent did not present his evidentiary arguments concerning the Crane, Morris, and Parks Reports to the Commission. Because Kent did not preserve these evidentiary issues for appellate review, we deny Points Five and Six. Accordingly, we affirm the final award of the Commission.

Factual and Procedural History

I. Initiation of the Claim and the ALJ's Findings of Fact

Because the Commission made express findings of fact and conclusions of law in this matter we review on appeal the Commission's actions and not those of the ALJ. However, we will summarize the ALJ's findings and conclusions to provide context for our review of the Commission's decision. Schlereth v. Aramark Unif. Servs., Inc., 589 S.W.3d 645, 651 (Mo. App. E.D. 2019) (internal citation omitted).

On January 9, 2009, Kent filed a claim for compensation with the Division of Workers' Compensation of the Missouri Department of Labor and Industrial Relations (the "DWC"), alleging that he had been injured in the course of his employment with NHC Healthcare on December 4, 2008. Specifically, Kent alleged that he injured his back lifting a patient. In the "Additional Statements" section of the claim form, Kent wrote "the claimant is in need of ... additional medical treatment." Kent also filed his claim with the Second Injury Fund (the "Fund"), believing he had a basis for such a claim due to preexisting conditions not relevant to this appeal. The Fund filed its answer on January 22, 2009, and NHC Healthcare filed its answer on February 20, 2009.

Following Kent's amended filings in 2015 and 2018, the ALJ conducted hearings and issued its findings of fact and rulings of law on April 8, 2019. The ALJ reviewed the DWC file but did not enter the DWC file into the record. The ALJ noted the parties’ stipulation that on or about December 4, 2008, Kent sustained an accidental injury arising out of and in the course of his employment. The ALJ also noted the parties’ stipulation that NHC Healthcare received proper notice of the injury.

The ALJ excluded from evidence the Crane, Morris, and Parks Reports. The ALJ deemed the reports to be inadmissible hearsay because they were prepared to assist Kent with his disability claim and were not contemporaneous medical reports. The ALJ sustained objections to other testimony regarding the contents of the reports, observing that "[a] testifying expert cannot be a mere conduit for another non-testifying expert." In addition, The ALJ found the Crane Report was also inadmissible due to irregularities in the deposition of the custodian of records.

The ALJ made the following findings of fact. On December 4, 2008, Kent was attempting to help a patient who had fallen. As Kent was lifting the patient, he felt and heard a pop in his lower back. Kent told the nurse in charge, wrote a report stating that he felt the pop and pain, then left work before his shift was scheduled to end. Kent began a course of treatment authorized by NHC Healthcare the next day. Kent complained of back pain and tenderness. Kent had no complaints of numbness or tingling. The physician concluded that Kent suffered from low back pain, spina bifida, and unilateral left pars interarticularis defect. Kent received physical therapy, medication, and work restrictions.

NHC Healthcare sent Kent to Dr. Bernard Randolph ("Dr. Randolph") for six visits between December 16, 2008 and March 2, 2009. Dr. Randolph examined Kent and concluded that Kent suffered from pain with movement and palpation, limited range of motion, and some degree of symptom magnification, but showed no radicular symptoms. Dr. Randolph opined that Kent had sustained a lumbar and mild lower thoracic strain with no structural damage and that conservative measures were appropriate for treatment. Dr. Randolph ordered an MRI on January 2, 2009. The MRI indicated that Kent had a mild right paracentral protrusion at L4–L5, which Dr. Randolph found to be consistent with a chronic, degenerative process. Dr. Randolph acknowledged that the work accident may have exacerbated Kent's condition, took Kent off work, and referred Kent for epidural injections. Kent received the epidural injections but reported they were not helpful.

By January 22, 2009, Dr. Randolph opined Kent had mechanical back pain, which was sub-optimally responding to treatment. Dr. Randolph approved Kent to return to work with instructions to watch his posture and perform his home exercises. Kent returned to work in February, and NHC Healthcare provided accommodations for light duty in compliance with Dr. Randolph's restrictions. The following month, Kent presented to Dr. Randolph with low back pain. Dr. Randolph again found no radicular symptoms and also found no sensory deficits. Dr. Randolph found Kent had normal leg strength and reflexes. Dr. Randolph concluded Kent's complaints were subjective rather than objectively supported and that Kent showed signs of symptom magnification. Dr. Randolph placed Kent at maximum medical improvement ("MMI") on March 2, 2009, and later assigned Kent PPD of no more than one percent.

In March 2009, NHC Healthcare terminated Kent. Kent acknowledged that he had been written up multiple times while on light duty and that he was terminated after he improperly parked in a visitor's parking section. While Kent said he was terminated because of his back pain and treatment, a witness for NHC Healthcare testified that Kent was terminated because he provided untrue and misleading statements in relation to a mandatory investigation arising out of a patient complaint. Kent has not had gainful employment since his termination.

Kent testified he needed additional medical treatment for his work injury, but did not request any such treatment from NHC Healthcare. Kent explained that he thought NHC Healthcare would not assist him. On April 13, 2009, without notifying NHC Healthcare, Kent sought treatment from his own personal care physician, Dr. Parks. Kent complained of persistent lower back pain radiating into his leg. Dr. Parks ordered an MRI, which showed single level mild degenerative changes at L4–L5 with disc herniation.

Dr. Parks referred Kent to Dr. Naseem Shekhani ("Dr. Shekhani"), to whom Kent complained of back pain radiating into his lower extremities with feelings of numbness in his right thigh. In April 2009, Dr. Shekhani diagnosed Kent with herniated disc disease, sciatica, lumbago, and antalgic gait. Dr. Shekhani provided Kent with a selective nerve root block injection, but the injection only provided Kent temporary relief. The record contains no evidence indicating that NHC Healthcare had any advance knowledge of Kent's treatment from Dr. Shekhani.

Dr. Shekhani recommended a surgical consultation, and Kent sought treatment from Dr. Selwyn Picker ("Dr. Picker") in June 2009. Kent complained of persistent lower back pain since December 2008. Dr. Picker noted no radiation of the pain, no lower extremity pain, and no numbness, paresthesia, or weakness in the lower extremities. On at least four occasions, Dr. Picker noted there was no radiation or radicular pain and that the pain was static in Kent's back. There is no evidence NHC Healthcare had advance knowledge of Kent's treatment with Dr. Picker.

Dr. Picker referred Kent to surgeon Dr. Neill Wright ("Dr. Wright"). Dr. Wright diagnosed Kent with a closed fracture of the L4 vertebral...