Lead Opinion
In this workers’ compensation case, William Bowers (“Employee”) disputes the final award of the Labor and Industrial Relations Commission (“the Commission”) affirming an award entered by an Administrative Law Judge (“ALJ”). The ALJ found that Employee had sustained a twenty percent permanent partial disability (“ppd”) to the right shoulder at the 232-
A brief history of the facts will suffice, considering our discussion concerning the points raised on this appeal. Employee had a history of hepatitis C dating back to 1988, with the subsequent development of rheumatoid arthritis in about 1994. The arthritis resulted in swelling, pain and restricted motion in multiple joints, for which he was treated with medications including prednisone (a steroid).
On February 25, 1999, Employee was injured when he fell approximately four feet and landed on his head, right shoulder, and right side (the “accident”) while unloading a truck as part of his employment with Hiland Dairy Company (“Employer”). He alleged in his claim for compensation against Employer and the Second Injury Fund (the “Fund”) that he sustained an injury to his head, neck, and right shoulder affecting his right arm. He also acknowledged in his claim against the Fund that he had previous injuries to the back, spine, shoulders, elbows, wrists, hands, “left knee (rheumatoid arthritis),” “body as a whole (hepatitis C),” left shoulder, left arm, and left leg. Since the accident, Employee has been treated with various medications, including those for pain, as well as steroids.
The Supreme Court of Missouri recently has re-examined the standard of review in workers’ compensation cases. In Hampton v. Big Boy Steel Erection, et al,
It first is necessary that we note several deficiencies in Employee’s brief. Initially, we note that Rule 84.04(c)
Employee’s statement of facts violates the requirements of this rule. It covers forty-four pages of the brief, is argumentative, is far from concise, and contains information not relevant to the issues raised in this appeal. In many instances, the statement of facts contains a summarization of the complete testimony of various witnesses, a practice that has been condemned as a failure to comply with the requirements of the rule. See Bryan v. Bryan,
Employee’s first point relied on also violates Rule 84.04(d). In point one, Employee attacks the denial of reimbursement for past medical care in the amount of $15,833.08. The point is deficient for several reasons. It covers four pages of the brief and is divided into four subpoints and five sub-subpoints. Each subpoint is based on a separate and distinct theory, and each sub-subpoint is based on factual contentions distinct from the others. It contains multifarious claims of trial court error, and is, thus, not in compliance with Rule 84.04. Harris v. Parman,
Employee’s first point relied on is in violation of Rule 84.04 in another respect. Rule 84.04(d)(2) provides a virtual “road-map” for the preparation of a point relied on in an appellate brief when the review is of a decision of an administrative agency. It specifies that the point shall be in substantially the following form: “The [name of agency ] 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 ].” Employee’s first point fails to state concisely the legal reasons for the claim of reversible error and to explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error as required by that rule. Employee’s point also contains abstract statements of law in violation of Rule 84.04(d)(4).
Finally, this point relates to the denial of reimbursement for past medical care. According to Employee’s statement of facts, these expenses were in the form
We note, however, that statutes and rules relating to appeals in workers’ compensation cases are to be construed liberally in favor of allowing appeals to proceed, and, to the extent possible, to permit disposition on the merits. Abrams v. Ohio Pacific Exp.,
Reviewing [Employee’s] pharmaceutical prescription exhibits offered into evidence, all are due to the arthritis as much as any work accident. [Employee] has failed to meet his burden to separate out what medications are required as a result of the work accidents alone, rather than in combination with the preexisting rheumatoid arthritis.
In fact, Dr. Guarino, [Employee’s] treating and evaluating physician, as well as Dr. Cohen, both indicate that all of the medications they have prescribed for [Employee] assist and aid with treatment of rheumatoid arthritis as much as any other condition. In fact, the medications currently being prescribed are for pain, regardless of the source or cause. Neither physician can differentiate or segment which pain or limitation stems just from the rheumatoid arthritis, as compared to any work accident.
While the pharmaceutical prescription records referred to are not before us, it appears from the ALJ’s ruling that the basis for denying Employee’s claim for past care and treatment in the form of prescription medications was the fact that Employee had not proven which of those medications
Section 287.140.1 provides, in pertinent part:
In addition to all other compensation, the employee shall receive and the ém-ployer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.
Medical aid is, therefore, a component of the compensation due an injured worker under § 287.140.1. Mathia v. Contract Freighters, Inc.,
Employee had the burden of proving his entitlement to benefits for care and treatment authorized by § 287.140.1 i.e., that which is reasonably required to cure and relieve from the effects of the work injury. See Rana v. Landstar TLC,
In this case, the ALJ cited O’Donnell v. Guarantee Elec. Co.,
We do not read O’Donnell as holding that entitlement to medical care as a part of a workers’ compensation claim requires that the care must relate to or benefit only the injuries or condition that is the subject of the workers’ compensation claim. Rather, we interpret O’Donnell as standing for the proposition that the medical care in issue, to be compensable, must be shown to be related or due to the injury or condition which is the subject of the claim.
The ALJ also cited Sullivan v. Masters Jackson Paving Co.,
An issue similar to that considered here arose in Hall v. Spot Martin, Inc.,
The Commission found that [employer’s insurer]' ‘is liable to this employee ... for all the medical and hospital expenses incurred by employee to cure and relieve him of his disability relating to his back ... ’ It is evident that in ordering the payment of the instant expenses the Commission had the view that such services were necessary in order to relieve the employee from pain resulting from the injury and disability to his back, and the fact that such services may have also given relief from the pain caused by the cancer would not relieve [employer’s insurer] from liability therefor. No case has been cited which deals with a situation of that kind and we have not found any. However, after reviewing the evidence, the findings of the Commission, and the provisions of the statute heretofore cited, we have concluded that we cannot say that the instant finding was against the overwhelming weight of the evidence, or that the Commission acted in excess of its powers in directing the payment of the disputed items, (emphasis added).6
Id. at 854-55.
Based on Hall and Sullivan, Employee’s burden of proof did not require
This is not to say that if an injured worker is taking medication or receiving treatment for a pre-existing condition, simply because a work injury would require the same treatment both as to type and extent, the treatment then becomes com-pensable. The treatment must be due to the work injury and not the pre-existing condition. O’Donnell at 192. Thus, Hall speaks in terms of the past services being “necessary in order to relieve the employee from pain resulting from [the work injury],”
A different result would obtain, however, if costs were incurred for the treatment of the injuries sustained in the accident, whether that resulted from increased dosages of prior medications, or medications either not previously taken, or not being taken for the pre-existing conditions as of the time of the accident. For instance, such costs could result when medications previously prescribed had been interrupted and were not being taken as of the time of the accident because they were not then medically needed, advisable, or beneficial, but were resumed because they became reasonably medically necessary by reason of the injuries sustained in the accident, or if the dosages, strengths or types of medications previously prescribed for the preexisting conditions were, by reason of the injuries sustained in the accident, changed or increased with a resulting increase in cost. For example, if a worker is taking medication for arthritis, including for pain control, his claim for prescription costs for increased dosages or for stronger medications caused by a work injury should be compensable even if they will also benefit the pre-existing condition. This view is consistent with O’Donnell, which affirmed the denial of reimbursement of past medical bills where the evidence did not sufficiently show the extent, if any, that the claimed bills were due to the work accident and not to a pre-existing condition. Id. at 191-92.
To the extent the Commission ruled that in order to be subject to reimbursement, the past medical expenses in the form of
Employee also complains, as a part of this point, that the Commission erred as a matter of law by requiring that he establish medical causation with 100% certainty rather than that causation is more probable than not, based on a reasonable degree of medical certainty. Contrary to the requirements of Rule 84.04(i) requiring that all statements of fact and argument shall have specific page references to the legal file or the transcript, Employee does not cite us to the record in support of his contention that the Commission required proof of medical causation with 100% certainty. Our reading of the Award does not reveal such a requirement. Accordingly, this portion of point one is denied.
Employee also contends, in his first point, that there were no facts to support that portion of the award denying reimbursement of past medical expenses. As indicated above, Employee, as appellant, has the burden of proving all of the elements of his claim. Walsh v. Treasurer of the State of Missouri,
Employee’s second point on appeal is based on the Commission’s denial of future medical care. This point relied on is also deficient in many of the ways described with reference to the first point. It includes three subpoints based on different theories; it fails to follow the form delineated in Rule 84.04(d); and it contains abstract statements of law. As indicated above, such deficiencies justify our declining to review a point relied on. Additionally, as in the first point, Employee complains, in one subpoint, that the weight of the evidence established that, “more probably than not,” future treatment would cure and/or relieve him from the effects of the injuries suffered in the accident “and [he] did not need to establish causation with 100% certainty.” Once again, however, Employee fails to direct us to the portion of the award holding that he was required to prove causation with 100% certainty.
As with the first point relied on, there is one feature of the second point that is capable of being decided. Employee argues, as he did in the first point, that the Commission erred in denying medical benefits, this time future benefits, because it required him to prove that such treatment would not benefit any other condition, rather than proving that it would cure and/or relief him from the effect of his work-related injury. Employee also reiterates his earlier argument that the Commission’s award referred to above requires him to show that the need for future treatment flows from the work accident alone, rather than in combination with the preexisting conditions. To the extent this was the basis for the Commission’s denial of future medical care, it also was based on
In reaching that conclusion, the ALJ’s Findings of Fact and Conclusions of Law, stated that:
both of [Employee’s] physicians, who indicate the need for future medical care and treatment exists, ... state in their depositions that the symptomatology present in [Employee’s] body areas, such as the neck, low back and shoulders, all have symptomatology caused, or contributed to be caused, by [Employee’s] preexisting rheumatoid arthritis. There is no way a physician can differentiate and separate out the cause of the symptomatology. Therefore, [Employee] cannot meet his burden that the need for future medical care and treatment, which he is currently undergoing, “flows from” the work accidents alone.
... there appears to be no question that all of the medications currently being prescribed for [Employee] not only benefit any alleged work-related component of symptomatology stemming from the two workers’ compensation claims, but also are caused by [Employee’s] preexisting rheumatoid arthritis which has been described to be a progressive disease. Further, [Employee’s] clear, preexisting history of low back pain, when he was seeking treatment and evaluation for his rheumatoid arthritis, as well as the prescription medication he was taking to alleviate the preexisting back and joint pain due to the rheumatoid arthritis, are all clear indicators that [Employee’s] need for continued medications are due as much to the rheumatoid arthritis as any work accident or claim.
It is sufficient to show that the need for additional medical treatment by reason of a compensable accident is a reasonable probability. Mathia at 277. Future medical care must flow from the accident, via evidence of a medical causal relationship between the condition and the compensa-ble injury, if the employer is to be held responsible. Mickey v. City Wide Maintenance,
An employer may not be ordered to provide future medical treatment specifically for non-work-related injuries. Sullivan at 888. An employer may be required, however, to provide future medical care where there is evidence to a reasonable degree of medical certainty that the need for treatment is caused by the work injury even if the treatment will also provide treatment for a non-compensable condition. Id. at 888-889. As is the case with reimbursement for past medical bills, the Commission’s Award, to the extent it denied future medical benefits because they were not shown to have been only for the benefit of the work injury, was a misapplication of the law. We must, accordingly, reverse the portion of the Award denying future medical benefits and remand the matter to the Commission for further consideration of that issue consistent with this opinion.
Employee’s third point is directed to the extent of the Commission’s award for permanent partial disability, i.e. “20% permanent partial disability of the right shoulder
Again, Employees point relied on fails to comply with the virtual “blueprint” provided by Rule 84.04(d). In addition, Employee cites only two cases in support of this point. Neither of those cases stands for the proposition for which it is cited. It is an appellant’s obligation to cite appropriate and available precedent if he expects to prevail. Thummel v. King,
It is the appellant’s obligation to identify, with particularity, the proposition on which the party relies and to provide accurately referenced authority for the proposition. Likewise, an appellant’s obligation includes providing authority in support of alleged trial court errors with accurate citations to that authority. Were the appellate court to undertake these things when an appellant has failed to do them, the appellate court would be assuming the role of advocate. “It is not the function of the appellate court to serve as advocate for any party to an appeal.”
Id. at 496 (quoting Thummel at 686).
The same requirements apply in workers’ compensation cases. If no authority is available, an explanation should be made for the absence of citations. Thummel at 687. Where, as here, appellant neither cites relevant authority nor explains why authority is not available, the appellate court is justified in considering the point abandoned. Shiyr v. Pinckney,
Notwithstanding that fact, we note that the determination of a specific amount or percentage of disability awarded to a claimant is a finding of fact within the province of the Commission, and this court will not substitute its judgment for that of the Commission even if this court would have made a different initial conclusion. Sifferman v. Sears, Roebuck and Co.,
The portions of the Commission’s award denying reimbursement of past medical bills in the form of prescriptions, and for future medical treatment, are reversed and the case is remanded to the Commission for further consideration of those issues consistent with this opinion. In all other respects the award is affirmed.
Notes
.Section 287.495.1 provides, in pertinent part, that the "court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.”
. Article V, § 18 of the Missouri Constitution provides for judicial review of the commission's award to determine whether the award is supported by competent and substantial evidence upon the whole record. All references to statutes are to RSMo (2000) unless otherwise indicated.
. Several of the cases overruled by Hampton to the extent they are in conflict with the holding there are cited herein in support of other principles of law not affected by the Hampton ruling. For the sake of simplicity, no further acknowledgment of Hampton’s effect on those cases appears hereafter.
. References to rules are to Missouri Rules of Civil Procedure (2003) unless otherwise indicated.
. We note that Employee’s statement of facts does contain a listing of medications, dates of prescriptions, quantity, and price that perhaps were taken from the missing exhibits. “Statements of fact in a brief which are unsupported by the record are not evidence, hence they supply no basis for appellate review of alleged trial court error.” In re Marriage of Osborne,
. The Supreme Court of Missouri held in Kasl v. Bristol Care, Inc.,
Lead Opinion
ON MOTION FOR REHEARING AND MOTION FOR TRANSFER
Employee filed a “Motion for Rehearing, or in the Alternative, Application for
Other issues raised in Employee’s motion require no further discussion. The motion is denied.