Employer Sachs Electric Company (“Sachs”) appeals from the decision of the Labor and Industrial Relations Commission (“the Commission”) awarding workers’ compensation benefits to its employee Richard Thorsen for an arm injury.
Sachs brings three points on appeal. First, it alleges that the Commission erred in finding a causal connection between Mr. Thorsen’s injury and an accident that occurred on September 27, 1994. Second, it alleges that the Commission erred in awarding temporary total disability benefits (“TTD”) to Mr. Thorsen. Third, it argues that the trial court lacked jurisdiction under § 287.140 1 to award Mr. Thor-sen medical expenses incurred at Trinity Lutheran Hospital.
We affirm.
Background
In 1994, appellant Sachs employed Mr. Thorsen as a journeyman wireman electrician. On September 27, 1994, he was working at the Associated Electric Power Plant north of Moberly, Missouri. He was standing on a flatbed truck, which was missing several boards from its deck, helping to guide large light pole sections (“standards”) onto the trailer. In an attempt to avoid one standard that was being loaded onto the trailer, he tried to jump over another standard. In doing so, his left leg went through a hole in the floor of the trailer. As he fell, he grabbed for a standard to catch himself. He experienced immediate pain from a scrape he sustained to his left thigh and a bumр to his knee, but he continued working. By 4:30 p.m., while attending a union meeting, Mr. Thorsen noticed that his left arm was swollen from the wrist up past the elbow and was turning black and blue. He reported this to his foreman, who directed him to go to the hospital the next morning.
Mr. Thorsen reported to the Moberly Regional Medical Center emergency room (“Moberly ER”) the next day. After an x-ray returned negative for a possible fracture to the left elbow, the doctor diagnosed an injury to Mr. Thorsen’s left arm and prescribed anti-inflammatory medication and an ice and heat regimen. Mr. Thorsen returned to work on light duty.
On October 31, 1994, Mr. Thorsen returned to the Moberly ER. There, Dr. Fennel recorded Mr. Thorsen’s history, which included an explanation of Mr. Thor-sen’s accident and resulting arm injury on September 27, 1994. Dr. Fennel also noted that Mr. Thorsen reported to him that “several days [earlier], [Mr. Thorsen] caught himself on a ladder that he was sliding down with his arm and it pulled causing a lot of pain and a lot of discomfort.” Dr. Fennel diagnosed a “probable partial muscle tear” to the left arm and took Mr. Thorsen off of work until he could see Dr. Turnbaugh, an orthopaedic surgeon.
On November 2, 1994, Mr. Thorsen had his first appointment with Dr. Turnbaugh. Dr. Turnbaugh prescribed physical thera
On January 6, 1995, Mr. Thorsen first saw Dr. Allen, who diagnosed a partially ruptured biceps muscle. Dr. Allen kept Mr. Thorsen off of work and referred him to additional physical therapy. The pain and discomfort in his arm lingered despite the therapy and conservative treatment, so Dr. Allen referred him to a specialist. Sachs’ workers’ compensation insurer, which furnished a nurse to assist Mr. Thorsen with attendance at appointments and to monitor his progress, then stepped in. Rather than the specialist recommended by Dr. Allen, the nurse scheduled Mr. Thorsen to see Dr. Clark.
On April 24, 1995, Mr. Thorsen saw Dr. Clark. Although desсribing the incident in which Mr. Thorsen fell through the trailer in his patient history, Dr. Clark referenced the date of injury as October 26, 1994, which was the date of the ladder incident. Her records also reflect that the slip on the ladder occurred on December 15, 1994. After an MR.I of Mr. Thorsen’s arm returned negative for a biceps tear or any other injury thought to cause his symptoms, Dr. Clark prescribed additional physical therapy and eventually a work-hardening program. After a week, Mr. Thorsen left the work-hardening program as it was exhausting him and causing him more pain. On June 13,1995, shortly after he left the work-hardening program, he returned to see Dr. Clark. Dr. Clark did not feel there was anything further she could do to treat Mr. Thorsen, so she released him to return to work despite his complaints of continued pain.
Dr. Clark opined that Mr. Thorsen had reached maximum medical improvement, so on June 11, 1995, Sachs halted Mr. Thorsen’s TTD checks. Mr. Thorsen thereafter performed intermittent light-duty work as it became available with Sachs until December 10, 1995, when Sachs no longer provided TTD or offered any light-duty work.
Although Mr. Thorsen had been released from medical care, the condition of his left arm continued to worsen. In January of 1996, despite Sachs’ refusal to authorize any additional medical treatment or TTD, Mr. Thorsen returned, at his own expense, tо see Dr. Turnbaugh. Dr. Turn-baugh, who suspected radial nerve entrapment, referred Mr. Thorsen to Dr. Mac-kinnon, who suspected a “radial tunnel problem” and recommended an EMG. 2
On October 16, 1996, Mr. Thorsen chose to obtain the EMG at his own expense. The results of this EMG were “considered equivocal.”
On November 7, 1996, Mr. Thorsen continued to experience pain and discomfort in his left arm, yet Sachs still refused to authorize additional medical treatment. Mr. Thorsen then went to Dr. Stitzer, his family physician. Dr. Stitzer suggested he see Dr. Seaberg, a hand surgery specialist. Dr. Seaberg diagnosed a “tear of the left biceps tendon on insertion into the forearm.” Dr. Seaberg referred Mr. Thorsen to Dr. Satterlee, an orthopaedic surgeon in Kansas City.
On February 27, 1997, Mr. Thorsen had his first visit with Dr. Satterlee. Dr. Sat-terlee ordered a new MRI and confirmed a partial biceps tear at the left elbow. He then explained Mr. Thorsen’s options to him, including surgery. After considering all options, Mr. Thorsen elected to proceed
Nonetheless, Mr. Thorsen chose to proceed with treatment. On August 12, 1997, Dr. Satterlee surgically repaired Mr. Thor-sen’s biceps rupture at Trinity Lutheran Hospital. Thereafter, Mr. Thorsen successfully аttended physical therapy and a work-hardening program. On February 9, 1998, Dr. Satterlee released Mr. Thorsen to return to work with restrictions that he could not climb ladders or work alone. Mr. Thorsen returned to work as a journeyman electrician. As of the final hearing, he continued to have some problems with his arm, which he said would never be quite the same as prior to the accident.
Mr. Thorsen filed his first claim for compensation with the Division of Workers’ Compensation on March 24, 1995. In this claim, he reported the injury resulting from his fall into the hole in the truck bed. However, he stated the date of injury as October 26, 1994 — the date of the ladder incident. At a hearing on June 7, 1996, in which Mr. Thorsen requested additional medical benefits after Dr. Turnbaugh recommended an EMG, the Administrative Law Judge (“ALJ”) stated the date of injury as October 26, 1994. Mr. Thorsen’s counsel then advised the court that although the claim said October 26, the proper date was September 27, 1994. Counsel advised the court that it was through counsel’s error, not that of Mr. Thorsen, that the date of injury was incorrectly reported on the claim form. The court advised counsel that it would “receive something in writing” with regard to what the date of accident was, but otherwise the October 26, 1994, date would remain with Mr. Thorsen’s counsel’s representation that it was actually September 27, 1994. On July 23, 1996, rather than filing an amended claim, Mr. Thorsen’s counsel filed a separate claim reflecting the September 27, 1994, date of accident. Except for the date of accident, the claim forms were essentially identical; i.e., the description of the injury-causing accident was identical. As will later be seen in this opinion, this filing error played a large role in the resulting issue as to which incident, that of September 27, 1994, or October 26, 1994, caused his injuries.
A final hearing was held before the ALJ on October 8, 1999. The following issues were presented to the ALJ: (1) Sachs’ liability for TTD, (2) Sachs’ liability for reimbursement of medical expenses, (3) Sachs’ liability for unpaid medical exрenses, (4) the nature and extent of permanent disability, (5) Sachs’ liability for mileage expense, (6) Sachs’ liability for attorney’s fees and claim expenditures, (7) Sachs’ liability on the Trinity Lutheran Hospital bill, and (8) the causal connection between the September 27, 1994, accident and the injuries that Mr. Thorsen alleged he sustained.
Prior to the start of the hearing, counsel for Mr. Thorsen announced that the claim for October 26, 1994, was being abandoned, so it was dismissed with prejudice. Up to that point, medical benefits of $7,547.76 and temporary disability benefits in the amount of $12,179.16, were on record as having been paid in connection with the October 26, 1994, claim. Mr. Thor-sen’s counsel informed the ALJ that Mr. Thorsen was not making a claim for a new injury, the October incident had simply caused a flare-up. Sachs, on the other hand, proceeded on the theory that the October incident was a second accident and the actual cause of Mr. Thorsen’s injury. Because Mr. Thorsen had dismissed his October claim with prejudice, Sachs alleged that he was seeking compensation for a non-compensable injury. As pointed
The ALJ found that Mr. Thorsen failed to carry his burden of proof that his injuries arose from the September 27, 1994, accident rather than the October incident, and Sachs was therefore not liable for his injury. Mr. Thorsen then sought review of the ALJ’s decision, and the Commission reversed. This appeal followed.
Standard of Review
Section 287.495.1 RSMo 2000, 3 which governs our review of the Commission’s decision, states in relevant part that:
Upon appeal no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. 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.
Accordingly, we review the findings of the Commission and not those of the ALJ.
Sutton v. Vee Jay Cement Contracting Co.,
“Moreover, when as here the Commission reverses the findings and award of the ALJ, we engage in the two-step analysis set forth in [this court’s]
en banc
decision in
Davis v. Research Medical Ctr.,
First, the reviewing court examines the record, together with all reasonable inferences to be drawn from the evidence therein, in the light most favorable to the findings and award of the Commission to determine whether they are supported by competent and substantial evidence. If so, the reviewing court must then determine whether the Commission’s findings and award, even if supported by some competent substantial evidence, were nevertheless clearly contrary to the overwhelming weight of the evidence contained in the whole record before the Cоmmission. In other words, the factual findings and resulting awardof the Commission should be set aside on appeal if they are not supported by competent and substantial evidence or, even if supported by such evidence, if they are clearly contrary to the overwhelming weight of the evidence. Otherwise, the Commission’s award is to be affirmed.
Davis,
Point I
In its first point on appeal, Sachs contends that the overwhelming weight of the evidence does not support the facts concerning Mr. Thorsen’s injury as found by the Commission. Instead, Sachs claims that the evidence supports the ALJ’s finding concerning Mr. Thorsen’s failure to causally connect his injury to the September 27,1994, aсcident.
Section 287.120.1 provides in pertinent part that:
Every employer ... shall be liable, irrespective of negligence, to furnish compensation ... for personal injury ... of the employee by accident arising out of and in the course of his employment, and shall be released from all other La-bility therefor whatsoever, whether to the employee or any other person.
At issue is whether Mr. Thorsen’s injury was caused by the September 1994 accident in which he fell through the floor of the truck or the subsequent October 1994 ladder incident.
In order to receive compensation, Mr. Thorsen was required to show a causal connection between his biceps tear and the Septеmber 27, 1994, work incident where he fell through the floor of the truck.
Williams,
Sachs argues that “the Commission misapplied the law because Thorsen had the burden of proving that the injury fоr which he claimed compensation, a torn or ruptured biceps, occurred on September 27, 1994.” Sachs contends that Mr. Thorsen failed to present evidence excluding that his injury did not occur on October 26, 1994. 4
We still must determine whether the Commission’s findings and award were clearly contrary to the overwhelming weight of the evidence. We therefore consider the evidence in the whole record, including that contrary to the award. Sachs contends that, contrary to the award, the overwhelming weight of the evidence shows that Mr. Thorsen did not suffer a partial tear of his biceps on September 27, 1994. Or, as stated by the Commission in its findings, “[e]mployer/in-surer would have us believe that whatever injury claimant suffered as a result of the September 27, 1994 incident, it had completely resolved when he suffered a second work accident in October 1994.”
This issue involves Mr. Thor-sen’s burden of proof, which has been described as follows:
Employee bears the burden of proving that not only did an accident occur, but it resulted in injury to him.... Employee’s medical expert [is required] to establish the probability Employee’s injuries were caused by the work accident. The ultimate importance of the expert testimony is to be determined from thе testimony as a whole and less than direct statements of reasonable medical certainty will be sufficient.
McGrath v. Satellite Sprinkler Sys., Inc.,
In its argument, Sachs relies primarily on the findings of the ALJ, especially those regarding credibility. In the second step of the
Davis
analysis set forth above, “the ALJ’s credibility determinations [of live witnesses] that are contrary to the Commission’s credibility determinations are considered.”
Whiteman v. Del-Jen Constr., Inc.,
Dr. Turnbaugh’s admission that a new injury might have arisen from the subsequent incident demonstrates only that he has considered other possibilities. It does not necessarily detract from his ultimate conclusion that the September 1994 incident was the cause of claimant’s problems. It is elementary that claimant does not have to prove his case with absolute certainty. Causation only needs to be made with reasonable probability.
(Emphasis added.) Again, Dr. Turn-baugh’s testimony was by deposition, so we defer to the Commission on its finding that Dr. Turnbaugh causally connected Mr. Thorsen’s injury to the September 27, 1994, accident.
Whiteman,
The Commission also found that Dr. Satterlee, in his July 15, 1998, letter set forth above in our discussion of the first step of the
Davis
analysis, supports Mr. Thorsen’s case. We agree. Sachs maintains in its brief that Dr. Satterlee related the injury to the September incident only because that was the only incident that Mr. Thorsen reported to Dr. Satterlee. We find nothing in the record to support this belief. Sachs also argues, without citation, that Mr. Thorsen bore the burden of excluding all injuries or disability suffered as a result of the October 26, 1994, incident. Again, Mr. Thorsen’s burden was to establish a connection between the September 27,1994, work accident and his injuries.
White,
The remaining evidence contrary tо the award includes the June 26, 1996, deposition testimony of Dr. Clark. Sachs deposed Dr. Clark after Mr. Thorsen requested authorization for additional medical treatment in 1996, over a year since Dr. Clark had last seen Mr. Thorsen. Dr. Clark testified that as of June 13, 1995, when she last saw him, Mr. Thor-sen had reached maximum medical improvement and did not require further medical attention. Sachs used this testimony, which was the basis for Sachs’ denial of any further medical treatment for Mr. Thorsen, to show that the partial biceps teai' could not have resulted from the September 27, 1994, accident. How
Point I is denied.
Point II
In its second point on appeal, Sachs contends that the Commission erred in awarding Mr. Thorsen temporary total disability (“TTD”) because the Commission’s finding that Mr. Thorsen was unable to work was not supported by the overwhelming weight of the evidence. Specifically, Sachs alleges that Mr. Thorsen demonstrated his ability to work, and therefore his disqualification for TTD, when he applied for unemployment benefits.
When an employee is injured in an accident arising out of and in the course of his employment and is unable to work as a result of his or her injury, § 287.170 sets forth the TTD benefits an employer must provide to the injured employee. Section 287.020.7 defines the term “total disability” as used in workers’ compensation matters as meaning the “inability to return to any employment and not merely mean[ing the] inability to return to the employment in which the employee was engaged at the time of the accident.” The test for entitlement to TTD “is not whether an employee is able to do some work, but whether the employee is able to compete in the open labor market under his physical condition.”
Boyles v. USA Rebar Placement, Inc.,
Sachs maintains that Mr. Thor-sen’s application for and receipt of unemployment benefits essentially estops the Commission from awarding TTD to him. The following time line is helpful in assessing Sachs’ claim that the Commission wrongly awarded TTD benefits:
[[Image here]]
7/3/95 to 7/7/95: Mr. Thorsen works (light duty).
7/24/95 to 9/6/95: Mr. Thorsen works (light duty).
9/6/95 to 11/11/95: Mr. Thorsen receives unemployment benefits.
11/12/95 to 12/10/95: Mr. Thorsen works (light duty).
12/11/95 to 2/20/96: Mr. Thorsen receives unemployment benefits.
2/21/96 to 6/15/96: The Commission awards Mr. Thorsen TTD benefits.
6/22/96 to 10/19/96: Mr. Thorsen receives unemployment benefits.
10/19/96 to 2/9/98: The Commission awards Mr. Thorsen TTD benefits.
2/9/98: Dr. Satterlee releases Mi*. Thorsen as having reached MMI.
Under § 288.040.1 RSMo Cum.Supp. 1995, 5 in order to be eligible to receive unemployment benefits, the deputy must find that the applicant is required to show that he is able to work and is available for work. Sachs providеd an exhibit showing the dates in which Mr. Thorsen drew the unemployment benefits. We found nothing in the record showing that Mr. Thor-sen applied for unemployment benefits or was able to work light duty during the periods for which TTD was awarded. While Mr. Thorsen’s potential ability to work immediately before or immediately after those periods is a factor which can be considered, of greater significance is his inability to work during those periods for which the Commission awarded TTD. As found by the Commission:
Nothing in the record indicates that [Mr. Thorsen] was capable of working from February 21, 1996 through June 15, 1996 (16 and 3/7 weeks) and from October 19, 1996 until his release following surgery on February 9, 1998 (68 and 1/7 weeks).... We find claimant entitled to temporary total disability for the time periods in 1996, 1997 and until his release in 1998, when he did not work and was not drawing unemployment.
Mr. Thorsen testified that, while under light-duty restrictions, he attempted to work, but he could only obtain work sporadically in 1995. He opined that no one would hire a “one-armed electrician.” He was not released by the treating surgeon at the times for which he received TTD, and Dr. Satterlee indicated Mr. Thorsen was unable to work as a result of the September 27, 1994, injury until it was surgically repaired and rehabilitated. Although Mr. Thorsen’s application for unemployment benefits is a factor to be considered, upon review of the record, we agree with the Commission and find that Mr. Thorsen sufficiently carried his burden of proof that he was unable to work as a result of his injuries and was still working toward attaining maximum medical improvement during the periods for which the Commission awarded TTD.
Point II is denied.
Point III
In its third and final point on appeal, Sachs contends that the Commission erred in awarding Mr. Thorsen medical expenses incurred at Trinity Lutheran Hospital. Sachs asserts that the Commission lacked the jurisdiction to make such an award because the hospital had filed a medical fee dispute application and request for direct payment, thereby removing Mr. Thorsen as a party to the dispute concerning Trinity Lutheran Hospital’s medical charges. Essentiаlly, Sachs argues that we should reverse the Commission’s medical expense award under § 287.495.1(1) because the Commission acted without power
Section 287.140.1 requires that Mi'. Thorsen be afforded and that Sachs provide all treatment necessary to cure and relieve the effects of his work-related injury. In this case, Sachs refused to authorize Mr. Thorsen’s medical treatment after Dr. Clark discharged him in June of 1995. As his condition persisted, Mr. Thorsen chose to pursue additional medical treatment despite Sachs’ refusal to authorize it. In this case, the Commission fоund that Mr. Thorsen’s medical treatment, including that received at Trinity Lutheran, was related to Mr. Thorsen’s September 1994 work accident and was reasonable and necessary. As pointed out by the Commission in its award, “when the employer refuses to provide necessary treatment, claimant is entitled to an award of compensation for the expenses he has incurred.” Sachs does not argue that the treatment was not necessary; instead, it argues that when Trinity Lutheran chose to submit a request for direct payment under § 287.140.13(6), such action resulted in Trinity Lutheran becoming the real party in interest concerning that claim for Mr. Thorsen’s medical exрenses incurred there. Thus, Sachs argues that pursuant to § 287.140.4, which states in relevant part that “[t]he employee shall not be a party to a dispute over medical charges,” Mr. Thorsen lacked standing to pursue obtaining an award for those expenses. We disagree.
Section 287.140.13(6), which authorizes health care providers to file claims for direct payments, states:
A hospital, physician or other health care provider whose services have been authorized in advance by the employer or insurer may give notice to the division of any claim for fees or other charges for services provided for a work-related injury that is covered by this chapter, with copies of the notiсe to the employee, employer and the employer’s insurer. Where such notice has been filed, the administrative law judge may order direct payment from the proceeds of any settlement or award to the hospital, physician or other health care provider for such fees as are determined by the division. The notice shall be on a form prescribed by the division.
(Emphasis added.) Section 287.140.4 then directs the Division to establish regulations setting forth “methods to resolve disputes concerning the reasonableness of medical charges, services, or aids.” These regulations appear at Title 8, Division 50, Chapter 2.030(2) of the Missоuri Code of State Regulations (8 C.S.R. 50-2.030(2)). In this case, Trinity Lutheran filed a direct payment claim under § 287.140.13(6). However, these sections upon which Sachs relies are not applicable to the case now before us because the treatment provided to Mr. Thorsen by Trinity Lutheran clearly was not authorized in advance by either Sachs or its insurer.
We rely on the Missouri Supreme Court’s recent opinion in
Curry v. Ozarks Elec. Corp.,
Point III is denied.
Conclusion
Pursuant to § 287.495, we hold that the Commission acted within its powers; the award was not procured by fraud; the facts found by the Commission support its award to Mr. Thorsen; and the record contains sufficient competent evidence to warrant making the award. Thus, we affirm the Commission’s award to Mr. Thor-sen.
SMITH, P.J., and SMART, J., concur.
Notes
. Unless otherwise noted, all statutоry references are to RSMo 1994. We note that § 287.140 was amended in 1998. That amendment was to a subsection not at issue in this case. Thus, for simplification purposes, all references to § 287.140 in this opinion will be to RSMo 1994.
. According to Mr. Thorsen’s medical records, an EMG, or "electromyographic examination,” is used to evaluate the function of and/or detect injury to the nerves.
. All references to § 287.495 are to RSMo 2000.
. We note that Sachs relies on the ALJ's findings and argues for their appropriateness throughout his argument, but we review the Commission’s findings and award, not the ALJ’s decision. § 287.495.
. Section 288.040 was amended in 1995, effective July 5, 1995, and again in 1997 and 1999. From the record, it appears that only the 1995 amendment was applicable during the time Mr. Thorsen received unemployment benefits.