Carl Greer, Appellant/Cross-Respondent v. Sysco Food Services, Respondent/Cross-Appellant, and Treasurer of Missouri as Custodian of the Second Injury Fund

SUPREME COURT OF MISSOURI
en banc

CARL GREER, )
Appellant/ )
Cross-Respondent, )
)
vs. ) No. SC94724
)
SYSCO FOOD SERVICES, )
)
Respondent/ )
Cross-Appellant, )
)
and )
)
TREASURER OF MISSOURI AS )
CUSTODIAN OF THE SECOND )
INJURY FUND, )
)
Respondent. )

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Opinion issued December 8, 2015

Carl Greer (hereinafter, “Greer”) appeals the Labor and Industrial Relations

Commission’s (hereinafter, “the commission”) decision denying him permanent total

disability (“PTD”) benefits because he contends that, after he sustained a crush injury to

his left ankle, he is unemployable in the open labor market. Greer’s employer, SYSCO

Food Services (hereinafter, “Employer”), cross-appeals, arguing the commission erred in
awarding Greer an additional award of temporary total disability (“TTD”) benefits after

Greer reached maximum medical improvement, erred in failing to reduce Greer’s benefits

due to an alleged safety violation, and erred in awarding Greer future medical care

benefits. After examining the evidence in the context of the whole record, this Court

holds the commission’s decision is supported by substantial and competent evidence.

The commission’s decision is affirmed.

Factual and Procedural History

Greer began working for Employer in 1989. Greer first worked in Employer’s

warehouse as an order filler, then was promoted to forklift operator. The operator

position required Greer to stand between eight and twelve hours a day, to climb in and

out of a forklift, and to maneuver the forklift. Greer repetitively lifted heavy objects and

engaged in pushing, pulling, overhead reaching, stooping, squatting, and using his upper

body throughout the work day. Greer sustained several work-related injuries prior to the

crush injury to his ankle, including a bulging disc in his cervical spine, a lower lumbar

strain, and a rotator cuff injury to his right shoulder.

On February 23, 2006, Greer was standing on a stationary forklift inside a freezer

at the warehouse attempting to scan a pallet containing inventory. Greer’s scanner gun

malfunctioned, requiring him to lean forward to scan the pallet. As Greer leaned

forward, his left leg extended outside the running lines of his forklift. At that moment, a

co-employee driving another forklift caused the other forklift to grab Greer’s left foot and

crush it between the two forklifts. Greer was taken by ambulance to the hospital, and his

left foot was placed in a cast.
 Five days after the accident, Greer saw Dr. Blair, an orthopedic surgeon, who

diagnosed Greer with a crush injury to his left ankle. Dr. Blair treated Greer for several

months, prescribing pain medication, ordering physical therapy, and monitoring his

recovery. Greer participated in two functional capacity evaluations while under

Dr. Blair’s care. The first evaluation, conducted in August 2006, showed Greer could

work at the heavy demand level. Greer was released to return to work at that time.

However, Greer began experiencing difficulty working and in October 2006 underwent a

second functional capacity evaluation, which determined he could work at a medium

demand level.

In February 2007, Dr. Blair noted tenderness over Greer’s tarsal tunnel and

ordered Greer to undergo an electromyogram and nerve conduction test. Dr. Blair noted

the electromyogram was normal, but Greer could not complete the nerve conduction test

due to pain intolerance. After ordering Greer to undergo additional work hardening,

Dr. Blair released Greer to full duty in March 2007. Greer last saw Dr. Blair on April 23,

2007, at which time Dr. Blair released Greer at maximum medical improvement and

opined Greer sustained a five percent permanent partial disability of his left ankle due to

a limited range of motion.

Greer attempted to return to work several times after being released to full duty.

In July 2007, Greer visited Dr. Grebing, who diagnosed Greer with a left ankle and foot

crush injury and left tarsal tunnel syndrome. Dr. Grebing administered a cortisone

injection to provide Greer relief. However, Greer found he was unable to perform his job

duties and voluntarily resigned his employment on November 7, 2007. Employer did not
3
authorize or pay for any further medical treatment after Greer voluntarily terminated his

employment.

Because Greer continued to have issues with his left foot, he sought treatment on

his own, first consulting with a pain management specialist, Dr. Graham, in November

2007. Dr. Graham administered a psychological evaluation as part of his examination.

Dr. Graham found Greer had symptoms of possible tarsal tunnel syndrome. However,

Dr. Graham concluded Greer had a strong likelihood of functional overlay, wherein a

patient’s subjective complaints are disproportionate to the objective medical findings and

are recalcitrant to treatment. Based on this finding, Dr. Graham did not offer Greer any

pain management treatment and did not recommend Greer undergo surgery or any other

invasive treatment.

Between November 2007 and December 2009, Greer engaged in physical therapy

and various treatments with at least five physicians, all whom diagnosed Greer with tarsal

tunnel syndrome. In December 2009, Greer consulted with Dr. Johnson, an orthopedic

surgeon, about the pain in his left foot and ankle. Dr. Johnson initially diagnosed Greer

with a fixed deformity in his left foot, which caused his foot to turn inward, and possible

tarsal tunnel syndrome. Dr. Johnson ordered additional tests and referred Greer to

Dr. Mackinnon, a plastic surgeon, to evaluate his nerve pain. Dr. Johnson eventually

recommended Greer undergo tarsal tunnel release surgery, wherein the goal of the

surgery would be to reduce Greer’s nerve pain and correct his foot deformity.

On June 22, 2010, Drs. Johnson and Mackinnon performed a tarsal tunnel release,

tendon lengthening, removal of cutaneous neuromas, and internal neurolysis.
4
Dr. Johnson found the nerve pain Greer described was consistent with the nerve damage

he observed during the tarsal tunnel surgery. Dr. Johnson believed the damage inside

Greer’s foot could be caused by trauma or a crush injury. Dr. Johnson treated Greer for

several more months while Greer recovered from the surgery. Although Greer gained

some improvement in his foot positioning, his foot eventually contracted to an inward

position and he continued to have nerve pain. Dr. Johnson thought a tendon transfer

might be Greer’s next treatment option for the foot deformity, but he believed Greer’s

primary problem was pain-related. Dr. Johnson recommended future pain management

for Greer’s neurogenic pain. Dr. Johnson released Greer from his care on February 4,

2011.

Dr. Berkin, a family physician, conducted three independent medical examinations

of Greer, occurring in August 2007, January 2009, and March 2011. Dr. Berkin also

reviewed Greer’s medical records and interviewed him to obtain his medical history.

Dr. Berkin opined Greer suffered a crush injury to his left ankle and tarsal tunnel

syndrome as a result of the work-related accident. Dr. Berkin placed restrictions on

Greer to avoid the following: excessive squatting, kneeling, stooping, turning, twisting,

lifting and climbing, standing on his feet for longer than twenty to thirty minutes,

climbing ladders and stairs, working at heights above ground level, walking on uneven

surfaces, lifting with his right arm extended from his body, and excessive lifting or

working with his right arm above shoulder level. Dr. Berkin imposed other lifting

restrictions and stated Greer should pace himself and take frequent breaks. Dr. Berkin

stated these restrictions were based upon a combination of all of Greer’s work-related
5
injuries. Dr. Berkin opined Greer was permanently and totally disabled due to all of his

injuries. With respect to Greer’s tarsal tunnel surgery, Dr. Berkin found Greer did not

have a good outcome from the surgery because his functioning was not improved and his

condition worsened after surgery.

Dr. Schmidt, an orthopedic surgeon, conducted two independent medical

evaluations of Greer on Employer’s behalf in February 2008 and May 2011. Dr. Schmidt

also reviewed Greer’s medical records and obtained a medical history from him.

Dr. Schmidt opined Greer suffered a five percent permanent partial disability in his left

foot, and agreed with Dr. Blair that Greer achieved maximum medical improvement on

April 23, 2007. Dr. Schmidt’s opinion did not change after Greer had tarsal tunnel

surgery. Dr. Schmidt opined the tarsal tunnel surgery was not reasonably necessary and

further surgical intervention would have a predictably poor result.

Greer filed an initial claim for workers’ compensation benefits against Employer

and the Second Injury Fund (hereinafter, “the Fund”) for his ankle injury in December

2006 and filed an amended claim in March 2013. The parties could not reach a

settlement and requested a hearing. The parties asked the administrative law judge

(hereinafter, “the ALJ”) to resolve the following issues: (1) medical causation;

(2) liability for past medical expenses; (3) future medical care; (4) temporary disability;

(5) permanent disability; (6) the Fund’s liability; (7) penalties for safety violations; and

(8) the date of maximum medical improvement.

At the hearing held on May 7, 2013, Greer testified about his subjective

complaints stemming from the February 2006 accident. Greer indicated he walks with a
6
cane for support due to balance issues and has to wear special shoes. Greer stated he can

stand approximately fifteen to twenty minutes at a time without assistance, and,

occasionally, he can do so for longer periods. Greer testified he has pain in his left foot

on a daily basis, and any activity involving his left foot causes that foot to swell. When

his foot swells, Greer stated that he needs to elevate his foot for one to two hours. Greer

wanted additional treatment because his left foot is deformed and disfigured and he is in

constant pain. Greer testified he could not work full-time and his prior injuries hindered

his work performance, causing him to miss work occasionally.

Greer’s supervisor, Barry Flakes (hereinafter, “Flakes”), testified regarding

Employer’s preferred work method safety rules, which are discussed at daily pre-shift

meetings and distributed to each employee. Greer received and signed a copy of the

safety rules. At issue here is safety rule #3, under the “Traveling” section, which states,

“Keep all body parts inside the running lines of the equipment.” Flakes testified that

safety rule #3 applied even when the forklift is not in motion. Flakes further explained

that he performed daily hazard assessments of warehouse employees and performed

“coaching” sessions to correct employees who were found to have violated the rules.

Flakes conducted the investigation of Greer’s accident, and he completed the

accident report and a counseling form. The counseling form stated, “On 2/23/06 you

were involved in an accident in the freezer. This accident could have been prevented if

the following preferred work methods for safety would have been followed: Under

Traveling #3 Keep all body parts within the running lines of the equipment.” Flakes

7
stated that while the co-employee caused the accident by violating various safety rules,

Greer caused his ankle injury by violating safety rule #3.

Less than two weeks after the accident, Flakes asked Greer to sign the counseling

form. Greer signed the form and did not tell Flakes he thought safety rule #3 only

applied when the equipment was in motion. Greer testified at the hearing that he did not

believe he violated safety rule #3 because the rule only applied when the forklift was

traveling. Greer did not explain this to Flakes at this time he signed the counseling form

because he had “several other issues going on with [Employer] at the time” related to

obtaining medical treatment for his injury.

Employer also offered into evidence video surveillance taken of Greer in February

2008 and August 2012. The video surveillance demonstrated Greer could walk up and

down stairs without much difficulty, lean forward and put pressure on his left foot, drive

a truck, and stand outside speaking to his neighbors for longer than twenty minutes. The

video surveillance also showed Greer did not always use a cane.

The ALJ received the reports and deposition testimony of two vocational

rehabilitation counselors, Stephen Dolan (hereinafter, “Dolan”) and Terry Cordray

(hereinafter, “Cordray”). Dolan testified on Greer’s behalf. Dolan performed a

vocational assessment, which included reviewing Greer’s medical records, obtaining

Greer’s educational and work history, interviewing Greer and conducting vocational

testing. Dolan observed that Greer walked with a cane and wore a brace on his ankle

during the assessment. Dolan opined that Greer was permanently and totally disabled

based on Greer’s primary and preexisting injuries, his work restrictions, functional
8
limitations, and his subjective complaints. When forming his opinion about Greer’s

employability, Dolan took into account Greer’s reported complaint that he has to lie

down one to two hours per day and all of Dr. Berkin’s restrictions.

Cordray testified on behalf of Employer and the Fund. Cordray did not examine

or interview Greer personally but testified that he had sufficient information to render an

opinion about Greer’s employability after his injury. Cordray examined Greer’s medical

records, the functional capacity examinations, educational and previous work

background, and took into account Dr. Berkin’s restrictions. While Cordray conceded

Greer could not return to his position as a forklift operator, Cordray opined Greer could

perform jobs that are sedentary, do not require more than a high school education, and do

not require standing for more than twenty to thirty minutes at a time. Cordray admitted

that if he took into consideration Greer’s subjective complaint about needing to lie down

and rest throughout the day, Greer would be unemployable. However, Cordray

discounted Greer’s subjective complaint because no objective medical evidence or

medical provider required Greer to do so. Cordray explained that because the sedentary

jobs he recommended are not exertional, Greer would not need to pace himself or take

frequent breaks to avoid exacerbation of his symptoms. Cordray concluded that Greer

was not permanently and totally disabled from either the ankle injury alone or from a

combination of his ankle and preexisting injuries.

The ALJ issued its decision on July 5, 2013, and ruled in Greer’s favor on the

issue of medical causation and liability for past medical expenses. The ALJ determined

Greer reached maximum medical improvement on April 23, 2007, and, therefore, was not
9
entitled to any TTD benefits beyond that date. The ALJ found Greer was not

permanently and totally disabled but determined Greer was 27.5 percent permanently and

partially disabled as a result of the accident. Finally, the ALJ reduced Greer’s total

benefit award by twenty-five percent due to Greer’s violation of safety rule #3.

Greer filed an application for review, claiming the ALJ erred in: (1) limiting

future medical treatment; (2) denying a claim for additional TTD benefits; (3) assigning

only 27.5 percent disability to his left ankle; (4) denying a claim for PTD benefits;

(5) imposing a safety penalty against him; and (6) applying the penalty to amounts

representing past medical expenses awarded. Employer also filed an application for

review, alleging the ALJ erred in: (1) admitting Dr. Johnson’s opinion on causation;

(2) awarding past medical expenses incurred after Greer reached maximum medical

improvement; (3) awarding future medical benefits; and (4) failing to reduce Greer’s

benefits by a larger percentage for his alleged violation of safety rule #3.

On March 28, 2014, the commission modified the ALJ’s award on the issues of

TTD benefits, past medical expenses, and the reduction of benefits for a safety violation.

The commission determined Greer was entitled to an additional award of TTD benefits

and for past medical expenses that were overlooked in the record. The commission also

overturned the ALJ’s findings invoking the safety penalty. The commission affirmed the

remainder of the ALJ’s findings. Greer and Employer both appealed the commission’s

decision. After the court of appeals issued its opinion, it sustained Greer’s application for

transfer to this Court. Mo. Const. art. V, sec. 10.

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 Standard of Review

A reviewing court may modify, reverse, remand for rehearing, or set aside a

workers’ compensation award upon a finding that: (1) the commission acted without or

in excess of its powers; (2) the award was procured by fraud; (3) the commission’s

factual findings do not support the award; or (4) there was not sufficient competent

evidence in the record to warrant the making of the award. Section 287.495.1, RSMo

2000. 1 “Whether the award is supported by competent and substantial evidence is judged

by examining the evidence in the context of the whole record. An award that is contrary

to the overwhelming weight of the evidence is, in context, not supported by competent

and substantial evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223

(Mo. banc 2003).

In the absence of fraud, the commission’s findings of fact shall be conclusive and

binding. Section 287.495.1. This Court must defer to the commission’s findings on

issues of fact, the credibility of the witnesses, and the weight given to conflicting

evidence. Treasurer of State-Custodian of Second Injury Fund v. Witte, 414 S.W.3d 455,

460 (Mo. banc 2013). Questions of law are reviewed de novo. Pierce v. BSC, Inc., 207

S.W.3d 619, 621 (Mo. banc 2006). This Court is not bound by the commission’s

interpretation and application of the law, and no deference is afforded to those

determinations. Gervich v. Condaire, Inc., 370 S.W.3d 617, 620 (Mo. banc 2012).

1
Unless otherwise indicated, all statutory references are to RSMo 2000 as updated
through the 2012 Supplement.
11
 Permanent Total Disability Benefits

In Greer’s sole point on appeal, he argues the commission erred in denying him

PTD benefits because the overwhelming weight of the evidence presented from the

witnesses and supported by the medical records demonstrated he was permanently and

totally disabled. Employer and the Fund contend the commission’s decision is supported

by competent and substantial evidence, and Greer is asking this Court to reweigh the

commission’s credibility determinations.

Section 287.020.6 defines “total disability” as the “inability to return to any

employment and not merely [the] inability to return to the employment in which the

employee was engaged at the time of the accident.” “The test for permanent total

disability is the worker’s ability to compete in the open labor market because it measures

the worker’s potential for returning to employment.” Tilley v. USF Holland Inc., 325

S.W.3d 487, 491 (Mo. App. E.D. 2010). “The ability to compete in the open labor

market hinges on whether, in the ordinary course of business, any employer would be

reasonably expected to hire the individual given his or her present physical condition.”

Archer v. City of Cameron, 460 S.W.3d 370, 375 (Mo. App. W.D. 2015). “Employability

is a matter within the [c]ommission’s expertise ….” Stewart v. Zweifel, 419 S.W.3d 915,

918 (Mo. App. S.D. 2014). Greer bears the burden of proving he is entitled to PTD

benefits. Lewis v. Kansas Univ. Med. Ctr., 356 S.W.3d 796, 800 (Mo. App. W.D. 2011).

Greer relies heavily on the testimony of Dr. Berkin and Dolan to support his

argument that he is entitled to PTD benefits. However, the commission found Greer

failed to prove he was entitled to PTD benefits as a result of the ankle injury alone. The
12
commission noted Dr. Berkin’s testimony unequivocally opined that Greer was

permanently and totally disabled due to his ankle injury in combination with the

disabilities imposed by his previous back, neck, and right shoulder injuries. The

commission discounted Dolan’s testimony that if Greer were required to elevate his foot

for several hours a day, this condition alone would render him unemployable in the open

labor market. The commission further found no medical provider imposed a restriction

regarding Greer’s need to elevate his foot throughout the day. The commission explained

that Dolan based his opinion, in part, on Dr. Berkin’s work restrictions, which were in

turn based on a combination of Greer’s injuries, not the ankle injury alone.

The commission next found Greer failed to prove he was permanently and totally

disabled based upon all of his injuries. The commission relied on Cordray’s testimony

that Greer was not permanently and totally disabled because Greer was capable of

working in sedentary jobs, which were not exertional, and that required no more than a

high school education. The commission also relied on the video surveillance footage that

showed Greer walking, climbing stairs, leaning on his left foot, standing, and driving.

The commission found the video surveillance cast doubt on Greer’s credibility about his

subjective complaints. The commission concluded the credible evidence demonstrated

Greer was not entitled to PTD benefits.

Greer argues the video surveillance was a “brief snapshot in time” and did not

contradict his testimony that he cannot stand eight hours per day, has balance issues, and

needs assistance to walk or stand. Further, Greer argues Cordray’s opinion should be

disregarded in favor of Dolan’s opinion because Cordray ignored his self-professed best
13
practices by failing to meet with Greer to view and assess him personally and failed to

take into account all of Greer’s circumstances.

This Court “may not substitute its judgment on the evidence,” and when the

“evidence before an administrative body would warrant either of two opposed findings,

the reviewing court is bound by the administrative determination, and it is irrelevant that

there is supportive evidence for the contrary finding.” Hornbeck v. Spectra Painting,

Inc., 370 S.W.3d 624, 629 (Mo. banc 2012) (quoting Pulitzer Pub. Co. v. Labor & Indus.

Relations Comm’n, 596 S.W.2d 413, 417 (Mo. banc 1980)). Ultimately, Greer’s position

challenges witness credibility and the weight to be given to conflicting evidence. This

Court must give deference to the commission’s findings on these factual issues. Id. at

629. It was within the commission’s prerogative to discount Dolan’s testimony because

it was premised upon Dr. Berkin’s restrictions and Greer’s subjective complaints that the

commission did not find credible when compared with the video surveillance footage.

Moreover, Cordray was clear that he disregarded Greer’s subjective complaints, and even

taking into account Dr. Berkin’s restrictions, Cordray stated there were jobs available in

the open market for which Greer qualified. The commission did not err in failing to

award Greer PTD benefits.

Temporary Total Disability Benefits

Employer raises three issues in its cross-appeal. In its first issue, Employer argues

the commission erred in awarding Greer TTD benefits because section 287.149 does not

allow for a TTD award beyond the date a claimant reaches maximum medical

improvement. Employer alternatively argues the record does not contain substantial and
14
competent evidence to support a TTD award beyond April 23, 2007, because Greer was

not engaged in the rehabilitative process when he had tarsal tunnel surgery in June 2010.

Maximum Medical Improvement

Employer argues the commission improperly awarded Greer an additional period

of TTD benefits from June 22, 2010, through February 4, 2011, after Greer’s tarsal tunnel

surgery, because Drs. Blair and Schmidt opined Greer achieved maximum medical

improvement on April 23, 2007. Employer further contends that because the commission

did not overrule the ALJ’s finding that maximum medical improvement occurred on that

date, this factual finding conflicts with an award of TTD benefits beyond that date. Greer

argues the term “maximum medical improvement” is not contained within chapter 287

and, therefore, it cannot be used to mandate the denial of benefits when strictly

construing the workers’ compensation statutes.

“Workers’ compensation law is entirely a creature of statute, and when

interpreting the law the court must ascertain the intent of the legislature by considering

the plain and ordinary meaning of the terms and give effect to that intent if possible.”

Templemire v. W & M Welding, Inc., 433 S.W.3d 371, 381 (Mo. banc 2014) (quoting

Greenlee v. Dukes Plastering Serv., 75 S.W.3d 273, 276 (Mo. banc 2002)). If a statute’s

language is unambiguous, this Court “must give effect to the legislature’s chosen

language.” State ex rel. Young v. Wood, 254 S.W.3d 871, 873 (Mo. banc 2008). Only

when the language is ambiguous will the Court resort to other rules of statutory

construction. Goerlitz v. City of Maryville, 333 S.W.3d 450, 455 (Mo. banc 2011).

“There is no need to resort to statutory construction to create an ambiguity where none
15
exists.” State v. Moore, 303 S.W.3d 515, 521 (Mo. banc 2010). 2 “Temporary total

disability or temporary partial disability benefits shall be paid throughout the

rehabilitative process.” Section 287.149.1. Section 287.020.6 defines “total disability”

as the “inability to return to any employment and not merely [the] inability to return to

the employment in which the employee was engaged at the time of the accident.”

“Temporary” and “rehabilitative process” are not defined in chapter 287. “Absent a

statutory definition, words used in statutes are given their plain and ordinary meaning

with help, as needed, from the dictionary.” Am. Healthcare Mgmt., Inc. v. Dir. of

Revenue, 984 S.W.2d 496, 498 (Mo. banc 1999). The dictionary defines “temporary” as

“lasting for a time only; existing or continuing for a limited time; impermanent….”

WEBSTER’S THIRD NEW INT’L DICTIONARY 2353 (1993). “Rehabilitate” means “to

restore to a condition of health or normal activity by a process of medical rehabilitation.”

Id. at 1914. “Process” is defined as “a progressive forward movement from one point to

another on the way to completion.” Id. at 1808. An employer’s obligation to pay TTD

benefits shall not extend beyond 400 weeks during the continuance of such disability.

Section 287.170. This section was intended to provide a sufficiently long period of time

for the commission to evaluate the extent and nature of a claimant’s injuries before

making a final award while also affording the injured employee some compensation

2
This Court recognizes section 287.800.1 requires that all workers’ compensation statutes
are to be construed strictly. However, this Court need only apply strict construction when
the statute’s language is ambiguous and this Court requires guidance in ascertaining the
legislature’s intent. Here, section 287.149’s plain and ordinary meaning is apparent, and
the requirement that the statute be construed strictly does not affect the analysis.

16
through TTD benefits. Caldwell v. Melbourne Hotel Co., 116 S.W.2d 232, 239-40 (Mo.

App. 1938). 3

“Temporary disability awards are intended to cover a healing period.” Williams v.

Pillsbury Co., 694 S.W.2d 488, 489 (Mo. App. E.D. 1985). TTD benefits “should be

awarded only for the period before the employee can return to work.” Cooper v. Med.

Ctr. of Independence, 955 S.W.2d 570, 575 (Mo. App. W.D. 1997) (overruled on other

grounds by Hampton, 121 S.W.3d at 224). A temporary award is not “intended to

encompass disability after the condition has reached the point where further progress is

not expected.” Williams, 694 S.W.2d at 489. “This is reflected in the language that a

temporary total disability lasts only ‘during the continuance of such disability.’”

Cardwell v. Treasurer of the State of Missouri, 249 S.W.3d 902, 909 (Mo. App. E.D.

2008) (quoting section 287.170.1).

Both parties acknowledge the commission’s authority to award TTD benefits is

limited to the express provisions of sections 287.149 and 287.170. However, Employer

urges this Court to look beyond these plainly expressed provisions to apply the concept of

maximum medical improvement to determine when Greer’s disability ceased being

temporary and became permanent.

Courts have used different terms to delineate when a claimant’s condition has

reached the point when further progress is not expected. See e.g. Cooper, 955 S.W.2d at

3
The portion of the Caldwell opinion addressing the remand of the case was later
quashed in State ex rel. Melbourne Hotel Co. v. Hostetter, 126 S.W.2d 1189 (Mo. banc
1939). However, this Court explicitly affirmed Caldwell’s analysis of the workers’
compensation statutes at issue. Id. at 1190-92.
17
575 (holding TTD benefits are owed until the medical condition has reached the point of

“maximum medical progress”). Another common term is “maximum medical

improvement,” which is not contained in chapter 287 but was coined in Vinson v.

Curators of Univ. of Missouri, 822 S.W.2d 504 (Mo. App. E.D. 1991). In Vinson, the

court adopted the commission’s interpretation of a medical provider’s opinion about a

claimant’s “maximum treatment potential” to mean the claimant reached “maximum

medical improvement” and awarded TTD benefits for the period leading up to that date.

Vinson, 822 S.W.2d at 508. The court found the commission’s interpretation was

“reasonable, and, thus, we have no permissible grounds for substituting another

interpretation for it.” Id. Since Vinson, the commission and the appellate courts have

relied upon the date of maximum medical improvement to determine when a condition

becomes permanent and TTD benefits terminate.

Reliance on the maximum medical improvement date was challenged in 2008 in

Cardwell. In Cardwell, the claimant contended that maximum medical improvement

should not be the date permanent partial disability benefits begin, particularly in cases in

which the employee did not receive TTD benefits while he or she was being treated and

recovering from a work-related injury. Cardwell, 249 S.W.3d at 909. The claimant

further argued that because maximum medical improvement was not mentioned in the

statutes as a prerequisite for payment, she believed permanent partial disability benefits

should be paid as of the date of the injury in instances in which TTD benefits were not

paid. Id. at 911.

18
 The court of appeals rejected this argument. First, the court explained, “Although

the statutes involving temporary total disability and permanent disability do not set out a

specific time line, there is an intended timing of benefits paid by employers. Temporary

total disability benefits are due from the date of the injury through the date the condition

has reached the point where further progress is not expected.” Id. at 910. The court

reasoned, “One cannot determine the level of permanent disability associated with an

injury until it reaches the point where it will no longer improve with medical treatment.”

Id. The court concluded, “Although the term maximum medical improvement is not

included in the statute, the issue of whether any further medical progress can be reached

is essential in determining when a disability becomes permanent and thus, when

payments for permanent partial or permanent total disability should be calculated.” Id.

Employer relies on Cardwell to support its argument that maximum medical

improvement comes within the scope of the plain meaning of section 287.149, and the

commission’s rejection of it was erroneous in light of Cardwell’s holding. Employer

argues that the legislature was aware the commission and courts were relying on the date

of maximum medical improvement to determine when to terminate TTD benefits, and

had the legislature wished to have that not be the case, it could have amended the statutes

accordingly. Conversely, Greer argues that had the legislature wished to have the date of

maximum medical improvement be the absolute date when TTD benefits terminate, it

would have stated this explicitly in the statutes.

This Court agrees with the holding in Cardwell that the commission must decide

whether any further medical progress can be reached because that decision is essential in
19
determining when a disability becomes permanent for the purpose of awarding permanent

partial or PTD benefits. However, Employer’s reading of Cardwell to mandate or

require the commission to accept an opinion regarding the date of maximum medical

improvement is incorrect.

The plain language of section 287.149.1 does not mandate the commission

arbitrarily rely on the maximum medical improvement date to deny TTD benefits, if the

claimant is engaged in the rehabilitative process. Instead, whether a claimant is engaged

in the rehabilitative process is the appropriate statutory guidepost to determine whether

he or she is entitled to TTD benefits under the plain language of section 287.149.1. It is

plausible, and likely probable, that the maximum medical improvement date and the end

of the rehabilitative process will coincide, thus, marking the end of the period when TTD

benefits can be awarded. However, when the commission is presented with evidence, as

here, that a claimant has reached maximum medical improvement yet seeks additional

treatment beyond that date for the work-related injury in an attempt to restore himself or

herself to a condition of health or normal activity by a process of medical rehabilitation,

the commission must make a factual determination as to whether the additional treatment

was part of the rehabilitative process. If the commission determines the additional

treatment was part of the claimant’s rehabilitative process, then he or she is entitled to

TTD benefits pursuant to section 287.149.1 until the rehabilitative process is complete.

Once the rehabilitation process ends, the commission then must make a determination

regarding the permanency of a claimant’s injuries.

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 While not common, courts have awarded a claimant two separate periods of TTD

benefits stemming from the same work-related injury, even in instances in which the

claimant has been declared to be at maximum medical improvement. In Thorsen v. Sachs

Electric Co., 52 S.W.3d 611 (Mo. App. W.D. 2001) (overruled on other grounds by

Hampton, 121 S.W.3d at 224), the claimant was injured at work, underwent treatment,

and was declared to be at maximum medical improvement, at which time his TTD

benefits were terminated. Thorsen, 52 S.W.3d at 615. However, the claimant’s

conditioned worsened, and he sought treatment on his own after his employer refused to

authorize additional care. Id. The claimant later underwent surgery, which improved his

condition. Id. at 616. The claimant sought, and was awarded, an additional award of

TTD benefits for the time he missed from work while recovering from the surgery. Id. at

621. The court affirmed the award on appeal because the claimant demonstrated he

continued working toward attaining maximum medical improvement during the periods

for which the commission awarded TTD benefits. Id. at 622.

Similarly, in Reed v. Associated Elec. Co-op., Inc., 302 S.W.3d 693 (Mo. App.

S.D. 2009), the claimant sustained a work-related injury, underwent surgery, and was

released at maximum medical improvement. Reed, 302 S.W.3d at 695. The claimant’s

condition worsened and he pursued treatment on his own after his employer declined his

request for further treatment. Id. at 696. The claimant underwent a second surgery and

more treatment, which improved the claimant’s condition but did not enable him to return

to work. Id. at 698. The claimant received an additional award of TTD benefits for the

period between the second surgery and his release date from medical care. Id. at 700.
21
The court, in affirming the award, rejected the employer’s argument that the claimant

underwent unauthorized care and treatment and that it had no notice or reason to believe

the treatment was necessary for the work-related injury. Id.

This Court is not eliminating the concept of maximum medical improvement from

the workers’ compensation lexicon. This Court recognizes that the date of maximum

medical improvement could aid the commission in determining the time when a disability

becomes permanent and TTD benefits should be terminated. However, this Court holds

the commission is not required to accept maximum medical improvement as a bright-line

date to terminate TTD benefits when there is substantial and competent evidence

presented that a claimant continues to be engaged in the rehabilitative process beyond a

date initially believed to be the end of the rehabilitative process. Cases that hold to

contrary should no longer be followed.

Here, the commission acted within its statutory authority when it found it was not

bound by the maximum medical improvement date offered by Drs. Blair and Schmidt in

rendering a decision about Greer’s eligibility for TTD benefits related to the tarsal tunnel

surgery. The commission recognized “the concept of maximum medical improvement is

helpful to the extent it permits the fact-finder to identify the point at which the question

of permanent disability becomes ripe for determination.” However, the commission

made a factual determination that Greer was engaged in the rehabilitative process when

he pursued treatment for his tarsal tunnel syndrome after the date he was believed to be at

maximum medical improvement.

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Rehabilitative Process

Alternatively, Employer argues that if the date of maximum medical improvement

is not the appropriate time to terminate TTD benefits, the record does not contain

substantial and competent evidence to support an award of TTD benefits beyond April

2007 because Greer was not engaged in the rehabilitative process when he had tarsal

tunnel surgery. Employer contends that because the commission did not overturn the

ALJ’s determination that Greer achieved maximum medical improvement in April 2007,

the award of TTD benefits beyond that date is contradictory. This Court disagrees.

As stated previously, the commission was not required to apply the maximum

medical improvement date to terminate TTD benefits. A careful reading of the

commission’s decision shows the commission found that, given Greer’s circumstances,

“applying a per se rule that [TTD] benefits cannot be awarded after the date of maximum

medical improvement works an absurd result.” While the commission did not overturn

the ALJ’s finding explicitly, it clearly rejected its application to the facts here, which it

was entitled to do under the plain language of section 287.149.1 because it found Greer

was engaged in the rehabilitative process when he had tarsal tunnel surgery.

Employer was aware Greer suffered from tarsal tunnel syndrome related to his

work-related injury as early as February 2007, when Dr. Blair noted tenderness over the

tarsal tunnel and diagnosed Greer with possible tarsal tunnel syndrome. Even after

Dr. Blair released Greer to return to work and found he was at maximum medical

improvement in April 2007, Greer continued to experience symptoms that impacted his

ability to work. Dr. Grebing treated Greer’s tarsal tunnel syndrome in July 2007.
23
Dr. Graham found Greer had symptoms of possible tarsal tunnel syndrome in November

2007. Between November 2007 and December 2009, at least five physicians diagnosed

and treated Greer for tarsal tunnel syndrome. In December 2009, Dr. Johnson diagnosed

and treated Greer for tarsal tunnel syndrome and, ultimately, performed the surgery with

Dr. Mackinnon in June 2010. After the surgery, Greer engaged in physical therapy and

Dr. Johnson continued to treat him while he recovered until Greer’s last visit on February

4, 2011. All of these actions were intended to restore Greer to a condition of health or

normal activity by a process of medical rehabilitation.

Despite the evidence in the record that Greer was engaged in the rehabilitative

process, Employer urges this Court to rely on Dr. Schmidt’s testimony, opining the tarsal

tunnel surgery was not reasonably necessary 4 and would have a predictably poor outcome

to support its argument that Greer is not entitled to TTD benefits. It is undisputed

Greer’s condition, despite initially improving, worsened overall after the tarsal tunnel

surgery.

The question of whether additional medical treatment for a work-related injury,

especially treatment not guaranteed to improve or cure the condition, is part of the

rehabilitative process cannot be answered until after the treatment occurs. Whether the

treatment is part of the rehabilitative process is a fact question for the commission.

However, whether the treatment is a success or failure is immaterial because section

4
This Court notes the commission affirmed Greer’s award of medical expenses related to
the tarsal tunnel surgery as being reasonable, necessary, and related to his work-related
injury, which undercuts Employer’s argument that the surgery was unnecessary,
especially in light of Employer’s failure to challenge the medical expenses on appeal.

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287.149.1 does not precondition an award of TTD benefits on whether a claimant

demonstrates he or she had a successful outcome from the treatment. The statute only

requires that a claimant be engaged in the rehabilitative process. Accordingly, the fact

that the tarsal tunnel surgery was ultimately unsuccessful and worsened Greer’s condition

does not render him per se ineligible for TTD benefits under any construction of the

statute.

Employer further faults the commission for relying on Dr. Schmidt’s opinion that

“one would be expected to lose a significant amount of time from work following the

surgery performed by Drs. Johnson and Mackinnon.” Employer maintains Dr. Schmidt’s

opinion was generic and did not apply to Greer specifically. However, the commission

found credit in Dr. Schmidt’s opinion and concluded Greer, who had the same surgery

Dr. Schmidt testified would require time off of work, would be unable to work while

recovering from the surgery, thus, supporting the TTD benefits award from the date of

the surgery until he was released in February 2011. The record also shows Dr. Johnson

found Greer would need additional pain management above and beyond the normal

patient during the postoperative period, which when combined with Dr. Schmidt’s

testimony, supports an award of TTD benefits in this case.

Finally, Employer maintains that this holding will result in employers being

perpetually liable to injured workers for TTD benefits anytime an injured worker chooses

to seek out and undergo any conceivable treatment, even years after an employer has

provided an employee with all treatment necessary to achieve maximum medical

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improvement. 5 Section 287.170 contemplates an award of up to 400 weeks of TTD

benefits, which is approximately a seven-and-a-half-year period of time. Despite this

extended time period, whether a claimant is engaged in the rehabilitative process is a

fact-intensive inquiry the commission must resolve prior to awarding TTD benefits. In

this case, there was overwhelming substantial and competent evidence presented that

Greer was not engaging in “any conceivable treatment” for “years beyond his injury” as

discussed previously. Rather, Greer was engaged in professionally accepted, medically

relevant prescribed treatment. Accordingly, the commission did not err in modifying the

ALJ’s decision and awarding Greer an additional period of TTD benefits after his tarsal

tunnel surgery.

Safety Violation Reduction

5
Implicit in Employer’s argument is that Greer malingered in seeking treatment for his
tarsal tunnel syndrome and in not having his workers’ compensation claim decided in a
timely manner because it took approximately six years for the claim to be resolved.
Employer’s assertion during oral argument that the delay was attributable to Greer
because the parties could not reach a settlement and were required to hold a hearing on
the matter is unavailing. This Court will not apply an adverse inference attributable to
Greer for seeking a hearing on this matter when he has a statutory right to do so. See
section 287.450 (providing if the employer and employee cannot agree on compensation
payable under chapter 287, either party may file an application for a hearing on the
matters at issue and request a ruling thereon). Moreover, Employer’s assertion at oral
argument that the ALJ made its determination and award prior to Greer’s tarsal tunnel
surgery is contradicted by the record. Greer’s tarsal tunnel surgery occurred on June 22,
2010, the hearing was held on May 7, 2013, and the ALJ’s award was issued on July 5,
2013.

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 Employer argues the commission erred in failing to reduce Greer’s total award by

twenty-five to fifty percent because Greer’s violation of safety rule #3 resulted in his

work-related injury because it produced overwhelming competent evidence to the

contrary. Employer points to Flakes’ testimony and the counseling report Greer signed

shortly after the accident wherein Greer attested the accident could have been prevented

had he followed safety rule #3.

Section 287.120.5 permits the commission to reduce a claimant’s compensation

award by at least twenty-five percent, but not more than fifty percent, if the claimant’s

work-related injury was caused by his or her failure to obey any reasonable work safety

rule adopted by the employer. To be entitled to an award reduction, the employer has the

burden of proving that: (1) the employer adopted a reasonable rule for the safety of its

employees; (2) the injury was caused by the employee’s failure to obey the safety rule;

(3) the employee had actual knowledge of the rule; and (4) prior to the injury, the

employer made a reasonable effort to cause his or her employees to obey the safety rule.

Carver v. Delta Innovative Servs., 379 S.W.3d 865, 869 (Mo. App. W.D. 2012).

The commission found Employer’s claim failed because it did not prove Greer had

actual knowledge of Employer’s safety rule. The commission noted the rule required

employees traveling in equipment to keep all body parts within the running lines of the

equipment. It was undisputed that at the time of the accident, Greer’s forklift was

stationary. Greer testified he was aware of the rule requiring him to keep all body parts

inside the running lines of the forklift, but he believed this rule only applied when the

forklift was in motion. The commission also found the fact that Greer signed the
27
counseling form did “nothing to relieve the inherent and inescapable contradiction in

[E]mployer asking us to fault an employee whose forklift was stationary for violating a

rule, which, by its own language, applies to employees who are ‘traveling’ in

equipment.” The commission found Greer’s explanation to be “eminently reasonable and

ultimately credible.” This Court must defer to the commission’s credibility

determinations and the weight to be given conflicting evidence. Witte, 414 S.W.3d at

460. The commission concluded that, at best, Employer proved Greer engaged in a

“momentary, inadvertent, technical violation of an unclear rule, the application of which

he was not actually aware of” at the time of the accident. This Court agrees. The

commission did not err in modifying the ALJ’s award to overturn the imposition of the

safety rule violation penalty.

Future Medical Care Benefits

Finally, Employer argues the commission erred in finding Greer needed future

medical care and in awarding him future medical care benefits because the commission

failed to apply the proper standard set forth in section 287.140.1 to establish that future

medical treatment is reasonably required to cure and relieve a claimant from the effects of

the work-related injury. Employer further argues the commission’s factual findings do

not establish a reasonable probability that Greer was in need of future medical care and

its award was not supported by substantial and competent evidence in the record.

Section 287.140.1 requires an employer to provide to an employee “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
28
from the effects of the injury.” Greer need not present “conclusive evidence” that future

medical treatment is needed to be entitled to an award of future medical benefits. Null v.

New Haven Care Ctr., Inc., 425 S.W.3d 172, 180 (Mo. App. E.D. 2014). Instead, Greer

needs only to show a reasonable probability that the future treatment is necessary because

of his work-related injury. Id. Future medical care should not be denied simply because

an employee may have achieved maximum medical improvement. Pennewell v.

Hannibal Reg’l Hosp., 390 S.W.3d 919, 926 (Mo. App. E.D. 2013).

The commission found that Dr. Berkin prescribed treatment recommendations that

included the use of nonsteroidal anti-inflammatory medication and analgesics for Greer’s

left foot and that ankle pain justified ordering Employer to provide future medical care.

Employer argues Dr. Berkin’s recommendation is tenuous at best and is far outweighed

by the greater weight of the medical authority demonstrating that no future medical

treatment is required. Employer points out Dr. Johnson did not recommend any further

treatment and opined that he was uncertain that a tendon transfer would provide Greer

“with any significant benefit.” Employer cites Dr. Graham’s opinion detailing how he

believed Greer would not gain any benefit from pain management measures due to how

Greer performed on the psychological examination. Finally, Employer cites the opinions

of Drs. Blair and Schmidt that Greer achieved maximum medical improvement in April

2007 and needed no further treatment.

In making these arguments, Employer asks this Court to reexamine the weight the

commission gave to the witnesses’ testimony to rule in its favor on this issue. This

Court’s standard of review prevents us from doing so. Whether to accept conflicting
29
medical opinions is a fact issue for the commission, to which this Court defers.

Hornbeck, 370 S.W.3d at 632. The commission recognized the medical opinions that

stated Greer achieved maximum medical improvement. However, the statute

contemplates medical treatment that gives comfort or relief even though a cure is beyond

avail. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. banc 2003)

(overruled on other grounds by Hampton, 121 S.W.3d at 224). The commission chose to

adopt Dr. Berkin’s prescribed treatment recommendations, which resulted in medical

treatment after the date Greer achieved maximum medical improvement. Further, the

commission relied on Dr. Johnson’s testimony that discussed Greer’s need for pain

management to help alleviate his neurogenic pain and a possible tendon transfer in the

future. The commission concluded that based on this medical evidence, Greer was

entitled to future medical care. The commission’s decision to award Greer future medical

care benefits is supported by substantial and competent evidence in the context of the

whole record.

Conclusion

The commission’s award is affirmed.

______________________________
GEORGE W. DRAPER III, JUDGE

All concur.

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