Bolden v. Schnucks Markets7/12/2005
Opinion Vote: DISMISSED.
Sullivan, J. and Shaw, J., concur
Opinion:
Appellant, Schnucks Markets, Inc. ("Employer"), appeals the "Temporary Award Allowing Compensation" of the Labor and Industrial Relations Commission ("the Commission"). The Commission found that Respondent, James Bolden ("Employee"), is entitled to temporary total disability benefits and additional medical care/surgical intervention. We dismiss this appeal.
Claimant was hired by Employer on December 14, 1998. During this employment, Claimant worked in the maintenance department. Claimant's job entailed emptying trash, cleaning walls, moving supplies, scrubbing floors, etc. On August 22, 2002, while working at a Schnucks in Ladue, Claimant was standing on top of a dairy cooler moving supplies from a pallet onto the top of the cooler. After moving the supplies, Claimant stepped onto a ladder to come down. Claimant slipped off the ladder, and fell approximately 10 feet to the ground.
For the next two weeks, Claimant continued to perform his duties. However, on September 6, 2002, Claimant told his assistant manager about the accident and the back pain he was experiencing. That same day, he received treatment at the emergency room in St. Mary's Hospital. On September 17, 2002, Claimant returned to work with the restriction that he was not to lift anything weighing over ten pounds. One week later, Claimant, while continuing to receive treatment for his back problems, resumed performance of full duty work. Claimant's employment for Employer ended on August 21, 2003.
On December 11, 2002, Claimant filed a claim for compensation alleging that he injured his lower back and body as a whole on August 22, 2002 during the course and scope of employment. On December 13, 2002, Claimant filed an amended claim alleging that he injured his lower back, thoracic spine, and body as a whole. In its answer, Employer admitted that Claimant sustained accidental injury on or about August 22, 2002, for which all necessary compensation benefits and medical aid were provided. On May 4, 2004, Administrative Law Judge Edwin J. Kohner ("the ALJ") held a hearing on Claimant's amended claim.
On June 14, 2004, the ALJ issued his "temporary or partial" award. The ALJ denied Claimant's request for an anterior lumbar interbody fusion and temporary total disability. However, the ALJ did order that an independent medical examination be conducted pursuant to section 287.210 RSMo 2000 to determine whether pain management treatment was necessary as a result of the accident.
On July 1, 2004, Employer filed its application for review with the Commission contending that the ALJ exceeded his authority in appointing Dr. Anthony Guarino ("Dr. Guarino"), pursuant to section 287.210, for the purpose of determining whether pain management was appropriate for Claimant. Claimant did not file a cross-appeal in an attempt to challenge the ALJ's denial of his request for an anterior lumbar interbody fusion and temporary total disability. On November 3, 2004, the Commission issued its "Temporary Award Allowing Compensation." The Commission held that the ALJ's order for a medical examination did not comply with section 287.210, because the ALJ failed to indicate who was to pay for the examination and report prepared by Dr. Guarino. The Commission went on to find that Claimant was entitled to temporary total disability at the rate of $241.66 per week, beginning on September 29, 2003, "and to continue until such time as further award or order is issued addressing temporary total disability." Additionally, the Commission found additional medical care/surgical intervention is necessary to cure and relieve
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