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Customer Engineering Services v. Odom

Court of Appeals of Missouri, Southern District, Second Division

March 11, 2019

CUSTOMER ENGINEERING SERVICES, Appellant,
v.
MARK ODOM, Respondent.

          APPEAL FROM LABOR AND INDUSTRIAL RELATIONS COMMISSION

          DANIEL E. SCOTT, J.

         Customer Engineering Services (CES) appeals a workers' compensation award to Mark Odom of past and future medical expenses and permanent total disability (PTD) benefits. For reasons stated herein, we grant in part CES's challenge to past medical expenses, but otherwise affirm the award.

         Background

         Odom, who installed and serviced photo-lab equipment for CES, injured his elbow, back, and knee in June 2012 while moving a 250-pound photo printer. CES provided medical treatment through Dr. Lennard and others, including surgery to repair Odom's biceps tendon followed by physical therapy.

         Odom's discomfort continued. Suspecting complex regional pain syndrome (CRPS), Dr. Lennard referred Odom for stellate ganglion block treatments and kept him on physical therapy, pain management, and work restrictions. Despite these interventions, Odom's arm and shoulder pain, weakness, and loss of function persisted.

         In August 2013, Odom's physical therapist recommended discharging Odom "due to plateauing of symptoms." Dr. Lennard did so on August 26, 2013, stating that Odom had reached maximum medical improvement (MMI) and advising Odom to reduce his activity to see if his arm would improve.

         Odom reduced his activity. His arm did not get better. He went to his primary-care physician, who referred him to doctors who confirmed CRPS and provided physical therapy and pain management through the September 2017 workers' compensation hearing. Odom submitted these medical expenses to his wife's health insurance.

         Due to chronic pain and physical limitations, Odom has never returned to work. A vocational rehabilitation consultant testified that Odom was unemployable in the open labor market. An ALJ, then the Commission by a 2-1 vote on application for review, awarded Odom PTD benefits plus past and future medical expenses.

         CES appeals, charging that no sufficient competent evidence warranted the PTD, past medical, or future medical awards (RSMo § 287.495.1(4)).[1]

         Point 1 - PTD Benefits

         Point 1 alleges that no sufficient evidence supports the PTD award. We can overlook the Rule 84.04(d) violation, but not the supporting argument's failings.

         Rule 84.04(e) requires an argument to support all factual assertions with "specific page references" to the record on appeal. Point 1's argument, replete with factual assertions, has no such cites. We would have to do CES's work to know if the record supports its arguments. Lombardo v. Lombardo, 120 S.W.3d 232, 247 (Mo.App. 2003). We cannot sift 2, 200 pages for that purpose or to remedy CES's violation without becoming a de facto advocate, which we cannot do. Eder v. Lawson's Hardwood Floors, 403 S.W.3d 623, 625 (Mo.App. 2012).

         Even with record references, Point 1 would still fail. A successful not-supported-by-substantial-evidence ...


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