CUSTOMER ENGINEERING SERVICES, )

 )

Appellant, )

 )

vs. ) No. SD35638

 )

MARK ODOM, ) FILED: March 11, 2019

 )

Respondent. )

APPEAL FROM LABOR AND INDUSTRIAL RELATIONS COMMISSION

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH 

DIRECTIONS

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 
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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

 1 Rule 84.04(d)(2) requires CES’s points to include three elements which “shall” be 

presented substantially as follows: 

The Commission 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]. 

Although each of CES’s points omits the third element (“in that ...”), we decline to 

dismiss because we can discern these points challenge the sufficiency of evidence 

to support the PTD, past medical, and future medical awards respectively. 

Why then mention the violations? Because we must address CES’s claim that 

its points are just fine as they are. CES acknowledges that “the ‘in that’ section of 

the Rule 84.04 template is missing,” but blithely asserts that its list of “Statutes 

and Supporting Cases” satisfies that requirement equally well. Needless to say, 

CES cites no support for this ill-considered excuse for violating Rule 84.04, 

compliance with which is mandatory. Scott v. King, 510 S.W.3d 887, 891-92 

(Mo.App. 2017). 
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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 notsupported-by-substantial-evidence challenge involves three analytical steps: 

1. Identify a factual proposition needed to sustain the result;

2. Identify all favorable evidence in the record supporting that 

proposition; and

3. Demonstrate, in light of the whole record, that the step 2 

evidence and its reasonable inferences are so non-probative 

that no reasonable mind could believe the proposition.2

CES disregards this rubric, effectively ignoring proof that supports a PTD 

award and focusing instead on its evidence. This approach strips CES’s argument 

of any analytical or persuasive value. Jordan, 383 S.W.3d at 95. For all these 

reasons, Point 1 fails. 

Point 3 – Future Medical Expenses

We take Point 3 next. It seeks to reduce the award of future medical 

expenses, asserting that no substantial evidence supports the inclusion of pain 

management services. Again, the supporting argument lacks persuasive or 

analytical value because it ignores the three steps cited above. Id. 

Further, to quote CES’s reply brief,

 2 See Maryville R-II Sch. Dist. v. Payton, 516 S.W.3d 874, 881 (Mo.App. 

2017); Brune v. Johnson Controls, 457 S.W.3d 372, 377 (Mo.App. 2015); 

Riley v. City of Liberty, 404 S.W.3d 434, 440 (Mo.App. 2013); Jordan v. USF 

Holland Motor Freight, Inc., 383 S.W.3d 93, 95 (Mo.App. 2012).
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[CES’s] point is simply that the future medical award should be 

modified to reflect the opinion of Dr. Lennard that “medication 

management and activity limitations” are the preferred 

treatment for [Odom’s] symptoms, as set out in [CES’s] Brief, 

rather than “future pain management services” suggested by Dr.

Paul. Dr. Lennard is better positioned to determine the nature 

and extent of [Odom’s] need for additional care.

“Because conflicting medical theories present a credibility determination 

for the Commission to make, its decision as to which of the various medical experts

to believe is binding on this Court.” Morris v. Captain D’s, 537 S.W.3d 420, 

424 (Mo.App. 2018). The Commission implicitly credited Dr. Paul “and we must 

defer to that credibility determination.” Id. at 425. The future-medical award is 

supported by substantial and competent evidence, which defeats this point. Id. 

Point 2 – Past Medical Expenses

CES claims the record does not support its liability for $36,539.99 in 

medical expenses that Odom incurred after Dr. Lennard released him.

As summarized in Poole v. City of St. Louis:

An employer is charged with the duty of providing the 

injured employee with medical care, but the employer is given 

control over the selection of a medical provider. It is only when 

the employer fails to do so that the employee is free to pick his 

own provider and assess those costs against his employer. 

328 S.W.3d 277, 291 (Mo.App. 2010)(internal citations omitted). If the employee 

picks his own doctor, the employer must pay “only when the employer has notice 

that the employee needs treatment, or a demand is made on the employer to 

furnish medical treatment, and the employer refuses or fails to provide the needed 

treatment.” Id.; see also § 287.140.1, .10.

CES does not claim Odom’s medicals after Dr. Lennard’s August 2013 

discharge were not fair, reasonable, or causally related to Odom’s work accident. 

So the narrow question is whether, and if so, when, CES received notice or demand 

that Odom needed such treatment. Poole, 328 S.W.3d at 291. 

Odom admits that the earliest such notice was his deposition testimony on 

June 30, 2014, and that any award of earlier-incurred medical expenses was error. 

We agree. The Commission’s award erroneously included $2,510.93 in medical 

expenses predating June 30, 2014, so we grant Point 2 in part. Competent 
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evidence of record supports an award of $34,029.06 for Odom’s medical expenses 

incurred after June 30, 2014, but not the additional $2,510.93 incurred prior to

that date.

Conclusion

We reverse and remand for the Commission to reduce its award of past 

medical expenses to $34,029.06, and affirm the award in all other respects.3

DANIEL E. SCOTT, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

MARY W. SHEFFIELD, J. – CONCURS

 3 All pending motions and requests are denied.