Julia Wright v. Garden View Care Center

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-134335

Employee: Julia Wright

Employer: Garden View Care Center

Insurer: Healthcare Facilities of Missouri

Date of Accident: September 19, 2000

Place and County of Accident: Chesterfield, St. Louis County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 10, 2004. The award and decision of Administrative Law Judge Linda J. Wenman, issued December 10, 2004, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $20^{\text {th }}$ day of April 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: September 19, 2000
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Resident sitting in a wheelchair pulled on Employee’s shirt, causing Employee to fall against resident’s wheelchair.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 5\% BAW referable to the low back.
15. Compensation paid to-date for temporary disability: $\ 812.16, a period of 4 weeks.
16. Value necessary medical aid paid to date by employer/insurer? $\ 3,500.00

Employee: Julia Roberts Injury No.: 00-134335 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $\ 304.56 19. Weekly compensation rate: $\$ 203.04 / \ 203.04 20. Method wages computation: Statutory calculation

1. Amount of compensation payable:

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Daniel Brown

A hearing was held regarding the above referenced Workers' Compensation claim by the undersigned Administrative Law Judge on September 17, 2004. The case was formally submitted on September 17, 2004. Attorney Daniel Brown represented Julia Wright (Claimant). Garden View Care Center (Employer) was insured by Health Care Facilities of Missouri, and represented by Attorney Leslie Phillips.

Prior to the start of the hearing the parties identified nature and extent of permanent partial disability (PPD) as the issue for disposition in this case. Claimant offered Exhibits A \& B, and Employer offered Exhibits 1-3. All exhibits were admitted into the record. Any objections not expressly ruled on in this award are overruled.

Only testimony necessary to support this award will be reviewed and summarized.

Claimant: Claimant is 40 years old, and has worked for Employer as a certified nurses aide since 1997. On September 19, 2000, Claimant was bending over performing her usual patient care duties, when the resident she was assisting reached up, grabbed her shirt and caused Claimant to fall against the resident's wheelchair. Claimant felt immediate pain in her low back, and notified her charge nurse.

Employer directed Claimant to Barnes Care for medical treatment. X-rays were obtained and conservative medical treatment was provided that included medication and approximately five weeks of physical therapy. Claimant received temporary total disability while she was off work. Claimant was released from medical care on October 23, 2000. When released, Claimant continued to experience occasional low back pain with spasms, but no radicular pain.

Dr. Morrow: Dr. Morrow examined Claimant on July 2, 2002, regarding this injury and a subsequent injury. The history surrounding the September 19, 2000 injury provided to Dr. Morrow is consistent with Claimant's testimony. The examination findings and complaints voiced to Dr. Morrow relate to the subsequent injury. Dr. Morrow diagnosed a lumbosacral sprain. Dr. Morrow rates Claimant's overall low back disability at 40 % BAW PPD due to two injuries, with 5\% PPD preexisting, but fails to apportion the percentage of disability for each separate injury, although he commented that the relation of injury was greater with the subsequent injury. Dr. Morrow does indicate that the 5 % preexisting disability was asymptomatic prior to the first injury.

Barnes Care: The history surrounding the September 19, 2000 injury provided to Barnes Care is consistent with Claimant's testimony. The treatment offered Claimant by Barnes Care is also consistent with Claimant's testimony. The Barnes Care physician diagnosed a lumbosacral strain, and provided conservative treatment.

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented, and the applicable law of the State of Missouri, I find the following:

A permanent partial disability award is intended to cover claimant's permanent limitations due to a work related injury and any restrictions his limitations may impose on employment opportunities. Phelps v. Jeff Wolk Construction Co., 803 S.W.2d 641,646 (Mo.App.1991) (overruled in part). Medical causation not within lay understanding or experience requires expert medical evidence. Wright v. Sports Associated, Inc., 887 S.W.2d 596 (Mo.banc 1994) (overruled in part). The medical diagnoses are not in conflict, and reflect that Claimant suffered a lumbosacral sprain/strain.

With respect to the degree of permanent partial disability, a determination of the specific amount of percentage of disability is within the special province of the finder of fact. Banner Iron Works v. Mordis, 663 S.W.2d 770, 773 (Mo.App.1983) (overruled in part). Dr. Morrow provided a 35\% BAW PPD rating for two injuries, but did not apportion between the injuries. Based on the evidence presented, I find Claimant sustained PPD of 5\% BAW referable to her low back for which Employer is liable.

In summary, Claimant sustained an injury on September 19, 2000, that arose out of and in the course of her employment with Employer. Claimant is awarded 5\% BAW in permanent partial disability referable to Claimant's low back. Claimant's attorney is entitled to a 25 % lien.

A true copy: Attest:

Gary Estenson

ActingDirector

Division of Workers' Compensation

Injury No.: 01-102040

Employee: Julia Wright

Employer: Garden View Care Center

Insurer: Healthcare Facilities of Missouri

Date of Accident: August 17, 2001

Place and County of Accident: Chesterfield, St. Louis County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 10, 2004. The award and decision of Administrative Law Judge Linda J. Wenman, issued December 10, 2004, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $20^{\text {th }}$ day of April 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Employee: Julia Wright

Injury No.: 01-102040

Dependents: N/A

Before the

Enployer: Garden View Care Center

Division of Workers' Compensation

Additional Party:N/A

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Healthcare Facilities of Missouri

Hearing Date: September 17, 2004

Checked by: LJW:tr

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: August 17, 2001
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While transferring a resident from bed, the resident grabbed Employee, causing Employee to fall into resident's wheelchair.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 15 % BAW referable to the low back.
15. Compensation paid to-date for temporary disability: $\ 2146.13, a period of $104 / 7$ weeks.
16. Value necessary medical aid paid to date by employer/insurer? $\ 7,444.25

Employee: Julia Roberts

Injury No.: 01-102040

1. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: $\ 304.56
2. Weekly compensation rate: $\$ 203.04 / \ 203.04
3. Method wages computation: Statutory