Barbara Boyd v. Camelot Nursing Center (Beverly Enterprises)

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-177446

Employee: Barbara Boyd

Employer: Camelot Nursing Center (Beverly Enterprises)

Insurer: American Home Assurance c/o Constitution State Service

Date of Accident: February of 2000

Place and County of Accident: St. Francois 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 (ALJ) 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 July 29, 2004, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Jack H. Knowlan, Jr., is attached and incorporated by this reference.

The Commission finds that the ALJ correctly weighed and evaluated the lay and medical testimony in reaching his conclusions and properly applied the law. Reese v. Gary \& Roger Link, Inc., 5 S.W.3d 522 (Mo. App. E.D. 2002), Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879 (Mo. App. S.D. 2001); Landman v. Ice Cream Specialties, Inc., 197 S.W.3d 240 (Mo. banc 2003).

Given at Jefferson City, State of Missouri, this $21^{\text {st }}$ day of April 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

ISSUED BY DIVISION OF WORKERS' COMPENSATION

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease? February of 2000
5. State location where accident occurred or occupational disease contracted: St. Francois County, Missouri
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? No
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 happened or occupational disease contracted: Employee alleged that the stress from her job as a nursing home administrator caused her to suffer psychological injuries, including shortness of breath, depression and panic attacks
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Claim denied
14. Nature and extent of any permanent disability: Undetermined
15. Compensation paid to date for temporary total disability: None
16. Value necessary medical aid paid to date by employer-insurer? None
17. Value necessary medical aid not furnished by employer-insurer? Claim denied
18. Employee's average weekly wage: $\ 1,400.00
19. Weekly compensation rate: $\ 578.48 per week for temporary total disability and permanent total disability and $\ 303.01 for permanent partial disability
20. Method wages computation: By agreement
21. Amount of compensation payable: Claim denied
22. Second Injury Fund liability: N/A
23. Future requirements awarded: None

On February 24, 2004, the employee, Barbara Boyd, appeared in person and by her attorneys, Mr. Gary Matheny and Mr. David Mayhew, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Mr. Richard Fitzgerald. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows

1. On or about February, 2000, Camelot Nursing Center (Beverly Enterprises) was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by American Home Assurance Company.
2. On or about February, 2000, Barbara Boyd was an employee of Camelot Nursing Center and Beverly Enterprises.
3. Employee's claim for compensation was filed within the time allowed by law.
4. The employee's average weekly wage was $\ 1400.00 per month and her rate of compensation is $\ 578.48 per week for temporary total disability and permanent total disability and $\ 303.01 per week for permanent partial disability.
5. No temporary total disability was paid by the employer-insurer.
6. No medical aid was furnished by the employer-insurer.

1. Accident or occupational disease
2. Notice
3. Medical causation
4. Future medical aid
5. Nature and extent of disability

At the time of the hearing, Sharon Greco was employed as nursing home administrator at Festus Manor. Although Festus Manor was not owned by Beverly Enterprises, Ms. Greco had worked for Beverly Enterprises as a nursing home administrator in the past. She had not, however, been employed at the Camelot Nursing Center in Farmington.

Ms. Greco felt that there were significant differences between Beverly Enterprises and other nursing homes. Although Beverly Enterprises had more resources than smaller, family owned nursing homes, Beverly Enterprises was more structured with a greater focus on maximizing revenues. According to Ms. Greco, the food at Beverly Enterprises was not as good as the food at other nursing homes, the ratio of staff to patients was lower than other nursing homes, and Beverly Enterprises had a higher employee turnover rate. Ms. Greco concluded that all of these factors combined to make the job of a nursing home administrator more difficult at Beverly Enterprises than other nursing homes.

Ms. Greco further testified that during state inspections, Beverly Enterprises took off the limits on staffing and allowed their administrators to call in extra staff. When there were no pending inspections, however, they were required to "stick to the budget."

Other sources of stress included monthly or quarterly administrator meetings and a high volume of e-mail. Ms. Greco indicated that while working for Beverly Enterprises, she received 20 to 30 emails or voice mails each day, and was

expected to respond to many of those messages. As an administrator for Beverly Enterprises, Ms. Greco was required to attend meetings on either a monthly or quarterly basis. She emphasized that during these meetings, the focus was on increasing the number of patients in their buildings (increasing the "census") in order to increase revenues. Ms. Greco also agreed that on some occasions, the administrators had been subjected to yelling or profanity at the meetings.

The focus of Ms. Greco's testimony was that she felt that as a nursing home administrator for Beverly Enterprises there was always pressure to increase revenues and control expenses. She agreed that her duties included meeting the budget and looking out for the best interest of the patients, and in some instances, these two objectives were in conflict and made her job more difficult.

At one point, Ms. Greco stated that she did not believe the budget for operating expenses was adequate to take care of patients because they did not have enough staff. She later agreed, however, that the Beverly Enterprises Nursing Home where she worked was not guilty of substandard care and always had good inspections. She simply felt that they did not have enough staff to "do the extras."

While working as a nursing home administrator for Beverly Enterprises, Ms. Greco was working 70 to 80 hours per week. She acknowledged, however, that this was not totally mandated by Beverly Enterprises. She added that she liked her job and was still working long hours for her current employer.

During cross-examination by the employer-insurer's attorney, Ms. Greco admitted that she was testifying on behalf of Ms. Boyd and had known her since 1985. Ms. Greco then agreed that she had never worked at Camelot Nursing Center in Farmington and had not been present at Camelot on a daily basis. Ms. Greco further admitted that one of the duties of a nursing home administrator was to meet the budgetary goals of the nursing home, and the nursing homes were expected to make a profit. Although Ms. Greco had testified on direct examination that there were a few Beverly Enterprises facilities that had been fined after inspections, she agreed that her facility had never been fined or given an immediate jeopardy. She also agreed that she was able to operate her nursing home within the parameters set by Beverly Enterprises and was able to avoid any significant violations. She also agreed that her nursing home under Beverly Enterprises had never been cited for substandard care.

During additional cross-examination, Ms. Greco was questioned about the practice of transferring patients who were no longer qualified for Medicare to private pay or Medicaid rooms. Ms. Greco agreed that this practice saved both the nursing home and the patients money, and may have also been done at other nursing home facilities.

At the conclusion of her cross-examination, Ms. Greco agreed that the state inspections generally occurred every 12 to 15 months, and it was common practice for all nursing home administrators to call in extra staff during inspections.

Carolyn Stocker testified that she worked at the Camelot Nursing Center for approximately $181 / 2$ years. Beverly Enterprises operated Camelot Nursing Center from October 1, 1985 through September 30, 2002. Ms. Stocker was the business office manager, and was responsible for financial matters, workers' compensation matters, Medicare and Medicaid. Barbara Boyd worked as the nursing home administrator at Camelot Nursing Center from sometime in 1988 or 1989 until sometime in the year 2000 .

Ms. Stocker testified that sometime in the early part of 2000, she noticed significant changes in the behavior of Barbara Boyd. Ms. Stocker recalled that the employee experienced anxiety attacks and became very ill. She testified that the employee was very agitated and was not able to make good, clear decisions at work. Ms. Stocker testified that Ms. Boyd needed help at work, and on several occasions was not able to drive her vehicle to work. She recalled that several of the other employees at Camelot Nursing Center helped the employee by picking her up from work or taking her to the emergency room. She noted that during this time period, she was doing as much of Ms. Boyd's work as she could.

Ms. Stocker further testified that, to her knowledge, the employee was not experiencing any marital or financial problems. She then agreed that there were significant pressures and a lot of stress working for Beverly Enterprises. Ms. Stocker commented that, "they expected a lot of us." Ms. Stocker also agreed that they received a lot of e-mails from Beverly Enterprises, and stated that Beverly Enterprises was "real strict" regarding census numbers and collecting money.

During cross-examination by the employer-insurer's attorney, Ms. Stocker agreed that in a prior conversation with an insurance company adjuster, she had stated that there were no improprieties in regard to Medicaid during her 17 years with Camelot Nursing Center. She also acknowledged that she had advised the adjuster that Camelot Nursing Center had never worked short-staffed under the fire code, but felt that on some occasions they had worked at the bare minimum. Ms. Stocker also agreed that the Camelot Nursing Center had never been shut down or threatened by the state inspectors. Ms. Stocker also agreed that she had told the adjuster that she did