Crystal Royal v. Advantica Restaurant Group, Inc.

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 6, 2004. The award and decision of Administrative Law Judge Rebecca S. Magruder, issued December 6, 2005, 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 $13^{\text {th }}$ day of July 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: October 15, 2000.
5. State location where accident occurred or occupational disease was contracted: Jackson 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? 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 working at Denny’s, Claimant slipped and fell on a wet floor.
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: Left knee, left hip, and low back.
14. Nature and extent of any permanent disability: None.
15. Compensation paid to date for temporary disability: $\ 3,340.17
16. Value necessary medical aid paid to date by employer/insurer? $\ 36,813.72
17. Value necessary medical aid not furnished by employer/insurer? None.
18. Employee's average weekly wages: $\ 297.00
19. Weekly compensation rate: $\$ 198.01 / \ 198.01
20. Method wages computation: By agreement.

1. Amount of compensation payable:

20 additional weeks of temporary total disability at $\ 198.01

TOTAL: $\ 3,960.20

1. Future requirements awarded: None.

Said payments to begin upon receipt of Award and to be payable and to 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Ms. Nancy Jackson.

Employee: Crystal Royal

Injury No: 00-149517

Employer: Advantica Restaurant Group, Inc.

Insurer: American Casualty Co.

Additional Party: N/A

Checked by: RSM/abj

At the hearing the parties stipulated that:

1. On or about October 15, 2000, Denny's was an employer operating under the provisions of the Missouri Workers' Compensation law;
2. that their liability under said law was fully insured by American Casualty Company;
3. that on or about October 15, 2000, Crystal Royal was an employee of Denny's and was working under the provisions of the Missouri Workers' Compensation law;
4. that on or about October 15, 2000, Crystal Royal sustained an injury by accident arising out of and in the course of her employment;
5. that the employer had notice of the injury and that a Claim for Compensation was filed within the time prescribed by law;
6. that the average weekly wage was $\ 297.00 and that the applicable compensation rate for all weekly benefits was $\ 198.01;
7. that temporary benefits had been paid to the employee in the amount of $\ 3,340.17, said benefits ending February 19, 2001; and
8. that medical aid had been furnished in the amount of $\ 36,813.72.

The issues to be determined at the hearing are:

1. The nature and extent of disability resulting from the October 15, 2000 accident;

1. liability for temporary total disability benefits for the period February 19, 2001, through July 10, 2001, or 20 weeks of temporary total disability benefits;
2. liability for future medical aid; and
3. the applicability of employer's defense based on a lack of compliance or an unreasonable refusal to comply with treatment, as set forth in $\S 287.140 .5$.

The claimant's evidence consisted of numerous medical records, a couple of photographs, some work ability reports and internal business records, as well as medical reports. In addition to expert reports authored by Sheba Khalid, M.D., P. Brent Koprivica, M.D., and Mary Titterington, the deposition testimony of these three experts was also offered and admitted into evidence. The employer's evidence consisted of duplicative medical reports and notes as well as Volumes I and II of the deposition testimony of Patrick Hughes, M.D., and the deposition testimony along with the medical records and the deposition of David Wilt, M.D.

Employer has conceded that the claimant sustained injury on October 15, 2000, when she slipped and fell in the course of her employment at Denny's. Claimant clearly slipped on a wet floor, fell, and sustained an injury to her left leg, left hip, and low back. These were minor injuries wherein she sustained a contusion to her leg as well as a low back strain. She left the emergency room in good condition. The real issue in this case is whether Claimant's alleged inability to walk is causally related to her fall at work and subsequent development of a deep-vein thrombosis. Having reviewed and considered all the evidence in this case, I make the following findings.

Claimant is 26 years old. She completed only the sixth grade and never attempted to take the GED examination. She has had no vocational training. She has worked exclusively in the fast-food industry, primarily in a cleaning capacity, although she did baby-sit for a while when she was quite young. Her past jobs required constant standing and walking as well as frequent bending and reaching. All of her former work was unskilled. She never held a job for longer than three months. When she was injured at Denny's on October $15^{\text {th }}$, she had only been there for three months.

On October 15, 2000, while working at Denny's as a dishwasher and assistant prep cook, Claimant, a 22-year-old female, slipped on a wet floor. She sustained a trauma to her left knee, left hip, and low back. She was seen the day of the accident at Independence Regional emergency room. X-rays were taken of the claimant's left knee, which were negative. The emergency room records indicate she had a left knee and left hip contusion as well as a lumbar strain. She was treated with anti-inflammatory medication. The emergency room records noted that the claimant was walking "without much difficulty." Upon physical examination, minimal lumbar tenderness was noted and all the findings with regard to her left hip were normal. There was a mild contusion on the lateral aspect of her left knee and mild pain was noted with extension and flexion of her left knee. The emergency room record indicates that she was released "in good condition." (Claimant's Exhibit A)

Three days later, at Business and Industry Health Group, Claimant had multiple complaints of pain in her left hip, left knee, and low back. She was noted to be walking with a slight left-sided limp. She continued to treat at Business and Industry Health Group and in addition to the anti-inflammatory medication which had been prescribed, narcotic pain medication was also prescribed. On November $1^{\text {st }}$, crutches were prescribed to "stabilize her gait and advance [her] degree of weight-bearing as tolerated." By November $6^{\text {th }}$, Business and Industry referred the claimant for an orthopedic evaluation with Dr. Rotramel. The claimant saw Dr. Rotramel on November $10^{\text {th }}$ and he noted no anatomical problems with the claimant's left leg and low back. He felt there were findings suggestive of symptom magnification. An MRI and an electrodiagnostic test that he ordered were normal. The claimant continued to have pain and on November $21^{\text {st }}$ had a duplex scan of her legs at Research Medical Center, which demonstrated a deep-vein thrombosis in her left lower extremity. She was hospitalized that same day at Research Medical Center and not released until December 2, 2000. She was admitted for Heparin treatment, bed rest, and evaluation of her pulmonary status. The claimant believes that she had a clot that went into her lungs. The medical evidence, however, is not definitive as to whether or not she did in fact have a pulmonary embolism (November $24^{\text {th }} \mathrm{VQ}$ scan and testimony and reports of all physicians). The claimant was diagnosed with early chronic obstructive pulmonary disease related to her nicotine use. Dr. Wilt was consulted to monitor the claimant's Heparin and eventual Coumadin therapy. Claimant's deep-vein thrombosis was noted to be resolved on November $28^{\text {th }}$ (Exhibit A, page 263). Although her leg swelling decreased, the claimant continued to report pain in her leg. An orthopedic consult and xrays showed no fracture (Exhibit A, page 258). Claimant, however, continued and continues to believe that she has had two

fractures in her leg. Dr. Patel, who was the orthopedic consult in the hospital, noted that the claimant did have atrophy and further noted that the atrophy was "a questionable type due to disuse." The claimant was released from the hospital with instructions to follow up with Dr. Wilt for Coumadin treatment and monitoring. She was also instructed to follow up with Dr. Patel.

On January 11, 2001, Dr. Patel noted that he was not clear why the patient was still unable to use her left leg properly and ambulate (Exhibit A, page 430). Dr. Patel's rehabilitation efforts were largely unsuccessful. By April 2001, Dr. Wilt was of the opinion that Claimant's inability to walk was psychologically based and recommended that she stop using the crutches. Dr. Wilt did not see the claimant after April 2001 and took her off of the Coumadin as her deep-vein thrombosis had resolved and she no longer needed the Coumadin. The claimant did continue to treat at Business and Industry Health Group through July of 2001. In February she was advised not to use her crutches (Employer's Exhibit 3). The last authorized physician to release the claimant from treatment was Dr. Ryan on July 10, 2001.

The records from February 2001 and ongoing demonstrate that there are absolutely no physiological bases for Claimant's inability to bear weight on her left leg or to use it normally to walk. Not one expert who testified in this case or who authored a report which was admitted into evidence