Linda Lawrence v. Home Advantage

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 associate administrative law judge (AALJ), as modified, 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 associate administrative law judge dated December 8, 2004, as modified. The award and decision of Associate Administrative Law Judge Lawrence C. Kasten, issued December 8, 2004, is attached and incorporated by this reference.

The Commission finds that the AALJ correctly weighed and evaluated the lay and medical testimony in reaching his conclusions, including those as to disability, accident and causation. 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., 107 S.W.3d 240 (Mo. banc 2003).

The Commission affirms the award of the AALJ as to future medical to cure and relieve from the effects of this injury as authorized by section 287.140 RSMo. However, the Commission reverses that portion of the award purporting to allow for the retention of jurisdiction by the Division of Workers' Compensation (Division) or the Commission. While it is well established that an award of ongoing medical care may be entered (Kaderly v. Race Brothers Farm Supply, 993 S.W.2d 512, (Mo. App. S.D. 1999)) the Division or Commission is without jurisdiction to enforce such an order. The sole statutory tool for enforcement of an award is found in section 287.500 RSMo requiring the acts of a Circuit Court. Taylor v. St. John's Regional Health Center, 161 S.W.3d 868 (Mo. App. S.D. 2005). Further, the Division or Commission can not invest itself with authority not granted in the statutory scheme. Derby v. Jackson County Mo. Circuit Court, 141 S.W.3d 413 (Mo. App. W.D. 2004).

This award is subject to a lien in favor of the Department of Social Services, Division of Medical Services. 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 $\qquad 22 ^{\text {nd }} \qquad$ day of July 2005.

John J. Hickey, Member

Employee: Linda Lawrence

Injury No: 98-174856

Employer: Home Advantage

Insurer: Employers Insurance of Wausau

Hearing Date: April 18, 2000

Checked by: JHK/HO

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: July 15, 1998
5. State location where accident occurred or occupational disease was contracted: Mississippi 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: Employee was working as a registered nurse for Home Advantage and injured her back while carrying two small whirlpool foot tubs from a patient's home to her car.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Back
14. Compensation paid to-date for temporary disability: $\ 4,420.00
15. Value necessary medical aid paid to-date by employer-insurer? $\ 4,917.00

On April 18, 2000, the employee, Linda Lawrence, appeared in person and by her attorney, Mr. Joe Fuchs, for a hearing for a temporary award. The employer-insurer was represented at the hearing by its attorney, Ms. Laura Newberry. Following the initial hearing on April 18, 2000, the administrative law judge suggested that the employee file a motion to

submit additional evidence on the issue of medical causation. The employee's motion was filed on April 25, 2000. Based on that motion the hearing was continued and the record left open for the purpose of allowing both the employee and the employer-insurer to submit additional medical evidence in the form of medical depositions. On June 16, 2000, the Division received the employee's deposition testimony of Dr. C. P. McGinty. On September 5, 2000, the Division received faxed correspondence from the employer-insurer's attorney advising that no additional evidence would be submitted by the employer-insurer. Based on that correspondence the record was closed and the hearing completed as of September 5, 2000.

At the time of the initial hearing on April 18, 2000, 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 July 15, 1998, Home Advantage was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Employers Insurance of Wausau.
2. On or about July 15, 1998, Linda Lawrence was an employee of Home Advantage, and was working under the provisions of the Missouri Workers' Compensation Act.
3. The employee's claim for compensation was filed within the time allowed by law.
4. The employee's average weekly wage was $\ 1,083.05 per week. The employee's rate of compensation for temporary total disability is $\ 562.67 per week and her rate of compensation for permanent partial disability is $\ 294.73 per week.
5. The employer-insurer furnished medical aid to the employee in the amount of $\ 4,917.00. These temporary total disability benefits were paid at the rate of $\ 562.67 per week for a total of $76 / 7$ weeks, and ended on September 13, 1999. The employee indicated that she was not claiming any additional temporary total disability benefits prior to September 13, 1999.

1. Accident or occupational disease.
2. Notice.
3. Medical causation.
4. Additional medical aid.
5. Nature and extent of disability.
6. Cost of recovery under Section 287.203 RSMo.

At the time of the hearing the employee testified that she was 58 years old, and had been employed for several years as a registered nurse for a variety of different employers. Prior to starting with Home Advantage in November of 1995, the employee had worked as a nurse in hospitals, a school nurse, an occupational health nurse, and a nurse in the U. S. Navy Hospital Corps. and the Army Reserves. Immediately prior to starting her job with Home Advantage, the employee had worked approximately five years as the director of nursing for Pyramid Home Care. After transferring to Home Advantage in November of 1995 the employee indicated that her duties included home visits with mostly elderly patients in which she did IV therapies, wound care injections and other nursing responsibilities. The employee's area of responsibility included Mississippi County, New Madrid County and part of Scott County. The employee was paid approximately $\ 28.00 per visit plus mileage, and testified that her 1998 income was in the forty-six to forty-eight thousand dollar range.

At the time of her accident on July 15, 1998, the employee testified that she was assisting an elderly patient at her home in East Prairie, Missouri. This particular patient had diabetic wounds on her feet, and the employee saw her on a daily basis to do whirlpool treatments for her feet. The employee described the whirlpool tubs as being approximately three feet long with a motor on one end. At the time of her accident the employee testified that she was carrying two of these tubs as well as other items from the patient's house out to her car. While carrying the tubs the employee testified that they started slipping and she was afraid she was going to drop them. To keep them from falling, the employee stated that she went down on her left knee and when she tried to get up she twisted her back. The employee felt immediate pain in her mid back area approximately three inches above her belt line. The employee emphasized that she did not fall, but used her left knee to try to keep the tubs from falling.

After her accident on July 15, 1998, the employee continued working and completed her duties for the day. Two days later the employee reported her accident to Brenda Wells, who was her supervisor and was employed as the Director of Nursing for Home Advantage. She recalled that Ms. Wells had her fill out papers, and told her if she needed to see a doctor to let her know. After filling out the report and handing it to Ms. Wells, the employee testified that Ms. Wells put the report

After reporting her injury, the employee testified that she continued to work for several months without seeking medical attention until she finally mentioned it to her fam