Joy Huffman v. Rest Haven Convalescent Nursing Center

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Pursuant to § 287.510 RSMo, we issue this temporary or partial award modifying the July 1, 2005 award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

We take administrative notice of the Division of Workers’ Compensation (Division) file in this matter. In support of this temporary award, we find the following:

The Division scheduled this matter for hearing upon employee’s request for hardship hearing. At the hearing, all parties agreed that the matter was heard for issuance of a temporary award. The issues stipulated for trial were:

1. Whether employee sustained an occupational disease involving her left hand arising out of and in the course of her employment and, if so, which insurer is liable.
2. Whether employer must provide employee with additional medical care.
3. Whether employer must reimburse employee the cost of the proceeding pursuant to § 287.560 RSMo.
4. Whether the November 5, 2002, dismissal of the claim filed on December 21, 2001, for Injury No. 97482297 precludes employee from pursuing additional benefits related to her left wrist.

Employer and insurer Missouri Employer General Agency stipulate to the compensability of employee’s right wrist condition and have provided medical care and temporary total disability benefits in relation to employee’s right wrist condition. The hardship hearing was related solely to the compensability of employee’s left wrist condition.

On July 1, 2005, the administrative law judge issued an award entitled “Final Award Denying Compensation.” The award identifies two injury numbers in the caption: 00-164998 and 03-030318. Employee filed Applications for Review of the July 1, 2005 award for each injury number.

Based upon the foregoing, we conclude that the July 1, 2005 award of the administrative law judge did not dispose of all issues. For example, there has been no hearing or award regarding permanent disability resultant from employee’s right wrist condition. As such, the award is not properly characterized as a “final award.” “A ‘final award’ is one which disposes of the entire controversy between the parties.” *Hillenburg v. Lester E. Cox Medical Ctr.*, 879 S.W.2d 652, 655 (Mo. App. 1994).

We modify the award and decision of the administrative law judge solely to properly classify the award as a Temporary or Partial Award.

Pursuant to 8 CSR 20-3.040, no Application for Review may be made from a temporary or partial award except on the ground that applicant denies all liability. As such, we find it inappropriate to consider the issues raised by employee's Application for Review.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Administrative Law Judge R. Carl Mueller, Jr., issued July 1, 2005, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this 29th day of September 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

TEMPORARY OR PARTIAL AWARD DENYING COMPENSATION

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 03-030318

Employee: Joy Ann Huffman

Employer: Rest Haven Convalescent Nursing Center

Insurers: 1) Missouri Employer's General Agency (1/1/00-12/31/01)

2) Missouri Nursing Home Insurance Trust (1/1/02-present)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

Date of Accident: N/A

Place and County of Accident: Alleged Sedalia, Missouri

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Pursuant to § 287.510 RSMo, we issue this temporary or partial award modifying the July 1, 2005 award and decision of the administrative law judge. We adopt the findings,

conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

We take administrative notice of the Division of Workers' Compensation (Division) file in this matter. In support of this temporary award, we find the following:

The Division scheduled this matter for hearing upon employee's request for hardship hearing. At the hearing, all parties agreed that the matter was heard for issuance of a temporary award. The issues stipulated for trial were:

1. Whether employee sustained an occupational disease involving her left hand arising out of and in the course of her employment and, if so, which insurer is liable.
2. Whether employer must provide employee with additional medical care.
3. Whether employer must reimburse employee the cost of the proceeding pursuant to § 287.560 RSMo.
4. Whether the November 5, 2002, dismissal of the claim filed on December 21, 2001, for Injury No. 97482297 precludes employee from pursuing additional benefits related to her left wrist.

Employer and insurer Missouri Employer General Agency stipulate to the compensability of employee's right wrist condition and have provided medical care and temporary total disability benefits in relation to employee's right wrist condition. The hardship hearing was related solely to the compensability of employee's left wrist condition.

On July 1, 2005, the administrative law judge issued an award entitled "Final Award Denying Compensation." The award identifies two injury numbers in the caption: 00-164998 and 03-030318. Employee filed Applications for Review of the July 1, 2005 award for each injury number.

Based upon the foregoing, we conclude that the July 1, 2005 award of the administrative law judge did not dispose of all issues. For example, there has been no hearing or award regarding permanent disability resultant from employee's right wrist condition. As such, the award is not properly characterized as a "final award." "A 'final award' is one which disposes of the entire controversy between the parties." Hillenburg v. Lester E. Cox Medical Ctr., 879 S.W.2d 652, 655 (Mo. App. 1994).

We modify the award and decision of the administrative law judge solely to properly classify the award as a Temporary or Partial Award.

Pursuant to 8 CSR 20-3.040, no Application for Review may be made from a temporary or partial award except on the ground that applicant denies all liability. As such, we find it inappropriate to consider the issues raised by employee's Application for Review.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Administrative Law Judge R. Carl Mueller, Jr., issued July 1, 2005, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $29^{\text {th }}$ day of September 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Employee: Joy Huffman

Injury Nos: 00-164998

03-030318

Dependents: N/A

Employer: Rest Haven Convalescent Nursing Center

Insurer 1: Missouri Employer's General Agency (1/1/00 - 12/31/01)

Insurer 2: Missouri Nursing Home Insurance Trust (1/1/02 - present)

Additional Party: State Treasurer, Custodian, Second Injury Fund (not appearing)

Hearing Date: May 17, 2005

Briefs Filed: June 6, 2005 Checked by: RCM/rm

1. Are any benefits awarded herein? No (hearing involved left hand only)
2. Was the injury or occupational disease compensable under Chapter 287? No (hearing involved left hand only)
3. Was there an accident or incident of occupational disease under the Law? No (hearing involved left hand only)
4. Date of accident or onset of occupational disease: N/A (hearing involved left hand only)
5. State location where accident occurred or occupational disease was contracted: Sedalia, 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 (hearing involved left hand only)
9. Was claim for compensation filed within time required by Law? Yes

10.Was employer insured by above insurers? Yes

11.Describe work employee was doing and how accident occurred or occupational disease contracted: Ms. Huffman alleged that her dishwashing and beverage pouring duties caused carpal tunnel syndrome in her left hand.

12.Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: None. Claim for left hand denied.
2. Nature and extent of any permanent disability: None
3. Compensation paid to-date for temporary disability: $\ 243.11 for Injury No. 00-164998; $\ 0.00 for Injury No. 03-030318.
4. Value necessary medical aid paid to date by employer/insurer? \11, 124.69 for Injury No. 00-164998; \ 0.00 for Injury No. 03-030318.
5. Value necessary medical aid not furnished by employer/insurer? $\ 0

18.Employee's average weekly wages: $\ 262.17

19.Weekly compensation rate: $\ 174.78

20.Method wages computation: By Stipulation

1. Benefits Currently Due: none
2. Second Injury Fund Liability: N/A
3. Future requirements awarded: None

On May 17, 2005, the employee and employer appeared for a temporary hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The employee, Joy Huffman, appeared in person and with counsel, Steve Fritz. Rest Haven Convalescent Nursing Center and Missouri Employer’s General Agency appeared by counsel, Bruce Levine. Rest Haven Convalescent Nursing Center and Missouri Nursing Home Insurance Trust appeared by counsel, Amy Young. The Second Injury Fund did not appear. The primary issues the parties requested the Division to determine were whether or not Ms. Huffman suffered an occupational disease arising out of and in the course of her employment involving her left hand and which insurer is liable if the claim is compensable. For the reasons noted below, I find that Ms. Huffman’s left hand complaints are not compensable.

STIPULATIONS

The parties stipulated that: 1. From Janua