Mary Ann Rosenketter v. Integram St. Louis Section

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 95-129017

Employee: Mary Ann Rosenketter

Employer: | Integram St. Louis Section |

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund

Date of Accident: September 15, 1995

Place and County of Accident: Franklin 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 May 13, 2005. The award and decision of Administrative Law Judge Leslie E. H. Brown, issued May 13, 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 21st day of March 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

FINAL AWARD

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 15, 1995
5. State location where accident occurred or occupational disease was contracted: Franklin 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: Working in Cut \& Sew, and slippedon a tag and fell.
12. Did accident or occupational disease cause death? No Date of death? ---
13. Part(s) of body injured by accident or occupational disease: Right ankle, right knee
14. Nature and extent of any permanent disability: 12 % of right knee
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 2,752.37
17. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
18. Employee's average weekly wages: $\ 479.60
19. Weekly compensation rate: $\$ 319.73 / \ 257.29
20. Method wages computation: By agreement of the parties

1. Amount of compensation payable:

Unpaid medical expenses: --- --- weeks of temporary total disability (or temporary partial disability)

12\% right ankle ( 155 week level) permanent partial disability from Employer, or $\qquad \ 4,785.59

---weeks of disfigurement from Employer

1. Second Injury Fund liability: No

TOTAL: $\quad \ 4,785.59

1. Future requirements awarded: None

Said payments to begin as of date of this Award 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:

Ray Gerritzen, Attorney for Claimant

Employee: Mary Rosenkoetter

Injury No: 95-129017

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: | Integram St. Louis Section |

Insurer: | CNA Insurance Company/RSKCo |

This is a hearing setting for five cases involving the claimant, Mary Rosenkoetter, Injury Numbers 94-168476, 95129017, 97-483041, 98-175851, and 99-123209. In all five cases, the claimant, Mary Rosenkoetter appeared on her own behalf, and through counsel, Attorney Ray Gerritzen ${ }^{[1]}$. In all five cases, the employer/insurer appeared by and through counsel, Attorney Tim Tierney. In four cases (Injury Numbers 95-129017, 97-483041, 98-175851, and 99123209), the Second Injury Fund appeared by and through Assistant Attorney General M. Jennifer Sommers.

The parties entered into certain stipulations, and agreements as to the complex issues to be presented in these

hearings. Memorandums of Law were filed by the parties.

On or about September 15, 1995: a. the claimant while in the employment of Integram St. Louis Section sustained an injury by accident arising out of and in the course of her employment occurring in Franklin County, Missouri; b. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law; c. the employer's liability was insured by CNA Insurance Company/RSKCO[2]; d. the employee's average weekly wage was $\ 479.60, the rate being $\ 319.73 over $\ 257.29.

e. The employer had notice of the injury. f. A Claim for Compensation was filed within the time prescribed by law. g. No temporary total disability benefits have been paid. h. Medical aid was provided in the total amount of \$2,752.37

1. Medical causation
2. Future medical care
3. Nature and extent of permanent partial disability
4. Liability of the Second Injury Fund

No. A: Deposition transcript of Bruce Schlafly, M.D., taken July 9, 2002 on behalf of the claimant, with attachments of: Exhibit A-1, the curriculum vitae of Bruce Schlafly, M.D.; A-2, the March 1, 2001 report of Dr. Bruce Schlafly, M.D. (8 pages); A-3, November 12, 2001 report of Bruce Schlafly, M.D. (1 page); A-4, four photographs taken by Dr. Bruce Schlafly of another patient, not Mary Ann Rosenkoetter, who had persistent problems following prior endoscopes carpal tunnel release and required repeat carpal tunnel release using the standard technique, Exhibit A-3 has the description; A5, the medical literature provided by Bruce Schlafly, M.D. titled, quote, The Results of Revision Carpal Tunnel Release Following Previous Open Versus Endoscopes Surgery". A-6, the medical literature by Dr. Bruce Schlafly entitled "Persistent or Recurrent Carpal Tunnel Syndrome Following Prior Endoscopes Carpal Tunnel Release"; A-7, operative report of the December 7, 2001 left carpal tunnel release performed by Dr. Bruce Schlafly at St. Anthony's Medical Center; A-8 is the December 12, 2001 report of Dr. Bruce Schlafly (1 page); A-9, the May 6, 2002 report of Dr. Bruce Schlafly (2 pages); A-10, the operative report of the March 4, 2002 right carpal tunnel release performed by Bruce Schlafly, M.D., at St. Anthony's Medical Center; A-11, the statement of services of Hand Surgery Associates, P.C./Bruce Schlafly, M.D., in the amount of $\ 3,120.00 for services rendered November 12, 2001 through March 8, 2002; A-12, numerous letters addressed to Bruce Schlafly, M.D., and deposition notices of Dr. Bruce Schlafly relative to his carpal tunnel syndrome treatments. (Admitted subject to the objections therein.) (Ruling: Employer/Insurer's and Second Injury Fund's objections to Exhibit A-4 on grounds of, inadequate foundation has been laid, is overruled.)

No. B: Certified medical records of Calvin Medical Center

No. C: Certified medical records of Hand Therapy Network, certified March 15, 2001 (12 pages)

No. D: Certified medical records of HealthLine Corporate Health Services Metro St. Louis certified October 12, 1999 (72 pages)

No. E: Certified medical records of Karl A. Jacob, M.D. certified October 9, 1999 (43 pages)

No. F: Medical records of Dr. John Kef alas, M.D. certified October 7, 1999

No. G: Certified medical records of Missouri Baptist Medical Center certified January 19, 2000 (219 pages)

No. H: Deposition transcript of Dr. Poetz taken on behalf of the employee on April 28, 2003 (with attachment H-1, the doctor's June 10, 2002 report, 10 pages) [Admitted into evidence subject to the objections therein)

No. I: Certified medical records of St. John's Mercy Hospital in Washington, Missouri, certified May 4, 2000 (14 pages)

No. J: Certified medical records of St. John's Mercy Hospital in Washington, Missouri certified November 17, 1999 (8 pages)

No. K: Certified medical records of St. John's Mercy Hospital, Washington, Missouri certified July 16, 1997 (28 pages)

No. L: Certified medical records of Lesson Heights Orthopaedic \& Arthroscopic Associates certified November 10, 1999 ( 90 pages)

No. M: Medical bill of Pathology Associates, P.C., for services rendered December 7, 2001 and March 4, 2002 in the amount of $\ 41.00

No. M-1: Collection letter of Diversified Collection Services showing that $\ 27.00 of Exhibit M was turned over to collection

No. N: Medical bill of South County Anesthesia for services rendered December 7, 2001 in the amount of $\ 480.00 No. N-1: Medical bill of South County Anesthesia for services rendered on March 4, 2002 (the second surgery performed by Dr. Schlafly) in the amount of $\ 420.00

No. O: Medical bill of South County Radiologists, Inc. in the amount of $\ 20.00

No. P: Medical bill of St. Anthony's Medical Center for services rendered on December 7, 2001 in the amount of $\ 2,351.97

No. P-1: Surgical bill

No. Q: Prescription receipt of Heartland Discount Pharmacy in the amount of $\ 5.86 for Cephalexin, 500 milligrams prescribed by Bruce Schlafly, M.D.

No. R and R-1: Deposition transcript of Dr. John Crane, M.D. taken on April 8, 2004, and an August 18, 2003 report by Dr. Crane (Limited admission for these exhibits, only as to the issue of future medical care)

No. S: March 4, 2002 medical bill of St. Anthony's Medical Center, \$2,421.74

No. 1: Deposition transcript of Dr. R. Peter Mirkin, M.D. taken on behalf of the employer/insurer on 12/13/02 (Admitted subject to the objections therein)

No. 2: Deposition transcript of R. Evan Crandall, M.D. taken on behalf of employer/insurer on December 11, 2002 (Admitted subject to objections therein)

No. 3: Deposition transcript of Dr. Wayne Stallings, M.D. taken on behalf of the employer/insurer on 12-4-02 (Admitted subject to the objections therein)

No. 4: Certified records of Dr. George O. Sort, M.D.

No. 5: Records of Dr. Clark, D.C.

No. 6: Correspondence between the law offices of Gerritzen \& Gerritzen and Evans \& Dixon pertaining to the issue as to whether surgery had been authorized and when it had been authorized (a. November 20, 2001 letter from Paul Keeven to Mr. Gerritzen; b. November 16, 2001 letter by Mr. Gerritzen to Paul Keeven of Evans \& Dixon; c. October 15, 2001 letter from Mr. Gerritzen to Paul Keeven of Evans \& Dixon; d. October 5, 2001 letter from Paul Keeven to Mr. Gerritzen; e. April 23, 2001 letter of Michael Gerritzen to Paul Keevenn)

No. 7: First Workers' Compensation Claimant's Report dated 10-7-95, signed by Miss Rosenkoetter

No. 8: Deposition transcript of Dr. Wayne Stallings, M.D. taken on behalf of the employer/insurer on 4-28-04 (Admitted subject to the objections therein)

No exhibits.

Under Missouri law, the employee car