Joni Dorsey v. Moniteau Care Center

Employee: Joni Dorsey

Injury No. 03-137503

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: Moniteau Care Center

Additional Party:Second Injury Fund (N/a)

Insurer: Missouri Nursing Home Insurance/Midwest Insurance Systems LLC

Hearing Date: March 30, 2006

Checked by: HDF/cs

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?
4. Date of accident or onset of occupational disease: December 13, 2003.
5. State location where accident occurred or occupational disease contracted: California, 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 happened or occupational disease contracted: (See award).
12. Did accident or occupational disease cause death? No. Date of death? N/a.
13. Parts of body injured by accident or occupational disease: Right lower extremity.
14. Compensation paid to-date for temporary disability: None.
15. Value necessary medical aid paid to date by employer/insurer? None.

1. Value necessary medical aid not furnished by employer/insurer? \$8105.40

Employee: Joni Dorsey

Injury No. 03-137503

1. Employee's average weekly wages:
2. Weekly compensation rate: $\ 185.36 for all benefits.
3. Method wages computation: By agreement.

1. Amount of compensation payable:

Unpaid medical expenses: $\ 8105.40

16.57 weeks of temporary total disability (or temporary partial disability) $16.57 \times \$ 185.36=\ 3071.42

TOTAL:

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

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:

Jerry Kenter

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on March 30, 2006. Memoranda were submitted by April 14, 2006.

The parties stipulated that on or about the $13^{\text {th }}$ day of December, 2003, the claimant was in the employment of Moniteau Care Center; the claimant sustained an injury by accident; the employer was operating under the provisions of Missouri's workers' compensation law; the employer's liability was insured by Missouri Nursing Home Insurance Trust; the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law; the rate of compensation on the date of accident was $\ 185.36 per week; no temporary disability benefits have been paid to the claimant to date; no medical aid has been provided.

The issues to be resolved by hearing include 1) whether the injury arose out of and in the course of employment, 2) the liability of the employer/insurer for past temporary total disability benefits, 3) the liability of the employer/insurer for past medical benefits, and 4) the liability of the employer/insurer for further medical treatment.

A temporary award is sought.

On December 13, 2004, the claimant, Joni Dorsey, was employed as a CNA, certified nurse's assistant, by the Moniteau Care Center. On that day Ms. Dorsey was scheduled to begin work at 6:30 a.m. However, because she lived at the bottom of a steep hill and there were four to six inches of snow on the ground, Ms. Dorsey called the Moniteau Care Center to state that she could not drive to work due to road conditions. Ms. Dorsey spoke with the charge nurse, Ms. Tyndell, who said that since they were short-handed, she would send Jerry Porter, another employee of the Moniteau Care Center, also a CNA, to fetch Ms. Dorsey. Mr. Porter was still "on the clock" with and being paid by the Moniteau Care Center while he was en route to pick up and bring Ms. Dorsey to the Moniteau Care Center.

When Mr. Porter arrived to pick up Ms. Dorsey in his Toyota four-by-four truck, his truck got stuck in the snow at the bottom of the incline where Ms. Dorsey's home was located. Ms. Dorsey and another gentleman attempted to help Mr. Porter move his truck. Ms. Dorsey stepped back when the truck started moving, heard a crack in her right ankle and fell.

An ambulance was called for Ms. Dorsey and she was taken to the Capital Region Medical Center where Dr. Krautmann examined her. The following day Dr. Krautmann operated on her right ankle

placing screws and a plate in her right ankle. Thereafter, Ms. Dorsey had an extended recovery period involving casts, boots and braces to help stabilize the right ankle and assist Ms. Dorsey in walking.

Ms. Dorsey stated that it was on April 8, 2004, that Dr. Krautmann released her to return to work; Ms. Dorsey said that the Moniteau Care Center would not let her come back to work due to her difficulty in walking. Dr. Krautmann's medical records reflect no examination or release of Ms. Dorsey to return to work on April 8, 2004. Rather, it is on May 11, 2004, according to his notes, that Dr. Krautmann released Ms.

Dorsey from active treatment. Ms. Dorsey was given an air boot to use by Dr. Krautmann on December 30, 2003, and still had the air boot to use when Dr. Krautmann last saw her on May 11, 2004. The request for past temporary disability benefits extends to April 8, 2004.

Dr. Stuckmeyer, an orthopedic surgeon, evaluated Ms. Dorsey on behalf of the claimant on June 30, 2004. Dr. Rouse, an orthopedic physician, evaluated Ms. Dorsey on behalf of the employer/insurer on October 6, 2004. Both physicians recommended the removal of the hardware or internal fixation in Ms. Dorsey's right ankle.

Ms. Dorsey's medical bills from the treatment of her right ankle injury total \$8,105.40. This amount includes the Capital Region Medical Center bills for treatment on December 13, 2003 (emergency room) and on December 14, 2004 (surgery with Dr. Krautmann) as well as the $\ 480.00 charge for services on December 14, 2003, by Mid-Missouri Anesthesia Consultants.

The general rule is that an injury is one which "arises out of" employment if it is a natural and reasonable incident thereof, and it is "in the course of" employment if the action occurs within a period of employment at a place where the workers' compensation claimant may reasonably be fulfilling the duties of employment. The tests are separate and must both be met. Custer v. Hartford Insurance Co., 174 S.W. 3d 602 (Mo. App. W.D. 2005).

The mutual benefit doctrine holds that "an injury suffered by an employee while performing an act for the mutual benefit of the employer and the employee is usually compensable. Blades v. Commercial Transp., Inc., 30 S.W. 3d 827 (Mo. banc 2000). Considerations include the employer's knowledge of the claimant's presence at the place of injury and the employer's encouragement of the claimant to perform an act beneficial to the employer, whether the claimant was exposed to special hazards associated with employment, but away from the employer's premises and the employer's ability to supervise and control the conditions and circumstances at the time of injury.

The claimant, Joni Dorsey, has sustained her burden of proof that her accident of December 13, 2003, arose out of and in the course of her employment. Ms. Dorsey was injured in the process of assisting the gentleman sent by her employer to pick her up for work on a snowy day when she would otherwise not have been in to work due to road conditions. The employer sent the gentleman to pick up Ms. Dorsey because the employer needed her at work. The employer benefited from the claimant's presence at work that day, otherwise the employer would not have sent someone to pick Ms. Dorsey up. The gentleman who was to transport Ms. Dorsey was still "on the clock" or being paid by the employer while he was en route to Ms. Dorsey's house and back, another indication of the importance of Ms. Dorsey's presence at work to the employer.

The employer knew of the hazardous road conditions to which Ms. Dorsey was exposed, as well as to which the driver and vehicle it sent to pick Ms. Dorsey up were exposed. Certainly, the employer could anticipate that once Ms. Dorsey met the driver and vehicle sent by the employer that she would assist in a reasonable manner in keeping the vehicle on the road so that she could get to work and her co-employee could return to work. Moreover, the employer was aware of the special hazard associated with driving on December 13, 2005. This was exactly why the employer asked a co-employee to come for Ms. Dorsey while on the Moniteau Care Center's payroll. The employer selected the gentleman with his truck to pick up Ms. Dorsey; certainly this implies control of Ms. Dorsey's method of arriving at the hospital. Thus, Ms. Dorsey's efforts to help get the vehicle designated by the employer to pick her up back on the road were beneficial to her employer and put Ms Dorsey squarely within the mutual benefit doctrine at the time of her

accident.

The claimant, Joni Dorsey, has sustained her burden of proof that she is entitled to payment of past temporary total disability benefits from December 13, 2003, through and including April 8, 2004. Dr. Krautmann's records do not reflect an actual return-to-work date, but do reflect a release from treatment on May 11,2004. Ms. Dorsey testified regarding her inability to ambulate easily throughout her treatment, as well as to the employer's refusal to allow her to return to work because of her difficulty in walking. Both pieces of evidence point to at least April 8, 2004, as a reasonable date through which Ms. Dorsey is entitled to temporary total disability benefits.

The claimant, Joni Dorsey, has sustained her burden of proof that she is entitled to payment of past medical bills sought for treatment of her right ankle injury as the result of the December 13, 2003 accident and injury. Ms. Dorsey testified regarding her treatment and the medical bills in evidence are reflective of treatment provided.

Finally, Ms. Dorsey is entitled to further medical treatment for her right ankle where both evaluating physicians recommend hardware removal.

Date: May 1, 2006

Made by: /s/Hannelore D. Fischer

HANNELORE D. FISCHER

Chief Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

/s/Patricia "Pat" Secrest

Patricia "Pat" Secrest, Director

Division of Workers' Compensation