Sandra Pruett v. Bleigh Construction Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-038527

Employee: Sandra J. Pruett

Employer: Bleigh Construction Company

Insurer: Liberty Mutual Fire Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: April 13, 1999

Place and County of Accident: Hannibal, 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 November 28, 2005. The award and decision of Administrative Law Judge Hannelore D. Fischer, issued November 28, 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 $\qquad 25^{\text {th }}$ day of August 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

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?
4. Date of accident or onset of occupational disease: April 13, 1999.
5. State location where accident occurred or occupational disease was contracted: Hannibal, 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: Fell and twisted/injured left knee.
12. Did accident or occupational disease cause death? No. Date of death? N/a.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease:
14. Nature and extent of any permanent disability:
15. Compensation paid to-date for temporary disability: $\ 96,762.87.
16. Value necessary medical aid paid to date by employer/insurer? $\ 74,492.33.
17. Value necessary medical aid not furnished by employer/insurer?
18. Employee's average weekly wages:
19. Weekly compensation rate: $\$ 562.67 \mathrm{ttd}, \mathrm{ptd} / \$ 294.73 \mathrm{ppd}$
20. Method wages computation: By agreement.

1. Amount of compensation payable:

Unpaid medical expenses: $\ 1,890.00.

weeks of temporary total disability (or temporary partial disability)

weeks of permanent partial disability from Employer

weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning February 27, 2004, for Claimant's lifetime.

1. Second Injury Fund liability: N/a.

TOTAL:

1. Future requirements awarded: Future medical.

Said payments to begin immediately 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 (other than future medical) hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Dean Christianson

Dependents:

Employer: Bleigh Construction Company

Additional Party

Insurer: Liberty Mutual Fire Insurance Co.

Checked by: $\mathrm{HDF} / \mathrm{cs}$

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on June 14, 2005, and October 12, 2005. Additional exhibits inadvertently removed at the time of the trial were submitted by November 14, 2005.

The parties stipulated that on or about the $13^{\text {th }}$ day of April, 1999, the claimant was in the employment of Bleigh Construction Company; the claimant sustained an injury by accident; the

accident arose out of and in the course of employment; the employer was operating under the provisions of the Missouri workers' compensation law; the employer's liability was insured by Liberty Mutual Insurance Company; 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 $\ 562.67 per week for temporary total and/or permanent total disability benefits, $\ 294.73 per week for permanent partial disability benefits; temporary disability benefits have been paid to the claimant to date in the amount of $\ 96,762.87, those payments being made through February 26, 2004; medical aid has been provided in the amount of $\ 74,492.33.

The issues to be resolved by hearing include 1) the causation of the injuries alleged, 2) the liability of the employer/insurer for past medical treatment, 3) the liability of the employer/insurer for past temporary total disability benefits from and including February 27, 2004, forward, 4) the nature and extent of permanent partial disability (permanent total disability is alleged), 5) the liability of the Second Injury Fund, 6) the liability of the employer/insurer for future medical treatment, and 7) the liability of the employer/insurer for mileage expenses.

The claimant, Sandra Pruett, was 46 years old as of the date of the hearing. Ms. Pruett graduated from high school and holds an associates degree from a trade school. Ms. Pruett has also trained with H \& R Block and has held a real estate broker's license. Ms. Pruett has worked in sales, fertilizer delivery and doing secretarial work.

Ms. Pruett last worked on April 13, 1999, for Bleigh Construction Company (Bleigh), when, while removing a form from a concrete "invent," she knelt down and heard a loud pop in her left knee. Ms. Pruett immediately felt pain in her left knee and was unable to stand. Ms. Pruett received treatment for her left knee, including surgeries with Dr. Bieniek and, later, with Dr. Hertel (twice) for a total of three left knee surgeries. After her second surgery with Dr. Hertel in September of 2002, Ms. Pruett was using a full left leg brace and crutches when she fell in her garage, hitting her right knee on a metal stake. Ms. Pruett had three surgeries on her right knee with Dr. Hertel or his partner, Dr. George. Eventually, Ms. Pruett's right kneecap was removed. Ms. Pruett was discharged from Dr. Hertel's care in February of 2004.

Currently, Ms. Pruett receives her medications, Lasix, Lorazepam and Lodine, for water retention, anxiety and pain, respectively, from her family physician, Dr. Hevel. Ms. Pruett has been paying for these prescriptions herself.

Ms. Pruett testified to feeling depressed and moody since her accident.

Ms. Pruett offered an exhibit (R) as evidence of mileage/travel expenses, but said that not all charges reflected on the exhibit remained unpaid by the employer/insurer. There was no objection to the admission of this exhibit and it is considered part of the record in this case.

Ms. Pruett offered Exhibit U into evidence as a record of her bill for services provided by accredited nurse aid Gail Ann Failor Rothweiler. There was no objection to the exhibit and it is thus admitted as part of the evidence in this case. The total bill is $\ 1,890.00 for services from October 28, 2002, through November 29, 2002. Dr. George's records reflect that he operated on Ms. Pruett's right knee on October 24, 2002, at which time Ms. Pruett was in a left knee brace as the result of her most recent left knee surgery. Ms. Pruett was put in a right knee brace after surgery on October 31, 2002. The left knee brace was removed and Ms. Pruett started on "active quad exercises." The right knee brace was discontinued on December 12, 2002. In addition, Dr. Hertel addressed Ms. Pruett's need for home health care as the result of both knee injuries by letter of January 16, 2003, in which he stated that Ms. Pruett would have need of care immediately following her discharge from St. Luke's Hospital "due to the recent repair of the ACL on the left and the fracture of the patella on the right."

Likewise, Ms. Pruett offered Exhibit V into evidence as a record of prescription expenses for medications prescribed for her knee injuries in this case which she has paid.

Currently, Ms. Pruett complains of swelling in her left knee and looseness, as if the graft is starting to loosen. Ms. Pruett wears a brace on her left knee when walking, especially if she is descending a rocky area. In her right knee, Ms. Pruett has pain about 95 percent of the time as well as weakness and lack of stability.

Since 1999, Ms. Pruett has attempted work in convenience stores. Ms. Pruett worked a total of six weeks in the convenience stores and said she could not handle the work due to the swelling in her legs and back pain. Ms. Pruett has also done some tax preparatory work since 1999. Ms. Pruett

testified that she is no longer mentally able to engage in tax preparatory work.

In 1991, Ms. Pruett injured her back in a work-related accident which she settled based on 15 percent permanent partial disability of the "mid back." Prior to April 13, 1999, according to Ms. Pruett, she made an almost complete recovery from her injury to her back, suffering only occasional "twinges" or muscle spasms; Ms. Pruett took Advil for these conditions.

Dr. Wayne Stillings, physician and board certified psychiatrist, testified by deposition that he evaluated Ms. Pruett on August 2, 2004. Dr. Stillings found Ms. Pruett to be unable to work, to be permanently and totally disabled, from a psychiatric standpoint. Dr. Stillings opined that Ms. Pruett's diagnoses of "mood disorder due to injuries to both knees," "pan disorder associated with both psychological factors and a general medical condition due to injuries to both of her knees," and "major depressive disorder severe, with paranoia" are attributable to her knee injuries resulting from the April 13, 1999 accident.

With regard to future medical treatment, Dr. Stillings recommended psychotherapy to manage Ms. Pruett's pain in her knees and her depression and pharmacotherapy, including anti-depressants, a sleep aid, an anti-inflammatory agent and a non-narcotic analgesic. Dr. Stillings felt that the psychotherapy and pharmacotherapy were important to prevent deterioration of Ms. Pruett's mental condition, not necessarily to improve it.

During cross-examination, Dr. Stillings admitted that other stressors in Ms. Pruett's life, other than the pain from her knees, such as financial problems, a child in Iraq, a grandchild out of wedlock, were not made known to him.

Dr. David Volarich, D.O., testified by deposition twice and stated that he saw Ms. Pruett on July 18, 2001, and on June 17, 2004. Dr. Volarich diagnosed Ms. Pruett as follows:

First, internal derangement left knee in th