Mary Ann Speckhals v. ALS Association

Decision date: August 25, 200613 pages

Summary

The Commission modified the Administrative Law Judge's award regarding future medical care for the employee's work-related occipital neuralgia and migraines. Rather than awarding a $25,000 lump sum to absolve the employer of liability, the Commission ordered the employer to provide ongoing future medical care and treatment including medication oversight deemed reasonable and necessary to treat the residual headaches from the accident.

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Caption

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
FINAL AWARD ALLOWING COMPENSATION
(Modifying Award and Decision of Administrative Law Judge)
Injury No.: 98-177043
Employee:	Mary Ann Speckhals
Employer:	ALS Association
Insurer:	TIG Insurance Company
Date of Accident:	November 6, 1998
Place and County of Accident:	Cole County, Missouri
The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided bysection 287.480 RSMo. Pursuant to section 286.090 RSMo, subsequent to reviewing the evidence, reading the briefs, hearing oral argument and considering the entire record, the Commission modifies the award and decision of the administrativelaw judge dated July 22, 2005. The award and decision of Administrative Law Judge Robert J. Dierkes, issued July 22, 2005, is attached and incorporated bythis reference.
All findings of fact and conclusions of law made by the administrative law judge are affirmed, except for the issue involving future medical care and treatment.
As to the issue of future medical care and treatment, the administrative law judge found the following:
"Claimant is still in need of medications for her migraines and occipital neuralgia. As I find that the work-related accident is the cause of the occipital neuralgia and has caused an increase in the frequency and severity ofthe migraines, I find that Employer and Insurer should be responsible to continue to provide those medications, as well as to provide physician oversight of those medications."
Based on the above finding, the administrative law judge ordered the employer/insurer to pay a lump sum amount to the employee for her future medical needs, inthe amount of $25,000.00, with the payment to absolve employer and insurer from any further liability concerning this issue.
The Commission finds awarding employee the sum of $25,000.00 for her future medical needs, and absolving employer and insurer from any additional liability concerningthis issue, to be an arbitrary and capricious determination, and consequently, not based on the substantial and competent evidence in the record. Accordingly, the Commission reverses and modifies this part of the award.
In lieu thereof, the Commission awards the employee future medical care and treatment deemed reasonable and necessary to cure and relieve her from her residual headaches attributable to the accident,and the employer is responsible for this future treatment by providing medical oversight of her necessary medications. The Commission relies on the testimony of Dr. Sher in support of this finding. Dr. Sher was unequivocal that employee would need ongoing monitoring of her medications for herheadaches, which was a sequela of her injury.
Based on the above modification, the conclusion and determination by the administrative law judge that employer/insurer is to pay employee the sum of $25,000.00 for her future medical needs, and absolve employer/insurer from any additional medical liability, isreversed. In lieu thereof, employer/insurer is to provide future medical care and treatment reasonable and necessary to cure and relieve employee from the residual headaches attributable to the accident, in the form of providing appropriate medical oversight and medical monitoring of her prescriptionmedications.

The remainder of the award issued by the administrative law judge is affirmed. The award and decision of Administrative Law Judge Robert J. Dierkes, dated July 22, 2005, as modified, is attached and incorporated by 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 $\qquad 25^{\text {th }} \qquad$ day of August 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

Employee: Mary Ann Speckhals

Injury No. 98-177043

Dependents: N/A

Employer: ALS Association

Additional Party: N/A

Insurer: TIG Insurance Company

Hearing Date: May 18, 2005 Checked by: RJD/tmh

FINDINGS OF FACT AND RULINGS OF LAW

Are any benefits awarded herein? Yes.
Was the injury or occupational disease compensable under Chapter 287? Yes.
Was there an accident or incident of occupational disease under the Law? Yes.
Date of accident or onset of occupational disease: November 6, 1998.
State location where accident occurred or occupational disease was contracted: Cole County, 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:
Employee was driving to an appointment and was involved in a motor vehicle collision.
12.	Did accident or occupational disease cause death? No. Date of death? N/A.
13.	Part(s) of body injured by accident or occupational disease: Head, neck, hands.
14.	Nature and extent of any permanent disability: 50% permanent partial disability of the body as a whole.
15.	Compensation paid to-date for temporary disability: $67,175.80.
16.	Value necessary medical aid paid to date by employer/insurer? $96,379.11.
17.	Value necessary medical aid not furnished by employer/insurer? $45.00.
18.	Employee's average weekly wages: $571.25.
19.	Weekly compensation rate: $380.83/$294.73.
20.	Method wages computation: Stipulation.

21.	Amount of compensation payable:
200 weeks of permanent partial disability benefits:
29 3/7 weeks of temporary total disability benefits:
Reimbursement of medical costs:	$11,207.28
Lump sum future medical costs:	$45.00
Attorney’s fees:	$25,000.00
$2,800.00

TOTAL: $97,998.28
23.	Future requirements awarded: None.

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 hereunder in favor of the following attorney fornecessary legal services rendered to the claimant: Thomas Mingus

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Mary Ann Speckhals

Injury No: 98-177043

Before the

DIVISION OF WORKERS*

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: ALS Association

Additional Party: N/A

Insurer: TIG Insurance Company

Checked by: RJD/tmh

ISSUES DECIDED

An evidentiary hearing was held in this case in Columbia on May 18, 2005. The parties requested leave to file posthearing briefs, which leave was granted. The case was submitted on June 21, 2005. It is noted here that the undersigned administrative law judge issued a temporary or partial award in this case on March 26, 2001. It is also noted that on September 28, 2000, the undersigned administrative law judge approved a STIPULATION FOR COMPROMISE SETTLEMENT AS TO CARPAL TUNNEL INJURIES ONLY in this case.

The hearing was held to determine the following issues:

1.	Whether Employer and Insurer shall be liable for additional temporary total disability or permanent total disability benefits from and after July 4,2003 ;
2.	Whether Employer and Insurer shall be ordered to reimburse Claimant for medical bills and charges she incurred, allegedly due to the work-related accident of November 6,1998 ;
3.	Whether Employer and Insurer shall be ordered to provide future medical treatment for Claimant, pursuant to Section 287.140, RSMo, to cure and relieve Claimant from the effects of her work-relatedinjury;
4.	Whether Employer and Insurer failed to comply with the TEMPORARY OR PARTIAL AWARD issued March 26, 2001, and, if so, whether any sums should be doubled for suchfailure;
5.	The liability, if any, of Employer and Insurer for permanent partial disability benefits or permanent total disability benefits;
6.	Whether costs and attorney’s fees shall be awarded pursuant to Section 287.203 or 287.560, RSMo; and
7.	The amount of credit due to Employer and Insurer for the partial settlement of September 28, 2000.
STIPULATIONS
The parties stipulated to the following:
1.	That the Missouri Division of Workers’ Compensation has jurisdiction over this case;
2.	That venue is proper in Cole County and adjoining counties and that Boone County is an adjoining county to Cole County;
3.	That the claim for compensation was filed within the time allowed by the statute of limitations;
4.	That the rates of compensation are $380.83/294.73, based on an average weekly wage of 571.25;
5.	That both Employer and Employee were covered under the Missouri Workers’ Compensation Law at all relevant times;
6.	That Claimant Mary Ann Speckhals sustained an accident arising out of and in the course of her employment with ALS Association on November 6,1998 ;
7.	That the notice requirement of section 287.420 is not a bar to this action;
8.	That TIG Insurance Company fully insured the Missouri workers’ compensation liability of ALS Association at all relevant times;
9.	That Employer and Insurer have paid medical benefits in the amount of $96,379.11; and
10.	That Employer and Insurer have paid TTD benefits totaling $67,175.80, representing payment from February 15, 2000, through July 4, 2003, a total of 176 2/7 weeks.
EVIDENCE
The evidence consisted of the testimony of Claimant, Mary Ann Speckhals; the testimony of Nancy “Nonnie” Pyle; the testimony of Patricia Fetters; the testimony of Elaine Fosler, Claimant’s mother; the testimony of Robert Speckhals,

Claimant's husband; extensive medical records; extensive correspondence; educational records; medical reports and evaluations; the deposition testimony of: Dr. Robert Silvers, Dr. Jeffrey Belden, Dr. Allyn Sher, Dr. Jon Rupright, Dr. Renee Stucky, Dr. Patrick Caffrey, Dr. Michael Ryan, and Mr. Gary Weimholt; and numerous other documents.

FINDINGS OF FACT AND RULINGS OF LAW

I find from the evidence that Claimant, Mary Ann Speckhals, was born on May 23, 1965, and began work for Employer in October 1997 as a "patient services coordinator". I find that Employer is a benevolent organization which provides support to patients who are terminally ill with Amyotrophic Lateral Sclerosis, and to their families. This required Claimant to travel to Jefferson City, Springfield, Branson, Kirksville, and elsewhere to meet with patients, families and support groups, and to attend funerals. This required Claimant to drive quite a bit. Claimant estimated her driving at an average of 200-300 miles per week. Prior to working for Employer, Claimant had worked as a social worker in a nursing home, and as a home health social worker.

In 1996, Claimant began treatment with Dr. Jeffery Belden, her family physician, for migraine headaches. According to Dr. Belden's records, these were related to her menstrual cycle. They appeared to be well-controlled with medication, however, on an August 11, 1998, visit to Dr. Belden, Claimant reported worse headaches in the last month, or so, with frontal location with nausea, photophobia, and sometimes scotomata. On that date, Dr. Belden prescribed Naprosyn to be taken "during th

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