Angela Kern v. Ortmann Stair Company

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 April 25, 2006. The award and decision of Administrative Law Judge Kevin Dinwiddie, issued April 25, 2006, 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 $7^{\text {th }}$ day of September 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? Yes
4. Date of accident or onset of occupational disease: 6/04/04
5. State location where accident occurred or occupational disease was contracted: Franklin 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 suffered a slip and fall while running to answer a ringing telephone
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: Neck, left shoulder, left knee, left ankle
14. Nature and extent of any permanent disability: 25% PPD of the left knee; 10% PPD of left ankle; 10% PPD of left shoulder; 5% BAW referable to the cervical spine
15. Compensation paid to-date for temporary disability: $\ 8,613.27
16. Value necessary medical aid paid to date by employer/insurer? $\ 8,470.02
17. Value necessary medical aid not furnished by employer/insurer? $\ 1,867.00
18. Employee's average weekly wages: $\ 680
19. Weekly compensation rate: $\$ 453.33 / \ 347.05
20. Method wages computation: by agreement of the parties

1. Amount of compensation payable:

Unpaid medical expenses: $\ 1,867.00

98.7 weeks of permanent partial disability from Employer at $\ 347.05 per week $\ 34,253.84

Claim for disputed period of temporary total disability is denied. See Award.

1. Second Injury Fund liability: The claim as against the Second Injury Fund is dismissed at the request of the claimant.

TOTAL: $\ 36,120.84

(Employer also responsible for bills of Unity Corporate Health in the amount of $\ 471.00 )

1. Future requirements awarded: N/A

Said payments to begin as of the 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:

Ronald D. Edelman

Employee: Angela Kern

Injury No: 04-055924

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: Ortmann Stair Company

Additional Party State Treasurer, as Custodian of the Second Injury Fund (dismissed)

Insurer: American Family Mutual Insurance Company

Checked by: KD/lsn for bb

The claimant, Ms. Angela Kern, and the employer and its insurer, Ortmann Stair Company and American Family Mutual Insurance Company, appeared at hearing and entered into certain stipulations and agreements as to the issues and evidence to be presented in this claim for compensation. The parties have stipulated that on or about 6/04/04 the claimant suffered an injury by accident arising out of and in the course of employment. The parties further agreed that the issues to be resolved at hearing are as follows:

Medical causation as to knee complaints;

Liability for certain past medical expense;

Temporary total disability; and

Permanent partial disability.

The claimant is alleging that in addition to the 19 weeks of temporary total disability previously paid, claimant suffered a temporary total disability from 3/18/05 to 4/15/05 for which no benefit has been paid.

The employer further stipulates that it is liable for the $\ 471.00 in medical services expense put in issue by Unity Corporate Health in their demand for direct payment filed in this matter.

The following exhibits were offered and received into evidence:

A. Employee's request for statements and records

B. Certified copy of Division of Workers' Compensation file as to Injury Number 04-055924

C. Certified medical records of St. John's Mercy Hospital, Washington, Missouri

D. Certified medical records of Unity Corporate Health (Charles Keefe, M.D.)

E. Certified medical records of Mid County Orthopaedic Surgery (Dr. Strege report dated 7/28/04)

F. Certified medical records of Mid County Orthopaedic (Dr. Strege and Dr. Sohn 8/12/04 to 10/19/04)

G. Certified copy of the physical therapy records of ProRehab

H. Medical records of Drs. Tiefenbrunn and Lusardi, including Curriculum vitae and billing records from Patients First Health Care

I. Curriculum vitae and medical reports of Robert Poetz, D.O.

J. Certified copy of the medical records of Thanh D. Vo, M.D.

K. Certified medical records of Missouri Baptist Hospital-Sullivan

1. Deposition of Angela Kern taken 7/27/04 (subject to objections made at hearing)
2. Medical report of Dr. Daniel G. Sohn dated 1/21/05
3. Medical report of Dr. Daniel G. Sohn dated 7/21/05
4. Curriculum vitae of Dr. Daniel G. Sohn
5. Direct Payment application of Unity Corporate Health

The claimant, Ms. Angela F. Kern, is a 38-year-old married mother of three children under the age of eighteen. Ms. Kern is a high school graduate with two years of college credits and with some schooling in the field of real estate. Ms. Kern had worked as personnel office manager for Ortmann Stair Company (otherwise referred to herein as 'employer') for approximately one year prior to suffering a compensable work injury on or about 6/04/04.

Ms. Kern suffered an injury at work while in haste to answer a telephone. In the process of running back to her office, Ms. Kern suffered a fall as she stepped into her office. Ms. Kern testified that there was a carpeted hallway with a plastic runner, and that she got her foot tangled up into the runner, causing her to twist her knee and ankle while "flipping" into the office, landing heavily on her left side.

Ms. Kern testified that she had immediate pain in her left ankle and knee, with throbbing into her arm and shoulder on her left side. Claimant was assisted by other workers to her car, and was driven to the emergency room at St. John's Mercy Hospital in Washington, Missouri. Ms. Kern had x-rays of her ankle, knee, shoulder, and cervical spine. All of the x-rays were negative for fracture or dislocation except for the ankle, which showed the possibility of a tiny avulsion fracture adjacent to the medial malleolus. An air cast was put on the left foot and ankle, and claimant was provided with pain medication. Claimant also received a prescription of Vicodin for her ongoing pain complaints, as well as Skelaxin, a muscle relaxer. Ms. Kern was further advised to follow up at Unity Corporate Health.

Ms. Kern had her first examination by Dr. Charles Keefe on 6/07/04. Dr. Keefe documented ongoing pain complaints, with continued swelling in the left knee, and diagnosed the claimant with neck, left shoulder, left knee,

and left ankle sprain. Claimant was to remain off work while treating with Dr. Keefe. Claimant returned for reevaluation on 6/11/04. In addition to certain other findings, on 6/11/04 Dr. Keefe noted as follows; "There is some visible swelling just medial to the patellar tendon. She is able to flex and extend the left knee with some discomfort. There is also popping noted of the patella."

Dr. Keefe noted that the posterior neck and left shoulder areas elicited the greatest pain complaints. Claimant was switched to the use of an ace wrap for an improving left ankle, and was to continue off work and on pain medication and muscle relaxants while undergoing physical therapy three times a week.

As of 6/21/04 Ms. Kern had attended three out of three physical therapy sessions at ProRehab. The physical therapy report of that same date (See attached within Claimant's Exhibit D, the records of Unity Corporate Health) includes, in part, the following:

Today patient displays trigger points and tightness to the left rhomboid, upper trapezius and Levator scapulae muscles. Tightness with tenderness also noted to the right suboccipital musculature. Decreased active ROM noted throughout the left shoulder therefore muscle testing not performed. Deferred her left knee testing today as most irritation noted in neck and left shoulder...

The physical therapy records indicate that claimant had been referred to physical therapy for a diagnosis as to neck, left shoulder, and left knee sprain (See note for 6/21/04 within Claimant's Exhibit G, the records of ProRehab), but there is no mention as to any testing or therapy to the left knee after the testing was deferred on 6/21/04. Thereafter, all of the physical therapy was concentrated on complaint as to the neck and the left shoulder.

A work status report from Unity Corporate Health dated 7/15/04 suggests that Dr. Keefe advised that claimant continue off of work, and that the claimant be referred to an orthopedist for further evaluation while continuing her physical therapy.

Claimant then had an orthopedic evaluation by Dr. David W. Strege performed on 7/28/04. The history provided by Dr. Strege in his report (Claimant's Exhibit E) makes no mention of any history of left lower extremity complaint or treatment post injury on 6/04/04, noting only that the claimant "sustained injury to her neck and shoulder". Dr. Strege performed an examination of the neck and shoulder, and recommended both an MRI of the cervical spine, and a referral to Dr. Sohn for further evaluation of the cervical spine.

Dr. Sohn met with Ms. Kern on 8/12/04 and performed a physical examination of the neck and left shoulder. Physical therapy was continued at ProRehab after Dr. Sohn took over management of