Pattie Wilson v. Perry Oaks Manor, LLC

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Mr. Albert Lowes

On October 24, 2005, Mr. Albert Lowes appeared on behalf of the employee, Pattie Wilson, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Mr. Dale Gerecke. The Second Injury Fund was represented by Assistant Attorney General, Frank Rodman. At the time of the initial setting, the employee, Pattie Wilson, was ill, but the employee had subpoenaed a witness, and the parties agreed to start the hearing on August 16, 2002, and complete the hearing at a later date. The employee was subsequently able to appear for the conclusion of the hearing on October 24, 2005. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows.

1. On or about August 16, 2002, Perry Oaks Manor, LLC was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Legion Insurance Company. Legion Insurance Company subsequently became insolvent, and the employer-insurer's liability has been assumed by Illinois Insurance Guaranty Fund.
2. On or about August 16, 2002, the employee sustained an accident that arose out of and in the course of her employment.
3. The employer had notice of the employee's accident.
4. The employee's claim was filed within the time allowed by law.
5. The employee's average weekly wage was $\ 568.62 and her rate of compensation is $\ 379.10 for temporary total disability and $\ 340.12 for permanent partial disability.
6. The employer-insurer furnished medical aid in the amount of $\ 7,539.12.
7. The employer-insurer paid temporary total disability benefits in the amount of $\ 9,098.32. This covered 24 weeks from August 17, 2002 though February 3, 2003.

1. Medical Causation
2. Additional medical aid
3. Nature and extent of disability
4. Liability of Second Injury Fund

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Medical records of Perry County Memorial Hospital

B. Medical records of Dr. Robert Hunt

C. Medical records of Southeast Missouri Hospital

D. Medical records of Dr. Robert Schultz

E. Medical records of Dr. Latha Ravi

F. Medical report of Dr. Mary Frances Werner-Luckey

G. Functional Capacity Evaluation by Bill Merink

H. Medical reports of Dr. Kenneth DeCoursey

I. Medical bills related to surgery performed by Dr. Robert Shultz

1. Medical records of Dr. Romeo R. Eugenio
2. Medical records of Dr. Mohammad Moaddabi
3. Medical records of Dr. Brian Schafer of Orthopedic Associates
4. Medical report of Dr. Peter Merkin
5. Medical records of Dr. David M. Peeples
6. Medical records of Memorial Hospital in Chester, Illinois

None Offered

Based on the medical records, the testimony of Pattie Wilson (employee), the testimony of Vickie Rollet and the deposition of Dr. Kenneth DeCoursey, I find as follows:

- At the time of her accident on August 16, 2002, the employee was working as an LPN for Perry Oaks Manor, LLC.

- The employee's accident occurred when she was attempting to subdue a resident. The resident struck the employee in the stomach and ribs, causing an aggravation of a pre-existing low back condition.

- Several years prior to August 16, 2002, the employee had a serious motor vehicle accident that involved lifethreatening injuries to her face, neck, head, left arm, liver, spleen and other areas.

- In February of 2000, the employee suffered a low back sprain at work. She experienced pain in her right buttocks and leg while rolling a resident over in his bed (Employer-insurer's exhibit 6).

- On April 14, 2006, the employee was at a McDonald's restaurant and backed her car into a concrete post. This accident caused the employee to experience low back pain on the right side and neck pain.

- After conservative treatment by Dr. K. Chamness, the employee was referred to Dr. Robert Shultz, who is a neurosurgeon in Belleville, IL. Dr. Shultz treated the employee from August 15, 2001 through May 13, 2002 (Employee's exhibit D).

- An MRI performed June 28, 2001 showed the employee had a disc protrusion at the L5/S1 level. Dr. Shultz felt the employee had degenerative disc disease at the L5/S1 level with a right sided bulge or possible herniation (Employee's exhibit D). Dr. Shultz treated the employee with physical therapy, and series of nerve blocks and prescribed Vicodin and Celebrex. On May 13, 2002, three months prior to her August 16, 2002 accident, Dr. Schultz recommended a discogram. Dr. Shultz indicated that if the discogram was positive, they would consider a surgical procedure for the employee.

- Prior to her August 16, 2002, the employee was working as an LPN with no restrictions, and was able to perform her job. The employee, however, was experiencing pain and discomfort on the right side of her low back, and was taking Vicodin and Celebrex on a daily basis to relieve her symptoms.

- The employee's accident at Perry Oaks Manor aggravated her right-sided low back pain, and the employer-insurer authorized and paid for treatment by several physicians. The employee received conservative treatment from Dr. Eugenio, Dr. Moaddabi and Dr. Schafer that included physical therapy, injections and medication (employer-insurer's exhibits 1,2 and 3 ).

- An MRI performed on October 3, 2002 revealed identical findings to the pre-accident MRI. The employee had a disc protrusion at the L5/S1 level.

- The employer-insurer authorized a second opinion by Dr. Peter Merkin on October 16, 2002. Dr. Merkin agreed that the disc protrusion pre-existed the August 16, 2002 accident, but felt the employee's accident may have aggravated her condition. Dr. Merkin suggested therapy, and indicated that if therapy did not help, the employee should receive epidural injections (Employer-insurer's 4).

- The employer-insurer then authorized additional treatment with Dr. David Peeples, who is a neurologist in St. Louis. In his initial report dated December 2, 2002, Dr. Peeples concluded the employee was suffering from chronic low back pain. Dr. Peeples agreed the L5/S1 herniated disc was present prior to the employee's accident. Dr. Peeples further acknowledged that the employee had been treating for several months before

August 16, 2002 for the same complaints. Dr. Peeples concluded that her current symptoms and complaints were "at most an exacerbation of the prior injury" (Employer-insurer's Exhibit 5).

- Dr. Peeples treated the employee with therapy, medication and referred her to Dr. Graham for epidural steroid injections. On February 4, 2003, Dr. Peeples concluded the employee was at MMI, and did not feel she was a surgical candidate. Dr. Peeples gave the employee restrictions of no lifting greater than 20 pounds and no repetitive bending or twisting at the waist (Employer-insurer's exhibit 5).

- After her release by Dr. Peeples, the employee decided to schedule a follow up visit with Dr. Shultz. In his first office record after August 16, 2002, Dr. Shultz deci