Shelly McIntire v. T. J. Swift House, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-002737

Employee: Shelly McIntire

Employer: T. J. Swift House, Inc.

Insurer: Missouri Employers Mutual Insurance Company

Date of Accident: January 2, 2001

Place and County of Accident: Oregon County, 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 October 3, 2006. The award and decision of Administrative Law Judge Margaret Ellis Holden, issued

October 3, 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 $\qquad 6^{\text {th }} \qquad$ day of April 2007.

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: $1 / 2 / 01$
5. State location where accident occurred or occupational disease was contracted: OREGON COUNTY, MO
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: CLAIMANT SPRAINED HER ANKLE WHILE HELPING TRANSFER A CLIENT FROM A WHEELCHAIR TO A VEHICLE AND SUBSEQUENTLY DEVELOPED A SEVERE STAPH INFECTION.
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: LEFT LOWER EXTREMITY
14. Nature and extent of any permanent disability: PERMANENT TOTAL DISABILITY
15. Compensation paid to-date for temporary disability: NONE
16. Value necessary medical aid paid to date by employer/insurer? NONE

Employee: SHELLY MCINTIRE Injury No. 01-002737

1. Value necessary medical aid not furnished by employer/insurer? $\ 10,587.05
2. Employee's average weekly wages: $\ 361.50
3. Weekly compensation rate: $\ 241.00
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: $\ 10,587.05

$1134 / 7$ weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning MARCH 18, 2003, for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund:

weekly differential (N/A) payable by SIF for 0 weeks, beginning N/A

and, thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded: PERMANENT TOTAL DISABILITY

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 for necessary legal services rendered to the claimant:

DAVID RAY

Employee: Shelly McIntire

Injury No. 01-002737

Dependents: N/A

Employer: T.J. Swift House, Inc.

Additional Party: N/A

Insurer: Missouri Employers Mutual Insurance Company

Hearing Date: $\quad 6 / 30 / 06$

Checked by: MEH

The parties appeared before the undersigned administrative law judge on June 30, 2006, fora final hearing. The claimant appeared in person represented by David Ray. The employer and insurer appeared represented by Michael Mayes. Memorandums of law were filed by July 24, 2006.

The parties stipulated to the following facts. On or about January 2, 2001, T.J. Swift House, Inc., was an employer operating subject to The Missouri workers' compensation law. The employer's liability was fully insured by Missouri Employers Mutual Insurance Company. On the alleged injury date of January 2, 2001, Shelly McIntire was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. On or about January 2,

2001, the claimant sustained an accident which arose out of and in the course and scope of employment. The accident occurred in Oregon County, Missouri. The claimant notified the employer of her injury as required by Section, 287.420, RSMo. The claim for compensation was filed within the time prescribed by Section 287.430, RSMo. At thetime of the alleged accident, the claimant's average weekly wage was $\ 361.50, which is sufficient to allow a compensation rate of $\ 241.00 for temporary total, permanent partial and permanent total disability compensation. No temporary disability benefits have been paid to the claimant. The employer and insurer have paid no medical benefits. The attorney fee being sought is 25 %.

1. Whether the accident disease caused the injuries and disabilities for which benefits are being claimed.
2. Whether the employer is obligated to pay past medical expenses.
3. Any temporary total benefits owed to the claimant.
4. The nature and extent of permanent disabilities.
5. The validity of the lien for past medical expenses filed by Medicaid.

The Claimant worked for the Employer, providing home health care and personal care assistance. On January 2, 2001, Claimant was assisting an established client and was in the process of lifting him from a wheelchair to an automobile. As she lifted the client and turned with him, she felt her ankle "give". Claimant completed the day's activities, but did not lift anymore because her ankle bothered her.

Her ankle continued to hurt, but did not swell the first evening. The following day Claimant was in the course of taking a client to see physician Uzma Khan, and Claimant informally asked the doctor to look at the ankle, which continued to hurt and had some swelling. The doctor thought it might be tendonitis. The Claimant continued to work the rest of the week and through the following Tuesday, January 9, 2001. During that time, the ankle was swollen, painful, felt better when elevated and held near heat; and the Claimant used a heating pad to alleviate pain.

On January 10, 2001, Claimant's condition had worsened; and she appeared at the Ozarks Medical Center Urgent Care Clinic after informing the secretary at Employer's offices and obtaining insurance papers to present at the clinic. The records of the Urgent Care Clinic dated January 10 reflect that the accident happened "yesterday", a mistake which Claimant attributes to an error of the clinic in noting the accident as happening on Tuesday (January 9) when Claimant meant the preceding Tuesday, January 2. At Urgent Care Clinic, she was noted to be very tender over the left heel area, and complained of heel pain, some swelling, and some bruising. An x-ray was performed which showed no fracture. It was recommended that she take ibuprofen, place ice on the ankle, keep her leg elevated; and exercises were prescribed.

Claimant described the exercises given as ones to stretch the back of her lower leg by wrapping a towel around the front portion of her foot and pulling upward, along with similar exercises. The Claimant performed those exercises at home that evening. Her condition soon became markedly worse. Pain and swelling increased, and over the ensuing weekend she was unable to walk without the assistance of crutches or a walker. On Monday, January 15, she returned to Dr. Khan who noted swelling and tenderness, but diagnosed the condition as gout. Dr. Khan issued prescriptions and directed the patient to return in two days.

Claimant's condition continued to deteriorate. She developed a fever and chills, and the swelling and bruising increased. On Wednesday, January 17, 2001, she returned to Dr. Khan who ordered blood tests and determined that Claimant had developed an infection. She issued prescriptions to address the infection and scheduled Claimant to see Dr. Crum, orthopedic surgeon of West Plains, the following day.

On Thursday, January 18, 2001, Claimant was seen by Jerry Crum, M.D. Her ankle was very swollen, red, tender, and painful with any motion. A large blood blister had formed. Dr. Crum concluded that septic arthritis had developed and immediately admitted Claimant to the hospital for emergency arthroscopic washout of the infection. She was followed in the hospital by Dr. Crum's partner, Rick B. Walker, D.O. Claimant was hospitalized until January 23, 2001. The discharge summary of Ozarks Medical Center reflected that Claimant related the history of her injury as stated above. While hospitalized, she underwent arthroscopy of the left ankle with debridement, irrigation and placement of irrigation egress tubes, and began a regimen of antibiotics. She complained of severe pain the first two days following surgery, but was more comfortable on the third. She reported effects from her medication on day four and was scheduled to have a catheter surgically inserted for the administration of antibiotics; and this was done by Dr. Eck. Blood cultures determined the infection to be a staph aureus. She was discharged on January 23 with instructions as to dressings and attention to the wound. She was to use crutches or a walker with no weight bearing for six weeks. She had prescriptions for pain medications, antibiotics, and was directed to follow up at the clinic of Crum and Walker in three days on January 26.

On January 26, 2001, Claimant returned to Dr. Crum. Large amounts of bloody drainage were noted, skin was peeling, and Claimant related that she had been running a low grade temperature. Dr. Crum noted moderate swelling, the draining of bloody fluid, and a large area of superficial necrotic tissue. There was moderate tenderness and warmth in the ankle. Dr. Crum's impression was that Claimant had septic arthritis. His plan for care included wound care, dressing changes and, if conditions worsened, to admit for antibiotic, whirlpool, dressing changes and possible debridement. Claimant was to follow up with Dr. Walker on Monday, January 29.

Claimant's condition continued to worsen soon after seeing Dr. Crum on January 26. On the following day, she presented at the Emergency Department of Ozarks Medical Center. There was a worsening of the necrotic

tissue, and bloody fluid was oozing from the wound. She was admitted for continuation of her antibiotic therapy and to begin wound debridement and daily whirlpool. Doctors Crum and Walker thought there was significant necrosis in the wound that needed to be debrided and that Claimant might also need a skin flap for coverage or at least a skin graft. After options were discussed with the Claimant and her family, the decision was made for Claimant to be transferred to Springfield to Dr. Geter, a plastic surgeon.

Claimant was admitted to St. John's Regional Health Care Center on January 28, 2001, where she remained until February 9. She was treated by Doctors Geter