Rosemary DePree v. Timberlake Care Center

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 December 19, 2006. The award and decision of Administrative Law Judge R. Carl Mueller, issued December 19, 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 29 ${ }^{\text {th }}$ day of October 2007. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member Attest:

Secretary

Employee: Rose DePree Injury No: 03- Dependents: N/A Employer: Timberlake Care Center Additional Party: N/A Insurer: Self Insured by Health Care Facilities Fund of Missouri Hearing Date: September 22, 2006 Briefs Filed: October 9, 2006 Checked by:

On September 22, 2006, the employee and employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The employee, Ms. Rosemary DePree, appeared in person and with counsel, Lisa R. McWilliams. The self-insured employer appeared through Joseph R. Ebbert. The Second Injury Fund was not a party to the case. The primary issues the parties requested the Court to determine were the nature and extent of disability, payment of a Medicaid lien, and whether the Employer is responsible for ongoing medical care. For the reasons noted below, I find that Ms. DePree’s compensable injury resulted in her permanent and total disability, that the Employer is responsible for future medical care, and that the request for reimbursement by the Department of Social Services is denied.

The parties stipulated that: 1. On or about July 13, 2003 (“the injury date”), Timberlake Care Center (“Timberlake”) was an employer operating subject to Missouri’s Workers’ Compensation law with its liability self-insured by Health Care Facilities Fund of

Missouri;

1. Ms. DePree was its employee working subject to the law in Kansas City, Jackson County, Missouri;
2. Ms. DePree notified Timberlake of her alleged injury and filed her claim within the time allowed by law and the claim was timely filed;
3. Timberlake provided Ms. DePree with medical care costing $\ 107,244.41;
4. Timberlake provided Ms. DePree with thirty five weeks of temporary total disability ("TTD") benefits from March 1, 2004 to October 31, 2004 totaling \$10,418.40; and,
5. Ms. DePree was injured in the scope and course of her employment with Timberlake.

The parties requested the Division to determine:

1. Whether Ms. DePree suffered any disability and, if so, the nature and extent of her disability?
2. Whether Timberlake must provide Ms. DePree with additional medical care?
3. Whether the Missouri Department of Social Services should be reimbursed $\ 167.52 for medical care allegedly provided through Medicaid?

Ms. DePree testified on her own behalf and presented the following exhibits, all of which were admitted into evidence without objection:

Exhibit A - Deposition, P. Brent Koprivica, MD, September 8, 2006

Exhibit B - Deposition, Michael Dreiling, August 15, 2006

Exhibit C - Employment history.

Exhibit D - Records, David G. Yingling, MD

Exhibit E - Records, Orthopaedic Associates (Dr. Burns and Dr. Kapp)

Exhibit F - Records, St. Francis Hospital (Cape Girardeau)

Exhibit G - Records, Cape Radiology

Exhibit H - Records, Employer Health Services

Exhibit I - Records, St. Joseph Medical Center

Exhibit J - Records, Darryl Green, MD

Exhibit K - Prescription List

Although the employer did not call any live witnesses, it did present the following exhibits, all of which were admitted into evidence without objection:

Exhibit 1 - Records, David G. Yingling, MD

Exhibit 2 - Deposition, James M. England, M.Ed., August 30, 2006

Exhibit 3 - Deposition, Bernard Burns, DO, September 19, 2006.

Based on the above exhibits and testimony of Ms. DePree, I make the following findings. Ms. DePree is a single 46 year old living in Cape Girardeau, Missouri. She grew up in Cape Girardeau and dropped out of high school in the $10^{\text {th }}$ grade due to difficulty learning. She received below average grades in high school. After leaving school, Ms DePree went to work in a nursing home cleaning and helping with the patients. She continued to work in various settings doing cooking and cleaning until 1980 when her first son was born. Ms. DePree has

never obtained her GED but during her time off from employment she obtained her Certified Nurses Aide (CNA) certificate. She returned to the outside workforce in 1983 and has worked continuously as a CNA until the time of the July 13, 2003 accident. In fact, at times she worked contemporaneously both a full-time and part-time jobs in the CNA field (Exhibit C).

On July 13, 2003, while working as a CNA for Timberlake Care Center in Kansas City, Ms. DePree was attempting to transfer a large non-ambulatory patient from the wheelchair to the bed when the patient suddenly grabbed her around the neck causing a "pop" and a sharp shooting pain from the neck into the right shoulder, down the arm and into her hand. She immediately reported the injury but did not initially seek medical care. Over the next 5 days the pain gradually worsened and on July 19, 2003 she requested medical care from the employer and was referred to the emergency room at St. Joseph Medical Center. At St. Joseph, she complained of neck and right shoulder pain (Exhibit I, p. 3). She received follow-up care at Employer Health Services (EHS) on July 28, 2006 (Exhibit H, p.9). Dr. Morgan at EHS ordered therapy and placed her on work restrictions of 10 lbs . maximum lift, 25 lbs . maximum push/pull, no overhead reaching and no work requiring bending of the neck (Exhibit H, p. 6). Ms DePree's condition did not improve with therapy and Dr. Morgan ordered an MRI of the neck.

Prior to the July 13,1003 accident, Ms. DePree had notified Timberlake of her intention to return to her hometown of Cape Girardeau to assist her sister in taking care of their mother. Ms. DePree returned to Cape Girardeau the first week of August 2003. While back in Cape Girardeau awaiting authorization of the MRI recommended by Dr. Morgan, Ms. DePree sought and obtained employment as a CNA for mentally disabled individuals at Habcare. Her duties at Habcare did not require heavy lifting or patient transfers. However, she acknowledged that she was only able to obtain that position because she did not tell the employer of her injury or restrictions. The MRI was finally authorized and performed on September 10, 2004 at Cape Radiology Group and revealed multi-level disc herniations from C2-3 - C6-7 with nerve impingement (Exhibit G, p. 5-6). The employer delayed in authorization of care following the MRI but eventually, on February 5, 2005, Ms. DePree was referred to Dr. David Yingling at Cape Neurosurgical Associates. Dr. Yingling noted complaints of right sided neck pain radiating down the right arm to the hand with numbness in the arm and hand as well. He examined Ms. DePree, reviewed the MRI and recommended surgery (Exhibit D, p. 14-15). On March 1, 2004 Ms. DePree underwent an anterior diskectomy with allograft fusion using synthes ACF and DBX bone matrix and plating C3 through C6 at St Francis Medical Center(Exhibit D, p. 10).

During the months following surgery, Ms. DePree utilized a bone fusion stimulator, participated in physical therapy and trigger point injections and took medications prescribed by Dr Yingling to in