Rebecca Garber v. Dr. & Sara Jaroonwanichkul d/b/a Branson Oncology

Before the

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: MAY 28, 2004
5. State location where accident occurred or occupational disease was contracted: TANEY 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? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

CAUGHT HER FOOT ON A RUG AND TRIPPED HITTING DOOR JAMB WITH LEFT SIDE OF FACE AND FELL TO THE GROUND

1. Did accident or occupational disease cause death? NO
2. Part(s) of body injured by accident or occupational disease: FACE, LEFT SHOULDER AND LOW BACK

- Nature and extent of any permanent disability: 10 PERCENT BODY AS A WHOLE

1. Compensation paid to-date for temporary disability: NONE
2. Value necessary medical aid paid to date by employer/insurer? $\ 1,200.00
3. Value necessary medical aid not furnished by employer/insurer? $\ 11,726.63
4. Employee's average weekly wages: $\ 400.00
5. Weekly compensation rate: $\ 266.66

- Method wages computation: STIPULATION

1. Amount of compensation payable:

Unpaid medical expenses: $\ 10,369.63

N/A weeks of temporary total disability (or temporary partial disability)

40 weeks of permanent partial disability from Employer $\ 10,666.40

N/A weeks of disfigurement from Employer

1. Second Injury Fund liability: YES -- IF AWARD NOT PAID BY EMPLOYER

Total: $\ 21,036.03

1. Future requirements awarded: FUTURE MEDICAL AWARDED

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 PERCENT of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Becky Dias

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

Employee: Rebecca Garber

Injury No: 04-118118

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on August 15, 2007. The undersigned reopened the file on August 30, 2007, for purpose of incorporating into the Legal File the correspondence and redaction noted by Becky Dias, Esq. and Eric Farris, Esq. The redaction is identified in the parties stipulation set forth below.

The employee appeared personally and through her attorney, Becky Dias, Esq. The alleged employers, Pairote Jaroonwanichkul, M.D. d/b/a Branson Oncology Clinic (hereinafter referred to as Dr. Jaroon) and Sara Jaroonwanichkul d/b/a Branson Oncology Clinic appeared personally and through their attorney, Eric Farris, Esq. The Treasurer of Missouri, as the Custodian of the Second Injury Fund, is a party but did not appear at the evidentiary hearing by agreement of the parties.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about May 28, 2004, Dr. Jaroonwanichkul d/b/a Branson Oncology Clinic was an employer operating under and subject to The Missouri Workers' Compensation Law, but during this time was without workers' compensation insurance.

(2) On the alleged injury date of May 28, 2004, Rebecca Garber was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about May 28, 2004, the employee sustained an accident, which arose out of and in the course and scope of her employment with the above-referenced employer.

(4) The above-referenced employment and accident occurred in Taney County, Missouri. The parties agree to venue lying in Christian County, Missouri. Venue is proper.

(5) The employee notified the employer of her injury as required by Section, 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the alleged accident, the employee's average weekly wage was $\ 400.00, which is sufficient to allow a compensation rate of $\ 266.66 for temporary total disability compensation / permanent total disability compensation, and a compensation rate of $\ 266.66 for permanent partial disability compensation.

(8) No temporary disability benefits have been provided to the employee.

- The employer has provided certain medical treatment to the employee, having paid approximately $\ 1,200.00 in medical expenses.

- The deposition of Dr. Koprivica should be redacted to reference only one fall, and the date of the fall being May 2004. (The Legal File includes the parties' correspondence referencing the redaction.)

The sole issues to be resolved by hearing include:

- Whether Sara Jaroonwanichkul (allegedly d/b/a Branson Oncology Clinic) was an employer operating under and subject to The Missouri Workers' Compensation Law on May 28, 2004?

- Whether the alleged accident of May 28, 2004 caused the injuries and disabilities for which benefits are now being claimed?

- Whether the alleged employer(s) is/are obligated to pay for certain past medical care and expenses in the amount of $\ 11,726.63 ?

- Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee of the effects of the injuries?

- Whether the employee sustained any permanent disability as a consequence of the alleged accident; and, if so, what is the nature and extent of the disability?

- Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of medical care relative to the alleged employers being uninsured under The Missouri Workers' Compensation Law, pursuant to Section 287.220, RSMo?

- Whether the Second Injury Fund is entitled to reimbursement from the employer for payment of the unpaid medical expenses?

The employee testified at the hearing in support of her claim. Also, the employee presented at the hearing of this case the testimony of Diane L. Cornelison, D.O. In addition, the employee offered for admission the following exhibits:

Exhibit A Deposition of P. Brent Koprivica, M.D.

Exhibit B Deposition of Anjelica Quiko Davis

Exhibit C Deposition of Grace B. Catron

Exhibit D Medical Records from St. John's Clinic (Branson Medical Center Kim Rittman, D.O.)

Exhibit E Medical Records from Skaggs Occupational Heath \& Urgent Care Plus (Randall J. Cross, M.D.)

Exhibit F Medical Records from Branson Pain \& Neurology Clinic (Diane Cornelison, D.O.)

The employer (Pairote Jaroonwanichkul, M.D. d/b/a Branson Oncology) testified at the hearing in support of his claim. Also, the employer presented at the hearing of this case the testimony of Charles Mauldin, M.D. In addition, the employer offered for admission the following exhibits:

Exhibit 1 Correspondence Dated Oct. 27, 2006 (from Kevin Dunaway, Esq. attorney for Diane Cornelison, M.D. to Dr. Jaroon) Exhibit 2 Deposition of Randall Cross, M.D. Exhibit 3 Deposition of Charles Mauldin, M.D.

The exhibits were received and admitted into evidence.

The Second Injury Fund, having elected not to appear for the hearing by agreement of the parties, did not present any evidence at the hearing of this case.

In addition, the parties identified several documents filed with the Division of Workers’ Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took official notice of the documents contained in the Legal File, which include:

- Minute Entries

- Notice of Hearing

- Request for Hearing

- Answer to Alleged Employers (Pairote Jaroonwanichkul, M.D. d/b/a Branson Oncology and Sara Jaroonwanichkul d/b/a Branson Oncology Clinic) to Amended Claim for Compensation

- Answer of Second Injury Fund to Amended Claim for Compensation

- Amended Claim for Compensation

- Answer of Employer (Pairote Jaroonwanichkul, M.D. d/b/a Branson Oncology) to Original Claim for Compensation

- Answer of Second Injury Fund to Original Claim for Compensation

- Original Claim for Compensation

- Correspondence Between Becky Dias, Esq. and Eric Farris (Letters Dated July 20, 2006, June 20, 2006 and August 30, 2007)

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

(The adjudication of this case involves several issues. The primary issue involves the question of whether the May 28, 2004 incident caused Ms. Garber to sustain an injury to her low back.)

The employee Rebecca Garber is 47 years of age, having been born on April 24, 1960. Also, Ms. Garber is suffers from obesity, weighing approximately 230 pounds, which is similar to her weight at the time of the May 28, 2004 accident. Ms. Garber is a resident of Branson West, Missouri.

Ms. Garber is a high school graduate, and subsequent to graduating from high school in 1978, she enjoyed working in a variety of jobs. Ms. Garber is a Certified Nurse's Assistant (CNA) and most recently worked for Branson Oncology Clinic, working as a Phlebotomist. Also, in her employment with Branson Oncology Clinic Ms. Garber performed other work, including duties as a medical receptionist, a billing clerk, and a medical assistant. In her employment with Branson Oncology Clinic Ms. Garber worked under the supervision of Angie Davis, Office Manager, and Dr. Jaroon, owner.

Branson Oncology Clinic is an unincorporated medical practice owned by Pairote Jaroonwanichkul, M.D., and is located in the Skaggs Community Health Center complex. (Dr. Jaroonwanichkul is commonly referred to by the parties and the testimonial evidence as Dr. Jaroon. Here