Darline Reeks v. Blue Bayou Motor Inn

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 March 5, 2008. The award and decision of Chief Administrative Law Judge L. Timothy Wilson, issued March 5, 2008, 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 31st day of July 2008. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman Alice A. Bartlett, Member John J. Hickey, Member

Employee: Darline Reeks

Injury No. 05-021162

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Blue Bayou Motor Inn

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Ace Property and Casualty Insurance Company

Hearing Date: January 11, 2008

Checked by: LTW

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: 02/16/05
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? YES
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The Employee moved a dresser with a co-worker, while performing housekeeping duties.
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: LOW BACK

- Nature and extent of any permanent disability: 5\%

1. Compensation paid to-date for temporary disability: -0-
2. Value necessary medical aid paid to date by employer/insurer? \$16,084.50
3. Value necessary medical aid not furnished by employer/insurer? -0 -
4. Employee's average weekly wages:

1. Weekly compensation rate: $\ 140.01

- Method wages computation: STIPULATED

1. Amount of compensation payable:

Unpaid medical expenses: -0 -

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

20 weeks of permanent partial disability from Employer

N/A weeks of disfigurement from Employer

1. Second Injury Fund liability: NO

Total: $\ 2,800.20

1. Future requirements 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

ATTORNEY LIEN IN FAVOR OF JOHN WISE: \$1,074.20

Employee: Darline Reeks

Injury No. 05-021162

Dependents: N/A

Employer: Blue Bayou Motor Inn

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Ace Property and Casualty Insurance Company

Hearing Date: January 11, 2008

Checked by: LTW

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on January 11, 2008. The employee appeared personally, pro se. The employer and insurer appeared through their attorney, Patricia L. Musick, Esq.

The employee seeks a temporary or partial award. The employer and insurer seek a final award.

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

(1) On or about February 16, 2005 Blue Bayou Motor Inn was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Ace Property \& Casualty Insurance Company.

(2) On the alleged injury date of February 16, 2005 Darline Reeks was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about February 16, 2005 the employee sustained an accident, which arose out of and in the course and scope of her employment with the employer.

(4) The above-referenced employment and accident occurred in Taney 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 claimed accident the employee's average weekly wage was sufficient to allow a compensation rate of $\ 140.01 for both temporary and permanent disability compensation.

(8) Temporary disability benefits have not been provided to the employee.

- The employer and insurer have provided medical treatment to the employee, having paid $\ 16,084.50 in medical expenses.

- An attorney's lien has been filed in this case by John Wise, Esq., who asserts a lien for attorney's fees in the amount of $\ 1,750.00 and expenses in the amount of $\ 824.20.

The sole issues to be resolved by hearing include:

(1) Whether the accident of February 16, 2008 caused the injuries and disabilities for which benefits are now being claimed?

- Whether the employer and insurer are obligated to pay for certain past medical care and expenses?

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

- Whether the employee sustained any permanent disability as a consequence of` the February 16, 2005 accident; and, if so, what is the nature and extent of the disability?

The employee testified at the hearing in support of her claim. Also, the employee presented at the hearing of this case the testimony of her husband, Simon Peter Reeks. In addition, the employee offered for admission the following exhibits:

Exhibit A Medical Bills from North Arkansas Regional Medical Center Exhibit B Medical Records from Ozark Counseling Services

Exhibit C Medical Records from Mahlon O. Maris, M.D.

The employer and insurer objected to the admission of Exhibit A, noting that the exhibit lacked proper certification and constituted inadmissible hearsay. The objection was sustained, resulting in the undersigned receiving but denying admission of Exhibit A. Exhibits B and C were received and admitted into evidence without objection.

The employer and insurer did not present any witnesses at the hearing of this case. The employer and insurer, however, offered for admission the following exhibit:

Exhibit 1

Complete Medical Report from Paul M. Olive, M.D.

The exhibit was received and admitted into evidence.

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 or judicial notice of the documents contained in the Legal File, which include:

- Minute Entries

- Notice of Hearing (January 11, 2008)

- Notice of Hearing (October 19, 2007)

- Request for Hearing-Final Award

- Lien for Attorney's Lien

- Answer of Employer and Insurer to Claim for Compensation

- Claim for Compensation

- Report of Injury

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 employee, Darline Reeks, is 44 years of age, having been born on November 28, 1963. She resides with her husband, Simon Peter Reeks, in Harrison, Arkansas.

At the hearing, Ms. Reeks did not discuss the nature of, and facts associated with, the accident she sustained on February 16, 2005. Yet, the parties stipulated that, on or about February 16, 2005, Ms. Reeks engaged in employment with Blue Bayou Motor Inn as a housekeeper. The parties further stipulated that, on February 16, 2005, Ms. Reeks sustained an accident, which arose out of and in the course of her employment with Blue Bayou Motor Inn. In addition, the medical records admitted at the hearing provide a medical history, which identifies the nature and

scope of the accident, and the subsequent treatment received by Ms. Reeks. A summary of the pertinent facts is set forth below.

In her employment with Blue Bayou Motor Inn, which is located in Branson, Missouri, Ms. Reeks’ worked as a housekeeper. In this employment, Ms. Reeks performed general cleaning. However, in preparation for the busy season associated with spring and summer, Ms. Reeks performed "deep cleaning," which is described as being more than usual cleaning that takes place on a day-to-day basis. While engaged in this "deep cleaning" on February 16, 2005, Ms. Reeks attempted to move a dresser with a co-worker. As she bent over to move the dresser, with one hand in an open drawer and the other hand on the back of the dresser, and while attempting to scoot the dresser away from the wall, the co-worker jerked the dresser. The jerking of the dresser caused Ms. Reeks to experience a jerk. This medical history reveals Ms. Reeks reporting a sudden pop and immediate back pain in the midline of her low back, referable to the level of L4-L5.

Subsequent to suffering the lifting incident, on February 16, 2005, Ms.Reeks reported the incident to her employer. However, the manager was not on the property, and Ms. Reeks did not receive an immediate referral for treatment. Consequently, on that date, Ms. Reeks sought and obtained a medical evaluation through her own health care provider, Linn Mayo, a nurse practitioner, associated with Mahlon O. Maris, M.D. in Harrison, Arkansas. This examination, which reflected Ms. Reeks presenting with complaints of low back pain but no radicular pain or tingling and numbness, resulted in a diagnosis of low back strain, and a receipt of prescription medication that included Ibuprofen and Flexeril.

On or about March 4, 2005 Ms. Reeks followed-up with additional treatment, with Ms. Reeks exhibiting tenderness to her back but no radicular symptoms, and straight leg testing being negative. A subsequent diagnosis in the nature of an MRI revealed an annular fissure at the level of L4-L5, but no evidence of a herniated nucleus pulposus or spinal stenosis. Ms. Reeks continued to work, but on light duty, as she performed general cleaning that did not involve lifting or pulling. Ms. Reeks did not obtain follow-up treatment, apparently because of financial constraints and the lack of a referral to health care provider by the employer and insurer.

Eventually, the employer and insurer referred Ms. Reeks to Ted Lennard, M.D., who is a physician practicing in physical medicine and affiliated with Springfield Neurological \& Spine Institute. In light of this referral, on or about August 9, 2005, Ms. Reeks presented to Dr. Lennard with continuing complaints of low back pain, without lower extremity pain or numbness. In light of his examination and eva