Joyceanne Seal v. Quality Lodging of Joplin

The above-entitled workers’ compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated March 25, 2008.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Administrative Law Judge Karen Wells Fisher, issued March 25, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 19th day of August 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Employee: Joyceanne Seal

Injury No: 06-068958

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

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

Employer: Quality Lodging of Joplin

Additional Party Second Injury Fund

Insurer: Missouri Chamber of Commerce Group

Hearing date: November 30, 2007

Checked by:

Checked by:

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: JULY 19, 2006
5. State location where accident occurred or occupational disease contracted: NEWTON 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 happened or occupational disease contracted: SQUATTING TO MOVE ELECTRICAL CORDS WHILE VACUUMING
12. Did accident or occupational disease cause death? NO
13. Parts of body injured by accident or occupational disease: RIGHT KNEE

1. Compensation paid to-date for temporary disability: NONE
2. Value necessary medical aid paid to date by employer/insurer? NONE
3. Value necessary medical aid not furnished by employer/insurer? $\ 800.00

Employee: Joyceanne Seal Injury No: 06-068958

1. Employee's average weekly wages: $\ 254.13
2. Weekly compensation rate: $\ 169.42
3. Method wages computation: STIPULATION

1. Amount of compensation payable:

Unpaid medical expenses: $\ 800.00

$65 / 7$ weeks of temporary total disability (or temporary partial disability)

AUGUST 16, 2006 THROUGH OCTOBER 2, 2006 (\$1,137.53)

Future Medical: YES

Total: UNDETERMINED AT THIS TIME

Each of said payments to begin IMMEDIATELY and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

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:

TOM CARLTON

A hardship hearing was held on November 30, 2007, in the above-referenced workers’ compensation claim before the undersigned Administrative Law Judge. The parties stipulated that on or about July 19, 2006, the claimant was in the employment of Quality Lodging of Joplin; the employer was operating under the provisions of the Missouri Workers’ compensation law; the employer’s liability was insured by the Missouri Chamber of Commerce Group; the employer had notice of the injury and a Claim for Compensation was filed within the time prescribed by law;the claimant’s average weekly wage resulted in a PPD and a TTD/PTD rate of $169.42.

The issues to be resolved are whether there was an accident which arose out of and in the course of employment; whether treatment resulting from the alleged accident was causally related; responsibility for past medical expenses; responsibility for temporary total disability, past and future; and the need for additional medical treatment. The Second Injury Fund is a party to the claim but the Employer and Claimant agreed that any evidence presented would not be held against the Second Injury Fund at a final hearing. The Employer / Insurer requested that the award be final if the injury is not found to be compensable.

The following exhibits were offered and admitted on behalf of employee.

The following exhibits were offered and admitted on behalf of the employer/insurer.

The claimant, Joyceanne Seal, was an employee of Quality Lodging of Joplin on July 19, 2006. She was employed as a housekeeper for the Baymont Hotel owned by Quality Lodging of Joplin, between May 13, 2006 and August 16, 2006.

As a housekeeper, it was her responsibility to clean hotel rooms. This included making the beds, emptying the trash, refilling supplies, cleaning the sink, bathtub and toilet, and vacuuming the room. The claimant testified that she would clean between 11 and 21 rooms a day, and that she normally worked 8 hours a day and between 30 and 40 hours a week. The claimant testified that, as part of her duties, she was required to bend, stoop, squat, and kneel 3550 % of the time. She also testified that, when cleaning rooms, she had to kneel to move telephone cords in 8 out of 10 rooms.

Becky Crum, the manager of the Baymont and a former housekeeper supervisor, testified that she estimated a housekeeper only had to bend, stoop, squat, or kneel 10-15\% of the time. She indicated that only rarely would a housekeeper have to kneel to move telephone cords against a wall. She also testified that she felt that, in her personal life, she would kneel far more often than she was required to do as a housekeeper.

On July 19, 2006, the claimant was cleaning room 229 of the Baymont Hotel. She testified that she had to squat down to move some telephone cords that had been moved away from the wall. After she had moved them, she was raising up from her squatted position when she heard a pop in her right knee. She saysshe felt immediate pain and reported the injury to her supervisor, Fabra Cochrane.

That same day, the claimant was taken to the Occupational Health Clinic and was treated by Dr. Abigail Neighmond. X-Rays taken that day were negative. The impression was a right knee strain. She was placed in a knee immobilizer and given prescriptions for her pain. She was told she could return to work that day with the restriction of no standing. The claimant was seen at least once more by Dr. Neighmond and then by Dr. Estep. Eventually an MRI was ordered which, according to Dr. Estep, revealed a medial meniscus tear. The actual MRI report is not in evidence.

At that point, the employer/insurer denied any additional treatment. The claimant was seen by Dr. Brent Koprivica. Dr. Koprivica opined that the injury of July 19, 2006 was the direct and proximate cause of her permanent injury, and that it was the prevailing factor for her current condition and need for additional treatment. He recommended a referral to an orthopedic surgeon for consideration of an arthroscopy. Dr. Koprivica also indicated that the claimant would have been disabled from work between August 16, 2006 and October 2, 2006.

The claimant was evaluated by Dr. Todd Harbach on April 3, 2007 on behalf of the employer/insurer. Dr. Harbach concluded that the claimant did have a medial meniscus tear which had occurred on July 19, 2006 whileat work. He also felt that she had a right ACL deficient knee that was unstable. He did not think the injury of July 19, 2006 caused the ACL injury. He recommended that an ACL reconstruction be done at the same time the meniscus repair is done, however.

The significant issue in this case is whether the claimant sustained an accident which arose out of and in the course of her employment with the Baymont Hotel. If the answer to that question is yes, there is no dispute that she is entitled to treatment and to some back temporary total disability. If the answer is no, then the claimant is entitled to no benefits under the workers' compensation statutes.

The incident in this case occurred on July 19, 2006. As such, there is no dispute that the amendments enacted to the workers' compensation statutes in 2005 shall apply. In relevant part, Section 287.020 now reads:

1. The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.
2. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

(3) An injury resulting directly or indirectly from idiopathic causes is not compensable.

1. In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of "accident", "occupation