Joan Marsek v. SSM Health Care St. Louis

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-140464

Employee: Joan Marsek

Employer: SSM Health Care St. Louis

Insurer: Self-Insured c/o Sedgwick Claims Management

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

Date of Accident: October 23, 1998

Place and County of Accident: St. Louis 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 May 13, 2008. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued May 13, 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 10th day of November 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified.

The administrative law judge concluded:

I find Claimant has symptomatic, bilateral CMC joint arthritis of the thumbs which is caused by factors other than her work accident of October 23, 1998. The facts established, and the experts explained, the disease is a chronic, progressive condition of wear and tear on the joint due to every day life, and not one traumatic event in particular. Even if the accident directly or indirectly triggered symptoms in Claimant's thumbs, I find that it did not make a substantial contribution. As such, the October 1998 accident was not a substantial factor in either the cause of the arthritis, or the onset of the painful symptoms. As such, Claimant has not established a causal connection between the October 1998 accident and the arthritic condition for which she seeks benefits.

Prior to the work accident, employee experienced no symptoms with her wrists and thumbs. After the accident, employee experienced pain and other symptoms in both wrists. Employee was diagnosed with bilateral deQuervan's for which employer provided treatment. The administrative law judge's finding that the work accident was not a substantial factor in the onset of painful symptoms is against the weight of the evidence.

"[A]n injury is compensable when it is an unexpected result of the performance of the usual and customary duties of an employee which leads to physical breakdown or a change in pathology. Wolfgeher, 646 S.W.2d at 784; See also § 287.020.3." Smith v. Climate Engineering, 939 S.W.2d 429, 436 (Mo. App. 1996), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003) (citing Wolfgeher v. Wagner Cartage Service, Inc., 646 S.W.2d 781 (Mo. banc 1983)). If employee had a condition of ill-being in her wrists and thumbs before the accident, it was asymptomatic. After the accident, employee had persistent pain, continuing now especially at the base of the left thumb.

Dr. Schlafly testified that work was a substantial and prevailing factor in causing persistent pain in employee's left CMC joint. Dr. Schlafly testified as to a medically reasonable medical procedure that may relieve that pain and permit more normal function. Naturally, Dr. Schlafly does not believe employee is at maximum medical improvement with regard to her left wrist condition. Dr. Schlafly also believes employee is in need of a revision of her right CMC joint arthrodesis, a condition he also believes is work-related. Employee has met her burden of showing she is entitled to medical treatment for both upper extremities.

I would modify the award of the administrative law judge. I would issue a temporary award of additional medical care for employee's left and right upper extremities as recommended by Dr. Schlafly. For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

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: October 23,1998 .
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 was holding a gait belt while transferring a patient, and when the patient began to fall, Claimant’s hands were jerked downward.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Left upper extremity at the wrist
14. Nature and extent of any permanent disability: 15 % PPD of the left wrist.
15. Compensation paid to-date for temporary disability: $\ 12,314.16
16. Value necessary medical aid paid to date by employer/insurer? $\ 24,433.19

Employee: Joan Marsek Injury No.: 98-140464 17. Value necessary medical aid not furnished by employer/insurer? $\ 0.00 18. Employee’s average weekly wages: $\ 814.71 19. Weekly compensation rate: $\$ 531.52 / 294.73$ 20. Method wages computation: By stipulation

1. Amount of compensation payable:

26.25 weeks of permanent partial disability from Employer: $\ 7,736.66

2 weeks of disfigurement from Employer: $\ 589.46

1. Second Injury Fund liability: Open

Total:

$\ 8,326.12

1. Future requirements awarded: None.

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: William Meehan

Employee: Joan Marsek

Dependents: N/A

Employer: SSM Healthcare St. Louis

Additional Party: Second Injury Fund (to remain open)

Insurer: Self-Insured c/o Sedgwick Claims Management

Injury No.: 98-140464

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KOB: ms

The matter of Joan Marsek ("Claimant") proceeded to hearing to determine whether Claimant is in need of additional medical treatment to cure and relieve a work related injury. Attorney William Meehan represented Claimant. Attorney Thomas Tobin represented SSM Health Care St. Louis ("Employer"), which is self-insured c/o Sedgwick Claims Management. The claim against the Second Injury Fund was left open pursuant to an agreement between Claimant's attorney and the Assistant Attorney General.

The parties agreed Claimant sustained an accidental injury on October 23, 1998, which arose out off and in the course of her employment. At the time, Claimant earned an average weekly wage of $\ 814.71, which corresponds to rates of compensation of $\ 531.52 for total disability benefits, and $\ 294.73 for permanent partial disability benefits. Employer paid temporary total disability benefits of $\ 12,314.16, and medical benefits totaling $\ 24,433.19. Employment, venue, notice, timeliness of the claim, and coverage of the Act were not at issue.

The issues to be determined are:

1. Is Claimant's current medical condition causally related to her work accident of October 23, 1998;

1. Is Employer liable for additional medical care to cure and relieve the effects of the October 23, 1998 injury; 3. Is Employer liable for future temporary total disability benefits; and
2. If Claimant is not entitled to receive additional medical treatment, what is the nature and extent of Claimant's permanent partial disability?

Claimant is primarily seeking a temporary award ordering additional medical care to cure and relieve the effect of her work injury. Alternatively, Claimant agrees if the issue of medical care is decided in Employer's favor, an award determining the nature and extent of permanent partial disability associated with the work accident is appropriate. Employer seeks a final award.

Based on a careful review of all the evidence, including witness testimony, the medical records, documents, and the depositions, I make the following findings of fact:

1. Claimant is a 54 year old woman who has worked as a registered nurse in the healthcare field since 1974, when she earned her degree at Forest Park Community College. For approximately 20 years, Claimant worked for Employer, or its predecessors, in various capacities, including as a team leader, and providing direct patient care such as bathing, dressing, and distributing medication.
2. In late 1997 or early 1998, Claimant fell and hyper-extended the middle fingers on her left hand. She had x-rays taken. No further treatment was necessary.
3. In Fall1998, Claimant worked as a nurse manager in a doctor's office. Her varied tasks involved direct patient care, medical records, and insurance. She was responsible for 10 to 12 patients a day, half of which involved physical lifting or transfers. She also taught fellow nurses, and assisted in conducting nerve conduction velocity tests.
4. On October 23, 1998, Claimant was transferring a 5'3", 200 pound female stroke victim with left side paralysis. With the use of a gait belt, Claimant attempted to lift the patient up to the table, but the patient's left leg buckled. To keep the patient from falling to the floor, Claimant lifted up against her falling weight, causing sudden downward pressure on her fingers and hands. Claimant sustained a strain injury affecting the volar aspect of the wrist from the base of the thumb to about halfway up the forearm. Initially Claimant reported an uncomfortable feeling and she took over-the-counter medications. Over time, the symptoms became more acute.
5. After Claimant filed a report, Employer sent her to Dr. Chawla at SSM Employee Health on November 6, 1998. Claimant reported complaints of pain at the left distal location of the PIP joint and the metacarpal as well as the radius to the metacarpal junction. The November 5th x-ray showed no abnormalities. Claimant received non-steroidal antiinflammatories, lifting, pulling, and pushing restrictions, physical therapy and a few cortisone injections. On January 20, 1999, Claimant noted symptoms on the right side due to