Wanda Storie v. American Systems, Inc. d/b/a Southbrook Skilled Nursing Center

LIABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member Attest:

- Did employer receive proper notice? Yes.

- Did accident or occupational disease arise out of and in the course of the employment? No.

- Was claim for compensation filed within time required by law? Yes.

- Was employer insured by above insurer? Yes.

- Describe work employee was doing and how accident happened or occupational disease contracted: The employee was driving home from work and had an automobile accident.

- Did accident or occupational disease cause death? No.

- Parts of body injured by accident or occupational disease: N/A.

- Nature and extent of any permanent disability: N/A.

- Compensation paid to date for temporary total disability: None.

- Value necessary medical aid paid to date by employer-insurer: None.

- Value necessary medical aid not furnished by employer-insurer: None.

- Employee's average weekly wage: $\ 566.50.

- Weekly compensation rate: $\ 377.67 per week for temporary total and permanent total disability. $\ 340.12 per week for permanent partial disability.

- Method wages computation: By agreement.

- Amount of compensation payable: None.

- Second Injury Fund liability: None.

- Future requirements awarded: None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: N/A.

On February 26, 2008, the employee, Wanda Storie, appeared in person and by her attorney, Ken Seufert, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Juan Arias. The Second Injury Fund was represented by Assistant Attorney General Gregg Johnson. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

- American Systems Inc. d/b/a Southbrook Skilled Nursing Center was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was fully insured by Diamond Insurance Company.

- On June 12, 2003, Wanda Storie was an employee of American Systems Inc. d/b/a Southbrook Skilled Nursing Center and was working under the Workers' Compensation Act of Missouri.

- The employer had notice of the employee's alleged accident.

- The employee's claim was filed within the time allowed by law.

- The employee's average weekly wage was $\ 566.50. The rate of compensation for temporary total disability and permanent total disability is $\ 377.67 per week. The rate of compensation for permanent partial disability is $\ 340.12 per week.

- The employer-insurer has not paid any medical aid.

- The employer-insurer has not paid any temporary disability.

- Accident

- Medical causation

- Claim for previously incurred medical

- Claim for additional or future medical aid

- Nature and extent of disability

- Liability of the Second Injury Fund for permanent partial disability or permanent total disability.

- Dependency status under Schoemehl v Treasurer of the State of Missouri, 217 S.W. 3rd 900 (Mo. 2000).

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

- Medical report of Dr. Levy

- CV of Dr. Levy

- Medical records for the employee

- Medical expenses and medical bills

- Prior medical records of the employee

- Medical records of diagnostic testing.

- June 13, 2003 chest x-ray

- June 13, 2003 pelvis x-ray

- June 13, 2003 CT scan

- June 18, 2003 cervical x-ray

- June 18, 2003 MRI

- June 13, 2003 CT scan

- June 13, 2003 x-rays

- June 16, 2003 surgical records

- June 22, 2003 x-rays

- July 1, 2003 operative records

- November 11, 2002 lumbar MRI

- February 7, 2003 shoulder MRIs

- Neuropsychological evaluation by Dr. Brick Johnstone

- Supplemental report of Dr. Brick Johnstone

- CV of Dr. Johnstone

- Missouri uniform accident report dated June 12, 2003

- November 6, 2003 CT scan of the head

- Report of Jim England dated January 26, 2005

- Report of Jim England dated June 9, 2006

- CV of Jim England

- Pharmacy records

- Deposition of Dr. Brick Johnstone

- Medical records of Dr. Bramhall

- Report of Dr. Lahmeyer dated February 7, 2007

- CV of Dr. Lahmeyer

- September 13, 2006 letter from Ken Seufert to Dr. Lahmeyer.

- Deposition of Wanda Storie dated April 4, 2005

- Time records of the employee from Southbrook Skilled Nursing Center dated March 20, 2003 through June 12, 2003.

- Written statement of Bobbi Hoover

- Written statement of Karen Sitze

- Written statement of Ramona Polley

- Written statement of James Chitwood

- Deposition of James Chitwood

- Photographs of the employee's vehicle

- Deposition of Dr. Levy

- Deposition of James England

- Deposition of Dr. Cantrell

- Sleep/Wake questionnaire completed by Wanda Storie on January 3, 2007

National Highway Transportation and Safety Administration Expert Panel on Driving Fatigue and Sleepiness: Drowsy Driving and Automobile Crashes

- Letter to Dr. Wolfgram from the employer-insurer’s attorney dated October 31, 2007

- Handwritten notes of Dr. Wolfgram

- Physician’s Desk Reference 2008 pages 511 through 513

- Mayo Clinic explanation of Butalbital and Acetaminophen combination

- Deposition of Dr. Lahmeyer

- Medical report of Dr. Deidiker dated June 1, 2004

- Medical report of Dr. Murphy dated June 23, 2004

- Deposition of Ramona Polley

- Deposition of Bobbi Hoover

- Deposition of Karen Sitze

- Deposition of Cheri O’Neal

- Computation of average weekly wage for past due temporary total disability and permanent total disability benefits

- Time schedule for nursing employees dated May 29, 2003 through June 25, 2003

- 2003 Payroll and timecards for Wanda Storie

- April 2001 Employee of the Month Certificate for Wanda Storie

- Deposition of John Clauser

- Certified letters from employee’s attorney to employer-insurer’s attorney dated September 20, 2004 and December 18, 2003

- Letter from employee’s attorney to employer-insurer’s attorney dated September 20, 2004 with enclosures

- Letter to the employee’s attorney from employer-insurer’s attorney dated September 29, 2004

- Letter to employer-insurer’s attorney from the employee’s attorney dated April 12, 2005

- Letter to employee’s attorney from employer-insurer’s attorney dated April 29, 2005 with enclosures

- Letter to employee’s attorney from employer-insurer’s attorney dated February 20, 2008 with copies of timecards from July 2000 through March of 2003

- Medical records of Quality Healthcare

- Pharmacy records

- Portion of the employee’s personnel file including performance evaluation, pay raises and performance problems

- Portions of the employee’s personnel file including evaluation report, personnel status change forms, performance improvement counseling forms and letter of Cheri O’Neal dated June 13, 2003

- Medical records of Dr. Johnson

- Medical records of Healthway Primary Care (Dr. Hartel)

- Intercard Merchant Support Page

Employer-Insurer’s Exhibits

- Printout of employer’s swipe card data for employee from March 6 through July 23, 2003

- Copy of punch cards for the employee from July 10, 2000 through March 27, 2003

- Wage statement and copy of check stubs

- Copy of personnel file of Wanda Storie

- Copy of personnel file of Ramona Polley

- Southbrook Medicare Aid patient records from June 10, 2003 through June 12, 2003. (The employee objected to the admission of this exhibit. The objection was taken under advisement. The objection is overruled and the exhibit is admitted into evidence.)

- Letter from the Missouri Department of Health and Senior Services to employer dated March 11, 2004

- Certified copy of records from Walgreens Pharmacy

- Deposition of Dr. Christopher Long

- Deposition of Dr. Edwin Wolfgram

- Deposition of Dr. David Peeples

- Deposition of Dr. Russell Cantrell

Second Injury Fund - No exhibits

Note: Several Exhibits had writing and highlighted portions that were present when offered and admitted

Witnesses: Employee: Karen Sitze, William Storie, and Wanda Storie. Employer-Insurer: John Clauser, Stacy Jones, and Sonja Wilson .

Briefs: The employee and the Second Injury Fund filed their briefs on the hearing date. The employer-insurer's brief was received on March 11, 2008. The employee filed a supplemental brief on March 19, 2008. The employer-insurer filed a supplemental brief on March 31, 2008. The Second Injury Fund and the employee filed letters on April 1, 2008 regarding the briefing process. On April 3, 2008, a letter was sent to the parties regarding the filing of briefs. On April 21, 2008, the employee filed an amended claim adding William T. Storie and Sonny Storie as dependents to bring the claim into conformance with the evidence and issues.

On June 12, 2003, after working a double shift the employee was on her way home. She had a single car accident at approximately 11:00 to 11:30 p.m. about 1.5 miles from her home. The employer-insurer and the Second Injury Fund are disputing that the accident arose out of and in the course of employment.

The employee's position is that the employer wanted to get rid of the employee by purpo