Teresa Boller v. Citizens Memorial Healthcare Foundation

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 August 26, 2008. The award and decision of Administrative Law Judge David L. Zerrer, issued August 26, 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 23rd day of January 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Teresa Boller

Injury No. 03-091096

Dependents:

Employer: Citizens Memorial Healthcare Foundation

Additional Party:

Insurer: Health Care Facilities of Missouri Trust

Hearing Date: June 23, 2008

Checked by: DLZ

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: September 3, 2003
5. State location where accident occurred or occupational disease was contracted: Bolivar, Polk County, Missouri
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? Self-insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was lifting patient when felt pop in back
12. Did accident or occupational disease cause death? No Date of death? N/a
13. Part(s) of body injured by accident or occupational disease: Back; body as a whole

- Nature and extent of any permanent disability: permanent total disability

1. Compensation paid to-date for temporary disability: $\ 11,592.98
2. Value necessary medical aid paid to date by employer/insurer? $\ 72,571.31
3. Value necessary medical aid not furnished by employer/insurer? None
4. Employee's average weekly wages: $\ 339.07
5. Weekly compensation rate: $\ 226.06

- Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: None

-0- weeks of temporary total disability (or temporary partial disability)

-0- weeks of permanent partial disability from Employer

-0- weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning March 8, 2006, for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

Total: $\ 226.06 per week beginning

March 8, 2006, for Claimant'slifetime, according to law

1. Future requirements awarded: To remain open

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: John Wise

On the 23rd day of June, 2008, the parties appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and by her attorney, John Wise. The Employer appeared by its attorney, Mary Thompson. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, is not a party to this claim.

The parties stipulated to certain facts which are not at issue in this claim as follows, to wit: That on or about September 3, 2003, Citizens Memorial Healthcare Foundation ("Citizens Memorial") was an employer operating subject to the Missouri Workers' Compensation Law; that the Employer's liability was fully insured by Healthcare Facilities of Missouri Trust; on September 3, 2003, Teresa Boller was an employee of Citizens Memorial; the Claimant was working subject to the Missouri Workers' Compensation Law; the parties agree that on or about September 3, 2003, Claimant sustained an accident which arose out of the course of and scope of employment; the employment occurred in Polk County, Missouri, and the parties agree that Greene County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed accident, Claimant's average weekly wage was $\ 339.07, sufficient to allow a compensation rate of $\ 226.06 for permanent partial disability and permanent total disability; Employer has paid temporary benefits in the amount of $\ 11,592.98, prior to the date of this hearing; Employer has paid medical expenses in the amount of $\ 72,571.31, prior to the date of this hearing; Claimant's attorney seeks approval of an attorney's fee of 25 % of the amount of any award entered herein.

Whether the Claimant has sustained injuries that will require future medical care in order to cure and relieve the Claimant of the effects of the injuries. The nature and extent of any permanent disabilities.

Testifying in person on behalf of the Claimant at the hearing were the claimant, Teresa Boller; her husband, Mr. Eugene Craig Boller; Mr. Wilbur Swearingin, a vocational consultant. Testifying in person on behalf of the Employer was Michael Lala, a vocational consultant.

Claimant testified that she was born on June 22, 1962, and is presently 46 years of age. Claimant testified that she completed nine grades of formal education and ultimately obtained a G.E.D. She also attended one year of business college in Kansas City, Missouri, and a short course of truck driver training in 2001. She described her past job experience as working as a waitress, a mail sorter, driving a truck, as a CNA/CMT, and as a convenience store clerk. She testified that she did not feel capable of returning to any of her previous employments because the pain in her lower back and left leg would prevent her from doing

the standing, walking, and lifting required of her various jobs.

Claimant testified that she is not presently employed. She testified that she began her employment with Citizens Memorial on June 9, 2003. She was employed at Citizens Memorial as a CNA. Claimant described her job duties as assisting residents with activities such as eating, personal hygiene, and changing bed linens. Claimant testified that she was involved in an incident during the course of her employment with Citizens Memorial on September 3, 2003. At that time, Claimant was helping a co-employee move a very large patient when she felt a pop in her lower back. She thereafter developed increasing lower back pain with pain shooting down her left leg.

Claimant testified that following her employment with Citizens Memorial, she worked for several weeks at Premier Home Health Care. Claimant further testified that she worked for two weeks as a convenience store clerk at Fast N' Friendly, and later with Nurse Finders.

Claimant testified that she was referred by her employer to Dr. Jeffrey Woodward for medical treatment. Records of Dr. Woodward, which were admitted into evidence, reflect that he first examined Claimant on September 12, 2003. Dr. Woodward's records further reflect that Claimant was complaining of lower back and left lower extremity pain. Dr. Woodward's records also reflect that he treated Claimant from September 12 through October 31, 2003. During that time, he referred Claimant for diagnostic studies and administered an epidural steroid injection.

Claimant testified that she was referred by Dr. Woodward to Dr. Charles Mace, a neurosurgeon practicing in Springfield. Dr. Mace first examined Claimant on January 6, 2004. Following that examination, Dr. Mace recommended that Claimant undergo back surgery. That surgery was performed by Dr. Mace on January 8, 2004, at Cox Medical Center South. Claimant testified that, following the surgery performed by Dr. Mace, she obtained no relief of her lower back and left lower extremity complaints. She testified that Dr. Mace ultimately referred her to Dr. Thomas Corsolini for further treatment. Dr. Mace's office note of July 26, 2004, reflects that Dr. Mace did not think that Claimant was a surgical candidate at that time.

Records from Dr. Corsolini's office, admitted into evidence at the hearing, reflect that he provided treatment to Claimant from April 29, 2004, through August 24, 2004. Following his examination of August 24, 2004, Dr. Corsolini assessed "a permanent partial impairment of 15\% of the whole person" attributable to Claimant's occupational injury. He also recommended "that her work limitation remain two eight hour shifts per week." He also indicated he thought Claimant "may continue to require Vioxx on a daily basis and Ambien on a "prn" basis to maintain normal sleep. Hydrocodone hopefully will diminish to no use at all, but she may still require it two or three times weekly. No further surgical treatment is recommended." Claimant testified that, at the time of her discharge by Dr. Corsolini, she still experienced pain in the left side of her lower back extending down into her left leg. She also testified that she continued to work, within Dr. Corsolini's restrictions, at Citizens Memorial through October 14, 2004. She testified that she left employment at Citizens Memorial at that time because of the difficulty of performing her job given her lower back and left lower extremity complaints.

Following an independent medical examination performed by Dr. Swaim, Claimant was referred by the employer/insurer to Dr. John Ciccarelli, an orthopedic surgeon practicing in Kansas City, Missouri.

Claimant testified that she was initially seen by Dr. Ciccarelli on October 5, 2005. She testified that, at the time of that examination, she continued to experience severe pain in her lower back extending down into her left leg. The pain involving the left leg extended down her left thigh and around the knee area with occasional symptoms going into the lower portion of her left leg. Claimant testified that she ultimately underwent a second surgery, performed by Dr. Ciccarelli, on October 28, 2005, at Heartland Spine and Specialty Hospital. She testified that she continued to treat with Dr. Ciccarelli through March 8, 2006.

Claimant testified that she continues to experience low back pain located on the left side of her lower back, with pain shooting down her left leg. She testified that she has had those symptoms since the time of the accident on September 3, 2003. Claimant testified that the lower back and left leg pain limits her ability to engage in activities of daily