Delores Mills v. St. Johns Mercy Health Care

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 December 18, 2008. The award and decision of Administrative Law Judge Suzette Carlisle, issued December 18, 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 3rd day of April 2009. LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member Attest:

Secretary

1. Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: December 12, 2001

- State location where accident occurred or occupational disease was contracted: St. Louis County, MO

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? Yes
3. Did accident or occupational disease arise out of and in the course of the employment? Yes

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

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured her right Achilles tendon when she stepped onto soft, wet ground.
3. Did accident or occupational disease cause death? No Date of death? N/A
4. Part(s) of body injured by accident or occupational disease: Right ankle

- Nature and extent of any permanent disability: 22.5\% PPD at the 155 week level

1. Compensation paid to-date for temporary disability: $\ 30,709.96
2. Value necessary medical aid paid to date by employer/insurer? $\ 30,761.86

Employee: Delores Mills

Injury No.:01-150256

1. Value necessary medical aid not furnished by employer/insurer? N/A

- Employee's average weekly wages: $\ 628.90

1. Weekly compensation rate: $\ 329.42
2. Method wages computation: Stipulated

1. Amount of compensation payable:
2. Second Injury Fund liability: Yes

45.4 weeks of permanent partial disability from the Second Injury Fund

$\ 14,955.67

Total:

$\ 14,955.67

1. Future requirements awarded: None

Said payments to begin 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 Adams

A hearing for a final award was held at the Missouri Division of Workers’ Compensation ("DWC") St. Louis office at the request of Delores Mills, ("Claimant"), on September 22, 2008, pursuant to Section 287.450 RSMo (2000). Attorney John Adams represented Claimant. Attorneys James Huss and Eileen Krispin represented the Second Injury Fund ("SIF"). The record closed after presentation of evidence. Venue is correct and jurisdiction properly lies with DWC.

Prior to hearing, St. John’s Mercy Health Care ("Employer"), self-insured, settled the primary case with Claimant for 191 / 2 % of the right ankle.

Claimant's Exhibits A-B and E-R were admitted without objection. Exhibit C was withdrawn but retained and Exhibit D was withdrawn and removed. SIF offered no exhibits. Any notations contained in the records were present when admitted. Any objections contained in the depositions but not expressly ruled on in the award are overruled.

The parties stipulate that on or about December 12, 2001:

- Claimant sustained an accident in St. Louis County; Missouri;

- The accident arose out of and in the course of Claimant's employment;

- Claimant and Employer operated under the Missouri Workers’ Compensation Law;

- Employer's liability was self-insured;

- Employer had notice of the injury;

- A Claim for Compensation was timely filed;

- Claimant's average weekly wage is $\ 628.90;

- Claimant's rate of compensation is $\ 329.42 for Permanent Partial Disability("PPD");

- Employer paid TTD totaling $\ 30,709.96 for $487 / 8$ weeks, from 12/12/01 to 6/4/03;

- Employer paid $\ 30,761.86 in medical benefits;

- Claimant reached maximum medical improvement ("MMI") on 6/4/03; and

- The Court takes judicial notice of the Stipulation for Compromise Settlement (Exhibit C) between Claimant and Employer and that SIF was not a party to the agreement.

The issues to be resolved are:

- What is the nature and extent, if any, of SIF liability for PPD?

- What is the nature and extent, if any, of SIF liability for PTD?

Claimant met her burden to show SIF liability for PPD benefits based on the entire record, including expert testimony, Claimant's testimony, demeanor, medical reports, and the applicable law of the State of Missouri.

All evidence was reviewed, but only evidence supporting this award is considered to establish the following facts. Based upon competent and substantial evidence presented at hearing, I find the following facts:

- On December 12, 2001, Claimant was a 56 year old high school graduate. Post-high school education included real estate training with an expired license; H\&R Block tax course training, but no employment as a tax preparer;, and employer sponsored classes. Claimant has been married forty-four years.

- From 1980 to 1990 Claimant worked from home and maintained accounting records for her spouse's business. Claimant worked a number of years as a claims processor; handling dental and psychiatric claims. Later, she managed physician clinics for Lincoln County Medical Center.

- Employer hired Claimant in early December 2001 as a physician services consultant. While leaving the parking lot on December 12, 2001, Claimant stepped onto soft, wet gravel and her right foot sank into the ground above the ankle. Her foot was injured when she worked it free from the dirt. After Claimant's foot was free, she retrieved her shoe.

- Claimant's ankle was surgically repaired three times. She was released from medical care in June 2003 but did not believe she could return to her previous work.

- A short time later, Claimant worked from home as a claims processor for several weeks. However, she could not maintain required quotas and quality because she needed breaks to rest her eye and back. If she sat too long, pain radiated from her back to hips, legs, and knees. Periodically, Claimant walked to prevent pain. She has not worked since 2003.

- Ankle complaints include numbness on one side, minor pain, and discomfort wearing a shoe with a strap or back. Claimant takes no medication for the right ankle.

- On December 12, 2001, Unity Corporate Health diagnosed a ruptured right Achilles tendon and referred her to an orthopedic doctor.

- On December 31, 2001, Dr. David Andersen, an orthopedic physician, examined Claimant and surgically repaired the tendon on January 2, 2002.

- On January 8, 2002, Claimant slipped at home and felt pain in her right heel. On January 28, 2002, Dr. James Burke and Dr. Vilray Blair III examined Claimant and diagnosed recurrent Achilles tendon rupture. Dr. Vilray Blair III repaired the failed tendon repair on January 29, 2002. Dr. Blair ordered

physical therapy and referred Claimant to **Dr. Bruce Kraemer** in December 2002, after the injury failed to heal.

- On February 27, 2002, Dr. Kraemer removed a ruptured suture. Claimant developed a right heel ulcer. On March 13, 2003, Dr. Kramer surgically removed the sutures. He released Claimant from care on June 25, 2003.

- In 1983, Claimant developed a cancerous tumor of the right eye. About 1987, she lost vision and the eye was removed due to a glaucoma induced cataract. She developed problems with depth perception. The prosthetic eye irritates the socket. Radiation treatment blocked tear-ducts. Vision is blurred with prolonged computer work and insufficient breaks. Headaches impaired ability to work. When Claimant worked from home, she took medication and rested as needed. The prosthetic eye caused problems processing claims, but Claimant achieved production quotas.

- Claimant developed bilateral knee pain when walking, sitting or standing. In 1997, Claimant injured her right knee getting into a car and received surgery to repair a meniscal tear. The repair helped for a short time. In 1998 and 1999, Claimant received cortisone injections in both knees for symptoms related to degenerative changes.

- Claimant received additional bilateral knee injections in April 2000 and June, July and August 2001. Claimant experienced 10/10 pain in both knees, but prior to 2001 no surgery was performed on the left knee.

- Before December 2001, MRI results showed right knee degenerative joint disease, spurring, and left knee degenerative changes and a complex tear of the posterior horn of the medial meniscus. After conservative treatment failed, Dr. Ted Rummel repaired the right medial meniscus on October 29, 2001.

- On December 21, 2001, **Dr. Joseph Williams** examined Claimant. X-rays revealed severe osteophyte formation, narrowed medial joint space and subchondral sclerosis of the femur and tibia. Dr. Williams diagnosed bilateral degenerative joint disease and injected both knees. He injected both knees again in April, June, and September of 2002.

- After the work accident in 2001, Claimant's knee problems increased, resulting in a left knee replacement in 2006, and three recommendations for a right knee replacement.

- In the early 1990's, Claimant received physical therapy for low back problems. Later, a neurologist "decompressed" her spine with stretching. In 1994, an MRI revealed a L5-S1 disc protrusion. Claimant received at least sixteen injections between 1995 and 2001. She missed work for therapy, treatments, and because of an inability to sit. Pain radiated from her back to one of her lower legs with prolonged sitting. Medication included Vicodin and hydrocodone.

- In 1997, Claimant injured her neck and upper back in an automobile accident and received chiropractic treatment. She started taking Ambien because pain in her back and knees caused sleep problems.

- A January 2000 MRI revealed disc bulges at T11-T12 and T12-L1, diffuse desiccation at three lower disc