Janette Brennell v. Patients First Health Care LLC

FINAL AWARD ALLOWING COMPENSATION

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 06-113409

Employee: Janette Brennell

Employer: Patients First Health Care LLC

Insurer: State Farm Fire \& Casualty Co.

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, as modified herein, is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 11, 2009, except to the extent modified herein.

The administrative law judge awarded "future medical care in the form of medications" and held employer/insurer "responsible for providing such medications as are necessary." We do not so limit the award. We award employee such future medical care as needed to cure and relieve her from the effects of the injury relevant to this matter, pursuant to the provisions of the Workers' Compensation Law.

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.

The award and decision of Administrative Law Judge Vicky Ruth, issued February 11, 2009, is attached and incorporated by this reference, except to the extent modified herein.

Given at Jefferson City, State of Missouri, this 13th day of August 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Before the DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

Dependents: N/A

Additional Party: N/A

Insurer: State Farm Fire and Casualty Co.

Hearing Date: November 12, 2008

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: November 28, 2006.
5. State location where accident occurred or occupational disease was contracted: Franklin 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? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The claimant was engaged in repetitive work with her hands.
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: Both hands and wrists.
14. Nature and extent of any permanent disability: 17.5 % of the left hand; 15 % of the right hand; and a 10 % load. Plus, there is 1.5 weeks of disfigurement for the left hand and 1 week of disfigurement for the right hand.
15. Compensation paid to-date for temporary disability: $\ 2,318.07.

1. Value necessary medical aid paid to date by employer/insurer? $\ 11,523.29.
2. Value necessary medical aid not furnished by employer/insurer? N/A.
3. Employee's average weekly wages: $\ 901.43.
4. Weekly compensation rate: $\$ 600.98 / \ 376.55.

- Method of wages computation: By agreement.

- Amount of compensation payable:

Calculation: 65.0625 weeks $\times \$ 376.55=\ 24,499.28

TOTAL: $\mathbf{\$ 2 4 , 4 9 9 . 2 8}$

1. Second Injury Fund liability: N/A.
2. Future medical awarded: Yes; see award.

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: Dean L. Christianson.

On November 12, 2008, the claimant and the employer/insurer appeared for a final award hearing. The claimant, Janette Brennell, was represented by Dean L. Christianson. The employer/insurer was represented by Terry Mort. The claimant testified on her own behalf. Dr. Benjamin Verdine and Dr. Mark Lichtenfeld testified by deposition. The parties submitted briefs by the December 3, 2008 deadline.

The parties stipulated to the following:

- On or about November 28, 2006, the claimant was an employee of Patients First Healthcare (the employer).

- The employer was operating subject to the provisions of Missouri Workers’ Compensation Law.

- The employer’s liability for workers’ compensation was insured by State Farm Fire and Casualty Co.

- The Missouri Division of Workers’ Compensation has jurisdiction, and venue in Franklin County is proper.

- The claimant sustained an injury by way of an occupational disease that arose out of and in the course of her employment with the employer.

- The employer had notice of the injury and a Claim for Compensation was filed within the time prescribed by law.

- The employer/insurer paid temporary total disability benefits to the claimant in the amount of 2,318.07.

- The employer paid 11,523.29 in medical aid.

- The claimant’s average weekly wage is 901.43, yielding a compensation rate of 600.98/$376.55.

- The employer/insurer did not make an offer of settlement in this case.

At the hearing, the parties agreed that the issues to be resolved in this proceeding are as follows:

- Whether the claimant is entitled to an award for permanent partial disability.

- Whether the claimant is entitled to an award for disfigurement.

- Whether the claimant should be provided with any future medical treatment for the work-related injury.

- Whether the employer/insurer should be liable for the payment of the claimant’s legal fees and costs.

On behalf of the claimant, the following exhibits were entered into evidence:

Exhibit A Dr. Lichtenfeld's deposition and attached report.

Exhibit B Washington Physical Therapy medical records.

Exhibit C St. John's Mercy Hospital medical records.

Exhibit D Dr. Smith's medical records.

Exhibit E Dr. Verdine's medical records.

Exhibit F (Withdrawn.)

Exhibit G Attorney's list of costs (objections overruled).

The employer/insurer offered the following exhibit, which was admitted into the record without objection:

Exhibit 1 Dr. Verdine's deposition with attachments.

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings:

- The claimant is a 55 -year-old woman who is left hand dominant.

- The claimant has worked for the employer as a registered nurse for the past 14 years. She performs her job on a full-time basis, with some overtime work.

- While working with her hands, the claimant performs activities such as pulling and pushing files in a file cabinet, manually pumping blood pressure cuffs, pushing carts of laundry, lifting bags of laundry, keyboarding, giving injections, and performing ear lavage.

- The claimant developed symptoms in her hands, in the form of numbness and tingling that would wake her at night. She sought medical care from her employer, Patients First Health Care. On November 6, 2006, Dr. Kenneth Smith at Patients First noted that the claimant had bilateral carpal tunnel syndrome. He indicated that he would check nerve conduction studies and EMGs, and that the claimant might be a candidate for surgery in the future. Dr. Smith told her that she could continue her nocturnal wrist splinting. On November 15, 2006, the notes from the EMG and NCV studies revealed mild bilateral carpal tunnel syndrome affecting sensory and motor components.

- The claimant saw Dr. Benjamin Verdine on November 28, 2006. Dr. Verdine noted that the claimant has carpal tunnel syndrome, left greater than right. He gave her an injection. His notes indicate that they discussed her options, including continued splinting or surgical intervention.

- Dr. Verdine performed surgery on each of the claimant's wrists in March 2007. The left wrist was operated on first, with an open carpal tunnel release being performed on March 2, 2007. Surgery was performed on the right wrist about two weeks later, on March 16, 2007. The claimant was off work for four weeks due to her wrist surgeries. She was compensated for this time off by the employer/insurer.

- After the surgeries, the claimant received physical therapy through Washington Physical Therapy. The claimant began physical therapy around March 22, 2007, and completed the therapy on April 16, 2007. At discharge, the therapist noted that the claimant made good progress, although she complained of some weakness.

- The claimant saw Dr. Verdine for follow-up visits on March 28, 2007 and on April 18, 2007. He released her to work full duty effective April 23, 2007. At the May 14, 2007 visit, the doctor noted that the claimant had reached maximum medical improvement. He also wrote that he believed that the claimant will have no permanent partial disability related to the injury, and that he did not believe that she will require any additional treatment.

- The claimant again saw Dr. Verdine on October 17, 2007. Dr. Verdine reported that "her biggest complaint now is of some fatigability of her forearm." Dr. Verdine reported that the fatigability occurs when the claimant carries several heavy charts at a time or when she does a lot of repetitive activities. The doctor noted that the claimant's sensation was normal, as was her range of motion. He did not feel any CMC arthritis. Dr. Verdine thought that the claimant's current symptoms were not related to her carpal tunnel release, but he was unsure of the pain's "exact etiology."

- An undated medical record from Patients First Health indicates that the claimant's next appointment was on March 28, 2007, and that her bilateral carpal tunnel syndrome is work-related. A similar form, showing the next appointment as April 18, 2007, also indicates that the diagnosis is bilateral carpal tunnel syndrome and that the condition is work related. The same form, dated April 18, 2007, again reflects the same diagnosis and that the condition is work-related. Another copy of the form, dated May 14, 2007, gives a diagnosis of bilateral carpal tunnel syndrome, and notes that the condition is work related.

- Dr. Mark Lichtenfeld examined the claimant on May 29, 2008. In his report, he noted that the claimant has the following diagnoses: 1) bilateral carpal tunnel syndrome; 2) status-post bilateral carpal tunnel release; and 3) residual symptoms from her bilateral carpal tunnel syndrome. He also indicated that the substantial cause of the claimant's bilateral carpal tunnel syndrome was the cumulative trauma work she did for her employer. He rated the claimant's permanent partial disability at 30 % of her left wrist and 27.5 % of her right wrist, and he added a loading factor of 15 %. He opined that she is in need of further treatment as a result of her bilateral carpal tunnel syndrome in that she would benefit