Emily Thomas v. Lutheran Home for the Aged

Sección 287.420. In Allcorn v. Tap Enterprises, Inc., 277 S.W.3d 823 (Mo. App. S.D. 2009), the court examined a case in which this Commission had read section 287.420 to mean that the employee had to provide notice within 30 days after the initial diagnosis of the underlying condition. The court found error in this analysis and held that "a person cannot be diagnosed with an 'occupational disease or repetitive trauma' until a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure." Id. at 829.

In the case at hand, the best evidence shows that the first time a diagnostician indicated that claimant's bilateral carpal tunnel syndrome was work-related was February 14, 2006, when she met with Dr. Tobin. Employee filed her claim for compensation with the Division of Workers' Compensation (Division) on February 24, 2006. The Division's records, of which we take administrative notice, further reveal that the Division sent a notice to employer on March 9, 2006, confirming its receipt of claimant's claim for compensation.

Accordingly, we conclude that claimant gave notice to employer compliant with section 287.420 not later than March 9, 2006.

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 Maureen T. Tilley, issued March 4, 2009, is attached and incorporated by this reference to the extent it is not inconsistent with this opinion.

Given at Jefferson City, State of Missouri, this $\underline{14^{\text {th }}}$ day of October 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Emily Thomas

Injury No. 06-016288

Dependents: N/A

Employer: Lutheran Home for the Aged

Additional Party: Second Injury Fund (left open)

Insurer: Self-insured, TPA, Cambridge Integrated Services

Hearing Date: December 1, 2008

Checked by: MT/sm

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? February 14, 2006
5. State location where accident occurred or occupational disease contracted: Cape Girardeau 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

1. Describe work employee was doing and how accident happened or occupational disease contracted: The employee was doing repetitive work with her left and right upper extremities which resulted in an occupational disease for both extremities.
2. Did accident or occupational disease cause death? No
3. Parts of body injured by accident or occupational disease: Left and right upper extremities
4. Nature and extent of any permanent disability: 20% permanent partial disability at the 175 week level for both upper extremities, a 15% load, and 3 weeks scarring for both upper extremities. This amounts to $24,104.96.
5. Compensation paid to date for temporary total disability: None
6. Value necessary medical aid paid to date by employer-insurer: None
7. Value necessary medical aid not furnished by employer-insurer: $18,058.50
8. Employee’s average weekly wage: 418.80
9. Weekly compensation rate: 278.67
10. Method wages computation: See findings
11. Amount of compensation payable: See findings
12. Second Injury Fund liability: Left open
13. 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: Stephen Taylor

On December 1, 2008, the employee, Emily Thomas, appeared in person and by her attorney, Stephen Taylor, for a hearing for a final award. The employer was represented at the hearing by its attorney, John Lichtenegger. The Second Injury Fund was left open and therefore no attorney was present on its behalf. 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:

1. The employer was operating under and subject to the provision of the Missouri Workers' Compensation Act.
2. On or about February 14, 2006, the employee was an employee of the Lutheran Home for the Aged who was self insured which was administered by Cambridge Integrated Services.
3. The employer has paid no temporary total disability benefits.

1. Occupational disease
2. Notice
3. Statue of limitations
4. Average weekly wage and rate
5. Medical causation
6. Medical aid furnished by employer-insurer
7. Previously incurred medical aid in the amount of $\ 18,220.50. There is a dispute as to authorization, reasonableness, necessity, and casual relationship.
8. Nature and extent of disability

a. Additional TTD for the time periods of April 21, 2006 through July 13, 2006 in the amount of $\ 3,065.33

b. Permanent partial disability

1. The employee is requesting costs for litigation
2. The employer is requesting costs for Dr. Tobin's expenses including his deposition expense and the cost of his medical report.
3. The employer's Motion to Dismiss
4. The date of the occupational disease

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Medical Records

B. Medical Bills

C. Report of Dr. Bruce Schlafly

D. Fax of Donna Lehde, Cambridge Insurance Company to Dr. Gregory Tobin dated September 7, 2007

E. Authorization for Release of Information dated April 14, 2006 executed by Employee

F. Letter from Steve Taylor to John Lichtenegger regarding ex parte contact

G. Dr. Tobin Letter of June, 2007

H. Dr. Tobin letter of June, 2007

I. Health insurance program booklet

J. Deposition of Dr. Annamaria Guidos

K. Medical Bill of Pyramid

L. Medical Bill of Dr. Tobin (June-September 2007)

Employer-Insurer's Exhibits

1. Curriculum Vitae of Dr. Greg Tobin
2. Dr. Tobin's medical record
3. Auburn Surgery Center
4. Letter of June 28, 2007
5. Letter of September 13, 2007
6. Job description
7. Deposition of Dr. Greg Tobin
8. Employee's request for family medical leave
9. Midwest physicians and surgeons information sheet on employee
10. Disability benefits payments to employee showing short term payments
11. Employee's short term disability application claim form
12. Record of payments on medical bills paid to providers or employee by Blue Cross

At the hearing the employer objected to employee's exhibits B, K and L. This matter was taken under advisement and the exhibits were then admitted into evidence. The employee objected to employer's exhibits 10 and 14. This matter was taken under advisement and these exhibits were not admitted into evidence.

- The employee, Emily Thomas, testified that she became pregnant soon after graduating high school and was out of work for a while. Upon gaining employment she went to work at a mini mall as a cashier in the jewelry department where she worked for approximately six months. The employee next went to work at Papa D's as a waitress. She had no injuries and no complaints related to her upper extremity while employed with Papa D's. The employee eventually worked at Hardee's and Shoney's as a cook.

- The employee testified that she had several jobs including working as a waitress, working in a laundry as well as working at ELR Laundry. She worked at ELR Laundry for

approximately four years. The employee had no injuries while employed at ELR Laundry and no complaints related to her upper extremities.

- The employee testified that after she worked at ELR Laundry, she worked as a cook at the Sikeston Convalescent Center from 1994 through 1997. The employee did not sustain at Sikeston Convalescent Center and she did not have any complaints related to her upper extremities while she worked there.

- The employee testified that she worked at Miner Nursing center in Sikeston for three years as a cook from 1997 through 2000. This job entailed cooking for the residents within the kitchen facility and she only had to cook for 60 residents per day. The employee did not sustain any injuries at this job and had no complaints with her bilateral upper extremities while working there.

- The employee testified that in 1998 she began receiving treatment for an arthritis condition called Sjogren 's syndrome. She sought treatment for this condition from doctors in Saint Louis and Cape Girardeau.

- The employee testified that in June of 2000 she began working at the Lutheran Home in Cape Girardeau as a cook. In addition to working as a cook, she began working as a pots helper, overseer, dish washer, and she prepared salads and desserts in the kitchen.

- The employee testified that while