Sharon Morgan v. School District of Kansas City, Missouri

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-148845

Employee: Sharon Morgan

Employer: School District of Kansas City, Missouri

Insurer: Travelers Casualty \& Surety Company

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 25, 2009. The award and decision of Administrative Law Judge Emily Fowler, issued August 25, 2009, 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 $22^{\text {nd }}$ day of January 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Sharon Morgan

Injury No: 04-148845

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: School District of Kansas City, Missouri

Additional Party: N/A

Insurer: Travelers Casualty \& Surety Company

Hearing Date: August 7, 2009

Checked by: EF/cg

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: May 12, 2004
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson 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 insurers? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While in the course and scope of her employment, Employee was attempting to hang a poster on a wall by standing on a table. She stepped onto a chair to get off of the table, stepping on the edge of the chair, which slipped causing her to fall on her back, also hitting her legs.
12. Did accident or occupational disease cause death? No

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Sharon Morgan

Injury No. 04-148845

1. Part(s) of body injured by accident or occupational disease: Body as a whole, back
2. Nature and extent of any permanent disability: 22112 %
3. Compensation paid to date for temporary disability: $0
4. Value necessary medical aid paid to date by employer/insurer? Not determined
5. Value necessary medical aid not furnished by employer/insurer? 33,901.87
6. Employee's average weekly wages: 1,500.00
7. Weekly compensation rate: $662.55/$347.05
8. Method wages computation: Agreement of parties
9. Amount of compensation payable:

Employer shall pay to Employee the sum of $6,625.50 as and for temporary total disability benefits for a period of ten weeks beginning June 19, 2007. Employer shall also pay to Permanent Partial Disability benefits of $22 ½% body as a whole equaling 90 weeks of compensation at the rate of 347.05 per week equating to 31,234.50

1. Second Injury Fund liability: N/A
2. Future requirements awarded: Employer shall provide to Employee all reasonable and necessary medical treatment to cure and relieve the effects of Employee's injury to her back, including all diagnostic testing, physical therapy and surgery as required, as well as pain management if necessary. Further, employer shall provide to Employee temporary total disability if Employee is rendered temporarily but totally disabled during such treatment.

The compensation awarded to Employee shall be subject to a 25 percent lien in favor Employee's attorney, Charles McKeon, for reasonable and necessary attorney's fees.

Employee: Sharon Morgan

Injury No: 04-148845

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: School District of Kansas City, Missouri

Additional Party: N/A

Insurer: Travelers Casualty \& Surety Company

Hearing Date: August 7, 2009

Checked by: EF/cg

On August 7, 2009, Employee and employer/insurer appeared for a final hearing. The Employee appeared through her counsel, Charles McKeon, and the employer/insurer appeared through its attorney, Shelly Naughtin. The Division had jurisdiction to hear this case pursuant to $\S 287.110$ RSMo.

The parties stipulated to the following:

1) That both employer and employee were operating under and subject to the Missouri Workers' Compensation Law on May 12, 2004 and the employer was fully insured by Travelers Casualty \& Surety Company;

2) That Sharon Morgan was its employee and was working subject to the law in Kansas City, Jackson County, Missouri;

3) That the employee sustained an accident or occupational disease arising out of and in the course of her employment;

4) That the employee notified the employer of the injury as required by law and filed her claim within the time allowed by law;

5) That the employee's average weekly wage was approximately $\ 1,500.00 resulting in a compensation rate of $\ 662.55 for temporary total disability and $\ 347.05 for permanent partial disability compensation;

6) That the employer has paid no temporary total disability to date but has provided some medical care, the total amount of which was unknown at the time of trial.

The parties request the Division to determine the following:

1) Whether the employee is entitled to ten weeks of temporary total disability benefits totaling $\ 6,625.50;

2) Whether the employer must provide employee with additional medical care in the form of future medical care;

3) Whether the employee suffered any disability and, if so, the nature and extent of employee's disability;

4) Whether the accident or occupational disease caused the disability the employee claims;

5) Whether the employer must reimburse the employee the cost of this proceeding for defending the claim without reasonable grounds pursuant to $\S 287.560$.

Employee testified on her own behalf and presented the following exhibits, all of which were admitted into evidence:

A- Menorah Medical Center Bills

B- Anesthesia Associates of KC, PC Bills

C- Blue Cross Blue Shield EOB

D- Blue Cross Blue Shield EOB

E- Johnson County Spine, P.A. Bills

F- Rockhill Orthopaedics, PC Bills

G- Blue Cross Blue Shield EOB

H- Blue Cross Blue Shield EOB

I- Pain Management Associates Bills

J- Blue Cross Blue Shield EOB

K- Blue Cross Blue Shield EOB

L- Blue Cross Blue Shield EOB

M- Medical Records and Reports

N- Physical Therapist Medical Bills

Employer/Insurer offered no live testimony but offered the following exhibit, which was admitted into evidence without objection:

1- 8/3/2009 Deposition of Gregory E. Walker

Sharon Morgan, (hereinafter referred to as Employee), is a 50-year-old woman who has worked for the Kansas City School District for approximately 25 years. She had been working as a third grade teacher and vice principal at the time of her accident on May 12, 2004. While working for her employer, she was required to place posters on the wall of her classroom for a literacy program. She attempted to do this by standing on a table to put the poster up and, as she was stepping down, she placed her foot on a chair, stepping on the edge and slipped off the edge of the chair and fell to the ground, hitting her back and tailbone. Her legs also hit the table as she came down. She told her supervisor of the injury and on May 13, 2004 she sought treatment at Employee Health Services with Dr. Pennington. She was initially evaluated and had X-rays, which were negative. Dr. Pennington noted that there were no bruises on examination but there was diffuse tenderness across the entire left hip and low back, a bruise on the lateral right calf, no hematoma but some tenderness in the ankle. She was felt to have contusions of the hip and calf

and strains to the back. She was given an Ace wrap and prescribed Naproxen and Robaxin. She was seen by Dr. Pennington two more times and on June 3, 2004 she was released from medical care with some stiffness in her ankle but a full range of motion of the spine and ankle without discomfort. On this last exam, she did mention she had aching in her low back at the end of the day and during the night. He also found that her right proximal lateral gastrocnemius muscle remained slightly tender. She was told by Dr. Pennington that if she had further problems she should follow up with her own doctor. Employee had no further medical treatment for her back until December 13, 2004, when she saw her family doctor, Dr. Toubes. At that time, she had pain that was radiating to her right leg which had been getting worse. He related these problems to her fall in May of 2004. He prescribed Bextra for her back pain. On December 29, 2004, she was referred to Dr. Kam Fai Pang by Dr. Toubes, who felt she may be suffering from possible lumbar radiculopathy. She had recently discontinued her Naproxen and it was recommended she restart that medication for pain and an MRI was scheduled. On January 4, 2005, Dr. Scott Sher performed an MRI of the lumbar spine, which demonstrated a disc bulge at L4-5 with degenerative changes on the right at L4-5 facet joint and disc bulge to L5-S1 with bilateral facet joint changes. By February 22, 2005, Dr. Pang felt that Employee was suffering from chronic low back pain with right radicular symptoms and was continued on Flexeril. Apparently Employee declined any invasive procedure at that time.

In September of 2005, Employee was seen by Dr. Pratt, where it was found she had radicular symptoms on the right, was taking Flexeril and ibuprofen, although there had been no significant improvements with ibuprofen.

Employee continued to see her physicians, either Dr. Toubes or Dr. Pratt, through December 29, 2006 for reoccurring and continued low back pain. In February of 2007, she was seen by Dr. Mark Chaplick at the Kansas City Pain Center, where she underwent an L5-S1 left sided lumbar epidural steroid injection, which according to the follow-up doctor's visit on February 22, 2007, had given her approximately 80 to 90 % improvement in her back, hip and leg pain. On June 8, 2007, she was seen at Johnson County Spine by Dr. Harold Hess, where an additional MRI was taken showing a left L5-S1 disc herniation and it was recommended she have surgical decompression, which was done on June 19, 2007 by Dr. Hess. She followed up with physical therapy with Dr. DeeDee Naumann in July of 2007. On July 26, 2007, Dr. Kenneth Kinnan saw her for post-operative checkup where most of her pain was gone but she continued to have pain in her right leg. Apparently she had not mentioned this before surgery because her left leg was the primary source of her pain. She stated there was no back pain or leg pain on the left and she had good strength and sensation. She was to continue on physical therapy.

The Employee testified that during the time period after she was released from Dr. Pennington at Employee Health Services, until the notations in Dr. Toubes' records in December 2004, she had been in contact with Dr. Toubes regarding the problems with her back and had spoken to him by telephone a number of times. As her problems became worse over time she ultimately went in to see Dr. Toubes. When she was initially offered injections, sh