Erin Cooper v. Bank of America

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-093386

Employee: Erin Cooper

Employer: Bank of America

Insurer: Indemnity Insurance of North America c/o Gallagher Bassett

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 November 23, 2009. The award and decision of Administrative Law Judge Kevin Dinwiddie, issued November 23, 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 $16^{\text {th }}$ day of March 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Erin Cooper

Injury No.: 06-093386

Dependents: N/A

Employer: Bank of America

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Indemnity Insurance of North America

c/o Gallagher Bassett

Hearing Date: Friday, October 2, 2009

Checked by: KD/lsn

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 14, 2006
5. State location where accident occurred or occupational disease was contracted: St. Charles 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 is alleged to have occurred: Claimant was leaving her workplace at the end of her work day when she suffered a slip and fall while descending steps inside her employer's office building
12. Did accident or occupational disease cause death? No Date of death: N/A
13. Part(s) of body alleged to be injured by accident or occupational disease: left ankle
14. Nature and extent of any permanent disability: 40 % permanent partial disability of the left lower extremity at the level of the ankle
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Erin Cooper Injury Number 06-093386

1. Value necessary medical aid not furnished by employer/insurer? $\ 19,725.82; after adjustments to medical bills, the total due from employer and insurer is $\ 14,136.92; see award.
2. Employee's average weekly wages: $\ 580.37
3. Weekly compensation rate: $\$ 386.91 / \ 376.55
4. Method wages computation: by agreement of the parties

1. Amount of compensation payable:

For temporary total disability, from $9 / 15 / 06 through 11 / 13 / 06,8 and 4 / 7 weeks at \ 386.71 per week

3,316.38

For necessary past medical expense

14,136.92

For 40 % permanent partial disability of the left ankle, 60 weeks at $\ 376.55 per week.

22,593.00

Total due: $\ 40,046.30

1. Future requirements awarded: N/A

This award is subject to a lien in the amount of 25 % thereof in favor of Christopher A. Wagner, Attorney at Law, for necessary legal services rendered.

This award is subject to interest as provided by law.

Employee: Erin Cooper

Injury No: $\quad 06-093386$

Dependents: N/A

Employer: Bank of America

Additional Party: N/A

Insurer: Indemnity Insurance Co of North America c/o Gallagher Bassett

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KD/lsn

The claimant, Ms. Erin Cooper, appeared at hearing in person and by her counsel, Christopher A. Wagner. The employer, Bank of America, and its insurer, Indemnity Insurance Co. of North America, appeared by its counsel, Shelley A. Wilson. The claimant seeks a final award for benefits relating to an alleged compensable injury by accident on September 14, 2006. The employer and insurer dispute that the claimant suffered a compensable injury, and seek a final award denying any benefits. No claim has been pleaded as against the Second Injury Fund. The parties stipulated at hearing that the issues to be resolved in Injury Number 06-093386 are as follows:

Injury by accident arising out of and in the course of employment;

Liability for past medical expense;

Temporary total disability; and

Permanent partial disability.

Ms. Cooper provided testimony on her own behalf. The claimant also submitted the deposition testimony of Ms. Stephanie Dickinson, and of Thomas F. Musich, M.D. The employer and insurer chose not to call any witnesses.

Hearsay objection to the offer of Claimant's Exhibit K was sustained. The hearsay objection to Claimant's Exhibit N was overruled. The following exhibits are in evidence:

A.- I. Series of photographs of stairs and building

J. Compilation of medical records and billing statements

K. Not admitted.

L. Letter from Shelley A. Wilson to James W. McCartney

M. Deposition of Thomas F. Musich, M.D., taken on 7/6/09

N. Deposition of Stephanie Dickinson, taken on 9/22/09

The employer and its insurer choose not to submit any exhibits.

The claimant, Ms. Erin Cooper, has been employed by Bank of America for four years, and currently works as a Home Service Specialist. The two story building where the claimant works with as many as three hundred other workers is not accessible to the public, and the claimant scans a badge to gain access through one of three entrances. The claimant then proceeds up an elevator, or climbs a flight of stairs to her desk located on the second floor.

On 9/14/06 Ms. Cooper logged off of her computer at around 5:30 p.m.; proceeded to the coffee bar to dispose of her soda; returned to her desk to retrieve her purse and lunch bag; then proceeded to exit the building at the end of her work day, taking a route through doors to an enclosed stairwell consisting of a landing; ten or so steps; a second landing, and a second set of steps to the ground floor exit. After walking down approximately five steps, the claimant slipped, fell backward, and landed on her buttocks while striking her head. The claimant also noticed that her left ankle was severely dislocated, and had another worker summon an ambulance. Claimant was assisted down the stairs before being put on a stretcher and being transported to St. Luke's Hospital in Chesterfield, Missouri. Ms. Cooper described the stairs as being painted, and lacking any traction strips. Ms. Cooper further acknowledged that at the time of her fall she did not see any trash, water, or other debris on the steps. Photographs of the steps in issue confirm that the stairs were made of painted concrete, as described per the history of injury provided by Dr. Musich at his deposition.

Ms. Cooper provided a history of injury and of subsequent medical from Dr. Andrew M. Rouse that is consistent with the various medical records in evidence. Ms. Cooper suffered a fracture to her left ankle as a result of her slip on the stairs. On 9/15/06 Dr. Rouse performed an open surgery, repairing fractures of the fibula and of the medial malleolus, by attaching a metal plate and screws to the bone to reduce the fractures. The notes of Dr. Rouse dated 9/15/06 indicate that only the medial and lateral malleolus were fractured, with "significant comminution medially".

Ms. Cooper had follow up treatment and evaluation with Dr. Rouse, including physical therapy, as she progressed to weight bearing status after x-rays confirmed the ankle was healing in good alignment. Ms. Cooper was released to return to regular work duty effective 11/13/06. On 3/21/07, some six months post injury, medical records document complaints of swelling and discomfort when claimant was on her feet for extended periods. The claimant suffered ongoing complaints related to the placement of the hardware in her ankle, and on 5/13/08 Dr. Rouse performed a surgery to remove that hardware (a plate, multiple screws, and a washer). Ms. Cooper suffered an allergic reaction to the glue and steri-strips used to close her wound post the hardware removal, and treated successfully with no adverse residual symptoms from the allergic reaction.

Section 287.120 RSMo mandates that employers subject to the workers' compensation act shall be liable for compensation to an employee for personal injury or death by accident arising out of and in the course of employment. The employer and the employee stipulate that they are subject to the act; at issue is whether the employee suffered an injury compensable under the act.

Effective August 28, 2005, SB 1 \& 130 changed the standard for determining whether an injury by traumatic event, cumulative trauma, or disease process was sufficiently work related as to come under the provisions of the workers' compensation act. In Lawson v. Ford Motor Co., 217 S.W.3d 345 (Mo.App. E.D., 2007), at pp. 348-349, the court notes as follows with respect to the change in the legal standard:

As Ford correctly notes, in 2005 the legislature amended several sections of the Workers' Compensation Act. In particular, portions of section 287.067 and 287.020 were rewritten. Specifically, section 287.067 .2 discusses when an injury by occupational disease is considered compensable. Prior to 2005, the section stated that such an injury will be compensable if it "is clearly work related and meets the requirements of an injury which is compensable as provided in subsections 2 and 3 of section 287.020 ."

Subsections 2 and 3 of section 287.020 previously contained definitions for "accident" and "injury." Prior to 2005, those definitions included language which concluded that an injury was compensable if it is work related, which occurs *349 if work was a "substantial factor" in the cause of the disability.

Section 287.020.3 as amended in 2005 defines "injury" and sets forth, as follows, a two-part test for determining when an injury arises out of and in the course of employment:

(1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability (emphasis added).

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

In Section 287.020.2 the term accident is defined as follows:

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by tim