Rachel Hannan v. David L. Kaelin, D.M.D., P.C. d/b/a Kaelin Dental Group

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-035163

Employee: Rachel Hannan

Employer: David L. Kaelin, D.M.D., P.C. d/b/a Kaelin Dental Group

Insurer: American Family Mutual Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated October 6, 2009.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Administrative Law Judge Carl Strange, issued October 6, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $20^{\text {th }}$ day of April 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Rachel Hannan

Injury No. 08-035163

Dependents: N/A

Employer: David L. Kaelin, D.M.D., P.C. DBA Kaelin Dental Group

Additional Party: N/A

Insurer: American Family Mutual Insurance Company

Hearing Date: August 30, 2009

Checked by: CS/kh

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? March 27, 2008
5. State location where accident occurred or occupational disease contracted: Cape 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 (See Findings)
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 happened or occupational disease contracted: Employee was going down the stairs and her Croc caught on the carpet causing her to fall and injure her right upper extremity

1. Did accident or occupational disease cause death? No
2. Parts of body injured by accident or occupational disease: Right Upper Extremity
3. Compensation paid-to date for temporary total disability: $\ 2,731.81
4. Value necessary medical aid paid to date by employer-insurer? $\ 22,402.06
5. Value necessary medical aid not furnished by employer-insurer? $\ 6,239.00 (See Findings)
6. Employee's average weekly wage: $\ 331.36
7. Weekly compensation rate: $\ 220.91
8. Method wages computation: By Agreement
9. Amount of compensation payable:

Unpaid medical expenses: $\ 6,239.00 (See Findings)

Additional Medical Aid: Awarded (See Findings)

This award is only temporary and partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

On August 30, 2009, the employee, Rachel Hannan, appeared in person and by his attorney, Boyd Green, for a temporary or partial award. The Employer appeared by its representative David L. Kaelin. The employer-insurer was represented at the hearing by their attorney, J. Bradley Young. At the time of the hearing, the parties agreed on certain undisputed facts and identified the facts 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. On or about March 27, 2008, David L. Kaelin, D.M.D., P.C. DBA Kaelin Dental Group was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by American Family Mutual Insurance Company.
2. On or about March 27, 2008, the employee was an employee of David L. Kaelin, D.M.D., P.C. DBA Kaelin Dental Group and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about March 27, 2008, the employee sustained an accident.
4. The employer had notice of employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 331.36, her rate for temporary total disability is $\ 220.91,
7. The employer has furnished $\ 22,402.06 medical aid to the employee.
8. The employer has paid temporary total disability benefits for $172 / 7 weeks at a rate of \ 220.91 per week for a total of $\ 2,731.81.

1. Arising Out Of
2. Medical Causation
3. Previously Incurred Medical Aid
4. Additional Medical Aid

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Medical Records

1. Community Health and Emergency Services, Inc.,
2. Orthopaedic Associates- Dr. James Edwards,
3. The Hand Center of Orthopaedic Associates, PC,
4. The Orthopedic Center of St. Louis- Dr. David Brown,
5. St. Francis Medical Center (5-23-08 3-phase bone scan),

1. Pain Treatment Center, Inc.- Dr. James Graham,
2. Neurological and Electrodiagnostic Institute, Inc.- Dr. David Peeples,
3. Orthopedic Specialists- Dr. Richard Howard,
4. Rush University Medical Center- Dr. Timothy Lubenow,
5. Mid America Rehab,
6. Imaging Partners of Missouri, and
7. Pain Rehab Products, Inc.

B. Medical Bill of University Anesthesiologist S.C.;

C. Deposition of Dr. Timothy Lubenow; and

D. Employee's Termination Letter.

1. Photograph of Top of Stairwell;
2. Photograph of Stairwell;
3. Photograph of Break Room;
4. Photograph of Bottom of Stairwell;
5. Deposition of Dr. John Graham EXCEPT Exhibit A Subpart 1, 3, and 5 (said documents are not admitted into evidence but are retained in the file);
6. Deposition of Dr. David Brown;
7. Employee Time Card For Rachel Hannan March 27, 2008; and
8. Kaelin Dental Group Policy Manual.

Based on the testimony of Rachel Hannan ("employee"), the testimony of Dr. David L. Kaelin, and the medical records and evidence admitted, I find as follows:

At the time of the hearing, the employee was 26 years old and currently a resident of Ullin, Illinois. The employee is a high school graduate and has also earned an associate's degree in dental technology from Southern Illinois University-Carbondale in May of 2005. Her past work experience includes employment at Donnell Dental Lab in St. Louis, Missouri in 2006 and at Community Health and Emergency Services, Inc. in Cairo, Illinois in 2007.

In August 2007, the employee was hired as a dental assistant by David L. Kaelin, D.M.D., P.C. DBA Kaelin Dental Group ("employer"). As dental assistant for the employer, the employee's duties included sterilizing instruments, setting up rooms for patients to be seen, assisting the doctor in procedures, tearing down rooms post-procedure, and doing lab work such as making retainers and crowns. Additionally, she was expected to do general daily tasks of maintaining the office, taking out the trash, vacuuming, and cleaning.

The employer's office building has a main floor on the ground level and a basement downstairs. On the main floor are the treatment rooms, a conference room, a sterilization room, two office rooms, front desk and patient lobby. In order to get to the basement, there is a set of stairs (Employer-Insurer Exhibits 1, 2 \& 4). The stairway is divided into two different sections by a small landing area halfway down. After the landing, the stairway changes direction but continues with steps down to the basement. In the basement of the office, there are two locker

rooms with bathrooms, a conference room, a break room with a kitchenette, and a storage room. The stairway leading down to the basement is covered in commercial-type carpet (Employer-Insurer Exhibit 2 \& 4). It is the same carpet that is throughout the ground floor of the office. It is a short hair carpet that is not looped, with individual fibers attached to the mat. At the time of the hearing, the employee testified that it is well known by the employees of the employer that the carpet has a tendency to catch one's foot. In the past, the employee and other employees have stumbled and stubbed their toes when the carpet caught their shoes.

All employees are expected to store their personal belongings in their assigned locker in order to keep them out of sight and their workplace clean during employer's working hours. The employer's policy specifically prohibited personal items, such as purses, from being upstairs on the main floor on an employee's desk or at their work station. Additionally, the employee would bring her lunch and eat in the break room on busy days in order to keep a constant flow of patients. The employee would reduce her lunch hour to less than thirty minutes on these days. Although not specifically required by the employer, bringing a lunch and taking an abbreviated lunch break in the break room was allowed and even encouraged by the employer. The employer even notes in its employee handbook that employees may receive a paid lunch break "if the nature of the work makes it impossible for you to be released for a lunch" (EmployerInsurer Exhibit 8, Page 6). On non busy days, the employee was permitted to eat out or bring her lunch. She testified that whether or not she left for lunch or ate in depended on each day's office schedule, which was checked the day before.

In order to assure compliance with most of its policies, the employer also provided each employee with a copy of "General Office Policies" (Employer-Insurer Exhibit 8). Each employee was required to review and sign the back page. In addition to addressing many other issues, the employer's policy with regard to uniforms on page 21 required them to be maintained according to OSHA regulations and prohibited wearing "T-shirts, blue jeans, sandals, open-toed shoes, and shorts". The employer's office manager, Angie Kaelin, also specifically told the employee that she was required to wear Crocs or tennis shoes and no flip flops, sandals, dress shoes, high heels, or open toed shoes. During OSHA training, the employee was told the prohibited shoes were susceptible to infection and injury for instruments. As a result of this policy, the employee wore Crocs during her employment with the employer. At the time of the hearing, the employee further testified that she did not wear Crocs outside of her employment.

In addition to all its other policies, the employer required the employees to attend a morning meeting at 6:50 a.m. which was ten minutes before patients were seen. At these meetings, they would discuss the day's agenda and items of concern. Employees were expected to clock in prior to the meeting. On March 27, 2008, the employee arrived at the employer's office prior to the morning meeting. She had a key to the door and the alarm code as contemplated on page 22 in the Office Security section of Employer's "General Office Policies" (Employer-Insurer Exhibit 8). According to the employee, she arrived that morning at her typical time around 6:45 a.m. and other employees arrived just about the same time. She then unlocked the doors, turned off the alarm and turned on the lights. According to the Dr Kaelin, he arrived around 6:00 a.m. turned off the alarm, turned the lights on, and turn