Lisa Higgenbotham v. DPM of Missouri a/k/a McDonald's Restaurant

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-047699

Employee: Lisa Higgenbotham

Employer: DPM of Missouri a/k/a McDonald's Restaurant

Insurer: Self-Insured (Cannon Cochran Management Services)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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 September 29, 2009. The award and decision of Administrative Law Judge Hannelore D. Fischer, issued September 29, 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 $30^{\text {th }}$ day of June 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Lisa Higgenbotham

Injury No. 06-047699

Dependents: N/A

Employer: DPM of Missouri; aka, McDonald's Restaurant

Additional Party: Treasurer of the State of Missouri, Custodian of the Second Injury Fund

Insurer: Self-Insured (Cannon Cochran Management Services)

Hearing Date: August 19, 2009

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: HDF/tmt

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: June 5, 2006.
5. State location where accident occurred or occupational disease was contracted: Montgomery County.
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: See award.
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: Left knee.
14. Nature and extent of any permanent disability: 30 % left knee.
15. Compensation paid to-date for temporary disability: $\ 8,027.66.
16. Value necessary medical aid paid to date by employer/insurer? $\ 17,971.64.
17. Value necessary medical aid not furnished by employer/insurer? None.

Employee: Lisa Higgenbotham

1. Employee's average weekly wages: $\ 316.44.
2. Weekly compensation rate: $\ 210.96.
3. Method wages computation: By agreement.

1. Amount of compensation payable: 30 % left knee $=48 weeks, \$ 210.96=\ 10,126.08.
2. Second Injury Fund liability: 20 % body $=\ 16,876.80.

Said payments to begin immediately and to be payable and 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: Charles Bobinette

Employee: Lisa Higgenbotham

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on August 9, 2009. Memoranda were due on September 16, 2009.

The parties stipulated that on or about the $6^{\text {th }}$ day of June, 2006, the claimant, Lisa Higgenbotham, was in the employment of DPM of Missouri, aka McDonald's Restaurant (McDonalds); Ms. Higgenbotham sustained an injury by accident; the accident arose out of and in the course of employment.

The employer was operating under the provisions of Missouri's workers' compensation law; workers' compensation liability was self insured and administered by Cannon Cochran Management Services as third party administrator. The employer had notice of the injury; a claim for compensation was timely filed.

The applicable rate of compensation is $\ 210.96 per week for all benefits. Temporary disability benefits have been paid to the claimant to date in the amount of $\ 8027.66, representing 42 and 3/7 weeks, paid from June 16, 2006, through April 8, 2007. Medical aid has been provided in the amount of $\ 17,971.64.

The issues to be resolved by hearing include 1) the liability of the employer/insurer for past medical treatment, 2) the liability of the employer/insurer for future medical treatment, 3) the nature and extent of permanent disability, 4) the liability of the Second Injury Fund, and 5) the right of survivorship of a dependent child.

The employer /insurer stipulated to liability for mileage reimbursement for travel of 365.5 miles.

The claimant, Lisa Higgenbotham, 47 years old as of the date of hearing, injured her left knee on June 5, 2006, when, while working at McDonald's, she was struck by a cooler door, causing her to fall on the knee. Ms. Higgenbotham received medical attention, including surgery on the knee

on January 30, 2007, by Dr. Tarbox. Ms. Higgenbotham had several unsuccessful returns to light duty work while recuperating.

After Dr. Tarbox recommended that Ms. Higgenbotham find a job that required less standing, Ms. Higgenbotham quit her job at McDonald's during the summer of 2007. Ms. Higgenbotham then worked as a prep cook at Maggies, a restaurant; Ms. Higgenbotham left Maggies in February of 2008, because her knee was still troubling her. Ms. Higgenbotham started using a cane to support herself in April of 2008, after she left Maggies and applied for social security benefits. Ms. Higgenbotham did not go to see the pain management specialist, Dr. Manish Suthar, suggested by Dr. Tarbox and authorized by the employer/insurer in late 2008, choosing instead to see her family physician, Dr. Eric Kondro. Ms. Higgenbotham did not avail herself of the authorized pain management because of Dr. Suthar's location in St. Louis, stating it was "too far."

Ms. Higgenbotham described herself as active prior to the left knee injury in 2006, but stated that her inability to work stems from her prior right hand injury combined with the left knee injury. Ms. Higgenbotham now walks with a cane to stabilize herself and has to alternate the hand with which she handles the cane. Ms. Higgenbotham elevates her left leg on a pillow during the day, has knee pain, and is tired, which causes her to need to lie down during the day.

Ms. Higgenbotham graduated from high school in 1978. Thereafter, she went to the University of Missouri in Columbia, Missouri, enabling her to receive her LPN license in 1979 and then her RN license in 1984. Ms. Higgenbotham had a daughter in 1978 and a son in 1980. Ms. Higgenbotham's son was born with a cleft palate, along with other congenital deformities, which required 27 plastic surgeries. During this time, Ms. Higgenbotham was taking care of her children, including care for her son during his multiple operative procedures, and working full time. Ms. Higgenbotham was married and divorced prior to receiving the education necessary for her RN licensure.

Ms. Higgenbotham testified to feeling tired and generally fatigued while caring for her son. She said that it was determined that she had the "trait" for sickle cell anemia and that vitamins and "catnaps" were recommended to her.

Ms. Higgenbotham remarried in 1985. In 1988, she let her nursing license lapse and worked as a bartender and in the fast food industry. In 1994, Ms. Higgenbotham had another son, Travis. Ms. Higgenbotham divorced in 1997.

In 2000, while working at GW Fiberglass, Ms. Higgenbotham sustained an injury to her right arm when part of a camper shell was dropped on the arm. Ms. Higgenbotham settled the ensuing workers' compensation claim based on a permanent partial disability of 17.5 percent of the right hand at the wrist. Ms. Higgenbotham stated that she did not return to two-handed factory work following that surgery on the right wrist in March of 2002. Ms. Higgenbotham described pain and discomfort at the wrist going up into and beyond the right elbow.

Travis has been living with Ms. Higgenbotham since early 2009; prior to 2009, Ms. Higgenbotham did not have custody of her son.

Dr. Eric Kondro, specializing in internal medicine and family practice, testified by deposition that Ms. Higgenbotham was a patient of his as of November of 2004. On February 6, 2008, Ms. Higgenbotham initially reported her continuing problems with her left knee to Dr. Kondro. Dr. Kondro "assessed her as having fibromyalgia, insomnia, and myofacial (sic) pain syndrome... specifically in the region of the left leg." In February of 2008, Dr. Kondro referred Ms. Higgenbotham to Dr. Kathleen Weaver to get a second opinion. Dr. Kondro diagnosed reflex sympathetic dystrophy in April of 2008 due to Ms. Higgenbotham's left knee status as "hyperactive response to touch and just exquisite tenderness." Dr. Kondro opined that Ms. Higgenbotham should be seen by a pain management specialist for her left lower extremity complaints. Dr. Kondro felt that given Ms. Higgenbotham's "lack of ability to use that limb,... her complicating factors of just being in pain and all the impairment that that brings mentally..and ...depression from a non-stop pain" that Ms. Higgenbotham would be unemployable. Dr. Kondro assumed that Ms. Higgenbotham's fatigue occurred after her left knee injury.

Dr. Kondro also testified, however, that it was the combination of right wrist and left knee injuries which caused Ms. Higgenbotham to be unemployable.

Dr. Kondro's charges for his treatment of Ms. Higgenbotham's left knee after the June 5, 2006, left knee injury are as follows:

Dr. Kondro did not have Ms. Higgenbotham's prescriptions filled in his office, so those charges were separate. Dr. Kondro prescribed the following medications for Ms. Higgenbotham from February 6, 2008, forward, when he began treating her for her left knee pain:

Dr. Kondro testified that the medications which he prescribed for Ms. Higgenbotham were for pain and insomnia and potentially neurological issues related to RSD. The Trazadone was for sleep and mood elevation and the Vicodin for pain control. Dr. Kondro described the Percocet as "quite a step up" from the Vicodin. Gabapentin is according to Dr. Kondro, a medication for nerve pain; Pir