Kathy Meyer v. Pyramid Home Care, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-008526

Employee: Kathy Meyer

Employer: Pyramid Home Care, Inc.

Insurer: Missouri Rural Services Workers' Compensation Insurance Trust c/o CCMSI

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 10, 2009. The award and decision of Administrative Law Judge Maureen Tilley, issued August 10, 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 $24^{\text {th }}$ day of June 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Kathy Meyer

Injury No. 98-008526

Dependents: N/A

Employer: Pyramid Home Care Inc.

Additional Party: N/A

Insurer: Missouri Rural Services Workers’ compensation Insurance Trust c/o CCMSI

Hearing Date: May 5, 2009 (record closed May 19, 2009) Checked by: MT/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? January 30, 1998
5. State location where accident occurred or occupational disease contracted: Osage 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

Employee: Kathy Meyer Injury No.: 98-008526

1. Describe work employee was doing and how accident happened or occupational disease contracted: Employee was injured in an automobile accident.
2. Did accident or occupational disease cause death? No
3. Parts of body injured by accident or occupational disease: Forehead laceration at right eyebrow; right knee and ankle; left knee; and both wrists.
4. Nature and extent of any permanent disability: See findings
5. Compensation paid to date for temporary total disability: $\ 47,281.19
6. Value necessary medical aid paid to date by employer-insurer: $\ 215,462.96
7. Value necessary medical aid not furnished by employer-insurer: None
8. Employee's average weekly wage: $\ 578.18
9. Weekly compensation rate:

Temporary total disability and permanent partial disability: $\ 385.46

Permanent partial disability rate: $\ 278.42

1. Method wages computation: By agreement
2. Amount of compensation payable: See findings
3. Second Injury Fund liability: See findings
4. Future requirements awarded: See findings

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 employee 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 employee: Thomas Collins

On May 5, 2009, the employee, Kathy Meyer, appeared in person and with her attorney, Thomas Collins, for a hearing for a final award. The employer was represented at the hearing by its attorney, Paul Huck. 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. On January 30, 1998, Pyramid Home Care, Inc. was operating under and subject to the provision of the Missouri Workers' Compensation Act, and its liability was fully selfinsured through the Missouri Rural Services Workers' Compensation Insurance Trust c/o CCMSI.
2. On January 30, 1998, Kathy J. Meyer was an employee of Pyramid Home Care, Inc. and was working under the Missouri Workers' Compensation Act.
3. Accident: On January 30, 1998, employee sustained injury by accident arising out of and in the course of her employment.
4. Notice: Employer had timely notice of employee's accidental injuries.
5. Statute of limitations: The Claim for Compensation was timely filed.
6. The employee's average weekly wage was $\ 578.18, producing compensation rates of $\ 385.46 for TTD/PTD benefits and $\ 278.42 for PPD benefits and disfigurement.
7. Employer has paid medical expenses of $\ 215,462.96 as of the date of hearing.
8. Employer has paid temporary total disability benefits of $\ 47,281.19 (122-1/7 weeks) for healing periods dated January 31, 1998-September 10, 1999 ( 84 weeks) totaling \$32,378.64 and June 15, 2001-March 11, 2002 (38-1/7 weeks) totaling \$14,702.55 as of the date of hearing.
9. The parties stipulated Employer is entitled to a $\ 25,000 credit against future compensation awarded per the agreement entered into by the parties at the time of employee's prior thirdparty settlement.

1. Medical causation: Whether there is a medical causal relationship between employee's accident and her subsequent right shoulder surgery (the parties stipulated employee's accident caused injury to the following body parts: right forehead eyebrow laceration; right knee and ankle fractures; left knee fracture; and both wrists attributable to the aggravation of pre-existing bilateral carpal tunnel from post accident use of assistive devices). Originally the employee was claiming that two right shoulder surgeries were causally related to the accident. On July 21, 2009, the ALJ has a phone conference with the employee's attorney and the employer-insurer's attorney. At that time the employee's attorney amended the issue to include only the first right shoulder injury.
2. Past and future medical aid: (1) Whether Employer is liable to reimburse the employee for past incurred medical bills related to her right shoulder surgery totaling $\ 5,122.50 and (2) Whether employer is liable for past incurred narcotic drug costs totaling $\ 16,564.60

consisting of Fentanyl patches and Percocet and (3) Whether employer's liability for these narcotic drug prescriptions should continue in the future (the parties stipulated medical benefits are to remain open for the injuries the employee sustained to her right knee and ankle, her left knee and for periodic physician visits related to her need for certain pain relief drugs).

1. Nature and extent of disability: (1) Whether employee is entitled to additional temporary total disability benefits and, if so, to what extent, and (2) Whether employee is entitled to an award of permanent and total disability benefits. (3) Whether the employee is entitled to an award of permanent partial disability. (4) Whether the employee is entitled to an award for disfigurement.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

A. Missouri State Highway Patrol Accident Report, Report Number 025394 with accident date of January 30, 1998.

B. Photographs of Kathy Meyer's vehicle.

C. Photographs of Kathy Meyer's vehicle.

D. Photographs of Kathy Meyer's vehicle.

E. St. Mary's Health Center ER report of January 30, 1998, on Kathy Meyer.

F. X-ray of Kathy Meyer's leg dated January 30, 1998.

G. X-ray of Kathy Meyer's right leg/knee.

H. X-ray of Kathy Meyer's foot.

I. University of Missouri Hospitals and Clinics Operative Report of the Right Tibial plateau fracture on Kathy Meyer of January 30, 1998.

J. Photograph of Kathy Meyer's leg with hardware.

K. University of Missouri Hospitals and Clinics Operative Report of the right eyebrow laceration on Kathy Meyer of January 30, 1998.

L. University of Missouri Hospitals and Clinics Operative Report of left knee arthroscopy and arthrotomy of right knee with meniscal repair on Kathy Meyer of February 2, 1998.

M. Photographs of Kathy Meyer after surgery on her legs.

N. University of Missouri Hospitals and Clinics Operative Report of the repair to the anterior talofibular ligament, fibulocalcaneal ligament and adjustment o external fixator of Kathy Meyer of February 4, 1998.

O. X-ray of Kathy Meyers right knee with hardware.

P. X-ray of Kathy Meyers right foot with hardware dated April 2, 1998.

Q. Photographs of Kathy Meyer after skin graft and external fixator.

R. X-ray of Kathy Meyers leg with external fixator.

S. Photographs of Kathy Meyer after surgery and with external fixator.

T. Photographs of Kathy Meyer with external fixator and ankle surgery.

U. X-ray of right knee with hardware in place of Kathy Meyer.

V. X-ray of right knee with hardware of Kathy Meyer dated July 1, 1999.

W. X-ray of left knee with hardware of Kathy Meyer.

X. X-ray of left knee with hardware of Kathy Meyer.

Y. X-rays of Kathy Myers ankle with screw in place.

Z. University of Missouri Hospitals and Clinics Discharge Summary of Kathy Meyer dated February 13, 1998.

AA. Photographs of Kathy Meyer recovering in the hospital and her family.

BB. Photographs of Kathy Meyer recovering at home.

CC. Photographs of Kathy Meyer using walker with external fixator in place.

DD. Photographs of Kathy Meyer using walker with the external fixator in place.

EE. Photographs of Kathy Meyer using walker with assistances.

FF. University of Missouri Hospitals and Clinics Operative Report for plastic surgery/resection of previous skin graft dated December 18, 1998.

GG. University of Missouri Hospitals and Clinics Operative Report for Kathy Meyer's suture removal on December 29, 1998.

HH. University of Missouri Hospitals and Clinics Operative Report for Kathy Meyer's right carpal tunnel release on July 7, 1999.

II. University of Missouri Hospitals and Clinics Operative Report for Kathy Meyer's right knee arthroscotpy, chondroplasty of the femoral and tibial.

JJ. Photographs of Kathy Meyer and her mother showing Kathy's right ankle.

KK. X-ray of Kathy Meyer's right wrist on January 19, 2001.

LL. University of Missouri Hospitals and Clinics Operative Report for Kathy Meyer's right ankle arthrodesis and hardware removal on July 15, 2001.

MM. X-ray of Kathy Meyer's ankle with plate and hardware.

NN. University of Missouri Hospitals and Clinics Discharge Summary of Kathy Meyer dated July 19, 2001.

OO. University of Missouri Hospitals and Clinics Operative Report for hardware removal on Kathy Meyer dated September 26, 2001.

PP. Medical Records of Center of Orthopaedic Excellence, Inc. on Kathy Meyer.

QQ. Medical Records of Bone \& Joint Sports Injury Clinic/Dr. Galbraith on Kathy Meyer.

RR. Medical Records of CMMP Surgical Center LLC on Kathy Meyer.

SS. Bone \& Joint Sports Injury Clinic billing statement on Kathy Meyer.

TT. Orthopaedic Clinic's final report on Kathy Meyer dated August 26, 2008,

UU. St Mary's Tipton Pharmacy prescription record on Kathy Meyer,

VV. National Vital Statistics Reports, Volume 54, Number 14 - United States Life Tables, 2003.

WW. Kathy Meyer's 2009 planning calendar.

XX. CCMA Medical Records of Kathy Meyer.

YY. Deposition of Dr. Timothy Galbraith of July 18, 2007.

ZZ. Deposition of Dr. Peter Boyer of November 12, 2007.

AAA. Deposition of Michael Dreilin of March 27, 2006.

BBB. Deposition of Dr. Brent Koprivica of March 27, 2006.

CCC. Medicals Records of University of Missouri Hospitals and Clinics.

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