Glenda Reed v. Government Employees Hospital Association

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-132024

Employee: Glenda Reed

Employer: Government Employees Hospital Association (Settled)

Insurer: Liberty Mutual Insurance Company (Settled)

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 February 17, 2010. The award and decision of Administrative Law Judge Emily S. Fowler, issued February 17, 2010, 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 $29^{\text {th }}$ day of July 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

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: October 7, 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 the 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 was contracted: During the course of her employment, Employee developed pain in her shoulders, hands and wrists as a result of her repetitive work.
12. Did accident or occupational disease cause death? No.

Issued by: Division of Workers' Compensation

Employee: Glenda Reed

1. Part(s) of body injured by accident or occupational disease: right shoulder, right wrist, right upper extremity and left shoulder, left wrist and left upper extremity.
2. Nature and extent of any permanent disability: 15.75\% BAW Permanent Partial Disability from settlement with Employer. Permanent Total Disability as to the Second Injury Fund
3. Compensation paid to-date for temporary disability: None
4. Value necessary medical aid paid to date by employer/insurer? None.
5. Value necessary medical aid not furnished by employer/insurer? None.
6. Employee's average weekly wages: $\ 1,024.14
7. Weekly compensation rate: $\$ 354.05 / \ 675.90
8. Method wages computation: by agreement.

1. Previously paid by Employer 15.75 % body as a whole equating to 63 weeks at $\ 354.05 for $\ 22,305.15.
2. Second Injury Fund liability:

Permanent total disability benefits from Second Injury Fund Beginning February 8, 2007 at $\ 321.85 per week for 52 and $4 / 7 weeks for a total of \ 16,920.11, then beginning February 21, 2008 and thereafter at $\ 675.90 per week for the remainder of Employee's life.

1. Future requirements awarded: None

The compensation awarded against the Second Injury Fund shall be subject to a lien in the amount of 25 % plus expenses to attorney Christopher Smith.

Employee: Glenda Reed

Injury No 04-132024

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

Employer: Government Employees Hospital Association

Additional Party: The Treasurer of the State of Missouri as Custodian for the Second Injury Fund

Insurer: Liberty Mutual Insurance Company

Hearing Date: December 21, 2009

On December 21, 2009, the parties appeared for hearing. The Employee, Glenda Reed, appeared in person and with counsel Christopher Smith. The Employer and its Insurer had previously settled their liability with Employee. The Missouri Second Injury Fund appeared by Assistant Attorney General Benita Seliga.

At the hearing, the parties stipulated to the following:

1. That on or about October 7, 2004 Employer and Employee were operating under and subject to the provisions of the Missouri Workers' Compensation law and that Employer was fully insured by Liberty Mutual Insurance
2. That Glenda Reed was an Employee of Government Employee's Hospital Association.
3. That Employee was working in Kansas City, Jackson County, Missouri.
4. That Employer had notice of the claim and said claim for compensation was timely filed; and
5. That Employee's average weekly wage was $\ 1,024.14 making a compensation rate of $\$ 675.90 / \ 354.05.
6. That Employer's liability was previously settled for 15.75 % of the body as a whole referable to both upper extremities and mental and emotional psyche.
7. That prior to settlement, Employer paid temporary total compensation in the amount of -0 - and medical expenses in the amount of -0 -.

The parties requested the Division to determine the following issues:

1. Whether Employee sustained an accidental injury arising out of and in the scope and course of her employment; and
2. Whether the Second Injury Fund is liable to Employee for permanent and total disability by the combined effects of the injuries through October 7, 2004 and pre-existing disabilities.

The Employee's evidence consisted of Ms. Reed's live testimony and the following exhibits which were admitted without objection:

Exhibit C: Deposition of Mary Titterington along with attachments, taken on $11 / 10 / 09$

Exhibit D: Report of Dr. Lynn Ketchum 11/09/06

Exhibit E: Addendum of Dr. Lynn Ketchum 3/6/07

Exhibit F: Medical Records of Rockhill Orthopedics

Exhibit G: Medical Records of Baptist - Lutheran Medical Center

Exhibit H: Medical Records of H. Joe Pryor M.D.

Exhibit I: Medical Records of Independence Regional Medical Center (1-32)

Exhibit J: Medical Records of Independence Regional Medical Center (1-9)

Exhibit K: Medical Records of Independence Regional Medical Center (1-23)

Exhibit L: Medical Records of Centerpoint Medical Center (1-7)

Exhibit M: Medical Records of Centerpoint Medical Center (1-79)

Exhibit N: Medical Records of Dr. John Stanley

Exhibit O: Medical Records of Orthopedic Surgeons, Inc.

Exhibit P: Medical Records of Orthopedic Associates of Kansas City (1-14)

Exhibit Q: Medical Records of Orthopedic Associates of Kansas City (1-10)

Exhibit R: Medical Records of Orthopedic Associates of Kansas City (1-13)

Exhibit S: Medical Records of Orthopedic Associates of Kansas City (1-16)

Exhibit T: Medical Records of KUPI (1-4)

Exhibit U: Medical Records of KUMC (1-3)

Exhibit V: Medical Records of Kansas City Bone \& Joint

Exhibit W: Medical Records of Dr. Mark Killman

Exhibit X: Medical Records of OHS Compcare

Exhibit Y: Medical Records of Primary/Urgent Care

Exhibit Z: Medical Records of SERC

Exhibit AA: Medical Records of Research Medical Center

Exhibit BB: Medical Records of Pain Management Associates (1-6)

Exhibit CC: Medical Records of Pain Management Associates (1-21)

Exhibit DD: Medical Records of Midwest Brain and Spine (1-14)

Exhibit EE: Medical Records of Midwest Brain and Spine (1-14)

Exhibit FF: Medical Records of Blue River Medical Group

Exhibit HH: Claimant's exhibit list

Exhibit II: Claimant's Deposition with Second Injury Fund

Issued by: Division of Workers' Compensation

Employee: Glenda Reed

Injury No. 04-132024

The following exhibits were admitted over Second Injury Fund's objection:

Exhibit A: Deposition of Dr. P Brent Koprivica taken on 11/6/09 with attachments Exhibit B: Deposition of Allan Schmidt taken on 10/27/09 with attachments

The following exhibit was admitted over Second Injury Fund's objection having been taken under advisement:

Exhibit GG: Medical Records of Dr. Samuel Lehman

The Second Injury Fund offered no live testimony but offered the following exhibit which was admitted with no objection:

SIF Exhibit No 1: Letter from Dr. Lehman's office

Glenda Reed is a 48 year old female who lives in Raytown, Missouri with two disabled brothers. Both brothers are self-sufficient; she is not responsible for the care of either of them. If she did not provide housing for her brothers, they would be homeless.

Ms. Reed worked for Government Employees Hospital Association (GEHA) from 1988 through August 8, 2006. Her job title was claims processor, and as such, she processed claims received from medical providers and answered the telephone in a customer service capacity. Physically, Ms. Reed was required to use her hands, wrists and arms to do computer keyboarding activities in a repetitive fashion, generally 8 hours per day, 5 days per week. She also worked overtime an average of 7 hours per week.

In the spring of 2004, Ms. Reed started experiencing pain in her elbows. She received medical treatment, initially for the left elbow, from her personal physician, Dr. William Brown, as well as from Dr. Michael Clemente. The treatment included steroid injections in the lateral epicondyle area, and ice packs and medications were prescribed. When she submitted claims for this treatment with her personal insurance carrier, she was told that her complaints were work-related. Therefore, she reported this as a work-related condition to her supervisor, Rosemary Baugher, and began to receive further medical evaluation and treatment, now authorized, including medications, an EMG, a wrist brace and physical therapy from OHS CompCare.

Ms. Reed's upper extremity complaints persisted, and the OHS CompCare records indicate that by November 23, 2004, she was beginning to develop right wrist flexor tenosynovitis. She reported this as a work-related condition to Linda Downing in GEHA's human resources department.

OHS CompCare referred Ms. Reed to Dr. Rosenthal who, in December of 2004, opined that the left elbow complaints were of unknown etiology and that regarding the right upper extremity, there were no objective findings. Ms. Reed was released from authorized medical care, but her upper extremity complaints continued. Therefore, she returned to Dr. Brown who, in turn, referred her to Dr. Sol Dubin. Dr. Dubin performed medial epicondylectomies - on the left on January 25, 2005, and on the right on March 22, 2005. Dr. Brown continued to follow Ms. Reed regarding her work-related upper extremity injuries through October 25, 2005.

Ms. Reed continued to work at GEHA on an intermittent basis for the duration of the above-described course of medical treatment. Her job title, duties and work schedule did not change. The problems with her upper extremities worsened, and that worsening, coupled with her multiple pre-existing conditions, caused a significant decrease in her production rate. In fact, she was terminated on August 8, 2006 for failure to make production quotas. She has not worked since that date.

Based on Ms. Reed's continuing complaints regarding the right wrist, Dr. Mark Killman performed electrodiagnostic studies on October 18, 2006 which revealed mild carpal tunnel syndrome on the right. On November 29, 2006, Dr. Bert Park performed a right carpal tunne