Norma Williams v. State of Missouri (Cottonwood Treatment Center)

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-078489

Employee: Norma Williams

Employer: State of Missouri (Cottonwood Treatment Center)

Insurer: Missouri Office of Administration

Additional Party: Central Accident Reporting Office (CARO)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

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 16, 2010. The award and decision of Administrative Law Judge Matthew W. Murphy, issued February 16, 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 $19^{\text {th }}$ day of August 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Ms. Norma Williams

Injury No.: 07-078489

Dependents: N/A

Employer: State of Missouri (Cottonwood Treatment Center)

Insurer: Missouri Office of Administration

Additional Party: Central Accident Reporting Office (CARO)

Appearances: Mr. Sam Eveland on behalf of Employee

Mr. Cliff Verhines on behalf of Employer/Insurer

Hearing Date: January 6, 2010

Checked by: MM/rf

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? August 20, 2007.
5. State location where accident occurred or occupational disease contracted: Cape Girardeau, Cape Girardeau County, MO.
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.

On January 6, 2010, the employee, Ms. Norma Williams, appeared in person and by her attorney, Mr. Sam Eveland, for a hearing for a final award. The employer was represented at the hearing by its attorney, Mr. Clifton Verhines. 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. Covered Employer - Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Law, and liability was fully funded by the Missouri Office of Administration.
2. Covered Employee - On or about the date of the alleged accident, Employee was an employee of State of Missouri and was working under the Workers' Compensation Law.
3. Notice - Employer had notice of Employee's accident.
4. Statute of Limitations - Employee's claim was filed within the time allowed by law.
5. Average Weekly Wage and Rate - Employee's average weekly wage rate was $\ 560.08. The rate of compensation for temporary total disability and permanent total disability is $\ 373.38. The rate for permanent partial disability is $\ 373.38.
6. Medical Causation - Employee's injury was medically causally related to the accident. Employer stipulates that the injury resulted from the incident alleged while reserving the issue regarding whether or not the incident is a compensable accident as defined by the Missouri Workers Compensation Law.
7. Medical Aid Furnished - Employer/Insurer has not paid any medical aid.
8. Temporary Total Disability Paid - Employer/Insurer has paid $\ 0.00 as temporary total disability benefits for 0 weeks of disability.
9. Mileage - There is no claim for mileage under 287.140 RSMo.
10. Additional or Future Medical - There is no claim for additional or future medical aid.
11. Permanent Total Disability - There is no claim for permanent total disability benefits.
12. Second Injury Fund Liability - All second injury fund issues are left open.

1. Accident - There is a dispute as to whether Employee sustained an accident arising out of and in the course of her employment.
2. Previously Incurred Medical - Employee is claiming previously incurred medical in the amount of $\ 64,483.83. There is a dispute as to authorization, reasonableness, necessity, and casual relationship.
3. Additional TTD or TPD - Employee is claiming additional TTD or PTD benefits. This claim is for TTD benefits in the amount of $\ 4,853.94 for the period of 9/15/07 - 12/15/07 (13 weeks), and TPD benefits in the amount of $\ 906.78 for the period from 1/15/08 4/15/08 in which employee's scheduled time was reduced by 136 hours (equivalent to 17 days).

1. Permanent Partial Disability - Employee is claiming permanent partial disability benefits.

In addition to taking judicial notice of the entire division file, the following exhibits were offered and admitted into evidence:

Employee's Exhibits

Employer's Exhibits

No Exhibits Identified

Ms. Norma Williams testified on her own behalf at the hearing of this matter. Ms. Williams is currently employed with Cottonwood Treatment Center, hereinafter referred to as "Employer". She is in her 23rd year of employment with Employer. Ms. Williams works with physically, sexually, and mentally abused children. Her current position is midnight supervisor. She has served in this capacity for approximately 17 years. On August 20, 2007, Ms. Williams was injured while at work.

As is customary, she arrived at work at approximately 10:30 p.m. on that evening. Her typical shift lasts until 6:30 a.m. on the following day. When she arrives at work, the first order of business is to locate the master schedule, get a shift report, and get briefed on the happenings from the previous shift. On August 20, 2007, Ms. Williams located the master schedule with the use of her personal two-way radio. She learned that the schedule was located in Cottage E. Ms. Williams went to Cottage E, met the previous shift supervisor, and received the shift report. This report indicated that Cottage E had been problematic during the previous shift. Ms. Williams decided that she would position herself in Cottage E with two other staff members for her shift.

Shortly after the shift handoff, Ms. Williams left Cottage E. There is a concrete walkway that leads from Cottage E. She intended to exit Cottage E and turn left, following the walkway in that direction. Apparently, the walkway is not completely flush with the ground. There is a slight lip down to the grass. Ms. Williams attempted to cut the corner when making her left turn. She either intended to walk through the grass or step over the grass to shorten her travel distance. In so doing, Ms. Williams tripped over the lip with her right foot causing her left foot slide on the grass. She fell to the ground on her right side injuring her right shoulder.

After Ms. Williams fell, a fellow staff member came to help her up. Once Ms. Williams got up, she called Mr. Lacey. Mr. Lacey told Ms. Williams to call the 1-800 Workers' Compensation number. She complied with this directive and was told to go to St. Francis hospital to have her shoulder examined.

Ms. Williams presented at St. Francis hospital emergency room. She was examined, given a sling, and diagnosed with a shoulder contusion. X-rays were taken which were negative. Ms. Williams was instructed to follow-up with Immediate Healthcare. On August 21, 2007, Ms. Williams presented at Immediate Healthcare. She was diagnosed with a shoulder sprain and instructed to return in two weeks. On September 6, 2007, Ms. Williams returned to Immediate Healthcare. Dr. Hicks of Immediate Healthcare scheduled Ms. Williams for an MRI. On September 18, 2007, Ms. Williams returned to Immediate Healthcare. At that time, Dr. Hicks referred Ms. Williams to Dr. Schafer with a diagnosis of a right rotator cuff tear.

During this time frame, Ms. Williams learned that her claim was being denied by CARO. She processed the remainder of her medical charges through her group health insurance.

Ms. Williams presented to Dr. Schafer. Dr. Schafer told Ms. Williams that she needed to have a surgical repair of her shoulder. She had that surgery on September 28, 2007. She was off duty until mid December while recovering from this procedure. Shortly thereafter, Dr. Schafer diagnosed Ms. Williams with adhesions. A subsequent procedure was performed on February 12 or 13 of 2008 to remedy the frozen shoulder symptoms. Ms. Williams underwent physical therapy for some amount of time after each of these procedures.

Ms. Williams testified that all of her bills had been paid by group health insurance with the exception of the initial St. Francis visit and the bills associated with Immediate Healthcare.

Ms. Williams continues to complain of problems regarding her right shoulder. She describes difficulty using a curling iron with her right arm, washing her back, and a general ache. She must use her left hand to reach the higher shelves in her cabinets at home. She testified that she does not have the same strength in her right arm that she had prior to this incident. Since the injury and medical treatment, Ms. Williams has refrained from bowling, raking leaves with her right hand, and using her right hand for driving. Ms. Williams uses a scanner at work to perform some of her duties. The scanner requires her to reach a certain height to perform checks. She is unable to perform this duty with her right arm.

Ms. Williams freely acknowledges that she was "cutting the corner" when the incident occurred.

Dr. Schafer provided the treatment for Ms. Williams' injury. On his initial physical examination, Dr. Schafer found tenderness over the right shoulder with loss of abduction. There was weakness to external rotation. Dr. Schafer reviewed the MRI scan of her shoulder which showed a rotator cuff tear of the supraspinatus tendon. Dr. Schafer determined that surgical repair was necessary to restore function in her right arm. According to the operative report of September 28, 2007, Dr. Schafer found a rotator cuff tear and a partial tear of the glenoid labrum. Dr. Schafer followed Ms. Williams' recovery for some number of months thereafter. On February 4, 2008, Dr. Schafer noted that Ms. Williams continued to have tightness in her shoulder. Dr. Schafer felt she was developing adhesive capsulitis. He recommended surgery to correct this problem. Surgery was performed on February 11, 2008. On March 10, 2008, Dr. Schafer noted improvement with Ms. Williams' range of motion but she continued to have weakness to her arm. On April 4, 2008, Dr. Schafer note continued progress with range of motion and strengthening "but it is slow". On May 28, 2008, Dr. Schafer noted that Ms. Williams had "graduated from physical therapy and is ready for a home exercise program now." Dr. Schafer released Ms. Williams on that date to full duty without restrictions.

Dr. Berkin provided a report of an IME that was admitted into evidence at the hearing of this matter. Dr. Berkin reviewed Ms. Williams' medical records, took a history, and examined her for the purpose of his evaluation. Dr. Berkin noted complaints of pain and tenderness to her right shoulder and weakness to her right arm. She complained of limited motion of her shoulder and stated that her symptoms were affected by weather changes. She also reported difficulty working with her right arm above her head and fatigue to her right arm. The examination failed to reveal any swelling or deformity. He noted the healed scars over the anterior shoulder. There was anterior shoulder tenderness.

Dr. Berkin provided the opinion that the industrial accident that occurred on August 20, 2007 when Ms. Williams fell at her place of employment was the prevailing factor in causing the rotator cuff tear of the right shoulder, the partial tear of the glenoid labrum, and the complications of adhesive capsulitis. He also opined that Ms. Williams has suffered a 40\% permanent partial disability of the right upper extremity at the level of the shoulder. Dr. Berkin gave Ms. Williams the permanent restriction of 20 pounds of occasional lifting and 10 pounds of frequent lifting. He also stated that she should avoid lifting or working with her right arm above the shoulder level. Finally, Dr. Berkin opined that if Ms. Williams were required to perform exertional activities for an extended period of time, she should be permitted frequent breaks to avoid exacerbation of her symptoms or further injury to her right shoulder.

There is a dispute as to whether Ms. Williams sustained an accident arising out of and in the course of her employment.

The facts of this case are not in dispute. Ms. Williams fell and injured her shoulder while at work. The fall was a result of Ms. Williams tripping over the edge of a concrete walkway as she cut the corner of the left turn in the walkway. Employer's entire defense seems to rest on the notion that Ms. Williams deviated from the path and cut the corner, thereby rendering her accident as having not arisen out of or in the course of her employment. I am not persuaded by Employer's analysis.

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.

The Missouri Supreme Court recently analyzed "arise out of and in the course of employment" in Miller v. Missouri Highway and Transportation Commission, 287 S.W.3d 671 (Mo. 2009). In Miller, the employee injured his knee when he was "walking briskly". "[Mr. Miller] frankly admit[ed] that his work did not require him to walk in an unusually brisk way; that he normally walks briskly at home and did nothing different than usual when walking at work that day; that nothing about the road surface, his work clothes or the job caused any slip, strain or unusual movement; and that he did not fall or otherwise sustain any additional injuries due to the popping. He just felt a pop." Miller at 672. The Court held, "The injury here did not occur because Mr. Miller fell due to some condition of his employment. He does not allege that his injuries were worsened due to some condition of his employment or due to being in an unsafe location due to his employment. He was walking on an even road surface when his knee happened to pop. Nothing about work caused it to do so. The injury arose during the course of employment, but did not arise out of employment." Miller at 674. The Court found that Mr. Miller was not entitled to compensation.

Just as with Miller, "the uncontested facts show that the injury occurred at work, in the course of employment..." The facts of the claim at hand are clearly and easily distinguishable on the issue of arising out of employment.

Ms. Williams fell due to a condition at work: the edge of the walkway caused Ms. Williams to slip or trip. Ms. Williams was not simply walking on an even surface when her shoulder happened to be injured. In fact, Ms. Williams' shoulder was injured when she fell due to tripping or slipping on the edge of the walkway. It was the edge of the walkway that caused Ms. Williams to fall and injure her shoulder. For these reasons I find that Ms. Williams' fall and her injuries arose out of and in the course of her employment with Employer and is a compensable accident.

1. (1) In this chapter the "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.

§287.020.3(1). Dr Berkin credibly testified that the accident was the prevailing factor resulting in the injury and disability. I find that the accident of August 20, 2007 was the prevailing factor resulting in Ms. Williams' injury and disability.

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[^0]: ${ }^{1}$ All statutory references are to RSMo. Supp. 2005.

"1. In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." §287.140.1

Ms. Williams presented evidence of $\ 64,483.83 of medical bills associated with the treatment of her shoulder injury. The bills for this treatment were admitted into evidence without any objection from Employer. Ms. Williams identified the bills as being related to and the product of her injury. The bills in evidence correspond to treatment records that were also admitted into evidence demonstrating that they were incurred for the treatment of her shoulder injury. Ms. Williams testified that the treatment she received and documented in the evidence provided some relief from her injury. The medical records clearly demonstrate that Ms. Williams suffered a right rotator cuff tear due to her fall of August 20, 2007 and "the only treatment for this is arthroscopic rotator cuff repair. It will not heal on its own but we do need to repair it so her shoulder will function properly." Exhibit B, page 2. "We believe that when such testimony accompanies the bills, which the employee identifies as being related to and the product of her injury, and when the bills relate to professional services rendered as shown by the medical records in evidence, a sufficient factual basis exists for the commission to award compensation." Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105, 111-112 (Mo. 1989). "The employer, of course, may challenge the reasonableness or fairness of these bills or may show that the medical expenses incurred were not related to the injury in question." Martin at 112. In this case, the employer introduced no evidence that would challenge the reasonableness or fairness of the medical expenses. Likewise, Employer did not introduce any evidence that the expenses incurred were not related to the injury in question.

After a careful review of the medical bills and records that were submitted into evidence, I find that the following charges for reasonable and necessary care to cure and relieve Ms. Williams from her shoulder injury are supported by the evidence:

For these reasons, I find that Ms. Williams is entitled to $\ 61,335.95 of back medical and I award same.

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[^0]: ${ }^{2}$ Only those charges associated with medical treatment were allowed. Charges for medical record requests were not included in this total.

${ }^{3}$ Only those charges that were supported with corresponding medical records in evidence were allowed.

${ }^{4} \ 238.68 of prescription receipts were offered into evidence. Only one of the slips demonstrated that the prescription was written by Dr. Shafer (Exhibit M, page 5). The remainder of the slips do not stand on their own for the proposition that they were for medication associated with the injury at issue.

Employee is claiming additional TTD or PTD. This claim is for TTD benefits in the amount of $\ 4,853.94 for the period of $9 / 15 / 07$ - 12/15/07 (13 weeks), and TPD benefits in the amount of $\ 906.78 for the period from $1 / 15 / 08$ - 4/15/08 in which employee's scheduled time was reduced by 136 hours (equivalent to 17 days).

"1. For temporary total disability the employer shall pay compensation for not more than four hundred weeks during the continuance of such disability at the weekly rate of compensation in effect under this section on the date of the injury for which compensation is being made." §287.170.1.

1. For temporary partial disability, compensation shall be paid during such disability but not for more than one hundred weeks, and shall be sixty-six and two-thirds percent of the difference between the average earnings prior to the accident and the amount which the employee, in the exercise of reasonable diligence, will be able to earn during the disability, to be determined in view of the nature and extent of the injury and the ability of the employee to compete in an open labor market.

Ms. Williams credibly testified that she missed the days/hours described above due to limitations imposed by her treating physicians and her injury. There is no evidence in the record that the employer made any accommodating employment available to Ms. Williams. Likewise, there is no evidence in the record to dispute Ms. Williams' claim that she was unable to work the aforementioned days/hours due to her injury and that she was temporarily totally disabled during that time.

For these reasons, I award Ms. Williams ( 13 weeks * \$373.38 + 17days/7 * \$373.38 = ) $\ 5,760.72 of back TTD/TPD.

Employee is claiming permanent partial disability benefits.

1. For permanent partial disability, which shall be in addition to compensation for temporary total disability or temporary partial disability paid in accordance with sections 287.170 and 287.180 , respectively, the employer shall pay to the employee compensation computed at the weekly rate of compensation in effect under subsection 5 of this section on the date of the injury for which compensation is being made, which compensation shall be allowed for loss by severance, total loss of use, or proportionate loss of use of one or more of the members mentioned in the schedule of losses.

Dr. Berkin credibly testified that Ms. Williams suffered a 40 % permanent partial disability to the right shoulder as a result of this injury. He opined that the accident giving rise to this claim was the prevailing factor in Ms. Williams' disability. This opinion was supported by Ms. Williams' testimony regarding her limitations and pain. There was no testimony or evidence contrary Dr. Berkin's opinion or Ms. Williams' testimony.

For these reasons, I award Ms. Williams $(.40 * 232 * \$ 373.38=) \ 34,691.42 of PPD benefits.

Mr. Sam Eveland, attorney at law, is allowed a fee of 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

Made by:

Matthew W. Murphy

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Naomi Pearson

Division of Workers' Compensation