Nora Wigger v. Southeast Missouri Dermatology

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-129202

Employee: Nora J. Wigger

Employer: Southeast Missouri Dermatology

Insurer: State Farm Fire \& Casualty Co.

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 May 4, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Gary L. Robbins, issued May 4, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $3^{\text {rd }}$ day of September 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Nora J. Wigger

Injury No. 07-129202

Dependents: N/A

Employer: Southeast Missouri Dermatology

Additional Party: N/A

Insurer: State Farm Fire \& Casualty Co.

Hearing Date: February 17, 2010

Checked by: GLR/rf

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease? Alleged June 19, 2007.
5. State location where accident occurred or occupational disease contracted: Alleged St. Francois 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? Not determined.
8. Did accident or occupational disease arise out of and in the course of the employment? No.
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: The employee claimed she injured her right shoulder when she fell while picking weeds.

Employee: Nora Wigger

Injury No. 07-129202

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease: Alleged right shoulder.
3. Nature and extent of any permanent disability: None.
4. Compensation paid to date for temporary total disability: $\ 0.
5. Value necessary medical aid paid to date by employer-insurer: $\ 0.
6. Value necessary medical aid not furnished by employer-insurer: Alleged $\ 49,902.28
7. Employee's average weekly wage: $\ 447.69.
8. Weekly compensation rate: $\ 298.46 per week for all purposes.
9. Method wages computation: By agreement.
10. Amount of compensation payable: See Award. None.
11. Second Injury Fund liability: N/A.
12. Future requirements awarded: N/A.

No attorney fees are awarded in this case.

On, February 17, 2010, Nora J. Wigger, the employee, appeared in person and by her attorney, Gary G. Matheny, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Amy L. Young. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. 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 statement of the findings of fact and rulings of law, are set forth below as follows:

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by State Farm Fire \& Casualty Company.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of Southeast Missouri Dermatology and was working under the Workers' Compensation Act.
3. The employee's claim was filed within the time allowed by law.
4. The employee's rate for temporary total disability, permanent total disability and permanent partial disability was stipulated to by the parties as $\ 298.46 per week.
5. The employer-insurer paid $\ 0 in medical aid.
6. The employer-insurer paid $\ 0 in temporary disability benefits.
7. The employee has no claim for mileage or other medical expenses under Section 287.140 RSMo.
8. The employee has no claim for temporary disability benefits.
9. The employee has no claim for permanent total disability benefits.

1. Accident.
2. Notice.
3. Medical Causation.
4. Previously Incurred Medical Bills.
5. Temporary Total Disability
6. Permanent Partial Disability.

The following exhibits were offered and admitted into evidence. The Court overruled all of the employer-insurer's objections.

Employee's Exhibits

A. Performance Evaluation.

B. Photographs (7 taken in 2009).

C. Dave Kinney Benefit Flyer.

D. Medical Records of David Mullen, D.O.

E. Medical Records from Parkland Health Center.

F. Medical Records of Daniel L. Kitchens, M.D.

G. Medical Records of Donald R. Bassman, M.D.

H. Medical Records from Advanced Ambulatory Surgical Care.

I. Medical Records from Farmington Hand and Physical Therapy.

J. Medical Records of Stephen M. Benz, M.D.

K. Medical Report of Shawn L. Berkin, D.O.

L. Supplemental Medical Bill List.

M. Medical Bills.

Employer-Insurer's Exhibits

1. Deposition of Michael P. Nogalski, M.D.

Nora J. Wigger, the employee testified personally at trial. AnnMarie Sutherland and Tiffany Bailey also personally testified on behalf of the employee. The employer-insurer called Denise E. Luetkemeyer to testify at trial. All other evidence was presented in the form of various medical records, written records or deposition testimony.

Ms. Wigger was born on March 26, 1946 and is 63 years old. She is currently employed at Southeast Missouri Dermatology. She works four days per week from 7 a.m. to 5 p.m. The other employees work 5 days a week from 8 a.m. to 5 p.m. The employee arrives at work an hour earlier than her co-workers.

Ms. Wigger's job title is Insurance Manager and Collection Specialist. She has been employed on a full-time basis with her employer since 2005. As Insurance Manager and Collection Specialist she handles accounts receivable, collections, filing, taking phone calls, talking to insurance companies, solving insurance problems and moving files. She also testified that she cleaned around the office, pulled weeds, emptied the trash, broke down boxes, and did "anything and everything to make the office look professional inside and outside."

She testified that no one has ever objected to her assuming these additional duties inside and outside of the office and that specifically no one ever objected to her pulling weeds. She admitted that no one has ever asked her to pull weeds outside the office or perform any other yard maintenance. She testified that she has been asked to clean dishes by Dr. Griffin's wife, who is also employed at the office. She did not testify whether or not she made her employer aware that she was pulling weeds outside the office or that her employer ever acknowledged she was pulling

weeds outside the office. She admitted that her employer employs a lawn service to mow the lawn, but she testified she was not satisfied that they took care of the weeds and she did not like the way it looked. She admitted that she was not compensated extra for pulling weeds and she was not hired to pull weeds.

The employee testified that on or about June 19, 2007 she arrived at work at 7 am . She clocked in and started the computers. She testified that it was a beautiful day and she went outside to pick up trash and pull weeds at approximately five to ten minutes after 7 a.m. She testified that she pulled weeds in the front and back of the office. She testified there was a weed by the back door that was like a celery stalk. Ms. Wigger admitted that this door was not the main entrance to the building, but indicated that on occasion patients parked in the back of the building and used the back door. She admitted that employees use the back entrance to enter the building, and there is a parking lot for patients in the front of the building with a separate front entrance.

Ms. Wigger testified she tried to cut the weed with scissors and then tried to saw it with a knife. She testified that she then tried to pull the weed with all her might and in doing so fell over backwards on her behind. She testified that she felt a hot burning pain in her right shoulder when she pulled the weed. She testified the pain was so bad she "saw stars." She testified that this occurred about 7:30 am, and afterwards she went inside to sit down, catch her breath and hold her arm. She testified that shortly after she went inside her co-workers, AnnMarie Sutherland and Angelique Lappe arrived and she told them what happened. She testified that she continued to work that day. She admitted that she did not immediately report the injury to any management personnel that day including Dr. Griffin. She testified that the office manager, Denise Luetkemeyer, only works on Wednesdays and that is the reason why she did not report it to her immediately. She testified that she did not report the injury to Dr. Griffin, her employer, because she is "not allowed" and "forbidden" to speak to him. She did not immediately seek treatment for her shoulder.

Ms. Wigger testified that she went on vacation the week of July $4^{\text {th }}$ to visit her son. She denied having any additional injuries to her right shoulder while on vacation. She testified that when she returned from vacation, she told Ms. Luetkemeyer that she hurt her right shoulder pulling weeds in the parking lot. Ms. Wigger testified that Denise is the office manager and that she is the person employees would report work injuries to. Ms. Wigger claimed that Ms. Luetkemeyer ignored her. Ms. Wigger also testified that she told Dr. Griffin her shoulder was hurting after she returned from vacation, but she admits that she did not tell him that she hurt it at work. She testified that she was afraid to tell him because she was afraid she would be fired. Ms. Wigger then testified that she spoke to Denise about it "every Wednesday morning of the world".

While on direct exam, Ms Wigger testified she reported the accident to Ms. Luetkemeyer after she returned from vacation. However, on cross-examination, she claimed that she reported the accident the first Wednesday after the accident. The parties stipulated that June 19, 2007 was a Tuesday; therefore, if the accident happened that day, her testimony on cross-examination would suggest she reported it the next day as Ms. Luetkemeyer was only present at the office on Wednesdays.

Ms. Wigger testified that she spoke to Ms. Luetkemeyer about her work injury and need for medical care "every Wednesday of the world". She also testified that she never initially asked Ms. Luetkemeyer for medical treatment and instead she just hoped that it would go away. She testified that she never asked Ms. Luetkemeyer to send her to a doctor and that she for some reason thought she had 6 months to ask for medical treatment.

Ms. Wigger testified that she did ask for medical treatment in November of 2007. She testified that she asked for medical care in November of 2007 because she was in so much pain she couldn't deal with it any longer. She claims she asked for care approximately 2 weeks before her first shoulder surgery. She testified that when she finally asked for treatment Ms. Luetkemeyer told her she would notify the insurance company. Ms. Wigger testified that she was contacted by the insurance company and they took her s