Kathleen Elmore v. Cox Health Systems

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-109934

Employee: Kathleen Elmore

Employer: Cox Health Systems (Settled)

Insurer: N/A

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 May 25, 2010. The award and decision of Administrative Law Judge Robert H. House, issued May 25, 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 $23^{\text {rd }}$ day of September 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Kathleen Elmore

Injury No. 03-109934

Dependents: N/A

Employer: Cox Health Systems

Additional Party: Second Injury Fund

Insurer: N/A

Hearing Date: April 7, 2010

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

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 27, 2003
5. State location where accident occurred or occupational disease was contracted: GREENE 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
11. Describe work employee was doing and how accident occurred or occupational disease contracted: REPETITIVE TRAUMA TO RIGHT HAND, FINGERS AND THUMB, WRIST AND RIGHT ARM USING COMPTUER KEYBOARD FOR DATA ENTRY
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: RIGHT ARM, WRIST, HAND AND THUMB
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? -0 -
17. Value necessary medical aid not furnished by employer/insurer? -0 -

Employee: Kathleen Elmore Injury No 03-109934

1. Employee's average weekly wages:
2. Weekly compensation rate: $\$ 347.05 / \ 662.55
3. Method wages computation: AGREED

1. Amount of compensation payable:

Unpaid medical expenses: -0-

0 weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

1. Second Injury Fund liability: YES - 40 weeks of compensation for a total of $\ 13,882.00

TOTAL: $\ 13,882.00

1. Future requirements awarded: NONE

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 PERCNET of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Randy Alberhasky

Employee: Kathleen Elmore

Dependents: N/A

Employer: Cox Health Systems

Additional Party: Second Injury Fund

Insurer: N/A

Hearing Date: April 7, 2010

Injury No. 03-109934

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

The parties presented evidence at a hearing on April 7, 2010. Claimant appeared in person and through her attorney, Randy Alberhasky. The Second Injury Fund appeared through its attorney, Cara Harris. Only one issue was presented for determination: The liability of the Second Injury Fund, with claimant alleging that she is permanently and totally disabled. The parties agreed that the workers' compensation rate was $\ 662.55 for permanent total disability and $\ 347.05 for permanent partial disability.

Claimant was five days short of her $60^{\text {th }}$ birthday on the date of the hearing. She is a high school graduate and completed nursing school. She has been a registered nurse since 1981. She was last employed on February 19, 2004, at Cox Health Systems South. Her job was as an inpatient obstetrics nurse. Her job included being on her feet more often than not and involved heavy lifting. Claimant worked full time at Cox Health Systems, working at least 36 hours per week and at times significant overtime. In 1999 claimant had back surgery which included a fusion at L4-5. Claimant also suffers from fibromyalgia being diagnosed in 2003 about the same time as her initial problems with her right hand. Claimant reported her problem to her employer and began treatment on October 27, 2003. Ultimately, claimant underwent two surgeries

Employee: Kathleen Elmore

Injury No. 03-109934

performed by Dr. Scott Swango, an orthopedic surgeon. Claimant's first surgery was in February 2004 when Dr. Swango performed a suspension arthroplasty with resection of the trapezium. Claimant continued to have pain; and on July 9, 2004, Dr. Swango performed what was termed an "anchovy procedure," pinning the thumb. Dr. Swango released claimant on October 6, 2004, concluding that he did not believe that claimant was disabled from her thumb injury and released her to full duty. Nevertheless, the claimant believed that she could not perform her duties as a nurse as she had before. Dr. Swango opined that Cox may need to consider placing claimant in a different nursing role. Dr. Swango also opined that claimant was employable "from her thumb point of view." Nevertheless, claimant did not work following her first surgery and sought additional treatment on her own from Dr. Michael Grillot, of Parkview Orthopedic. Dr. Grillot performed a third surgery on claimant on March 10, 2005. That surgery involved an arthrodesis of the right thumb which included bone grafting with pinning.

Claimant believes that she cannot work because of a combination of her fibromyalgia and lumbar disk fusion with her disability from her last injury at work.

Claimant obtained the services of Dr. David Paff, an occupational medicine specialist who testified by deposition. Dr. Paff concluded that claimant had a preexisting disability to the body as a whole as a result of her lumbar spine problem including fusion surgery resulting in a 15 percent permanent partial disability to the body as a whole. Additionally, Dr. Paff concluded that claimant had a 10 percent body as a whole permanent partial disability because of her fibromyalgia. Dr. Paff also found that claimant had a 35 percent permanent partial disability to her right upper extremity at the 175 -week level because of her injury to the right thumb from her injury at work. Dr. Paff ultimately concluded that claimant also suffered a greater overall disability as a result of the combination of the preexisting disability and her occupationally

**Employee:** Kathleen Elmore

**Injury No.:** 03-109934

The related disabilities beyond the simple sum of those disabilities in the amount of 10 percent permanent partial disability to the body as a whole. Dr. Paff noted that claimant's lumbar condition and fibromyalgia had worsened over time. That was also the testimony of claimant at trial. Dr. Paff testified that he doubted claimant could perform the job she had before with Cox. He limited her activities to no repetitive or heavy use of the right wrist including not using a mouse. He also opined that claimant should not do heavy use of the right wrist. In regard to her lumbar spine, Dr. Paff found that claimant should not bend frequently at the waist, should not stay in one position more than an hour and should not lift over 15 pounds. Dr. Paff gave her no restrictions concerning her fibromyalgia. Dr. Paff also noted that claimant should not do very much handwriting or computer keyboarding.

Claimant's attorney hired Philip Eldred, a vocational rehabilitation counselor, to access claimant's condition vocationally. Mr. Eldred found that claimant was permanently and totally disabled occupationally as a result of a combination of her preexisting disabilities and her last injury at work. Mr. Eldred used as the basis for his opinions the restrictions of Dr. Paff, Dr. Swango, Dr. Shumaker, and Dr. Lennard. Dr. Shumaker's and Dr. Lennard's records were not offered or admitted into evidence. Consequently, their restrictions are only referenced in the record through the assessment of Mr. Eldred. Additionally, Mr. Eldred admitted that the restrictions of Dr. Shumaker occurred prior to Dr. Grillot's surgery and had not taken into consideration any increase or decrease in symptoms since that time. Apparently Dr. Lennard issued his report on May 17, 2007, following Dr. Grillot's surgery. Eldred's opinion is clouded by claimant's testimony that her fibromyalgia and lumbar condition have worsened over time. Consequently, it is unclear what claimant's lumbar and fibromyalgia condition was at the time of her last injury at work. Indeed, claimant was able to work in what Mr. Eldred found to be

Employee: Kathleen Elmore

Injury No. 03-109934

classified as a medium category job but which in fact was in the heavy category based upon the actual duties claimant performed at work as expressed to Mr. Eldred and as claimant testified at trial. Claimant noted at hearing that she was able to do her job with certain self-restrictions including asking for help in lifting patients and her ability to schedule her work so that she often would not have to work more than two days in a row. Nevertheless, claimant testified she was able to perform her duties other than not scrubbing in surgery or working with C-sections. Claimant testified that she would be in pain and have difficulty performing her duties but that she was able to work until her first surgery on her right hand in February 2004. Claimant testified she was up and running most of the time and would sit only occasionally, performing her job until the additional computer work including the mouse caused her hand problem.

The Second Injury Fund employed the services of James England, a vocational rehabilitation counselor. He opined that claimant could perform work and would be employable in a variety of alternative nursing settings along with other occupations including work as a security guard or receptionist. However, Mr. England thought that claimant, based upon her many years of work as a registered nurse, would be better suited to "a variety of alternative nursing settings as well as others that would not be related to nursing." He further opined:

It would not make much sense, however, for her to simply accept some sort of entry-level employment such as being a receptionist or a security guard, etc., which I believe that within the doctors' restrictions there would still be alternatives within nursing that she could consider. This would include working in a doctor's office as a nurse, working in medical clinic office settings, being an office manager for a medical service company, doing utilization review or medica