Helena Deschenes v. Casey's General Store

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-103873

Employee: Helena D. Deschenes

Employer: Casey's General Store

Insurer: EMCASCO Insurance Company

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. The award and decision of Administrative Law Judge Rebecca S. Magruder, issued May 4, 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 $\qquad 28^{\text {th }}$ day of October 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Helena D. Deschenes

Injury No. 07-103873

Dependents: N/A

Employer: Casey's General Store

Insurer: EMCASCO Insurance Company

Additional Party: N/A

Hearing Date: April 13, 2010

Checked by: RSM/pd

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 24, 2007
5. State location where accident occurred or occupational disease was contracted: Jackson 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.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While in the course and scope of her employment, Claimant was moving items on a conveyor belt and a frosting can smashed her left hand.
12. Did accident or occupational disease cause death? No. Date of death? N/A

Employee: Helena D. Deschenes

Injury No. 07-103873

Dependents: N/A

Employer: Casey's General Store

Insurer: EMCASCO Insurance Company

Additional Party: N/A

Hearing Date: April 13, 2010

Checked by: RSM/pd

On April 13, 2010, the employee and the employer appeared for a hearing. The employee, Ms. Helena D. Deschenes, appeared in person and with counsel, Mr. Scott Mach. The employer and insurer appeared by counsel, Mr. Thomas Clinkenbeard.

At that hearing, the parties stipulated to the following:

1. that on or about October 24, 2007, Casey's General Store was an employer operating under the provisions of the Missouri Workers' Compensation Law and that its liability under said law was fully insured by EMCASCO Insurance Company;
2. that on or about October 24, 2007, Claimant was an employee of Casey's General Store and was working under the provisions of the Missouri Workers' Compensation Law;
3. that on or about October 24, 2007, Claimant sustained an injury by accident arising out of and in the course of her employment;
4. that the Employer had notice of the injury and that a claim for compensation was filed within the time prescribed by law;
5. that Claimant's average weekly wage was $\ 296.79 and that the applicable compensation rate is $\ 197.86 per week for temporary total disability benefits and $\ 197.86 per week for permanent partial disability benefits;
6. that compensation has been paid by the Employer in the amount of $\ 2,996.23 from October 29, 2007 until January 28, 2008; plus $\ 60.22 from January 29, 2008 until February 11, 2008 as temporary partial disability benefits; and
7. that medical aid has been furnished by the Employer in the amount of $\ 33,679.93.

The issues to be determined by this hearing are as follows:

1. Employer's liability, if any, for future medical aid including but not limited to a prosthetic device or devices and the upkeep, maintenance and replacement of said prosthetic device or devices;
2. the nature and extent of permanent disability resulting from the October 24, 2007 accident;
3. an amount, if any, for disfigurement resulting from the October 24, 2007 accident; and
4. Employer's liability for sanctions for costs pursuant to $\S 287.560$ RSMo.

Employee's evidence consisted of her trial testimony; Exhibit A, which is a report from Hanger Orthotics regarding a prosthetic device; Exhibit B, which is a medical report from Dr. Dana R. Towle; Exhibit C, which is a medical report from Dr. Douglas Rope dated June 2, 2009; and Exhibit D, which is the deposition testimony of Keith Andrews, licensed orthotist for Hanger Orthotics.

The Employer's evidence consisted of the report from Dr. O. Allen Guinn, III, dated August 5, 2008, Exhibit 1, and the report from Dr. Ann R. Rosenthal, signed on November 22, 2009, Exhibit 2.

The Employer does not dispute that Claimant sustained injury to her left hand which arose out of and in the course of her employment. On October 24, 2007 while Claimant was working at Casey's General Store moving materials along a conveyor belt, a heavy container of frosting fell on her left hand, injuring primarily her ring finger. She had an immediate onset of pain in her left hand and was sent by the Employer to the emergency room. Claimant later returned to the emergency room when her finger became discolored and began turning black.

Claimant came under the treatment of Dr. O. Allen Guinn, III, and was seen on October 29, 2007; November 6, 2007; and November 13, 2007. An arteriogram was performed and additional testing was conducted on November 16, 2007. She was taken to the operating room at St. Mary's Hospital on November 19, 2007 where the left ring finger was amputated at the level of the DIP joint. She was treated with pain management. She was again taken to the operating room on January 24, 2008 to have two neuromas resected. At that time, additional bone was taken from the left ring finger and the nerves were treated with low grade electrocautery and buried. Claimant returned to the operating room on March 24, 2008 for additional nerve neuroma resection. A final surgery was performed on May 14, 2008 with the end of the ulnar nerve re-imbedded where a small neuroma had formed at the tip. The sutures were removed on June 3, 2008 and Claimant was released from care to full duty. Claimant has had no additional treatment since June 2008. The surgeries resulted in the amputation extending between the first and second joint of the finger.

Despite the amputation, which alone would total 28.6 weeks of compensation, Dr. Guinn gave a permanent partial disability rating of 5 percent of the hand or 8.75 weeks. Dr. Guinn in his report also states: "The patient has requested that I mention her request for a prosthesis be included in her settlement. If there are any questions about the rating, please contact me at the above number or address." He also notes at another point in his report on page 3 that Claimant was requesting a prosthesis for the end of the finger.

Claimant testified that she found out from Dr. Guinn's office about Hanger Orthotics on $39^{\text {th }}$ Street in Independence, Missouri. She testified she was unfamiliar with Hanger Orthotics until Dr. Guinn's office advised her of it. She also testified that she did not bring up the topic of orthotics but that Dr. Guinn's office did.

Claimant went to Hanger Orthotics on June 26, 2008 and in the record of that visit, it is noted that Claimant wanted to be able to type and play the piano again. "...With the finger we can supply her, she will be able to do these things. This is a functional finger that she will be able to use in all daily functions and extra-curricular activities." Exhibit A. The report is signed by Dave Verhoff, certified prosthetist.

Dr. Dana R. Towle, hand surgeon, examined Claimant on July 23, 2009. His report, Exhibit B, indicates that he examined Claimant at which time she indicated that she wished to have a functioning finger so that she could play the piano and type. Dr. Towle's report under the heading titled "Plan" states, "This is one area in which a prosthetic device does help in function. The device will transmit vibrations to the amputated stump and that way the patient can learn to use this for typing, playing the piano, and other such activities. It will not add to grip strength, but it would allow this patient to return to those activities. I would recommend that if these activities are important to her, and they seem to be, that she get a prosthetic device for that."

Claimant testified that she could type 70 words per minute prior to the accident and now, because of the loss of the finger, can only type approximately 30 words per minute. I find in accordance with her testimony that she has less opportunity for employment because of her inability to type. She also testified that she is unable to play the piano and further that she drops things, particularly glass objects with her left hand. She also testified she has difficulty washing dishes. I find that due to the Claimant's amputated finger she has problems with daily living.

The deposition of Keith Andrews, a certified prosthetist, for Hanger Orthotics, was also offered into evidence as Exhibit D. He testified that he makes artificial limbs. He further testified that he could make a silicone finger that would be functional. He testified that the device would cost between $\$ 7,000-\ 12,000 and that annual maintenance would be approximately $\ 1,500 with a life expectancy of the device from 2-4 years depending on usage. He then testified that replacement costs range from $\$ 7,000-\ 12,000. He testified that if claimant has a 30 year life expectancy, the maintenance expense would be in excess of $\ 40,000 and replacement costs would be approximately the mid-place of $\ 10,000