Barbara Boone v. Missouri Department of Corrections

Injury No.: 07-073113

Employee: Barbara A. Boone

Employer: Missouri Department of Corrections

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and considered the whole record and we find 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, except as modified herein. Pursuant to § 286.090 RSMo, we issue this final award and decision affirming the January 6, 2011, award and decision of the administrative law judge, as modified herein. We adopt the findings, conclusions, decision and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

We specifically do not affirm or adopt the following statement by the administrative law judge that appears at the bottom of page 7 of the award:

Based on the award of permanent total disability benefits and my above findings, the Division of Workers' Compensation shall retain jurisdiction to resolve disputes related to this award of future medical aid.

"‘[A]n administrative tribunal is a creature of statute and exercises only that authority invested by legislative enactment.' Farmer v. Barlow Truck Lines, Inc., 979 S.W.2d 169, 170 (Mo. banc. 1998)." Thomas v. Treasurer, 326 S.W.3d 876, 879 (Mo. App. 2010). Neither we nor the Division of Workers' Compensation may "retain jurisdiction" over a claim or dispute. The statutes either grant us the authority to act or they do not. It is the duty of each administrative tribunal to consider whether it has statutory authority to act upon being requested to act. We express no opinion about whether we or the Division of Workers' Compensation will have authority to consider any particular dispute related to future medical aid that may be presented to us in the future.

In all other respects, we affirm and adopt the award and decision of the administrative law judge.

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.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2006, unless otherwise indicated.

The award and decision of Administrative Law Judge Carl Strange, issued January 6, 2011, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $\qquad 1^{\text {st }} \qquad$ day of July 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Barbara A. Boone

Injury No. 07-073113

Dependents: N/A

Employer: Missouri Department of Corrections

Additional Party: Second Injury Fund

Insurer: Self

Hearing Date: September 13, 2010

Checked by: CS/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 7, 2007
5. State location where accident occurred or occupational disease contracted: 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? 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 happened or occupational disease contracted: The employee was participating in self-defense class when she performed a front kick and was flipped backward landing on her neck, shoulders, and back.

On September 13, 2010, the employee, Barbara A. Boone, appeared in person and by her attorney, Douglas Van Camp, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Assistant Attorney General Gregg Johnson. The Second Injury Fund was represented at the hearing by its attorney, Assistant Attorney General Eileen Krispin. 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. On or about August 7, 2007, Missouri Department of Corrections was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was a self-insured employer.
2. On or about August 7, 2007, the employee was an employee of Missouri Department of Corrections and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about August 7, 2007, the employee sustained an accident or occupational disease during the course of her employment.
4. The employer had notice of employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 516.45, her rate for temporary total disability, permanent total disability, and permanent partial disability is $\ 344.30.
7. The employee's injury to her neck and shoulder is medically causally related to the work injury on or about August 7, 2007.
8. The employer has furnished $\ 37,342.11 in medical aid to employee.
9. The employer has paid temporary total disability benefits for $565 / 7 weeks at a rate of \ 344.30 per week for a total of $\ 19,559.84.
10. The employee reached maximum medical improvement on August 17, 2009, and employer liability for permanency will begin on August 17, 2009.
11. The employer will provide future medical aid and other medical expenses including but not limited to mileage under 287.140 for employee's neck and shoulder.

1. Medical Causation
2. Future Medical Aid
3. Nature and Extent
4. Liability of the Fund

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Medical Records of Dr. Suthar;

B. Medical Records of Parkland Health Center;

C. Medical Records of Dr. Dennis Sumski;

D. Medical Records of Medical Arts Clinic, Inc.;

E. Medical Records of Barnes-Jewish Hospital;

F. Medical Records of Dr. Suthar;

G. Medical Records of Barnes-Jewish Hospital;

H. Medical Records of Pro Rehab;

I. Medical Records of Midwest Imaging Center;

J. Medical Records of Brain \& Spine Center;

K. Medical Records of Dr. Suthar;

L. Deposition of James England;

M. Deposition of Dr. David Volarich; and

N. Correspondence Regarding Back Treatment.

Employer-Insurer's Exhibits

1. Deposition of Sherry Browning.

- The employee has the burden to prove all material elements of his claim. Melvies v Morris, 422 S.W.2d 335 (Mo.App.1968). The employee has the burden of proving not only that he sustained an accident that arose out of and in the course of his employment, but also that there is a medical causal relationship between his accident and the injuries and the medical treatment for which he is seeking compensation. Griggs v A B Chance Company, 503 S.W.2d 697 (Mo.App.1973).

- Under Section 287.140.1 RSMo., "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". The employer, however, may waive its right to select the treating physician by failing or neglecting to provide necessary medical aid. Emert v Ford Motor Company, 863 S.W. 2d 629 (Mo.App. 1993); Shores v General Motors Corporation, 842 S.W. 2d 929 (Mo.App.1992) and Hendricks v Motor Freight, 520 S.W. 2d 702, 710 (Mo.App.1978).

- The test for finding the Second Injury Fund liable for permanent partial disability benefits is set forth in Section 287.220.1 RSMo as follows:

"All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a pre-existing permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes

unemployed, and the pre-existing permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks

compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no pre-existing disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determ