Barbara Ketterman v. Woods Supermarket

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-037337

Employee: Barbara Ketterman

Employer: Woods Supermarket

Insurer: Missouri Grocers Trust Association

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 January 12, 2011. The award and decision of Administrative Law Judge Karen Wells Fisher, issued January 12, 2011, 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 $\qquad 2^{\text {nd }} \qquad$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Barbara Ketterman

Injury No : 07-037337

Dependents: N/A

Employer: Woods Supermarket

Additional Party: Second Injury Fund

Insurer: Missouri Grocers Trust Association

Hearing Date: September 8, 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: April 30, 2007
5. State location where accident occurred or occupational disease was contracted: El Dorado Springs, Missouri
6. Was above employee in the employ of above employer at the time of the 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 the 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 was contracted: Employee injured her body as a whole including her right lower extremity in a fall
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Body as a whole, including her right lower extremity
14. Nature and extent of any permanent disability: Total disability
15. Compensation paid to date for temporary disability:
16. Value necessary medical aid paid to date by employer/insurer?
17. Value necessary medical aid not furnished by employer/insurer? None

Employee: Barbara Ketterman Injury No 07-037337

1. Employee's average weekly wages: $\ 279.06
2. Weekly compensation rate: $\ 186.05
3. Method wages computation: Stipulation

1. Amount of compensation payable:

Weekly benefits of $\ 186.05 for permanent total disability from and after April 28, 2008, for Claimant's life.

1. Second Injury Fund liability: none
2. Future requirements awarded: Medical benefits as set forth herein.

Said payment to begin immediately and to be payable and 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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to Claimant: Morrison, Webster \& Carlton.

An evidentiary hearing was held in this case on September 8, 2010 in Joplin, Missouri before Administrative Law Judge Karen Fisher. The claimant appeared in person and was represented by Attorney Matthew Webster. The employer/insurer was represented by Attorney Paula Green. The Second Injury Fund was represented by Assistant Attorney General Cara Harris.

The parties stipulate as follows:

1. The Missouri Division of Workers' Compensation has jurisdiction over these cases;
2. That venue for this case is proper in Vernon County;
3. That the Claim for Compensation was filed in this case within the time allowed by the statute of limitations, Section 287.430;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That the rates of compensation are $\$ 186.05 / \ 186.05, based on an average weekly wage of $\ 279.06;
6. That Claimant sustained an accident arising out of and in the course of her employment with Woods Supermarket, Inc. on April 30, 2007;
7. That the notice requirement of Section 287.420 is not a bar to the claim for compensation;

1. That Safety National Casualty Corporation fully insured the Missouri workers' compensation liability of Woods Supermarket, Inc. at all relevant times;
2. That Employer/Insurer paid $\ 71,947.35 $\qquad$ in medical benefits; and
3. That Employer/Insurer paid temporary total disability benefits totaling $\ 8968.03.

The hearing was held to determine the following issues:

1. The nature and extent of Claimant's permanent disability, if any;
2. The liability of Employer/Insurer, if any, for permanent partial disability;
3. The liability, if any, of the Second Injury Fund for permanent partial disability; and
4. Whether Employer/Insurer shall be ordered to provide additional future medical benefits for Claimant pursuant to Section 287.140.

The evidence consisted of the testimony of Claimant, Barbara Ketterman; the deposition testimony of Dr. Brent Koprivica; the deposition testimony of Michael Lala, a vocational rehabilitation counselor; the deposition testimony of Claimant, Barbara Ketterman; the deposition testimony of Jim England, a vocational rehabilitation counselor; the testimony of Cort Rauthinsmeyer, a private investigator; medical records and video surveillance.

I find that Claimant, Barbara Ketterman, was born on March 19, 1947 and has completed high school, although with poor grades.

Claimant's work history has included various short-term clerical jobs as well as advertisement and real estate sales. Claimant's last employment was with Wood's Supermarket (Employer) where she worked as a cashier. Just prior to working for the Employer, Claimant sold real estate for approximately four years. However, she was not particularly successful at real estate sales and therefore, had to take the job for the Employer as a cashier. Prior to selling real estate, Claimant had spent five years with the Nevada Daily Mail selling advertisements. She described both of her sales jobs as involving a lot of walking and driving.

Claimant's work for Employer as a cashier involved lots of standing, walking, lifting, bending and twisting. In addition to her cashier duties, she was required to do various other job

tasks such as stocking and working outside. Claimant testified that she was able to do all of her work tasks at Wood's Supermarket without limitation. She was not limited physical in any way prior to her April 30, 2007 work injury. She last worked on an unrestricted basis for Employer on April 30, 2007. Following her work injury and prior to her surgeries, with Dr. Hicks, Claimant did work on a light duty basis for Employer.

I find Claimant sustained a work-related accident with Employer on April 30, 2007 in which she fell injuring her right hip, right knee, right ankle and lower back. Prior to April 30, 2007, Claimant had not had any injury to her lower back requiring medical treatment or leaving her with any permanent physical restrictions or disability. Prior to April 30, 2007, Claimant had never suffered an injury to her right hip requiring medical treatment or leaving her with any permanent physical restrictions or disability.

Claimant did have a right knee injury prior to April 30, 2007. In January of 1996, she was pulling on a bag when it popped loose hitting her right calf and knee. She had a small amount of treatment and some studies checking for a blood clot. She did recall some discussion regarding bursitis and the possibility of having a scope done if her symptoms did not resolve. However, her symptoms completely resolved after a couple of years leaving her with no continued complaints or permanent restrictions. Claimant was not limited in any way regarding her right knee and calf after she healed and her symptoms resolved.

Prior to April 30, 2007, Claimant had also suffered an injury to her right ankle. In 2001, she tripped on a step at work spraining her ankle. This injury required about five months of physical therapy. After her treatment ended and her ankle had a chance to heal, she had no ongoing difficulties from the ankle. She was given no permanent restrictions and was not limited in any capacity.

I find that on April 30, 2007 while working for Employer, Claimant tripped on a curb and fell onto the concrete landing on her right side. At the time of her fall, she had excruciating pain in her knee and felt her hip break. Initially, her hip was somewhat painful. After arriving at the hospital and moving around to do x-rays her hip began to hurt severely. Claimant did not notice significant pain in the ankle until approximately six weeks after the fall when the doctor released her to begin bearing weight on her right leg. Her back pain started after she began bearing weight and limping around.

Claimant was initially seen at Cedar County Hospital where x-rays were taken and she was given medication. She was then transferred to St. John's Hospital in Joplin. There she underwent hip surgery by Dr. Lieurance involving percutaneous pinning of a right femoral neck fracture that had been identified. Dr. Lieurance kept Claimant as non-weight bearing for the next six weeks.

Once she began bearing weight, Claimant noted terrible pain in her right hip, an aching pain in her right knee and a bad, deep pain in her right ankle. Her pain only increased as she continued bearing weight on her right lower extremity. Dr. Lieurance recommended an MRI of Claimant's right knee, which was performed on September 10, 2007. The MRI revealed a lateral capsular separation along with a medial meniscus tear. At that time, Dr. Lieurance recommended

arthroscopy on the right knee. However, Claimant's care was then transferred to Dr. Hicks in October 2007.

At the time of her initial visit with Dr. Hicks, Claimant complained of pain and burning in the right hip, pain and grinding in the right knee as well as extraordinary pain in her right ankle. Dr. Hicks performed arthroscopic partial medial meniscectomy and debridement of the right knee. Additionally, Dr. Hicks performed a surgery to treat the osteochondral talar dome injury to Claimant's right ankle. This was treated using a micro fracture technique.

Claimant continued to follow up with Dr. Hicks and undergo physical therapy. Unfortunately, Dr. Hicks had to perform a second surgery on her right hip in March 2008 removing the hardware placed in the hip by Dr. Lieurance.

As she continued to treat with Dr. Hicks, Claimant described her continued complaints as sickening pain into her right hip, a catching sensation in