Melinda Penachio v. Capital Region Medical Center

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-132005

Employee: Melinda Penachio, Deceased

Dependents: Paul Penachio, widower; Kaylie Penachio and Stephanie Penachio, dependent daughters

Employer: Capital Region Medical Center

Insurer: Self-Insured c/o Thomas McGee Management Services

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Dismissed)

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having read the briefs, reviewed the evidence and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law.

Employee filed a Motion to Consider Reply Brief as Additional Evidence and Argument. Employee's Reply Brief consists primarily of a recitation of testimony contained in depositions already in the record. The deposition testimony is not additional evidence. In reaching our decision, we considered the arguments appearing in employee's Reply Brief.

Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge. The January 3, 2011, award and decision of Administrative Law Judge Vicky Ruth is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 11^{\text {th }}$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Melinda Penachio (deceased)

Injury No. 07-132005

Dependents: Paul Penachio (surviving spouse), Kaylie Penachio (child), Stephanie Penachio (child)

Employer: Capital Region Medical Center

Additional Party: Second Injury Fund (dismissed at hearing) ${ }^{1}$

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Self-Insured,

c/o Thomas McGee Management Services

Hearing Date: September 30, 2010

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: December 20, 2007.
5. State location where accident occurred or occupational disease was contracted: Miller 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? 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 occurred or occupational disease contracted: Employee died in a car accident.
12. Did accident or occupational disease cause death? Yes. Date of death? December 20, 2007.
13. Part(s) of body injured by accident or occupational disease: Body as a whole.
14. Nature and extent of any permanent disability: Death.
15. Compensation paid to-date for temporary disability: N/A.

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[^0]: ${ }^{1}$ Claimant dismissed the Second Injury Fund just prior to starting the hearing.

1. Value necessary medical aid paid to date by employer/insurer? N/A.
2. Value necessary medical aid not furnished by employer/insurer? N/A.
3. Employee's average weekly wages: N/A.
4. Weekly compensation rate: $\ 742.72.
5. Method of wages computation: By agreement.

1. Amount of compensation payable from employer: None.
2. Second Injury Fund liability: N/A.
3. Future medical awarded: N/A.

Employee: Melinda Penachio (deceased)

Injury No: 07-132005

Dependents: Paul Penachio (surviving spouse), Kaylie Penachio (child), Stephanie Penachio (child)

Employer: Capital Region Medical Center

Insurer: Self-insured, c/o Thomas McGee Management Services

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On September 30, 2010, Paul Penachio (the widower) and Capital Region Medical Center/Thomas McGee Management Services appeared for a final award hearing in Jefferson City, Missouri. Ms. Penachio (deceased) and Mr. Penachio were represented by attorney Thomas E. Loraine. Capital Region Medical Center and Thomas McGee Management Services were represented by attorney Jared P. Vessell. Although the Second Injury Fund, represented by attorney David Zugelter, appeared for the hearing, claimant dismissed the Fund prior to the commencement of the hearing.

Mr. Penachio testified in person at the trial and by deposition. Dr. Bill Sweezer, Ms. Helen Marie Evans, Ms. Tonya Carlton Sandifer, Mr. Robert Mazur, Officer Scott White, and Ms. Mary Dobbins testified by deposition. The parties filed briefs or proposed awards on or about October 18, 2010.

The parties stipulated to the following:

1. On or about December 20, 2007, Melinda Penachio was involved in a motor vehicle accident and sustained injuries to her body as a whole. The accident resulted in her death.
2. Melinda Penachio was an employee of Capital Region Medical Center.
3. On or about December 20, 2007, Capital Region Medical Center (the employer) was an employer operating subject to the Missouri Workers' Compensation law.
4. The employer's liability for workers' compensation was self-insured and Thomas McGee Management Services was the third-party administrator.
5. Notice is not an issue.
6. Claimant filed a Claim for Compensation within the time prescribed by law.
7. The Missouri Division of Workers' Compensation has jurisdiction and venue in Miller County is proper.
8. The agreed-upon rate of compensation is $\$ 742.72 /$ week.

At the hearing, the parties agreed that the issues to be resolved in this proceeding are as follows:

1. Accident arising out of and in the course of employment.
2. Injury.
3. Medical causation.
4. Attorney fees and costs on behalf of the employer/insurer.

On behalf of the claimant, the following exhibits were entered into evidence:

Exhibit A Birth certificate.

Exhibit B Marriage license.

Exhibit C Certificate of Marriage.

Exhibit D 2007 W-2 Earnings Summary.

Exhibit E Certificate of Live Birth (10-04-91).

Exhibit F Certificate of Live Birth (4-15-93).

Exhibit G Certificate of Death.

Exhibit H Photographs.

Exhibit I Records from St. Louis University.

Exhibit J Report from the Highway Patrol.

Exhibit K Deposition of Ms. Mary Dobbins.

Exhibit L Page from Patient Care Policy Manual (JJ-LD-18.1).

Exhibit M Pages from Patient Care Policy Manual (JJ-LD-10.6).

On behalf of the employer/insurer, the following exhibits ${ }^{3}$ were admitted in to the record:

Exhibit 2: Atwill and Montgomery bills.

Exhibit 3: Additional billing information.

The following exhibits were admitted as joint exhibits on behalf of the claimant and the employer/insurer:

Exhibit A-1: Deposition of Ms. Helen Marie Evans.

Exhibit B-2: Deposition of Patrolman Scott White.

Exhibit C-3 Deposition of Ms. Tanya Carlton Sandifer.

Exhibit D-4 Deposition of Dr. Bill Sweezer.

Exhibit E-5 Deposition of Mr. Robert A. Mazur.

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[^0]: ${ }^{2} All depositions were received subject to the objections contained therein.

{ }^{3}$ Proposed Exhibit 1 was withdrawn and not admitted into the record.

Exhibit F-6 Deposition of Mr. Paul Penachio.

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings:

1. Melinda Penachio was born on July 30, 1962. Her maiden name was Melinda J. Burn. She married Paul Penachio on September 11, 1987, and remained married to him at the time of her death. During the periods relevant to this award, Ms. Penachio and Mr. Penachio lived in Eldon, Missouri.
2. Melinda Penachio and Paul Penachio had two children. The oldest child, Kaylie Penachio, was born on October 4, 1991; she lives in St. Louis, where she is attending college. The younger child, Stephanie Penachio, was born on April 15, 1993; she lives at the family home and plans to go to college in about a year.
3. On December 20, 2007, Ms. Penachio was employed by Capital Region Medical Center (the hospital). Mr. Penachio, her husband, described her position as a Surgical Technician. ${ }^{4}$ Ms. Penachio was on the open heart team at the hospital.
4. On the afternoon of December 20, 2007, Ms. Penachio was involved in a one-car motor vehicle accident while driving home from work. Ms. Penachio lived approximately onehalf hour from her employer's location (the hospital). The accident occurred in Miller County, Missouri. Ms. Penachio died at the scene of that accident.
5. Mr. Penachio testified that his wife died from blunt trauma after being ejected from her car, and that she was not wearing her seatbelt. Mr. Penachio stated that the site of the accident was on his wife's direct route home from work, and was about 4 to 5 miles before the turnoff to their home. He also indicated that weather-wise, the day of the accident was a nice day and there was no snow or rain. ${ }^{5}$
6. Mr. Penachio testified that his wife's normal work shift was from around 6:45 a.m. to 3:15 p.m., Monday through Friday.
7. Ms. Penachio was frequently "on-call" and sometimes during her "on-call" periods she would actually be called back to work.

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[^0]: ${ }^{4} Exh. F-6, p. 11.

{ }^{5}$ Exh. F-6, pp. 22-23.

1. Mr. Penachio testified that on the day prior to his wife's accident, December 19, 2007, she had worked a normal work shift of about 6:00 a.m. to 3:00 p.m. Mr. Penachio stated that after his wife's shift ended on December 19, she was on "on-call" status. At the trial, he testified that she was called back to the hospital around 10:30 p.m. and left the house at 11:15 p.m. In his deposition, he indicated that she was called back to work between 10:15 and 10:30 p.m.
2. At the trial, Mr. Penachio testified that the last thing his wife said to him before returning to work on December $19^{\text {th }}$ was that she was very tired and did not want to go back to the hospital. In his deposition testimony, however, Mr. Penachio stated that his wife had not complained of being tired on the night of December 19, when he last saw her. ${ }^{6}$
3. Mr. Penachio testified that in the six months prior to his wife's fatal car accident, she was called back three or four times per week while on "on-call" status. ${ }^{7}$ His testimony is inconsistent with the documentary evidence regarding Ms. Penachio's work hours, which will be discussed later.

1. Helen Marie Evans testified via deposition on April 2, 2010. She was the head nurse in the early morning of December 20, 2007, when Ms. Penachio was called back to work. ${ }^{8}$ Ms. Evans stated that she herself was called into work about 1:30 a.m. to 2:00 a.m. that morning, and that Ms. Penachio was called in after her. ${ }^{9} She testified that Ms. Penachio was in fit condition and performed well. { }^{10}$
2. Ms. Evans testified that the surgery for which they were called in concluded at 10:36 a.m. on December 20, 2007. ${ }^{11}$ Ms. Evans indicated that Ms. Penachio was the "number four person" on the heart team that morning, and the usually the number four person on the heart team was the first person to go home. ${ }^{12}$ In addition, Ms. Evans remembered that she told Ms. Penachio that she could go home when the cross clamp came off, which was at 7:05 a.m.; Ms. Penachio, however, indicated that she did not want to go home as she wanted to stay for the luncheon that was being provided by the Anesthesia Section. ${ }^{13}$
3. Ms. Evans is respo