Debra Arnold v. Missouri Department of Corrections

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. ${ }^{1}$ We have reviewed the evidence and briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying the December 27, 2010, award and decision of the administrative law judge. 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.

With respect to the administrative law judge's award of future medical care and treatment, she states near the bottom of page 10 of the award that "[employer] is ordered to provide all medical treatment that is necessary to cure and relieve [e]mployee from the effects of [her] work injury for the remainder of her life as recommended by Dr. Volarich or a treating physician recommended by Dr. Volarich." We find that the administrative law judge erred in directing that employee, Debra Arnold's future medical care be recommended by Dr. Volarich or a treating physician recommended by Dr. Volarich. Dr. Volarich was retained by employee to provide an independent medical evaluation. Dr. Volarich is not employee's treating physician and has no intention of being directly involved with employee's future medical care. We modify the administrative law judge's award and find that the award of future medical care shall be limited, simply, to that which is reasonable and necessary to cure and relieve employee from the workrelated injury.

In addition to the aforementioned, we would also like to clarify an ambiguous use of the word "he" on page 13 of the award. At the beginning of the second paragraph on page 13, the administrative law judge states that "He diagnosed left internal derangement...." (emphasis added). However, the administrative law judge did not specify as to whom she was referring to as "he." We find that the administrative law judge's use of "he" in this sentence and the remainder of that second paragraph was in reference to Dr. Volarich. We modify the award and find that in the second paragraph of page 13 of the award, "Dr. Volarich" shall replace the word "he" in all instances.

Finally, we note that in the last paragraph on page 14, the administrative law judge discusses the percentage of preexisting permanent partial disability employee suffered from at the time of the primary injury. We find that this paragraph is legally incorrect and is unnecessary in light of the fact that employee is deemed permanently and totally disabled as a result of the primary injury considered in isolation. We modify the award by deleting the last paragraph on page 14.

We modify the award of the administrative law judge as provided herein. In all other respects, we affirm the award.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2005 unless otherwise indicated.

The award and decision of Administrative Law Judge Maureen Tilley issued December 27, 2010, is attached and incorporated to the extent it is not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $14^{\text {th }}$ day of October 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Member

Attest:

Secretary

Employee: Debra Arnold

Injury No. 05-138274

Dependents: N/A

Employer: Missouri Department of Corrections

Additional Party: Second Injury Fund

Insurer: CARO

Hearing Date: December 20, 2010

Checked by: MT/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? October 20, 2005.
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 injured her left knee while kicking a dummy in self defense

On September 27, 2010, the employee, Debra Arnold, appeared in person and with her attorney, Douglas Van Camp, for a hearing for a final award. The employer was represented at the hearing by its attorney, Gregg Johnson. The Second Injury Fund was represented by its attorney, 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. Covered employer: Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability fully insured by CARO.
2. On or about October 20, 2005, Debra Arnold was an employee of Missouri Department of Corrections and was working under the Workers' Compensation Act of Missouri.
3. Accident: On or about October 20, 2005, the employee sustained an accident arising out of and in the course of her employment.
4. Notice: 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 is $\ 466.85. The employee's rate for permanent partial disability and permanent total disability is $\ 311.23.
7. Medical causation: Employee's injury was medically causally related to the accident.
8. The medical aid furnished by the employer-insurer was the amount of $\ 18,651.75.
9. The amount of temporary disability paid by the employer-insurer was $\ 12,004.54. This was for $384 / 7$ weeks. The time periods covered were 9-28-06 through 10-11-06 and 12-08-06 through 8-20-07.

1. Claim for previously incurred medical. The amount claimed was $\ 851.00 for unpaid prescription bills. There is a dispute as to reasonableness and necessity.
2. Employee is claiming reimbursement of the costs associated with the IME of Dr. Mace, in the amount of $\ 1,302.75.
3. Claim for future mileage.
4. Claim for future medical aid.
5. Claim for additional TTD in the amount of $\ 2,223.07.
6. Permanent total disability.
7. Permanent partial disability.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A Parkcrest Orthopeadics

B Dr. Ritchie

C Mercy Burn and Plastic Surgery

D Great Mines Health Center

E Parkcrest Orthopeadics

F Parkcrest Orthopeadics

G Parkcrest Orthopeadics

H Parkland Health Center

I Donna Yates

J Farmington Sports \& Rehabilitation Center

K Mineral Area Regional Medical Center

L Various prescription receipts

M Deposition of Dr. Volarich

N Deposition of Dr. Mace

O Deposition of Jim England

P TTD Claim of Employee

Q Demand Letters and Costs of Employee

R Unpaid Medical Bills

Employer-Insurer's Exhibits

1. Deposition of Sherry Browning

The Second Injury Fund did not offer any exhibits into evidence.

The employee, Debra Arnold, is 52 years old and currently unemployed. She is receiving Social Security Disability. The employee graduated from high school, attended cosmetology school, and later completed 71 hours of college credits focusing on criminal justice. She did not obtain a degree.

The employee had been last employed with the Department of Corrections as a Correctional Officer I. She was responsible for monitoring meals and recreation, conducting searches, and escorting prisoners. She was employed in this capacity for approximately two and a half years. Her prior employment was as a server at a restaurant and substitute teacher. Prior to that, she stayed at home with her children.

On October 20, 2005, the employee was participating in self-defense training. As part of the class, she had to kick a stationary six-foot dummy at the chest to waist level. She kicked the dummy once, felt an immediate pop and sharp pain in her left knee, and was advised by trainers to rest briefly. She attempted a second kick, which made her symptoms worse. The employee testified that she informed a supervisor of the incident, and informed several staff of the injury, asking for treatment. She testified that her symptoms continued to worsen and that she informed the personnel office staff who told her she had to "wait her turn to see a workers' compensation doctor."

The employee was evaluated by Dr. Mace in June 2006, who diagnosed an acute injury to the left knee, likely an internal derangement, and that the prevailing factor leading to the diagnosis was the injury of October, 2005. She also recommended an MRI, evaluation by an orthopedic specialist, and took her off work completely until MRI results were obtained. She also recommended crutches, and that she be completely non-weight bearing on the left lower extremity. Ms. Arnold was off work beginning on June 22, 2006 due to Dr. Mace's recommendations but was not paid temporary total disability until September 28, 2006.

The Employer then referred her to Dr. Ritchie who ordered an MRI revealing a tear of the ACL. She eventually had surgery, performed by Dr. Ritchie, on September 28, 2006, consisting of an excision of the hypertrophic plica of the anterior medial and anterior lateral plica. Following surgery, the employee was on light duty, attended physical therapy, but reports the knee surgery did not relieve her pain. She also testified and informed Dr. Ritchie that she had ongoing complaints with her right knee, due to the long-standing altered gait. She had additional injections that did not relieve her symptoms following surgery. Dr. Ritchie