Judy Drago v. Harrah's St. Louis

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-018653

Employee: Judy Drago

Employer: Harrah's St. Louis

Insurer: Indemnity Insurance Company of North America

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 § 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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated June 28, 2011. The award and decision of Administrative Law Judge Suzette Carlisle, issued June 28, 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 $29^{\text {th }}$ day of February 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Hearing Date: March 16, 2011

Checked by:SC

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: January 18, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO
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: Claimant sustained injuries to her right ankle in a motor vehicle accident as she was leaving work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right lower extremity at the knee, left knee
14. Nature and extent of any permanent disability: 60 % PPD of the right knee, 5 % PPD of the left knee
15. Compensation paid to-date for temporary disability: $\ 8,152.50
16. Value necessary medical aid paid to date by employer/insurer? $\ 58,294.94

Employee: Judy Drago

1. Value necessary medical aid not furnished by employer/insurer? \64,050.40
2. Employee's average weekly wages: \ 880.00
3. Weekly compensation rate: $\$ 586.87 / \ 376.55
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Unpaid medical expenses:

$\ 64,050.40

93.14 weeks of temporary total disability

$\$ 46,510.33^{1}

104 weeks of permanent partial disability from Employer

\ 39,161.20

1. Second Injury Fund liability: Yes

17.19 weeks of permanent partial disability from Second Injury Fund

$\ 6,472.89

TOTAL:

$\ 156,194.82

1. Future requirements awarded: As outlined in the award

Said payments to begin and to be payable and be 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 the claimant: Donna Clark-Frayne

[^0]

[^0]: ${ }^{1}$ Claimant worked from April 4, 2008 to June 5, 2008 which totaled 8 6/7 weeks. This amount was deducted from the total number of TTD weeks owed. It should be noted Claimant asserted the weeks owed in TTD to be 84.1 weeks. However, the calculation should be: 102 weeks total weeks owed, minus 8.857 weeks Claimant worked $= 93.14 weeks of TTD x \$ 586.87=\ 54,662.83 owed in past TTD benefits, minus $\ 8,152.50 paid by Employer $= \ 46,510.33 remaining due in past TTD owed by Employer. It is further noted the parties stipulated Employer paid $\ 8,152.50 toward TTD benefits.

Employee: Judy Drago

Departments: N/A

Employer: Harrah's St. Louis

Additional Second Injury Fund

Insurer: Indemnity Ins. Co. of No. America

Injury No.: 07-018653

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

A hearing was held at the Missouri Division of Workers’ Compensation (DWC), St. Louis office at the request of Judy Drago (Claimant), on March 16, 2011, pursuant to Section 287.450 RSMo (2005). ${ }^{2}$ Claimant seeks a Permanent Total Disability (PTD) award against Harrah's (Employer) or the Second Injury Fund (SIF). Venue is proper and jurisdiction lies with the DWC. Attorney Donna Clark-Frayne represented Claimant. Attorney J. Bradley Young represented Harrah's St. Louis (Employer) and Indemnity Ins. Co. of No. America (Insurer). Attorney Da-Niel Cunningham represented the SIF. The record closed on March 30, 2011 after submission of the SIF's Exhibit I. ${ }^{3}$

Claimant's Exhibits A-U, ${ }^{4}$ Employer's Exhibit 1, and the SIF's Exhibit I were all admitted without objection.

The parties stipulated that on or about January 18, 2007:

1. The Claimant was employed by the Employer; ${ }^{5}$
2. Claimant sustained an accident which arose out of and in the course of employment in St. Louis County, Missouri;

[^0]

[^0]: ${ }^{2}$ All references in this award are to the 2005 Revised Statues of Missouri unless otherwise stated.

${ }^{3}$ Dr. Holekamp, a SIF witness, did not waive the reading of the deposition and her signature page was not contained within the deposition at the time of the hearing.

${ }^{4}$ Exhibit D is modified to contain selected documents within the Exhibit. Exhibit D contained in excess of 500 pages; however Claimant identified 58 pages that were relevant for this hearing. Also, after the hearing Claimant submitted additional medical records from Dr. Karges and bills via email and U.S. mail, and stated it was agreed these records would become a part of Exhibit E. In addition, she offered hyperlinks after the hearing. Employer's objection to the admission of the hyperlinks is sustained. The additional medical records submitted by U.S. mail and email are not admitted. The record contains no evidence that an agreement was reached to admit medical records and bills from Dr. Karges after the hearing.

${ }^{5}$ Any references in this award to the Employer also include the Insurer.

1. The Employer and Claimant operated under the provisions of the Missouri Workers' Compensation Law;
2. Employer's liability was fully insured by Indemnity Insurance Company of No. America;
3. Employer had notice of the injury;
4. A Claim for Compensation was timely filed;
5. Claimant's average weekly wage was $\ 880.00 resulting in rates of compensation of $\ 586.87 for temporary total disability (TTD) and PTD, and $\ 376.55 for permanent partial disability (PPD);
6. The Employer paid medical benefits totally $\ 58,294.94;
7. Claimant reached maximum medical improvement (MMI) on January 2, 2009; and
8. The Employer paid $\ 8,152.50 directly to Prudential Insurance Company. The money was used to reimburse Prudential for part of Employee's time off from work.

The parties have identified the following issues for deposition:

1. What is the nature and extent of Employer's liability, if any, for PPD or PTD benefits?
2. What is the nature and extent of the SIF's liability, if any, for PPD or PTD benefits?
3. Is Employer liable for past medical expenses totaling $\ 117,088.95 ?
4. Is Employer liable for past TTD totaling $\ 49,360.76 ? (from January 18, 2007 to January 2, 2009 totaling 84.1 weeks)
5. Is Employer liable for future medical care?

Based on the entire record, Claimant's testimony, demeanor, medical records, and the applicable law in the State of Missouri, I find Claimant is PTD due to subsequent degeneration of her vision. Employer is liable for PPD benefits, TTD, past medical expenses, and future medical care. The SIF is liable for PPD benefits.

All evidence was reviewed, but only evidence discussed below is considered to establish the facts based upon competent and substantial evidence contained in the record.

1. Claimant was born August 8, 1951. She completed the $11^{\text {th }}$ grade, married, and moved to Germany. She is currently, divorced, has no children, and resides in Florida.
2. Claimant worked for the Marriott Hotel for 22 years as a waitress and hostess, and bartender. She worked for Employer for ten years as a dealer until June 2008. Claimant has not worked since 2008.
3. At the hearing, Claimant reported left foot numbness after a bunionectomy was performed by Anthony Lombardo, M.D. in 1991. After surgery her complaints included ongoing left toe numbness and foot tingling. To relieve symptoms, Claimant took Lyrica and Topamax periodically between 1990 and 2007. She currently takes a generic product for left foot numbness.
4. Claimant was diagnosed with a failed bunionectomy in 2003 and missed six weeks from work after repeat surgery.
5. After surgery in 2003, Claimant did not take time off from work, no pain medication, and no accommodations were made at work. Claimant bowled, danced in high-heels, and performed aerobics.
6. In 1995 Claimant treated with Dr. Craig Schmidt for "situational depression" when her niece died, in 2002 when her mother died, and 2005-2006 when she divorced her alcoholic spouse, and when she could not walk after the work accident. Claimant is not currently on medication.
7. In 1998 Claimant was diagnosed with diabetes but testified she had no diabetic symptoms. Since 2002 she has treated the condition with diet and medication, including Foramen. Claimant tests her blood sugar daily and takes two pills per day. In 2004 Claimant told Dr. Volarich she had numbness in both feet if she stood for long periods but symptoms improved with therapy. In 2006 Dr. Lombardo treated Claimant for bilateral foot and ankle pain due to diabetic neuropathy and plantar fasciitis. Leading up to 2007 she did not miss work because of diabetes, experienced some numbness and tingling in her hands, and neuropathy in her left foot. However she testified her diabetes was under control.
8. In 2002 Claimant was diagnosed with bilateral carpel tunnel syndrome (CTS). Dr. Brown performed CTS surgery in 2002 and 2003. Claimant missed a total of 6 days from work for both surgeries. Current complaints include decreased grip strength, and minor numbness and tingling. Leading up to 2007 she took no pain medications, had some weakness and numbness, and decreased grip strength. Claimant settled the case with Employer for 17.5 % of each wrist, and she settled with the SIF for 17.5 % of the left foot.

1. In 2003 Dr. Lombardo treated Claimant for bilateral plantar fasciitis, and prescribed injections, and special shoes. Symptoms resolved with treatment. Leading up to 2007, Claimant had periodic flare-ups which resolved with rest.
2. Around 1999 Claimant was diagnosed with Cone Rod Dystrophy, (CRD), left greater than right. CRD produced a blind spot in the center of her vision. Also, the condition causes a color deficiency. Claimant inherited retinol degeneration f