Gloria Rowe v. Barnes-Jewish Hospital

We find that the ALJ did not substitute his own opinion for that of a qualified, unimpeached expert. We find that the ALJ thoroughly reviewed and analyzed the record as a whole and came to a conclusion that is fully supported by the competent and substantial evidence.

We affirm the award of the ALJ as supplemented herein.

The award and decision of Administrative Law Judge John K. Ottenad, issued May 2, 2011, is attached hereto and incorporated herein 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 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 $22^{\text {nd }}$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: March 18, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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 worked as a radiation therapist for Employer, and she had to use one of the heaviest cassettes for the treatment she was administering, when the cassette slipped and she developed neck and back pain when she caught the cassette before it hit the patient.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Body as a Whole-Low Back and Neck
14. Nature and extent of any permanent disability: 12.5 % of the Body as a Whole referable to the Lumbar Spine
15. Compensation paid to-date for temporary disability: $\ 11,316.72
16. Value necessary medical aid paid to date by employer/insurer? \$8,201.54

Employee: Gloria Rowe Injury No.: 03-021846

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,260.00
3. Weekly compensation rate: $\ 649.32 for TTD/ $\ 340.12 for PPD
4. Method wages computation: Mo. Rev. Stat. §287.250 (2000)

1. Amount of compensation payable:

Employer previously settled its risk of liability

1. Second Injury Fund liability:

40.5 weeks of permanent partial disability

$\ 13,774.86

TOTAL: $\underline{\$ 13,774.86}$

1. Future requirements awarded: None

Said payments to begin immediately 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 attorneys for necessary legal services rendered to the claimant: Robert S. Merlin and Ray B. Marglous.

Employee: Gloria Rowe

Dependents: N/A

Employer: Barnes-Jewish Hospital (Settled)

Additional Party: Second Injury Fund

Insurer: Self-Insured (Settled)

Injury No.: 03-021846

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On January 4, 2011, the employee, Gloria Rowe, appeared in person and by her attorney, Mr. Robert S. Merlin, for a hearing for a final award on her claim against the Second Injury Fund. The employer, Barnes-Jewish Hospital, which is duly self-insured under the statute, was not present or represented at the hearing since it had previously settled its risk of liability in this case. The Second Injury Fund was represented at the hearing by Assistant Attorneys General Kristin Frazier and David Morin.

In addition to this claim, the employee also tried a companion claim against the Second Injury Fund at the time of this hearing. That companion claim with a date of injury of July 28, 2003 was assigned Injury Number 03-072820. A separate award has been issued to dispose of that additional claim, despite the fact that a consolidated hearing on both claims was held.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about March 18, 2003, Gloria Rowe (Claimant) allegedly sustained an accidental injury.

2) Claimant was an employee of Barnes-Jewish Hospital (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) Employer paid temporary total disability (TTD) benefits in the amount of $\ 11,316.72, representing a period of time of 17 weeks.

7) Employer paid medical benefits totaling $\ 8,201.54.

1) Did Claimant sustain an accident?

2) Did the accident arise out of and in the course of employment?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to her alleged accident at work on or about March 18, 2003?

4) What is the appropriate average weekly wage and rates of compensation for this case?

5) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury?

6) What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A. Deposition of Mr. James England, with attachments, dated November 14, 2007

B. Deposition of Dr. Wayne Stillings, with attachments, dated March 29, 2007

C. Deposition of Dr. Shawn Berkin, with attachments, dated August 27, 2007

D. Deposition of Dr. Michael Jarvis, with attachments, dated January 7, 2005

E. Certified medical treatment records from BarnesCare

F. Certified medical treatment records from University Medical Consultants

G. Certified medical treatment records from St. Louis Behavioral Medicine Institute

H. Certified medical treatment records from Dr. Harold Wolff

I. Certified medical treatment records from Barnes-Jewish Hospital (Jan 1984)

J. Certified medical treatment records from Barnes-Jewish Hospital (2003)

K. Certified medical treatment records from Barnes-Jewish Hospital (Dec 2003)

L. Certified medical treatment records from Barnes-Jewish Hospital (July 2003)

M. Certified medical treatment records from Barnes-Jewish Hospital (1993-2003)

N. Certified medical treatment records from Barnes-Jewish Hospital (Jan 1984)

O. Certified medical treatment records from Barnes-Jewish Hospital (Jan 1984)

P. Certified medical treatment records from Barnes-Jewish Hospital (Jan 1984)

Q. Certified medical treatment records from Orthopaedic Surgery, Division of Washington University Medical School

R. Certified medical treatment records from Memorial Hospital, Belleville, IL

S. Certified medical treatment records from Memorial Hospital, Belleville, IL

T. Certified medical treatment records from Pain Treatment Center, Inc.

U. Certified medical treatment records from Dr. Cynthia Florin

V. Certified medical treatment records from St. Louis Behavioral Medicine Institute

W. Certified medical treatment records from St. Louis Orthopedic, Inc.

X. Stipulation for Compromise Settlement in Injury No. 03-021846 between Claimant and Employer

Y. Stipulation for Compromise Settlement in Injury No. 03-072820 between Claimant and Employer

I. Employer's reports of injury for alleged dates of injury of March 18, 2003 and July 14, 2003

II. Certified medical treatment records from Metropolitan Orthopedics

III. Certified medical treatment records from Missouri Baptist Medical Center

IV. Certified medical treatment records of Dr. Harold Wolff

V. Deposition of Dr. Edwin Wolfgram, with attachments, dated December 18, 2008

Notes: 1) Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on January 4, 2011.

2) Some of the exhibits were admitted with objections contained in the record. Unless otherwise specifically noted bel