Beverlie Leonard v. Francis Howell R-III School District

Injury No.: 09-014034

Employee: Beverlie Leonard

Employer: Francis Howell R-III School District

Insurer: Missouri United School Insurance Council

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence and considered the whole record. We find 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, except as modified herein. Pursuant to § 286.090 RSMo, we issue this final award and decision affirming the October 20, 2011, award and decision of the administrative law judge, as modified herein.

Employee filed an Application for Review asking that we modify the administrative law judge's award of future medical treatment from an award of specific treatment to an award of that care as may be reasonably required to cure and relieve employee from the effects of the injury.

We grant employee's request and modify the award of future medical care. Employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury as required by $\S 287.140 .1$ RSMo.

In all other respects we affirm and adopt the award of the administrative law judge.

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.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued October 20, 2011, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $\qquad 5^{\text {th }} \qquad$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

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 3, 2009
5. State location where accident occurred or occupational disease was contracted: St. Charles 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 occurred or occupational disease contracted: The claimant, a school custodian, fell while putting trash into a dumpster fracturing her left ankle.
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: Left ankle
14. Nature and extent of any permanent disability: 40 % Permanent partial disability
15. Compensation paid to-date for temporary disability: $\ 4,853.42
16. Value necessary medical aid paid to date by employer/insurer: $\ 45,964.85

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Beverlie Leonard

1. Value necessary medical aid not furnished by employer/insurer? None to date
2. Employee's average weekly wages: $\ 300.00
3. Weekly compensation rate: $\$ 186.67 / \ 200.00
4. Method wages computation: By agreement

1. Amount of compensation payable:

62 weeks of permanent partial disability from Employer $\ 12,400.00

1. Second Injury Fund liability: No

TOTAL:

$\ 12,400.00

1. Future requirements awarded: See additional Findings of Fact and Rulings of Law

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 attorney for necessary legal services rendered to the claimant: Cynthia M. Hennessey

Employee: Beverlie Leonard

Injury No.: 09-014034

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Francis Howell R III School District

Additional Party: Second Injury Fund (Voluntarily Dismissed)

Insurer: Missouri United School Insurance Council

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri<br>Checked by: EJK/ch

This workers' compensation case raises several issues arising out of a work related injury in which the claimant, a school custodian, suffered a left ankle injury when she fell while carrying trash to a school trash dumpster. The sole issues for determination are (1) Future medical care and (2) Permanent disability. The Second Injury Fund claim was voluntarily dismissed prior to presentation of evidence. The evidence compels an award for the claimant as indicated below.

At the hearing, the claimant testified in person and offered a medical report from David T. Volarich, D.O., and medical records from ProRahab, P.C. The defense offered medical records from Richard Helfrey, D.O., Paul M. Spezia, D.O., and John O. Krause, M.D., a medical report from Dr. Krause, and a copy of attorney Alan S. Mandel's withdrawal as counsel for the claimant.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

On March 3, 2009, this 65 year old school custodian sustained a left ankle injury while taking trash outside to a school dumpster. She accidently stepped into a hole, fell to the ground, and heard an immediate pop in her left ankle but was unable to get up due to pain. A co-worker transported the claimant to a hospital emergency room. She was diagnosed with a triamalleolar fracture and admitted to the hospital. On the following day Dr. Spezia performed an open reduction and internal fixation. On March16, 2009, Dr. Spezia opined that x-rays revealed good postoperative alignment of the fracture. Dr. Spezia placed her in a boot allowing 50\% weight bearing. On April 15, 2009, Dr. Spezia noted that she was not progressing and opined that she might have regional pain syndrome. He injected her Achilles tendon.

The claimant requested a second opinion and Dr. Krause examined the claimant on April 24, 2009, opining that she had a misalignment of the left medial malleoli. On April 28, 2009, he performed a revision surgery, ankle release, and Achilles lengthening. At her final evaluation, on

October 14, 2009, Dr. Krause noted moderate swelling, weakness, and loss of motion with plantarflexion as well as aching in the foot.

The claimant reported to Dr. Volarich that she continues to experience difficulty with ambulation due to pain, weakness, stiffness, and swelling in the ankle. See Exhibit A. While she has returned to work, she testified that she has significant difficulty performing her job function and must take rest breaks every 30 minutes. She reported that she has problems with balance, pain, as well as difficulty walking on slick or wet surfaces. She has problems getting up from a kneeling position, as well as performing heavy lifting. She has difficulty ascending stairs and cannot climb ladders due to balance problems. She must rely on co-workers to assist her in more demanding tasks such as operating the floor strippers. The claimant reported that the injury also impacted her activities of daily living. See Exhibit A. She has difficulty with bathing and getting into and out of the bathtub. See Exhibit A. Housework is difficult due to pain, swelling, and balance problems. See Exhibit A. She cannot operate a car with a manual transmission. See Exhibit A. She is only able to wear tennis shoes and sandals and has difficulty walking on uneven surfaces such as grass and has difficulty performing her gardening and other hobbies.

On November 17, 2010, Dr. Volarich examined the claimant and opined that as a direct result of the work injury, the claimant sustained a 60 % permanent partial disability of the ankle. See Exhibit A. He opined that the claimant will require ongoing care for pain syndrome to maintain her current state. See Exhibit A. Dr. Krause opined that the claimant sustained a 20\% permanent partial disability of the ankle and will not "need any further medical or surgical treatment for her ankle." However, he also opined that the claimant will not "need any type of medications other than occasional Tylenol or over the counter anti-inflammatory medication. I do not anticipate she will need any type of bracing. While I cannot state this with 100 % certainty, I would anticipate this would be the case in 85 % of the patients who have the injury and treatment that Ms. Leonard sustained." See Exhibit 6.

The claimant's job duties include sweeping floors, picking up and taking out trash, mopping, waxing, and stripping floors, cleaning sinks and toilets and bathrooms, classrooms, hallways, stairs. She is required to perform heavy lifting, as well as significant standing, walking, kneeling, squatting, and reaching. The claimant testified that she had no physical problems, limitations, or restrictions which prevented her from performing her job duties before the March 2009 accident.

The Workers' Compensation Act requires employers "to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment[.]" § 287.120.1. This compensation often includes an allowance for future medical expenses, which is governed by Section 287.140.1. Rana v. Landstar TLC, 46 S.W.3d 614, 622 (Mo.App.2001). Section 287.140.1 states:

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance, and

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Beverlie Leonard

Injury No.: 09-014034

medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

Section 287.140.1 places on the claimant the burden of proving entitlement to benefits for future medical expenses. Rana, 46 S.W.3d at 622, The claimant satisfies this burden, however, merely by establishing a reasonable probability that he will need future medical treatment. Smith v. Tiger Coaches, Inc., 73 S.W.3d 756, 764 (Mo.App.2002).

In order to receive future medical benefits under the Act, a claimant is not required to present "conclusive evidence" that future medical treatment is needed. Rather, he only needs to demonstrate a "reasonable probability" that future medical treatment is necessary by reason of his work-related injury. "Probable" in this context means "founded on reason and experience which inclines the mind to believe but leaves room for doubt." The claimant is not required to present evidence of the spec