Sharon Parker v. Northwest Missouri Psychiatric Hospital

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-003979

Employee: Sharon M. Parker

Employer: Northwest Missouri Psychiatric Hospital (Settled)

Insurer: CARO (Settled)

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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 26, 2011. The award and decision of Chief Administrative Law Judge Nelson G. Allen, issued August 26, 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 $\qquad 19^{\text {th }}$ day of April 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge (ALJ) should be modified and employee should be awarded permanent total disability benefits against the Second Injury Fund.

First, there is no dispute that employee suffered an accident that arose out of and in the course of her employment on January 19, 2008, and that the injuries resulting from said accident combined with employee's preexisting disabilities to trigger Second Injury Fund liability. The issue is whether the combination of employee's primary injury and preexisting disabilities resulted in permanent and total disability.

Dr. Koprivica provided the only medical expert permanent disability ratings for employee's primary injury and preexisting disabilities. Dr. Koprivica opined that as a result of the primary injury employee sustained 30\% permanent partial disability of her left shoulder and 10 % permanent partial disability of the body as a whole referable to her lumbar spine. With regard to employee's preexisting disabilities, Dr. Koprivica opined that at the time of the primary injury employee suffered from 15\% permanent partial disability of her right knee and 5\% permanent partial disability of the body as a whole referable to her lumbar spine.

As to employability, Dr. Koprivica opined that employee was capable of doing home health aide activities for ambulatory individuals as she is currently doing, but that this "would represent her ability to access the open labor market." Dr. Koprivica stated in his report that he would defer to a vocational expert if there is a debate about her employability.

Ms. Titterington, the only vocational expert retained in this case, evaluated employee on March 29, 2010. Ms. Titterington noted that employee had difficulty stooping, squatting, and bending and that she needed the assistance of coworkers to complete many of her job duties. Ms. Titterington also noted that employee had been working for the prior 10 years as a personal care assistant.

Ms. Titterington indicated that employee's part-time job is on an "on call" basis, does not require a routine set number of hours, and that it is only because of this arrangement that employee is able to perform in this position. Ms. Titterington also noted that "Dr. Koprivica's assessment does not allow [employee] to continue to perform this job as she performs it." Ms. Titterington further noted that retraining was not a realistic option for Ms. Parker due to her restrictions and her age. Ms. Titterington stated that employee could not return to her previous job due to physical limitations and that her limited job for Unity Homes "is not considered a valid representation of a companion's duties as it is typically performed in the open labor market." Ms. Titterington ultimately concluded that employee is unable to work full-time at a competitive rate.

The Second Injury Fund did not provide any contradictory expert evidence.

Improvee: Sharon M. Parker

- 2 -

Permanent and total disability is defined by § 287.020.6 RSMo¹ as the "inability to return to any employment ...."

The test for permanent total disability is whether, given the employee's situation and condition he or she is competent to compete in the open labor market. The pivotal question is whether any employer would reasonably be expected to employ the employee in that person's present condition, reasonably expecting the employee to perform the work for which he or she is hired.

Gordon v. Tri-State Motor Transit Company, 908 S.W.2d 849, 853 (Mo. App. 1995) (citations omitted).

Dr. Koprivica opined that due to employee's permanent disabilities she is significantly restricted from further employment, but did state that she could continue working in her current position. However, Dr. Koprivica also deferred to a vocational expert as to employability. The only vocational expert to render an opinion regarding employability, Ms. Titterington, opined that employee's current position is not typical and that she could not compete in the open labor market. In addition, Ms. Titterington opined, contrary to Dr. Koprivica's assessment, that under Dr. Koprivica's restrictions employee would not even be able to continue performing her current job.

In light of the expert opinions of Dr. Koprivica and Ms. Titterington, and the record as a whole, I believe that as a result of the combination of employee's primary injuries and preexisting disabilities she is permanently and totally disabled. As such, I would modify the award of the ALJ merely awarding employee permanent partial disability benefits and award employee permanent total disability benefits against the Second Injury Fund.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

Curtis E. Chick, Jr., Member

¹ Statutory references are to the Revised Statutes of Missouri 2007 unless otherwise indicated.

Employee: Sharon M. Parker Injury No.: 08-003979

Employer: Northwest Missouri Psychiatric Hospital (Settled)

Insurer: CARO (Settled) Hearing Date: August 6, 2011 Checked by: NGA

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 19, 2008.
5. State location where accident occurred or occupational disease was contracted: Buchanan 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.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was a psychiatric aid and fell on the ice while walking from one of the employer's buildings to another.
2. Did accident or occupational disease cause death? No.
3. Part(s) of body injured by accident or occupational disease: Left shoulder and back and body as a whole.
4. Nature and extent of any permanent disability: Claimant's permanent partial disability of 30 percent of the left shoulder at the 232 -week level combined with prior disabilities of 15 percent of right knee and five percent body as a whole for a back injury resulting in an enhancement of 11.36 weeks of disability.
5. Compensation paid to-date for temporary disability: $\ 139.71.
6. Value necessary medical aid paid to date by employer/insurer? $\ 10,304.15
7. Value necessary medical aid not furnished by employer/insurer? None.
8. Employee's average weekly wages: N/A.
9. Weekly compensation rate: $\ 382.65 per week for permanent partial disability.
10. Method wages computation: by stipulation.

1. Amount of compensation payable: None. Employee's claim against Employer settled previously.
2. Second Injury Fund liability:

11.36 weeks of permanent partial disability from Second Injury Fund $\times \$ 382.65= \ 4,346.90.

TOTAL: $\ 4,346.90.

1. Future requirements awarded: None.

Said payments to begin January 20, 2008 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: Christine M. Kiefer.

Employee: Sharon M. Parker

Injury No.: 08-003979

Employer: Northwest Missouri Psychiatric Hospital (Settled)

Additional Party: The Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Insurer: CARO (Settled)

Hearing Date: August 6, 2011

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Checked by: NGA

Prior to presenting evidence, the parties stipulated that the only issue to be determined by this hearing was the liability, if any, of the Second Injury Fund.

The parties agreed that on January 19, 2008, Sharon M. Parker was an employee of Northwest Missouri Psychiatric Hospital. The employer was operating under and subject to the provision of the Missouri Workers' Compensation Law and was fully insured by CARO.

The parties also agreed that on January 19, 2008, the claimant sustained an injury by accident or occupational disease arising out of and in the course of her employment. The employer had proper notice of claimant's injury and a timely Claim for Compensation has been filed.

The parties further agreed that the correct rate of compensation is $\ 382.65 per week. Compensation has been provided in the amount of $\ 139.71 for three-sevenths of a week. Medical aid has been furnished in the amount of $\ 10,304.15.

The claimant testified in person. She is five feet five and one-half inches tall and on October 8, 2009 weighed 269 pounds. She had worked for Northwest Psychiatric Hospital as a psychiatric aid for 20 years one month. Her last day at work was the date of her injury January 19, 2008. She was responsible for drawing up lesson plans, teaching classes and giving hands on training in the area of home economics.

On January 19, 2008, the claimant during her employment went outside to walk to another of the employer's buildings. She fell on an icy sidewalk and landed on her back and left shoulder. She had pain in her lower back and left shoulder.

Dr. Distefano performed surgery on claimant's left shoulder on November 3, 2008 which included a SLAP repair, left distal clavicle resection and subacromial decompression. She had a steroid injection following the surgery and had an adverse reaction to it. A direct manipulation was performed in January 2009 to relieve a frozen shoulder.

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