Daphne Pennewell v. Hannibal Regional Hospital

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-082041

Employee: Daphne Pennewell

Employer: Hannibal Regional Hospital

Insurer: Self-Insured

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 October 5, 2011. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued October 5, 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 $18^{\text {th }}$ day of June 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: July 14, 2006.
5. State location where accident occurred or occupational disease was contracted: Monroe City, Monroe 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? Employer is self-insured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was leading a program for female high school athletes and injured her back while jumping over cones.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: Low back.
14. Nature and extent of any permanent disability: Employee is permanently and totally disabled.
15. Compensation paid to-date for temporary disability: $\ 73,380.30 in temporary total disability benefits; $\ 20,916.65 in temporary partial disability benefits..
16. Value necessary medical aid paid to date by employer/insurer? $\ 177,300.65.

Employee: Daphne Pennewell

1. Value necessary medical aid not furnished by employer/insurer? N/A.
2. Employee's average weekly wages: $\ 1,096.52.
3. Weekly compensation rate: $\$ 718.87 / \ 376.55.
4. Method wages computation: Stipulation

1. Amount of compensation payable from Employer:

Permanent total disability benefits of $\ 718.87 per week, beginning March 7, 2011, for Employee's lifetime.

1. Future Requirements Awarded:

Future and ongoing medical care and treatment pursuant to Section 287.140, RSMo.

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:

John Morthland

Employee: Daphne Pennewell

Injury No: 06-082041

The evidentiary hearing in this case was held on July 20, 2011 in Hannibal. The hearing was held to determine the liability of Employer, if any, for permanent partial disability benefits or permanent total disability benefits, and Employer's liability for future medical care.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over the case;
2. That venue for the evidentiary hearing is proper in Marion County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That Claimant's average weekly wage was $\ 1,096.52 resulting in a rate of $\ 718.87 for temporary total disability benefits and permanent total disability benefits and a rate of $\ 376.55 for permanent partial disability benefits;
6. That Claimant, Daphne Pennewell, sustained an occupational disease arising out of and in the course of her employment with Hannibal Regional Hospital on or about July 14, 2006 in Monroe County, Missouri;
7. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation;

1. That Employer was an authorized self-insured for Missouri Workers’ Compensation purposes at all relevant times; and
2. That temporary total disability payments have been made in full through March 6, 2011 and that no disability payments have been made since that time.

The evidence consisted of the testimony of Claimant, Daphne Pennewell; the testimony of Ruth Rosenkrans; the deposition testimony and medical report of Dr. David Kennedy; the deposition testimony and report of Dr. Barry Feinberg; the deposition testimony and report of Dr. Russell Cantrell; the January 31, 2011 report of June Blaine, a rehabilitation counselor; medical records; list of current medications; job description, and other correspondence.

Claimant, Daphne Pennewell, was born on October 18, 1970. Claimant is a 1989 high school graduate, has a bachelor of health sciences degree from Southwest Baptist University, and a masters degree in physical therapy from the University of Indianapolis. Claimant began working full-time for Employer in January 1994 as a staff physical therapist at Employer's hospital in Hannibal. In 2003, Employer opened an outpatient clinic in Monroe City, and Claimant was promoted to become the supervisor at that facility. Claimant continued to work some weekend rotations at the hospital in Hannibal.

As stipulated, Claimant sustained an accident arising out of and in the course of her employment with Hannibal Regional Hospital on July 14, 2006. While leading a Sports Enhancement Program for female high school athletes, she injured her back while jumping over a six inch cone with her right leg; her right knee started to cave or buckle, and Claimant twisted awkwardly to avoid falling. Claimant immediately knew that she had sustained the injury which was witnessed by her co-employee, Jane Cline. The physical therapy clinic in Monroe City, Missouri shared the building with the medical clinic of Dr. Dale Zimmerman. Claimant was treated that day by Dr. Zimmerman with a medrol dose pack, flexeril and vicodin.

Claimant testified that on July 26, 2006 she began noticing radiating pain and symptoms into her right leg. She saw Dr. Zimmerman two days later. He ordered her initial MRI which revealed a central disc protrusion at L5-S1 which was encroaching upon the S1 nerve root. Employer eventually referred her to Dr. Dennis Abernathie who is an orthopedic surgeon with Columbia Orthopedic Group. Claimant saw Dr. Abernathie on August 1, 2006 and August 15, 2006. He treated her conservatively. On both occasions he gave Claimant an epidural injection in her lumbar spine. These injections met with limited success.

On September 8, 2006 Dr. Abernathie ordered a diskogram. The result of this diskogram was that Claimant was scheduled for a diskectomy at the level of L5-S1. On September 11, 2006, Dr. Abernathie performed a microdiskectomy at the level of L5-S1. This procedure was carried out at Columbia Regional Hospital. Claimant continued to be a patient of the hospital. On the very next day, September 12, 2006, Claimant noticed progressive weakness in both of her legs. This weakness continued to progress throughout the day. Based upon Claimant's symptomatology, Dr. Abernathie returned Claimant to the operating room on September 13, 2006. At that time, another microdisectomy at the level of L5-S1 was performed together with a laminectomy. It is the opinion of Dr. David Kennedy, neurosurgeon, that somehow during the initial surgical procedure, a nerve or nerve roots were scarred or "kinked." Claimant was discharged from Columbia Regional Hospital on September 15, 2006.

Claimant continued to be followed by Dr. Dennis Abernathie. She also underwent physical therapy through Hannibal Regional Hospital. Her primary therapist was her supervisor, Ruth Rosenkrans. Claimant saw Dr. Abernathie in the office on November 27, 2006. Her low back complaints and bilateral lower extremity symptoms had worsened following some of her physical therapy treatments. On December 8, 2006, Dr. Abernathie ordered a myelogram. At the January 8, 2007 appointment Dr. Abernathie suspected the possible instability of Claimant's lumbar spine. He ordered another diskogram which was carried out on January 11, 2007. This resulted in another surgical procedure being scheduled for January 18, 2007. This surgery was canceled by Employer's workers' compensation administrator as they wanted a second opinion before proceeding with surgery. While awaiting the second opinion, Claimant noted symptoms consistent with "saddle paresthesia". As a physical therapist Claimant knew that saddle parathesia can result in permanent bladder injury and other serious complications. Once these symptoms were related to Employer, another surgical procedure was authorized.

Claimant was admitted to Columbia Regional Hospital on January 24, 2007. On that date, she underwent an L5-S1 anterior lumbar interbody fusion with the placement of a cadaver bone, a metal plate and four screws. She continued to be followed by Dr. Dennis Abernathie. Between her second and third surgeries, Claimant had returned to limited work and duties. She also returned to limited work and duties after the third surgical procedure. She never again worked more than portions of three days during the work week. She also had extensive restrictions on lifting and other activities. Claimant's condition generally improved. However, on September 7, 2007 while at work and moving sideways in her office chair, Claimant felt a sharp catching pain in her low back. This resulted in increased pain and discomfort and the renewal of her prior symptoms.

Employer requested that Claimant see Dr. Ann Roberson. Dr. Roberson was a new occupational therapy physician hired by Employer. Claimant saw Dr. Roberson on numerous occasions. Claimant had difficulty dealing with Dr. Roberson. Ultimately, Dr. Roberson told Claimant that she could see another physician for a second opinion in regard to her continuing difficulties. Dr. Roberson eventually referred Employee to Dr. David Kennedy, a St. Louis neurosurgeon.

Claimant initially saw Dr. Kennedy on December 12, 2007. Dr. Kennedy reviewed the extensive medical records and examined Claimant. Dr. Kennedy ordered