Linda Thompson v. Frene Valley Healthcare South

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-058112

Employee: Linda Thompson

Employer: Frene Valley Healthcare South

Insurer: Self-Insured through

Health Care Facilities of Missouri Self-Insurance Fund

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 January 9, 2012. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued January 9, 2012, 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 $\qquad 2^{\text {nd }} \qquad$ day of July 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Linda Thompson

Injury No. 08-058112

Dependents:

Employer: Frene Valley Healthcare South

Additional Party: Second Injury Fund

Insurer: Self-insured through Health Care Facilities of Missouri Self-Insurance Fund

Hearing Date: November 30, 2011

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: RJD/cs

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 2, 2008.
5. State location where accident occurred or occupational disease was contracted: Gasconade 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 was Self-insured through Health Care Facilities of Missouri Self-Insurance Fund.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was cleaning a patient's room when the loop of her shoestring became caught in a bed crank handle, causing Employee to fall.
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, left Achilles tendon.
14. Nature and extent of any permanent disability: total disability.
15. Compensation paid to-date for temporary disability: $\ 3,798.30.

Employee: Linda Thompson

1. Value necessary medical aid paid to date by employer/insurer? $\ 33,721.89.
2. Value necessary medical aid not furnished by employer/insurer? Unknown.
3. Employee's average weekly wages: $\ 287.25 for permanent partial disability benefits and permanent total disability benefits.
4. Weekly compensation rate: $\ 191.50 for permanent partial disability benefits and permanent total disability benefits.
5. Method wages computation: Section 287.250.3.

1. Amount of compensation payable:

Permanent total disability benefits of $\ 191.50 per week beginning February 19, 2009 for Claimant's lifetime. Employer and Insurer are also ordered to provide Claimant with future physical therapy and ankle braces for her left Achilles tendon tear.

1. Second Injury Fund liability: None.
2. Future Requirements Awarded: See Paragraph 21.

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: Randall Barnes

Employee: Linda Thompson

Injury No. 08-058112

Dependents:

Employee: Irene Valley Healthcare South

Insurer: Sedgwick Claims Management

Services

Address: 56200 W. 10th Street, New York 11, NY 105806

Telephone: 019-222-2222

An evidentiary hearing was held in this case on November 30, 2011 in Jefferson City. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on December 23, 2011. The hearing was held to determine the following issues:

1. Claimant's average weekly wage and resultant compensation rates;
2. Whether there has been an underpayment of temporary total disability ("TTD") benefits, and, if so, the extent thereof;
3. Whether Employer shall be ordered to provide Claimant with additional medical treatment pursuant to Section 287.140, RSMo;
4. The liability of Employer, if any, for permanent partial disability benefits or permanent total disability benefits; and
5. The liability of the Second Injury Fund, if any, for permanent partial disability benefits or permanent total disability benefits.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;

1. That venue is proper in Gasconade County and adjoining counties; the parties agreed to a change of venue to Cole County for the evidentiary hearing;
2. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430;
3. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
4. That Claimant sustained an accident arising out of and in the course of her employment with Frene Valley Healthcare South on July 2, 2008;
5. That Employer paid $\ 33,721.89 in medical benefits, and $\ 3,798.30 in TTD benefits;
6. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation herein; and
7. That Frene Valley Healthcare South was an authorized self-insured for Missouri Workers' Compensation purposes at all relevant times through the Health Care Facilities of Missouri Self-Insurance Fund.

The evidence consisted of the testimony of Claimant, Linda Thompson; the testimony and report of Philip Eldred, a vocational rehabilitation counselor; wage information; medical records; the deposition testimony and narrative report of Dr. George Carr; and the deposition testimony and narrative report of Dr. Saul Trevino.

Claimant, Linda Thompson, was born on October 5, 1955. She graduated from Belle High School in 1974 and was licensed by the State of Missouri as a cosmetologist for several years. She has worked as a librarian, a dental assistant, a clerk for a state agency, and as a housekeeper in a nursing home. Claimant is 5'3" tall and weighs over 300 pounds.

Claimant began working for Employer (Frene Valley Healthcare South) in December 2006 as a housekeeper. In December 2007, Claimant underwent surgery on her left knee for a medial meniscus tear. Claimant testified that the left knee injury was not work-related but rather caused by an accident she sustained at her home. Claimant was off work after the left knee surgery. In April 2008 Claimant began working part-time for Employer on a limited duty basis. Claimant was still working part-time for Employer at the time of her July 2, 2008 work injury.

As stipulated, Claimant sustained a work-related accident on July 2, 2008. Claimant was

performing her job duties as a housekeeper when the loop of her shoelace became caught in a bed-crank, causing her to fall onto the floor. She immediately felt pain in her left ankle. Diagnostic scans performed on July 2, 2008 at Hermann Area District Hospital were suggestive of an Achilles tendon tear. An MRI performed on July 7, 2008 confirmed an Achilles tendon tear. On July 30, 2008, Dr. Jason Calhoun performed a left Achilles tendon repair and excision of posterior tuberosity of the calcaneus.

After surgery, physical therapy, and work hardening, Dr. Saul Trevino determined that Claimant had reached maximum medical improvement on February 18, 2009. Based upon Claimant's demonstrated atrophy of her calf and weakness and plantar flexion, Dr. Trevino rated a 21 % impairment of the lower extremity and an 8 % of the whole person. As a result of the primary injury, Dr. Trevino indicated that Claimant required the use of a cane. Dr. Trevino restricted Claimant from climbing, prolonged standing, lifting, and carrying.

Claimant did not return to work at Frene Valley Healthcare South following her July 2, 2008 work injury, as Employer would not accommodate her use of a cane, which she began using following her injury. Claimant began taking narcotic pain medications on a daily basis following her July 2, 2008 work injury. Her left ankle pain prevents her from sleeping more than two hours at one time. She also elevates her ankle multiple times per day to relieve swelling.

After her termination by Employer, Claimant has not been employed. She now receives Social Security disability benefits.

Dr. George Carr evaluated Claimant for an Independent Medical Evaluation on November 3, 2010. Dr. Carr found a 50\% permanent partial disability at the 155 week level to the left ankle as a direct result of injuries sustained on July 2, 2008. This rating accounted for Claimant's chronic left ankle pain with reduced range of motion and limited endurance. Dr. Carr determined that Claimant had a pre-existing 15 % permanent partial disability to the left knee based on Claimant's left knee chronic pain post meniscus repair and accounts for her lost range of motion, limited mobility, and limited endurance. On cross-examination, Dr. Carr testified that Claimant in fact had normal range of motion in the left knee. Dr. Carr determined that Claimant had a pre-existing 12.5 % permanent partial disability of the body as a whole related to the lumbosacral spine based on chronic pain with reduced range of motion and limited endurance. On cross-examination, Dr. Carr testified that Claimant had a normal range of motion to the cervical, thoracic, and lumbar spine. Dr. Carr determined that Claimant had a pre-existing permanent partial disability to the body as a whole from exercise-induced asthma. When Dr. Carr evaluated Claimant in 2010, she was not taking medications for exercise-induced asthma.

In December 2007, Claimant underwent a left medial meniscus repair. Claimant testified that she does not have chronic pain in her left knee. Claimant testified that she was diagnosed with exercise-induced asthma in the 2000s. Although she had been prescribed an inhaler, she did not have any asthma attacks at work prior to her 2008 ankle injury. Claimant's exercise-induced asthma did not prevent her from walking one mile on a daily basis prior to 2008. Claimant testified that she experienced pain in her lower back and hips prior to her July 2008 work injury. She testified that she did have continuing pain in her hips but her lower back symptoms had lessened with time.

Phillip Eldred, a certified rehabilitation counselor, evaluated Claimant on September 10, 2010. Based on Claimant's test scores, education, and work history, Mr. Eldred identified 41 sedentary occupations that Claimant could work assuming that she was capable of working sedentary jobs. However, Mr. Eldred determined that Claimant was unable to work in a sedentary position based on her most limiting restrictions, those of Dr. Trevino. Mr. Eldred also determined that Claimant