Barbara Shupe v. St. Johns Mercy Health Systems

given employee's physical condition, an employer in the usual course of business would reasonably be expected to employ her during the time period claimed. Cooper v. Medical Ctr. of Independence, 955 S.W.2d 570, 575 (Mo. App. 1997). Accordingly, we look to the evidence of employee's physical condition in the two weeks she was off work following the work injury.

At the hearing, employee's attorney asked her why she needed two weeks off work following the injury on August 31, 2009. Employee testified she was in unbearable pain and that her only relief was to lie down with a heating pad. The administrative law judge found employee testified credibly regarding her injury and resulting problems she experienced with her low back. Employer identifies no reason why we should disbelieve this testimony from employee. Instead, employer argues that because the experts did not address the issue of temporary total disability, employee failed to meet her burden.

Employer's argument fails. "A claimant is capable of forming an opinion as to whether she is able to work, and her testimony alone is sufficient evidence on which to base an award of temporary total disability." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. 2003). We conclude that, given employee's unbearable low back pain following the work injury, no employer in the usual course of business would reasonably be expected to employ her during the weeks claimed. Employer is liable for temporary total disability benefits.

We noted some clerical errors in the administrative law judge's award. We hereby correct them as follows.

On page 5 of the award, in the last paragraph, second sentence, the administrative law judge states: "Dr. Musich found that Employee sustained an acute lumbar trauma on August 21, 2009, which resulted in chronic residual symptoms of pain in her low back, and radicular symptoms into Employee's right leg." We correct the foregoing sentence to read as follows: "Dr. Musich found that Employee sustained an acute lumbar trauma on August 31, 2009, which resulted in chronic residual symptoms of pain in her low back, and radicular symptoms into Employee's right leg."

On page 7 of the award, in the first full sentence, the administrative law judge states: "Permanent partial disability can be awarded even if the injured worker returns to her same employment, as long as her injury impairs his ability to efficiently pursue the ordinary activities of life." We correct the foregoing sentence to read as follows: "Permanent partial disability can be awarded even if the injured worker returns to her same employment, as long as her injury impairs her ability to efficiently pursue the ordinary activities of life."

The Commission supplements the award and decision of the administrative law judge with our own analysis herein.

The award and decision of Administrative Law Judge Lee B. Schaefer, issued February 7, 2012, is affirmed and is attached hereto and incorporated herein to the extent it is not inconsistent with this supplemental opinion.

We approve and affirm 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 $10^{\text {th }}$ day of October 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

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: August 31, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis 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: While reaching overhead to unload totes containing medical supplies off of a skid, the bottom tote flipped causing the heavier, upper totes, to fall on Employee.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 8 % of the body as a whole
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? 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 attorney for necessary legal services rendered to the claimant: Mark Haywood

Employee: Barbara Shupe

Departments: N/A

Employer: St. Johns Mercy Medical Center

Additional Party: Second Injury Fund

Insurer: Mercy Hospitals East Communities

Hearing date: November 10, 2011

Injury No.: 09-080077

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

An evidentiary hearing was held in the above-referenced matter on November 10, 2011. This matter was tried jointly with Injury Number 09-080095; a separate Award will be issued in that case. Barbara Shupe ("Employee"), appeared in person and was represented by her counsel, Mark Haywood. St. Johns Mercy Health Systems ("Employer"), and its insurer, Mercy Hospitals East Communities ("Insurer"), were represented by counsel, Maurice Early. The Second Injury Fund was left open, and therefore, was not present at the time of the Hearing. However, Employee and the Second Injury Fund have entered a Stipulation as to the liability of the Second Injury Fund should the primary injury reach threshold. If the primary injury fails to reach threshold, the claim against the Second Injury Fund will be dismissed.

The parties stipulated to the following facts:

1. Employee and Employer were operating under and subject to the provisions on the Missouri Workers' Compensation Law;
2. On August 31, 2009, Employee allegedly sustained an injury to her low back while lifting a tote filled with medical supplies, which caused another tote to fall on top of her;
3. Employer was provided proper notice of Employee's injury;
4. Employee filed her Claim for Compensation in a timely manner;
5. Employer has not paid any benefits in this matter;
6. Venue for the Hearing in this matter is proper at the St. Louis Office of the Missouri Division of Workers' Compensation.

The issues to be resolved at this Hearing are as follows:

1. Whether Employee sustained an accident;

1. Whether Employee's alleged accident arose out of and in the course and scope of employment;
2. Whether Employee's back injury was medically caused by her alleged work accident;
3. Whether Employer is liable for past medical benefits in the amount of $\ 1,504.00;
4. Whether Employer is liable for temporary total disability benefits for two weeks;
5. The nature and extent, if any, of Employee's permanent partial disability;
6. The nature and extent, if any, of liability of the Second Injury Fund based on a Stipulation between Employee and the Second Injury Fund.

Employee offered, and had admitted in to evidence, the following Exhibits:

Exhibit A: Report of Dr. Thomas Musich

Exhibit B: Curriculum Vitae of Dr. Thomas Musich

Exhibit C: Medical records from SJMMC Doctors Building

Exhibit D: Medical records from BJC Internal Medicine Specialists

Exhibit E: Medical records from Mercy Internal Medicine

Exhibit F: Bill from Open MRI of St. Louis

Employer offered, and had admitted into evidence, the following Exhibit:

Exhibit 1: Deposition of Dr. Donald de Grange

Based upon the relevant testimony of Employee, and the Exhibits introduced into evidence, I make the following Findings of Fact:

Employee