Donna Bolerjack v. Country Mart

Employer is referred to Commission rule 8 CSR 20-3.030(5) (C) which states the requirements for an appellant's brief to the Commission; among these is "a fair and concise statement of facts without argument." This rule is intended not only to benefit the Commission in narrowing the issues and providing a clear factual background, but also the parties, because when the rule is observed, the Commission is able to avoid unnecessary and time-consuming forays into the record simply to determine which party has accurately stated the evidence. Here, employer's suggestion that certain factual medical determinations are required in this case "as a matter of law" combined with its incomplete and unfair statement of the facts needlessly diverted our time and attention from the substantive issue of which expert provides the more credible account of employee's low back condition and disability.

In any event, after a careful review of the expert medical opinions, we agree with the administrative law judge's determination that Dr. Satterly and Dr. Volarich provide the more credible testimony in this matter. We discern no reason to disturb the administrative law judge's thorough and well-reasoned award. But we write this supplemental opinion to make clear the imposition upon the Commission that results when parties, such as employer here, misstate both the facts and the law in their briefs.

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Vicky Ruth, issued March 20, 2012, is attached and incorporated by this reference.

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 $\qquad 26^{\text {th }} \qquad$ day of November 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

VACANT

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Donna Bolerjack

Injury No. 02-011152

Dependents: N/A

Employer: Country Mart

Additional Party: N/A

Insurer: Arrowood Indemnity Co.

Hearing Date: December 14, 2010

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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 23, 2002.
5. State location where accident occurred or occupational disease was contracted: Dent 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 employee was struck on her left shoulder by several falling boxes.
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: Body as a whole referable to the low back, the mid-back, the neck, and the left shoulder.
14. Nature and extent of any permanent disability: Permanent and total disability.
15. Compensation paid to-date for temporary disability: $\ 5,895.14.
16. Value necessary medical aid paid to date by employer/insurer? $\ 69,986.80.
17. Value necessary medical aid not furnished by employer/insurer? See award.

1. Employee's average weekly wages: $\ 252.69.
2. Weekly compensation rate: $\ 168.46.
3. Method of wages computation: By agreement.

1. Amount of compensation payable from employer:

Permanent and total disability benefits of $\$ 168.46 /$ week from February 11, 2004, and thereafter for claimant's lifetime as provided by statute.

1. Second Injury Fund liability: N/A.
2. Future medical awarded: Yes.

Said payments to begin immediately and to be payable and 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 (excluding payments for future medical treatment) in favor of the following attorney for necessary legal services rendered to the claimant: Stephen Gaunt.

On December 14, 2011, Donna Bolarjack and Country Mart/Arrowood Indemnity Co. appeared for a final award hearing. Donna Bolarjack, the claimant, was represented by attorney Stephen Gaunt. Country Mart and Arrowood Indemnity Co., the employer/insurer, were represented by attorney John Pazell. Claimant testified in person at the hearing and by two depositions. Dr. Thomas Satterly, Dr. Russell Cantrell, Dr. Michael Chabot, and Dr. David Lange testified by deposition. Late-filed exhibits were filed on January 4, 2011. The parties filed briefs/proposed awards on January 11, 2012, and the record closed at that time.

The parties stipulated to the following:

1. On or about January 23, 2002, Country Mart (the employer) was an employer operating subject to the Missouri Workers' Compensation law.
2. The employer's liability for workers' compensation was insured by Arrowood Indemnity Co. (the insurer).
3. Donna Bolerjack (the claimant) was an employee of the employer on January 23, 2002, when she sustained an injury by accident that arose out of and in the course and scope of employment.
4. Notice is not an issue.
5. Claimant filed a Claim for Compensation within the time prescribed by law.
6. The Missouri Division of Workers' Compensation has jurisdiction.
7. The accident occurred in Dent County and venue for trial purposes is proper in Phelps County.
8. Claimant's average weekly wage was $\ 252.69, yielding a weekly compensation rate of $\ 168.46.
9. The employer has provided medical benefits in the amount of $\ 69,986.80.
10. The employer has provided temporary total disability benefits in the amount of $\ 5,895.14. The periods covered were January 24, 2002 through March 31, 2002 (temporary total disability benefits); April 1, 2002 through April 17, 2002 (temporary partial disability benefits); April 18, 2002 through July 21, 2002 (temporary total disability benefits); and July 22, 2002 through October 20, 2002 (temporary partial disability benefits).

At the hearing, the parties agreed that the issues to be resolved in this proceeding are as follows:

1. Liability for unpaid temporary total disability benefits.
2. Nature and extent of permanent partial disability or permanent total disability.
3. Whether claimant's unpaid medical treatment was reasonable and necessary to cure or relieve the effects of the work injury.
4. Liability of the employer/insurer for unpaid medical treatment.
5. Liability for future medical care.

On behalf of the claimant, the following exhibits were entered into evidence:

Exhibit A Medical records from Dr. Yvonne Prince.

Exhibit B Medical records from Ozarks Health Services (2/01/02).

Exhibit C Medical records from St. John's Regional Health Center.

Exhibit D Medical records from Springfield Physical Medicine.

Exhibit E Medical records from Salem Memorial (2/14/02 - 2/14/03).

Exhibit F Medical records from Dr. Thomas Satterly.

Exhibit G Medical records from Phelps County Regional Medical Center $(4 / 01 / 02-12 / 13 / 02)$.

Exhibit H Medical records from Orthopedic Specialists/Dr. Chabot.

Exhibit I Medical records from Des Peres Hospital.

Exhibit J Medical records from Sport Rehab.

Exhibit K Medical records from Orthopedic \& Sports Medicine.

Exhibit L Medical records from Pro Rehab (10/15/02).

Exhibit M Medical records from Salem Memorial (12/04/02 - 1/08/03).

Exhibit N Medical records from Pro Rehab (9/23/02 - 10/04/02).

Exhibit 0 Medical records from Phelps County Regional Medical Center $(4 / 25 / 03-11 / 03 / 03)$.

Exhibit P Medical records from Ozark Health Services (5/16/03 - 6/24/03).

Exhibit Q Medical records from Phelps County Regional Medical Center $(4 / 12 / 04)$.

Exhibit R Medical records from Dr. Satterly/Phelps County Regional Medical Center (4/02/04 - 6/08/04).

Exhibit S Medical records from Salem Memorial (9/24/03 - 7/5/04).

Exhibit T Medical re