Kristine Gibbons v. St. Louis University Hospital

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-130590

Employee: Kristine Gibbons

Employer: St. Louis University Hospital

Insurer: American Home Assurance Company

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 June 19, 2012, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued June 19, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $10^{\text {th }}$ day of January 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: (alleged) March 15, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis City
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? No
8. Did accident or occupational disease arise out of and in the course of the employment? No
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: Claimant was employed as a care partner for Employer and allegedly injured her low back while trying to help restrain a very combative patient, while they were trying to place a central line in her right leg.
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: (alleged) Body as a Whole-Lumbar Spine
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Kristine Gibbons

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 509.96
3. Weekly compensation rate: $\ 339.97 for TTD/ $\ 339.97 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Claim denied \$0.00

1. Second Injury Fund liability:

Claim denied by virtue of having no compensable primary injury \0.00

TOTAL: \quad \ 0.00

1. Future requirements awarded: 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: Thomas J. Gregory.

On January 18, 2012, the employee, Kristine Gibbons (Claimant), appeared in person and by her attorney, Mr. Thomas J. Gregory, for a hearing for a final award on her claim against the employer, St. Louis University Hospital, and its insurer, American Home Assurance Company C/O Specialty Risk Services, LLC. The employer, St. Louis University Hospital, and its insurer, American Home Assurance Company C/O Specialty Risk Services, LLC, were represented at the hearing by their attorney, Mr. Hugh S. O’Sullivan. The Second Injury Fund is a party to this case and was represented at the hearing by Assistant Attorney General Da-Niel Cunningham.

To allow the parties time to prepare and file their proposed awards or briefs in this matter, the record did not technically close until February 17, 2012. Although we did not go back on the record or take any further evidence in this matter after the initial hearing date, the record was, then, closed on that date and the briefs were submitted by the parties on February 27, 2012, after an extension beyond the initial due date for the briefs was requested and granted.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about March 15, 2007, Kristine Gibbons (Claimant) allegedly sustained an accidental injury.

2) Claimant was an employee of St. Louis University Hospital (Employer).

3) Venue is proper in the City of St. Louis.

4) The Claim was filed within the time prescribed by the law.

5) At the relevant time, Claimant earned an average weekly wage of $\ 509.96, resulting in applicable rates of compensation of $\ 339.97 for total disability benefits and $\ 339.97 for permanent partial disability benefits.

6) Employer has not paid any benefits to date.

1) Was there an accident under the statute?

2) Did the accident arise out of and in the course of employment?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to her alleged accident at work?

4) Did Claimant provide Employer with proper notice of the injury under the statute?

5) Is Claimant entitled to payment for past medical expenses in the stipulated amount of $\ 10,516.58 ?

6) Did Claimant ever request medical treatment from Employer in connection with her alleged injury at work?

7) Is Claimant entitled to future medical treatment as a consequence of her alleged accidental injury at work?

8) Is Claimant entitled to the payment of temporary total disability benefits for a period of time to be determined?

9) What is the nature and extent of Claimant's permanent partial or permanent total disability attributable to this alleged accidental injury?

10) What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A. Medical treatment records of Dr. E. Charles Robacker

B. Medical treatment records (outpatient physical therapy) of St. Elizabeth's Hospital

C. Medical treatment records (inpatient hospitalization from May 28, 2008 to June 2, 2008) of St. Elizabeth's Hospital

D. Medical treatment records (inpatient hospitalization from July 1, 2009 to July 6, 2009) of St. Elizabeth's Hospital

E. Medical treatment records of Chestnut Health Systems

F. Itemized list of, and copies of, medical treatment bills for this alleged injury

G. Deposition of Dr. David Volarich, with attachments, dated December 4, 2009

H. Deposition of Dr. Wayne Stillings, with attachments, dated December 16, 2009

I. Deposition of Mr. James England, with attachments, dated September 21, 2010

1. Certified medical records of St. Louis University Hospital's Employee Health Department
2. Deposition of Dr. Stacey Smith, with attachments, dated July 14, 2011
3. Deposition of Dr. Sherwyn Wayne, with attachments, dated July 22, 2011
4. Deposition of Mr. James Stenger, with attachments, dated October 25, 2011
5. Deposition of Ms. Mary Beth Deines, with attachment, dated November 4, 2011
6. Deposition of Mr. Aaron Herr dated January 16, 2012

Nothing offered or admitted at the time of trial

Notes: 1) Unless otherwise specifically noted below, any objections contained in the exhibits are overruled and the exhibits are fully admitted into evidence in this case.

2) Some of the records submitted at hearing contain handwritten remarks or other marks on the exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on January 18, 2012.

In the deposition transcript and at the trial when Employer offered Exhibit 5, the deposition testimony of Ms. Mary Beth Deines, into evidence, Claimant objected to the admission of the attached exhibit, and any testimony regarding or based on that deposition exhibit.

The attached exhibit to that deposition, marked at the deposition as Exhibit A, is an undated, handwritten note allegedly concerning Claimant and her alleged injury at work. Ms. Deines identified the note as being in her handwriting, but she was unable to determine when she allegedly wrote the note. She surmised that she must have written the note in 2007, but could not determine exactly when. She could not certify whether she created this note all at one time, or added multiple entries over time. It was not even clear where this note was kept over the years, whether in Ms. Deines' files or in Claimant's personnel file. However, regardless of which file it

may have been kept in, there were no other file contents offered or disclosed to help authenticate this document. In reviewing the handwritten note, not only is there no date and no indication of where it may have been kept over the years, but there is also no clear indication that this note concerns Claimant, as opposed to any other employee. I could not find anywhere in the handwritten note where Claimant was named as the individual about which this note was written.

On the basis of all these factors, Claimant's objections regarding the admissibility of this handwritten note (Exhibit A attached to Exhibit 5) and any testimony referencing the note itself, are $\boldsymbol{S U S T A I N E D}$. The note and only the testimony of Ms. Deines regarding the note are not admitted into evidence in this case, and will not be considered when reaching my conclusions in this matter. However, the rest of the testimony of Ms. Deines regarding her personal recollections and interactions with Claimant, as well as her testimony about her duties and position of responsibility at Employer, are properly admitted into evidence in this case.

Based on a comprehensive review of the evidence, including Claimant's testimony, the medical records and bills, the medical/psychiatric opinions and testimony, the vocational opinion and testimony, and the testimony of the other witnesses, as well as based on my personal observations of Claimant at hearing, I find ${ }^{1}$ :

1) Claimant is a 47-year-old woman, who testified that she last worked for St. Louis University Hospital (Employer) as a care partner from April 2006 until February 2008. In her position as a care partner, Claimant was responsible for assisting patients (cleaning them or turning them), taking blood pressure, working with catheters, drawing blood and taking vital signs. She said that she basically did everythin