Carol Herrington v. Cedar Ridge Manor

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 08-051320

Employee: Carol Herrington

Employer: Cedar Ridge Manor

Insurer: American Home Assurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, reviewed the evidence and considered the whole record. We find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge by this supplemental opinion.

We offer this supplemental opinion to address arguments raised by employer/insurer in his brief.

Employer/insurer urges us to treat Dr. Mirkin's silence regarding future medical care as an affirmative opinion by Dr. Mirkin that no future medical care is due. That we cannot do. Employee met her burden of proof by putting forth the expert medical opinion of Dr. Volarich that it was reasonably probable that employee would need future medical care for her pain syndrome. The administrative law judge found Dr. Volarich credible and so do we. Dr. Mirkin's silence has no probative value in the face of a credible, affirmative expert opinion on the issue of future medical care.

Employer/insurer argues that because Dr. Mirkin was employee's treating physician, his opinion regarding treatment should be given deferential weight when we consider treatment issues, including whether employee needs for future medical treatment. As we pointed out in the previous paragraph, Dr. Mirkin had no affirmative opinion regarding future medical treatment so there is no opinion to which we can give weight. To the argument in general, we answer that we afford the opinions of treating physicians the weight they are due. We cannot, however, afford them conclusive strength. To do so would give an unfair advantage to employers in treatment disputes, because employers have the statutory right to direct treatment and select treating physicians. See § 287.140 RSMo.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2007.

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Any past due compensation shall bear interest as provided by law.

The July 18, 2012, award and decision of Administrative Law Judge Carl Strange is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad$ 1st day of February 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Carol Herrington

Injury No. 08-051320

Dependents: N/A

Employer: Cedar Ridge Manor

Additional Party: Second Injury Fund

Insurer: American Home Assurance Company

(TPA: Chartis Claims Inc.)

Hearing Date: April 16, 2012

Checked by: CS/rf

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? June 10, 2008.
5. State location where accident occurred or occupational disease contracted: Jefferson 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 happened or occupational disease contracted: Employee was transferring a patient and injured her low back.

1. Did accident or occupational disease cause death? N/A
2. Parts of body injured by accident or occupational disease: Body as a whole referable to the low back.
3. Nature and extent of any permanent disability: (See Findings).
4. Compensation paid to date for temporary total disability: 31,877.82.
5. Value necessary medical aid paid to date by employer-insurer: 217,078.30.
6. Value necessary medical aid not furnished by employer-insurer: N/A
7. Employee's average weekly wage: 466.83.
8. Weekly compensation rate: 311.22 for temporary total disability, permanent total disability, and permanent partial disability.
9. Method wages computation: By agreement.
10. Amount of compensation payable: Employee awarded permanent total disability from the employer-insurer. (See Findings.)
11. Second Injury Fund liability: None (See Findings).
12. Future requirements awarded: Employer-insurer directed to pay future medical aid pursuant to Section 287.140 RSMo (See Findings).

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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 costs plus 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Dan Gauthier

On April 16, 2012, the employee, Carol Herrington, appeared in person and by her attorney, Dan Gauthier, for a hearing for a final award. The Employer-insurer was represented at the hearing by its attorney, Peter Maher. The Second Injury Fund was represented by Assistant Attorney General, Kevin Nelson. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows.

1. On or about June 10, 2008, Cedar Ridge Manor was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by American Home Assurance Company with a third party administrator of Chartis Claims Inc.
2. On or about June 10, 2008, the employee was an employee of Cedar Ridge Manor and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about June 10, 2008, the employee sustained an accident arising out of and in the course of her employment.
4. The employer had notice of employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 466.83 and her rate for temporary total disability, permanent total disability, and permanent partial disability is $\ 311.22.
7. The employee's injury is medically causally related to the work injury occurring on or about June 10, 2008.
8. The employer has furnished $\ 217,078.30 in medical aid to employee.
9. The employer has paid temporary total disability benefits at a rate of $\ 311.22 per week for a total of $\ 31,877.82.
10. Employee reached maximum medical improvement on August 16, 2010.

1. Future Medical Aid
2. Nature and Extent of Disability
3. Liability of the Second Injury Fund

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Deposition of Dr. David T. Volarich;

B. Curriculum Vitae of Dr. David T. Volarich;

C. Dr. Volarich's Medical Report of August 16, 2010;

D. James England Deposition;

E. Curriculum Vitae of James England;

F. James England's Report of April 25, 2011;

G. Medical Records from Concentra Medical Centers;

H. Medical records from Des Peres Hospital;

I. Medical Records from Dr. Craig Pope;

J. Medical Records from Dr. Chris Kostman;

K. Medical Records from Dr. Phillip Rowden;

L. Medical Records from Dr. David Raskas; and

M. Stipulation for Compromise Settlement 05-122367.

Employer-Insurer's Exhibits

1. Deposition of Dr. Peter Mirkin; and
2. Deposition of Stephen Dolan.

Based on the testimony of Carol Herrington ("Employee") and the medical records and reports admitted, I find as follows:

Employee was born on October 12, 1954 and is currently 57 years old. She left school in the $10^{\text {th }}$ grade and later obtained her GED. Her work history includes working as a CMT and CNA. She has worked for Cedar Hill Manor (under different names) for the last fifteen years. Cedar Hill Manor is a nursing home with approximately 150 beds. Employee's job duties were to assist residents with their daily life which included but was not limited to assisting patients from their beds to toiletries, getting them to the cafeteria for meals, returning them to their rooms, transferring them to recliners or beds, assisting them with showers, and helping them take their medications. Her job included lifting, squatting, walking, sitting, bending, twisting, pulling, reaching and carrying.

On September 13, 2005, Employee injured her left knee at work. Dr. Kostman performed a left knee arthroscopy with a partial lateral meniscectomy and chondroplasty of the lateral tibial plateau and patella. Employee testified she continues to have pain with her knee along with swelling and limitations on her ability to navigate stairs. Dr. David Volarich opined that Employee had a 20\% permanent partial disability of the left lower extremity rated at the knee due to the internal derangement that required arthroscopic partial lateral meniscectomy and chondroplasty of the lateral tibial plateau and patella. The rating accounts for discomfort, weakness, and mild crepitus prior to June 10, 2008. Employee settled her workers' compensation claim for 15 % PPD related to her left knee.

In 2007, Employee was diagnosed with breast cancer and underwent a left radical mascectomy. This was followed by chemotherapy and radiation. Employee testified that she

continued to have pain in her chest area. Her left arm is weaker since the operation and her skin is attached to her ribs which causes discomfort. Dr. David Volarich opined that Employee had a 20\% permanent partial disability of the body as a whole rated at the chest due to the left sided radical mastectomy followed by chemotherapy and radiation. The rating accounts for significant scarring and skin adherence to the chest wall limiting motion of the left shoulder which in turn caused weakness and difficulties with lifting above chest level.

On June 10, 2008, Employee and co-employee were assisting a resident from the wheel chair to the recliner. As the resident's weight shifted, Employee twisted which caused pain and a pop in her back. Employee finished her shift, but her pain had increased greatly and she was limping by the end of her shift. Employee sought medical treatment with Concentra later that day. After receiving an MRI, Employee was referred to Dr. R. Peter Mirkin. Dr. Mirkin began conservative therapy and the Employee only received two sets of injections. On September 9, 2008, Dr. Mirkin performed a posterior discectomy and fusion at L2-3 and L3-4 with laminectomies at L2-3. In his operative report, Dr. Mirkin noted herniations at both levels. On the second day after the surgery, Employee had shortness of breath and her serum troponins were elevated. Employee was transferred to the Intensive Care Unit and was diagnosed with Congestive Heart Failure. She remained in the ICU for seven days breathing on a non-rebreather. At the time of the hearing, Employee testified that her memory has not been the same since the continued loss of oxygen and near death experience. She now forgets dates and past experiences.

After beginning physical therapy, Employee began having additional problems and returned to Dr. Mirkin who diagnosed her with a failed fusion. Her complaints at this time were pain down her l