Michelle Belt v. St. John's Mercy Medical Center

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-003112

Employee: Michelle Belt

Employer: St. John's Mercy Medical Center

Insurer: Self-Insured

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 November 26, 2012. The award and decision of Administrative Law Judge John K. Ottenad, issued November 26, 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 $21^{\text {st }}$ day of June 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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 5, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Claimant worked as a patient care associate for Employer and injured her low back and body as a whole, when she and a patient fell to the floor as she was transferring the patient from a wheelchair to the bed.
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: Low Back and Body as a Whole (Psychiatric)
14. Nature and extent of any permanent disability: 32.5 % of the Body as a Whole-Low Back and 12.5 % of the Body as a Whole-Psychiatric Conditions
15. Compensation paid to-date for temporary disability: $\ 3,986.43
16. Value necessary medical aid paid to date by employer/insurer? $\ 92,423.72

Employee: Michelle Belt Injury No.: 08-003112

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 509.94
3. Weekly compensation rate: $\ 339.96 for TTD/ $\ 339.96 for PPD
4. Method wages computation: Pursuant to Mo. Rev. Stat. § 287.250 (2005)

1. Amount of compensation payable:

Additional temporary total disability payment as a result of the use of the correct rate $\ 190.22

180 weeks of permanent partial disability $\ 61,192.80

1. Second Injury Fund liability:

22.64 weeks of permanent partial disability benefits $\ 7,696.69

TOTAL: $\mathbf{\$ 6 9 , 0 7 9 . 7 1}$

1. Future requirements awarded: Continued and ongoing future medical treatment for Claimant's low back and psychiatric (mood disorder, pain disorder and anxiety disorder) conditions related to this January 5, 2008 work injury, including but not limited to medications, medication management (doctors' visits), physical therapy, counseling and any other testing, treatment or evaluation that the treating doctors deem necessary to cure and relieve Claimant of the effects of the injury, as described in the award.

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: Gary W. Kullmann.

Employee: Michelle Belt

Dependents: N/A

Employer: St. John's Mercy Medical Center

Additional Party: Second Injury Fund

Insurer: Self-Insured

Injury No.: 08-003112

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On June 7, 2012, the employee, Michelle Belt, appeared in person and by her attorney, Mr. Gary W. Kullmann, for a hearing for a final award on her claim against the employer, St. John's Mercy Medical Center, which is duly self-insured under the statute, as well as the Second Injury Fund. The employer, St. John's Mercy Medical Center, which is duly self-insured under the statute, was represented at the hearing by its attorney, Mr. Maurice D. Early. The Second Injury Fund was represented at the hearing by Assistant Attorney General Carol Barnard.

To allow the parties time to obtain the deposition transcript of Dr. James Coyle and to prepare and file their proposed awards or briefs in this matter, the record did not technically close until July 7, 2012. Although we did not go back on the record, we simply marked Dr. Coyle's deposition transcript as Employer/Insurer's Exhibit 1 pursuant to the agreement of the parties at the time of trial. The record was, then, closed on July 7, 2012 following the submission of the briefs by the parties on July 6, 2012.

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 January 5, 2008, Michelle Belt (Claimant) sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant.

2) Claimant was an employee of St. John's Mercy Medical Center (Employer).

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

4) Employer received proper notice.

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

6) Employer paid temporary total disability (TTD) benefits in the amount of $\ 3,986.43, representing a period of time of $122 / 7 weeks.

7) Employer paid medical benefits totaling \ 92,423.72.

8) Claimant sustained pre-existing permanent partial disability of 20 % of the left shoulder, which pre-existed the accidental injury on January 5, 2008.

9) A 10 % load factor for the combination of the primary and pre-existing disabilities is applicable.

1) What is the appropriate average weekly wage and rates of compensation for this injury?

2) Is Claimant entitled to future medical treatment?

3) Is Claimant entitled to the payment of additional temporary total disability benefits based on an alleged underpayment as a result of her rate?

4) What is the nature and extent of Claimant's permanent partial disability attributable to this injury?

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

The following exhibits were admitted into evidence:

A. Certified medical treatment records of St. John's Mercy Medical Center

B. Certified medical treatment records of St. John's Mercy Corporate Health

C. Certified medical treatment records of Dr. James Coyle

D. Certified medical treatment records of St. John's Mercy Rehab Hospital

E. Certified medical treatment records of St. John's Sports \& Therapy

F. Certified medical treatment records of Unity Corporate Health

G. Certified medical treatment records of Mid County Orthopaedic Surgery and Sports Medicine

H. Certified medical treatment records of Memorial Hospital

I. Correspondence from Employer to Claimant between November 21, 2008 and December 12, 2008

J. Claimant's wage statement and corresponding payroll stubs

K. Stipulation for Compromise Settlement for Injury Number 06-059220 (Date of Injury of June 29, 2006) between Claimant and Employer

L. Certified computer records of the Illinois Workers' Compensation Commission

M. Deposition of Dr. David Volarich, with attachments, dated October 21, 2010

N. Deposition of Dr. Wayne Stillings, with attachments, dated December 29, 2010

1. Deposition of Dr. James Coyle, without attachments, dated April 19, 2011
2. Schedule of Earnings of Employee for the period of September 30, 2007 through December 29, 2007

Nothing offered or admitted into evidence

Notes: 1) Some of the deposition exhibits were admitted with objections contained in the record. Unless otherwise specifically noted below, the objections are overruled and the testimony fully admitted into evidence. Specifically, with regard to the Seven Day Rule objection made by Claimant's counsel in Dr. Coyle's deposition regarding his rating of disability, I find that Claimant's counsel continued with the deposition and conducted his full cross-examination, without ever asking to have the deposition reconvened after he had the chance to review the doctor's report containing the rating. In that respect, I find that Claimant's counsel effectively waived his Seven Day Rule objection. The objection is OVERRULED and the doctor's testimony is fully admitted into evidence in this case.

2) Any stray markings or writing on the Exhibits in evidence in this case were present on those Exhibits when they were admitted into evidence on June 7, 2012. No additional markings have been made since their admission on that date.

Based on a comprehensive review of the substantial evidence, including Claimant's testimony, the expert medical opinions and depositions, the medical treatment records, and the other documentary evidence, as well as my personal observations of Claimant at hearing, I find:

1) Claimant is a 43-year-old, former patient care associate (CNA), who last worked for St. John's Mercy Medical Center (Employer) in 2009. Claimant had worked for Employer from 2005 until her termination in 2009. She said that she was terminated because of limitations from her back injury. Her job duties for Employer included taking care of patients who had surgery or who were living in the facility, similar to living in a nursing home. Following her termination by Employer, Claimant did work part-time for a brief period of time in 2011 at Target, but stopped working after her stroke and has not returned.

2) Claimant testified that she had worked as a CNA at various facilities over the years from 1986 until 2009, except for two years when her husband died. Physically, she

said that when she worked at nursing homes, she had to do more lifting than when she worked for the hospital. Her work at the hospital involved more patient care, although there was still some lifting required as a part of her duties. 3) Leading up to the time of her January 5, 2008 work injury, Claimant testified that she worked 40 hours per week. She said that she was paid every two weeks at the rate of $\ 13.61 per hour. However, if she worked the evening or night shift, then she was paid 50 cents per hour more. 4) According to Employer's Schedule of Earnings of Employee (Exhibit 2), for the relevant 13 weeks prior to January 5, 2008, Claimant was paid the following: