Deborah Beatrice v. University of Missouri

Injury No.: 06-026997

Employee: Deborah Beatrice

Employer: University of Missouri

Insurer: Self-Insured

We issue this award to correct our award of August 1, 2013. The August 1, 2013 award is superseded in its entirety by this Correcting Award.

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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 26, 2012. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, 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 $\qquad 2^{\text {nd }} \qquad$ day of August 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Deborah Beatrice

Injury No. 06-026997

Dependents:

Employer: Curators of the University of Missouri

Address: 201117, 1111 W. 33R, 1110 W. 7th Street, New York 11, N.Y. 10017

Address: 201117, 1111 W. 33R, 1110 W. 7th Street, New York 10022

Address: 201117, 1111 W. 33R, 1110 W. 7th Street, New York 11009

Address: 201117, 1111 W. 33R, 1110 W. 7th Street, New York 11010

Address: 201117, 1111 W. 33R, 1110 W. 7th Street, New York 11009

Address: 201117, 1111 W. 33R, 1110 W. 7th Street, New York 11009

Address: 201117, 1111 W. 33R, 1110 W. 7th Street, New York 11009

Address: 201117, 1111 W. 33R, 1110 W. 7th Street, New York 11009

Address: 201117, 1111 W. 33R, 1110 W. 7th Street, New York 11009

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: March 28, 2006
5. State location where accident occurred or occupational disease was contracted: Columbia, Boone 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? Employer is self-insured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee, a nurse, was assisting a difficult birth, the bed was raised up high, and Claimant, who is 5'2" tall, was holding the patient's head for an extended period of time, causing Employee to experience back pain.

1. Did accident or occupational disease cause death? No. Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Low back.
3. Nature and extent of any permanent disability: 23 % permanent partial disability of the body as a whole.
4. Compensation paid to-date for temporary disability: $\ 390.12
5. Value necessary medical aid paid to date by employer/insurer? $\ 28,258.45

Employee: Deborah Beatrice Injury No. 06-026997

1. Value necessary medical aid not furnished by employer/insurer? $\ 122,713.72
2. Employee's average weekly wages: $\ 1,024.00
3. Weekly compensation rate: $\ 682.68 for temporary total disability; $\ 365.08 for permanent partial disability.
4. Method wages computation: Stipulation

From Employer:

92 weeks of permanent partial disability benefits $\ 33,587.36

Medical expenses $\ 122,713.72

17 weeks of temporary total disability benefits $\ 11,605.56

TOTAL $\ 167,906.64

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:

William Rotts and Cullen Cline

Employee: Deborah Beatrice

Injury No: 06-026997

Dependents:

Before the

DIVISION OF WORKERS'

COMPENSATION

Employer: Curators of the University of Missouri

Department of Labor and Industrial

Additional Party: Boone Hospital Center (Health Care Provider)

Relations of Missouri

Jefferson City, Missouri

Insurer: Self-Insured

Checked by: RJD/ga

The evidentiary hearing in this case was held on July 24, 2012 in Columbia. Claimant, Deborah Beatrice, appeared personally and by counsel, William Rotts and Cullen Cline; Employer, University of Missouri (self-insured), appeared by counsel, Richard Montgomery. Boone Hospital Center did not appear. The record in the case was left open until August 23, 2012 for submission of the medical report and curriculum vitae of Dr. James Coyle. The parties requested leave to file post-hearing briefs, which leave was granted. The case was submitted on October 24, 2012. The hearing was held to determine the following issues:

1. Whether Employee, Deborah Beatrice, suffered an "injury" as defined by Chapter 287, RSMo;
2. Whether the work-related accident of March 28, 2006 was the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
3. The nature and extent of Claimant's permanent disability, if any;
4. Whether medical treatment obtained by Claimant was reasonable and necessary to cure and relieve Claimant from the effects of the work-related accident of March 28, 2006;
5. Whether Employer shall be ordered to reimburse Claimant for any or all of the medical charges in question;
6. Whether the temporary or partial award of September 15, 2008 shall be doubled for Employer's alleged failure to comply therewith;
7. Whether costs and attorney's fees shall be ordered payable pursuant to Section 287.560; and
8. Whether additional temporary total disability ("TTD") shall be awarded, and if so, for what period(s) of time.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Boone County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That Claimant's average weekly wage is $\ 1,024.00, resulting in compensation rates of $\ 682.68 for temporary total disability benefits and $\ 365.08 for permanent partial disability benefits;
6. That Claimant, Deborah Beatrice, sustained an accident arising out of and in the course of her employment with the University of Missouri on March 28, 2006;
7. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation herein;
8. That the University of Missouri was an authorized self-insured for Missouri Workers' Compensation purposes at all relevant times;
9. That Employer-Insurer paid $\ 28,258.45 in medical benefits and $\ 390.12 in temporary total disability ("TTD") benefits; and
10. That Employee Exhibits A through G and Employer Exhibits 1 through 9, which were admitted at the August 7, 2008 hearing, are admitted into evidence.

The evidence consisted of the transcript of the August 7, 2008 hearing; the testimony of Claimant, Deborah Beatrice, the exhibits admitted at the August 7, 2008 hearing (pursuant to the parties' stipulation); additional medical records; the transcript of the deposition testimony of Dr. Thomas R. Highland taken October 20, 2011; the curriculum vitae of Dr. Anthony H. Guarino; the October 27, 2008 discogram report of Dr. Anthony Guarino; the August 13, 2012 medical

report and curriculum vitae of Dr. James Coyle which was admitted on August 23, 2012; attorneys' time and expense records; payment summary.

As noted above, this case was previously heard by the undersigned administrative law judge on August 7, 2008 and a TEMPORARY OR PARTIAL AWARD was issued in this case on September 15, 2008. The evidence submitted at the July 24, 2012 hearing (including the additional evidence submitted on August 23, 2012) was consistent with the TEMPORARY OR PARTIAL AWARD. Therefore, the TEMPORARY OR PARTIAL AWARD is affirmed in its entirety, and same is incorporated herein by reference.

The TEMPORARY OR PARTIAL AWARD contained the following ORDER:

Employer and Insurer are ordered to provide Claimant with all such medical, surgical and other treatment as may reasonably be required to cure and relieve her from the effects of the work accident of March 28, 2006, including, but no (sic) limited to, the lumbar discograms extending from L3 to S1 with post-discogram CT recommended by Dr. Michael Chabot.

No application for review was taken from the September 15, 2008 TEMPORARY OR PARTIAL AWARD.

After the TEMPORARY OR PARTIAL AWARD was issued, Employer scheduled Dr. Anthony Guarino to perform the discogram on October 27, 2008. Claimant contacted Dr. Guarino's office prior to the procedure to inform them that she had previously had an allergic reaction to the dye/contrast normally used in these procedures and other similar procedures (such as CT scans) requiring contrast, so that pre-medication precautions could be taken. No premedication or other precautions were taken and the procedure was done without the dye/contrast. Dr. Guarino's report of October 27, 2008 does not address the fact that contrast was not used, nor does it discuss why contrast was not used. Dr. Guarino's conclusions were as follows:

This patient has lumbar degenerative disc disease. Dr. Chabot asked for a discogram to be performed to help clarify a specific area that could be treated by him. No specific site was identified during the procedure today. No controls were found. Dr. Chabot will decide what to do with this information when the patient presents for further evaluation this day.

Dr. Chabot prepared a report dated October 27, 2008, indicating that the discogram reproduced pain at every level of the lumbar spine and no control level was ever established. Dr. Chabot indicated that the origin of complaints was poorly defined, and with Claimant's history of

depression, he felt there was a strong component of psychosocial issues at play in her subjective complaints. Dr. Chabot recommended Claimant be evaluated for consideration of placement of a spinal cord stimulator as Dr. Street had previously considered, but before doing so, recommended a MMPI to determine if Claimant was actually a candidate for that procedure.

Per Dr. Chabot's recommendation, Employer scheduled an appointment with Dr. Wayne Stillings for MMPI testing and evaluation, but Ms. Beatrice did not attend at her attorney's recommendation.

What transpired after this point is well-summarized by Dr. Highland's deposition testimony as follows:

Q. Doctor, I'm going to pick up where I think we left off in November of 2007. I understand that after that deposition, there was a request by Deborah to revisit your services. And she came back to actually meet with you - let's see-in 2008, seeking your services to perform a surgery that you were thinking might be possible, but hadn't reached a final conclusion yet, is that true?

A. Yes, I believe you are talking about May $19^{\text {th }}, 2008.

Q. Let's see.

A. Actually, there was a phone call on May 12^{\text {th }}, 2008$--.

Q. That's right.

A. --that started that discussio