Linda Lane v. Oxford Health Care d/b/a Healthcare Services of the Ozarks

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-065630

Employee: Linda K. Lane

Employer: Oxford Health Care d/b/a

Healthcare Services of the Ozarks (Settled)

Insurer: Self-Insured (Settled)

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 February 22, 2013. The award and decision of Administrative Law Judge Victorine R. Mahon, issued February 22, 2013, 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 $7^{\text {th }}$ 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:

1. Did accident or occupational disease cause death? No. Date of death? Not applicable.
2. Part(s) of body injured by accident or occupational disease: Left Knee.
3. Nature and extent of any permanent disability: Claimant settled with Employer; Permanent Total Disability as to the Second Injury Fund.
4. Compensation paid to date for temporary disability: None.
5. Value necessary medical aid paid to date by employer/insurer: $\ 3,331.18.
6. Value necessary medical aid not furnished by employer/insurer: None.
7. Employee's average weekly wages: Sufficient to yield the following rate.
8. Weekly compensation rate: $\ 316.56 Permanent Total Disability.
9. Method wages computation: By agreement.

1. Amount of compensation payable: Employer settled.
2. Second Injury Fund liability: None.
3. Future requirements awarded: None.

Beginning June 29, 2009, and continuing each week for the remainder of her lifetime, the Second Injury Fund shall pay Claimant the weekly sum of $\ 316.56, subject to review and modification as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Rick S. Vasquez.

Employee: Linda K. Lane

Injury No. 08-065630

Dependents: N/A

Employer: Oxford Health Care d/b/a

Healthcare Services of the Ozarks (settled)

Address: 017002 Oxford Road, London, OX7 1JD

Address: 017002 Oxford Road, London, LX2 1JD

Address: 017002 Oxford Road, London, LX3 1DD

Address: 017002 Oxford Road, London, LX3 1DD

Address: 017002 Oxford Road, London, LX3 1DD

Address: 017002 Oxford Road, London, LX3 1DD

Address: 017002 Oxford Road, London, LX3 1DD

Address: 017002 Oxford Road, London, LX3 1DD

Address: 017002 Oxford Road, London, LX3 1DD

The undersigned Administrative Law Judge conducted a final hearing on January 3, 2013, to determine the liability of the Second Injury Fund. This case was set for hearing in conjunction with the claim in Injury Number 07-019019. At the outset of the hearing, Claimant voluntarily dismissed the claim against the Second Injury Fund in Injury Number 07-019019. The cause proceeded with reference to Injury Number 08-065630. Linda K. Lane (Claimant) appeared in person and with her attorney of record, Rick Vasquez. Assistant Attorney Skyler Burks represented the Treasurer of Missouri as Custodian of the Second Injury Fund (Fund). The selfinsured employer, Oxford Health Care d/b/a Healthcare Services of the Ozarks, previously settled with Claimant. The parties stipulated to the following facts and issues:

1. On August 4, 2008, Claimant sustained an accident in the course and scope of her employment with Employer. Venue and jurisdiction are proper in Springfield, Missouri.
2. Claimant was an employee of Employer pursuant to Chapter 287 RSMo. Both Claimant and Employer were operating under and subject to the provisions of the Missouri Workers' Compensation Law at the time of the accidental injury. Employer was self-insured on the date of the injury.
3. Employer received proper notice of the injury. The claim was filed within the time allowed by law.
4. The average weekly wage on the date of injury was sufficient to yield a permanent total disability rate of $\ 316.56.
5. Employer paid $\ 3,331.18 in medical aid and no temporary total disability benefits.

1. The issues for hearing are as follows:

a. Is the alleged injury and resulting disability medically and causally related to the work accident of August 4, 2008?

b. Is the Second Injury Fund liable for permanent total disability?

Claimant offered the following exhibits, which were admitted into evidence without objection:

Exhibit A Medical Report (IME) - Dr. Shane Bennoch, dated January 7, 2008

Exhibit B Medical Report (IME) - Dr. Shane Bennoch, dated February 26, 2007

Exhibit C Stipulation with Employer - Injury Number 08-165630

Exhibit D Stipulation with Employer - Injury Number 07-019019

Exhibit E Deposition - Dr. Shane Bennoch

Exhibit F Deposition - Mike Kevin Lala - Vocational Expert

The Second Injury Fund offered the following exhibit, which was admitted without objection:

Exhibit I Deposition - Linda K. Lane

Claimant was 57 years old at the time of her accident on August 4, 2008. She lives in Billings, Missouri, with her disabled husband. Claimant did not finish high school because she chose to get married at a young age. She had no difficulty in learning and subsequently obtained a GED. She attained a Certified Nurse's Aide license when she was 21 years old. Although most of her life's work has been in the healthcare field, she once was a waitress. She also worked in a t-shirt factory for a short time. But for the last 14 years of her working career, Claimant was employed with Oxford Health Care, traveling to the homes of various clients. There, she cooked, cleaned, shopped, and ran errands. She also helped clients with personal hygiene. She worked full time, sometimes as much as 55 hours per week.

In 2007, Claimant injured her right knee while working for Oxford Health Care. She eventually underwent an arthroscopic partial lateral meniscectomy to repair the torn right meniscus on April 26, 2007. Following the surgery, Claimant worked in the office at Oxford Health Care on light duty until July 2007.

In July 2007, Ms. Lane returned to work full duty, although it took a few months before she had a sufficient number of new clients to require 40 hours of weekly work. Dr. Miller, who

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[^0]: ${ }^{1}$ All objections not addressed at the time of the hearing now are overruled. Any marking contained in any exhibit was present at the time the document was received into evidence, and was not placed there by the Administrative Law Judge.

performed the surgery, gave Claimant no permanent work restrictions. Claimant testified that she was working full duty, full time, when she sustained a left knee injury on August 4, 2008.

Claimant's testimonies are not entirely consistent regarding her need for some accommodation after the right knee injury and surgery. In deposition, Claimant denied needing unscheduled breaks or doing any tasks differently than she had done in the past. She just had some pain. At the hearing on January 3, 2013, when she was asked about her job performance after her right knee surgery, Claimant responded, "It was probably different." She then recited a number of self-accommodations. These included sitting down to fold laundry, working more slowly, and not working overtime. She explained that in her personal life she has avoided tub baths, apparently due to the difficulty of getting in and out of the tub. She also explained that the clients she had after the 2007 injury were different from those she assisted before the 2007 accident. She explained that she also was having difficulty maneuvering stairs and getting in and out of vehicles. Due to the injury in the right knee, Claimant relied more heavily on her left knee and took Ibuprofen for continued pain.

Even though there are some inconsistencies between her testimonies, Claimant explained that she was scared the day of the deposition. Claimant did testify consistently that she was not without pain after returning to work from the right knee surgery. She continued to work anyway. Having reviewed the entire record, I find credible that Claimant worked through pain and did what she could to retain her job of 14 years. I specifically find Claimant is credible regarding her abilities and the self-accommodation she made subsequent to the 2007 knee injury.

On August 4, 2008, Ms. Lane was working with a client who could make transfers from a wheelchair by himself, but needed assistance in walking. Claimant had control of the client by a gait belt while they were walking on a ramp outside his home. The patient shifted his weight, fell onto Claimant, and she fell into the railing on the wood ramp. Claimant knew she had injured herself and immediately sought medical treatment. She was seen by Dr. Ted Lennard the same day.

For the next six weeks, Claimant continued to work full time, 10 to 12 hours per day, while also seeing Dr. Lennard for the knee pain. While Claimant missed no work due to her left knee, she said her clients understood her predicament. Claimant conceded that she was unsure whether Oxford Health Care had offered her light duty after the 2008 injury. In any event, she said she did not want to go back to work in the office.

On August 6, 2008, Dr. Lennard noted that an x-ray of Claimant's left knee revealed extensive degenerative changes. On August 27, 2008, Dr. Lennard's impression was left knee pain and degenerative joint disease of the left knee.