Lawanda Clark v. Workforce, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-071448

Employee: Lawanda Clark

Employer: Workforce, Inc.

Insurer: U. S. Fidelity \& Guaranty 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 March 27, 2013. The award and decision of Administrative Law Judge Carl Strange, issued March 27, 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 $6^{\text {th }}$ day of September 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Lawanda Clark

Injury No. 09-071448 \& 09-092637

Employer: Workforce, Inc.

Additional Party: Second Injury Fund

Insurer: US Fidelity \& Guaranty Company

(TPA: Gallagher Bassett Services, Inc.)

Hearing Date: November 26, 2012

Checked by: CS/rm

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? September 10, 2009 (09-071448) \& November 9, 2009 (09-092637).
5. State location where accident occurred or occupational disease contracted: Cape Girardeau 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: For Injury No. 09-071448, the Employee jumped down into an empty pool and she felt an immediate pop in her knees and fell backwards. For Injury No. 09092637, Employee slipped on a rug and fell striking her right knee and low back.

On November 26, 2012, the employee, Lawanda Clark, appeared in person and by her attorney, Matthew Edwards, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Mark Kornblum. The Second Injury Fund was represented by Assistant Attorney General, Jonathan Lintner. 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 September 10, 2009, Workforce, Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by US Fidelity \& Guaranty Company with a third party administrator of Gallagher Bassett Services, Inc.
2. On or about September 10, 2009, the employee was an employee of Workforce, Inc. and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about September 10, 2009, 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 $\ 340.00 and her rate for temporary total disability, permanent total disability, and permanent partial disability is $\ 226.67.
7. The employee's injury is medically causally related to the work injury occurring on or about September 10, 2009.
8. The employer has furnished $\ 42,593.64 in medical aid to the employee.
9. The employer has paid temporary total disability benefits at a rate of $\ 226.67 per week for a total of $\ 1,910.42.
10. The employee reached maximum medical improvement on July 31, 2010.

1. On or about November 9, 2009, Workforce, Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by US Fidelity \& Guaranty Company with a third party administrator of Gallagher Bassett Services, Inc.
2. On or about November 9, 2009, the employee was an employee of Workforce, Inc. and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about November 9, 2009, 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.

1. The employee's average weekly wage was $\ 340.00 and her rate for temporary total disability, permanent total disability, and permanent partial disability is $\ 226.67.
2. The employer has furnished no medical aid to the employee.
3. The employer has paid no temporary total disability benefits to the employee.
4. The employee reached maximum medical improvement on July 31, 2010.

1. Previously Incurred Medical Aid.
2. Future Medical Aid.
3. Additional Temporary Total Disability.
4. Nature and Extent of Disability.
5. Liability of the Fund.
6. Medicaid Lien.

1. Medical Causation.
2. Previously Incurred Medical Aid.
3. Future Medical Aid.
4. Additional Temporary Total Disability.
5. Nature and Extent of Disability.
6. Liability of the Fund.
7. Medicaid Lien.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

A. Records from Sikeston Public Schools.

B. Medical Records from Cape Girardeau Fire Department.

C. Medical Records from Saint Francis Medical Center.

D. Medical Records from Orthopedic Associates - Dr. Michael Nogalski.

E. Medical Records from River City Health Clinic.

F. Medical Records from Cape County Private Ambulance Service.

G. Medical Records from Southeast Missouri Hospital.

H. Medical Records from Orthopedic Associates - Dr. Keith Wilkey.

I. Medical Records from Cape Imaging.

J. Medical Records from Mid America Rehab.

K. Medical Records from Cape Radiology Group.

L. Medical Records from Cape Spine and Neurosurgery.

M. Medical Records from Brain \& NeuroSpine Clinic of Missouri.

N. Psychological Evaluation Report from Dr. Paul Rexroat.

O. Medical Bills from River City Health Clinic.

P. Medical Bills from Cape Radiology Group.

Q. Medical Bills from Broadway Prescriptions.

R. Medical Bills from Cape County Private Ambulance Service.

S. Medical Bills from Southeast Missouri Hospital.

T. Medical Bills from Cape Spine and Neurosurgery.

U. Medical Bills from St. Francis Medical Center.

V. Medical Bills from John's Pharmacy.

W. Medical Bills from Cape Imaging.

X. Medical Bills from Walgreens.

Y. Deposition of Dr. Dwight Woiteshek.

Z. Deposition of Vincent Stock.

AA. Deposition of Tim Lalk.

BB. Deposition of Brad Kocher.

Employer's Exhibits:

1. Medical Bills from Southeast Missouri Hospital.
2. Deposition of Dr. Michael Nogalski.
3. Deposition of Dr. James Doll.
4. Letter from Southeast Missouri Hospital releasing lien.

Second Injury Fund Exhibits:

I. Deposition of the Employee, Lawanda Clark.

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

At the time of the hearing, Employee was 33 years old. Employee attended high school in Sikeston, Missouri, but only completed up to the $11^{\text {th }}$ grade. Throughout high school, Employee attended special education classes and had a learning disability. Her past employment history includes working for Dairy Queen, various nursing homes, and Gilster Mary Lee. Employee first began working for Workforce, Inc. ("Employer") near the end of 2005.

On September 10, 2009, Employee jumped down into an empty pool while placing a tarp over it and injured her bilateral knees. Employee was taken to St. Francis Hospital and diagnosed with fractures to both knees (Employee's Exhibit C). Employee's care was then transferred to Dr. Michael Nogalski. On September 18, 2009, Dr. Nogalski performed an arthroscopic assisted fixation of the tibial plateau fracture of the right knee and arthroscopic assisted fixation of intercondylar eminence fracture. On November 3, 2009, Dr. Nogalski

assigned a temporary restriction of seated only work and returned Employee back to work (Employee's Exhibit D)(Employer-Insurer's Exhibit 2).

On November 9, 2009, Employee went to the bathroom and slipped on a throw rug near the sink causing her to fall to the floor. Employee went to Southeast Missouri Hospital for treatment (Employee's Exhibit G). On November 24, 2009, Employee returned to Dr. Nogalski and reported back pain following her November 9, 2009 fall. Dr. Nogalski continued Employee's seated only work and returned Employee back to work. On January 11, 2011, Employee returned to Dr. Nogalski for a supplemental evaluation and complained of continued pain, aching, and popping in her knees along with continued back pain. Dr. Nogalski placed Employee at maximum medical improvement, assigned a 15\% permanent