Mary Riegel v. Sisters of St. Mary's Regional Health Services

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 10-032791

Employee: Mary Riegel

Employer: Sisters of St. Mary's Regional Health Services

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 April 30, 2013. The award and decision of Administrative Law Judge Hannelore D. Fischer, issued April 30, 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 $17^{\text {th }}$ day of December 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: May 5, 2010
5. State location where accident occurred or occupational disease was contracted: Cole 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 occurred or occupational disease contracted: See award
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: Right knee
14. Nature and extent of any permanent disability: 15 % right knee
15. Compensation paid to-date for temporary disability: - 0 -
16. Value necessary medical aid paid to date by employer/insurer? \$1,034.08
17. Value necessary medical aid not furnished by employer/insurer? - 0 -

Employee: Mary Riegel Injury No. 10-032791

1. Employee's average weekly wages: -0-
2. Weekly compensation rate: $\ 347.65
3. Method wages computation: By agreement

1. Amount of compensation payable: 15 % of right knee $=24 weeks or \ 8,343.60
2. Second Injury Fund liability: Yes. 6 % body as a whole 24 weeks of permanent partial disability from Second Injury Fund $=\ 8,343.60
3. Future Requirements Awarded: - 0 -

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: Van Camp Law Firm.

Employee: Mary Riegel

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on April 10, 2013. Memoranda were submitted by April 19, 2013.

The parties stipulated that on or about May 5, 2010, the claimant, Mary Riegel, was employed by Sisters of St. Mary's Regional Health Center (St. Mary's Hospital). On or about that date, Ms. Riegel sustained an injury by accident; the accident arose out of and in the course of employment. The employer was operating under the provisions of Missouri's workers' compensation law; workers' compensation liability was self-insured with Cannon Cochran Management Services as the third party administrator. The employer had timely notice of the injury; a claim for compensation was timely filed. Ms. Riegel's compensation rate is $\ 347.65 per week for all disability benefits. No temporary total disability benefits were paid. Medical aid was provided in the amount of $\ 1,034.08.

The issues to be resolved by hearing include 1) the causation of the injuries alleged, 2) the nature and extent of permanent disability, and 3) the liability of the Second Injury Fund for permanent disability benefits. Permanent partial disability is alleged.

The claimant, Mary Riegel, was employed as a registered nurse by St. Mary's Hospital on May 5, 2010, when she tripped on the brake on a chair she had been sitting in while attending to a patient and fell on her right side. Ms. Riegel noticed immediate bruising on her right leg and treated it with ice. Ms. Riegel filled out an incident report the day of the accident. Ms. Riegel noticed pain in her leg the day of the injury as well as soreness over the next few days. Ms. Riegel did not mention her knee complaints at work because she thought the condition of the knee would improve. Currently, Ms. Riegel continues to complain of symptoms of pain in her right knee and avoids going up stairs; Ms. Riegel testified that her right knee occasionally gives way or buckles and that when that happens she has a sharp pain in her right knee; otherwise the right knee pain is at a level three on a ten-point pain scale. Ms. Riegel testified that she cannot kneel on her right knee and puts a pillow under her right knee when she is lying on her back. Ms. Riegel testified that she does not recall whether she mentioned her right knee injury to Dr. Snyder when she saw him in June of 2010 for treatment of her 2009 right shoulder injury. Ms. Riegel testified that she

Employee: Mary Riegel Injury No. 10-032791

did mention her right knee injury to Dr. Snyder when she saw him in August of 2010 and that he ordered an MRI of the right knee.

Prior to 2010, Ms. Riegel had an injury on November 26, 2009, to her right shoulder which settled based on 25 percent of the right shoulder and 2.5 percent of the left hip; the injury resulted from a fall on a wet floor while working at St. Mary's Hospital. Prior to 2009, Ms. Riegel had a fracture of her right foot in 1988, which she described as somewhat painful on rainy days. In 2008 Ms. Riegel had surgery on her right foot for plantar fasciitis and now wears orthotics to alleviate right foot pain. Ms. Riegel also described occasional swelling and pain at a level 8 out of 10 in the right foot attributable to the plantar fasciitis. In 2006 Ms. Riegel had a right hip replacement as the result of which Ms. Riegel can no longer engage in heavy lifting, run, or cross her legs. Ms. Riegel also described a prior left shoulder injury sustained in 2004, while maneuvering a patient in a bed in a hallway. Ms. Riegel received an injection into the left shoulder. Ms. Riegel testified that the left shoulder injury did not bother her until after the right shoulder injury when she was forced to use the left shoulder more.

Dr. David Volarich, D.O., testified by deposition that he evaluated Ms. Riegel on May 24, 2011. As the result of the May 5, 2010 accident and injury, Dr. Volarich diagnosed an internal derangement of the right knee further described as a chondral defect in the medial femoral condyle with a possible medial meniscus tear. Dr. Volarich testified that he found a "little bit" of patellar mistracking. (Volarich depo p20) Dr. Volarich stated that the most common cause of patellar mistracking is damage to the condyle surface of the kneecap. Dr. Volarich opined to a permanent partial disability of 50 percent of the right knee. During cross-examination Dr. Volarich testified that he found "a defect in the condyle surface of the medial femoral condyle" when he reviewed the MRI scan and that is the same thing the radiologist noted when he referred to "a six by five millimeter full thickness cartilage defect in the posterior weight bearing surface of the medial femoral condyle" in his report. (Volarich depo p 40,41)

As the result of the November 26, 2009 accident and injury, Dr. Volarich diagnosed an internal derangement of the right shoulder, including a partial right rotator cuff tear, labral tear and impingement, as well as a left hip contusion with residual trochanteric bursitis. Dr. Volarich opined to a permanent disability of 45 percent of the right shoulder and 20 percent of the left hip as the result of the November 26, 2009 accident and injury.

With regard to permanent disability preexisting 2009, Dr. Volarich opined to a 15 percent permanent disability of the right foot attributable to the surgically released right plantar fascia, a 25 percent permanent disability of the left shoulder attributable to the conservatively treated left shoulder impingement, rotator cuff tendinopathy and labral tear, and 65 percent permanent disability of the right hip for the advanced arthritis requiring a total hip replacement. Dr. Volarich noted in his deposition testimony that Ms. Riegel had a 50-pound lifting restriction attributable to the right hip. In his notes, Dr. Volarich specifically mentioned that Ms. Riegel reported to him that she had no deterioration of the left shoulder subsequent to the 2009 and 2010 injuries.

Dr. Volarich opined that the combination of Ms. Riegel's disabilities created a greater disability than their simple sum.

Dr. Snyder's records reflect that Ms. Riegel told him of her right knee injury on August 16, 2010, and that he ordered an MRI. The radiology report for the right knee MRI performed on December 14, 2010, reflects the following impressions "1. Three-compartment osteoarthritis with cartilage loss and chondromalacia as detailed above. 2. Patellar tilt and subluxation with asymmetric cartilage loss concerning for patellar of tracking mildly. 3. Menisci are intact. 4. Prominent varicose veins are noted along the medial aspect of the knee." (Radiology St. Mary's Health Center 12.14.10)

Dr. Bernard Randolph evaluated Ms. Riegel on January 10, 2012, and authored a report pertaining thereto on the same date. Dr. Randolph testified by deposition on October 24, 2012, that he opined that Ms. Riegel had osteoarthritis in all three compartments of her right knee. Dr. Randolph described the osteoarthritis as a degenerative process rather than trauma induced and opined to a permanent disability of ten percent of the right knee, none of which is attributable to the May 5, 2010 accident and injury. During cross-examination by counsel for the claimant, Dr. Randolph acknowledged that although Ms. Riegel suffers from the degenerative disease process of osteoarthritis, that she also has a pate