Patricia Thomas v. Pemiscot Memorial Health Systems

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-132393

Employee: Patricia Thomas

Employer: Pemiscot Memorial Health Systems (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 September 18, 2013, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued September 18, 2013, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $26^{\text {th }}$ day of February 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease? N/A
5. State location where accident occurred or occupational disease contracted: N/A
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? No.
9. Was claim for compensation filed within time required by law? Yes.
10. Was employer insured by above insurer? Yes.

On June 24, 2013, the employee, Patricia Thomas, appeared in person and with her attorney, Jim Turnbow, for a hearing for a final award. The Second Injury Fund was represented by Assistant Attorney General Jennifer Kornblum. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Pemiscot Memorial Health Systems was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self-insured employer care of Cannon Cochran Management Services.
2. On or about June 30, 2005, Patricia Thomas was an employee of Pemiscot Memorial Health Systems and was working under the Workers' Compensation Act.
3. On or about June 30, 2005, the employee sustained an occupational disease arising out of and in the course of her employment.
4. The employer had notice of the employee's occupational disease.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 323.03. The rate for temporary total disability, permanent total disability and permanent partial disability is $\ 214.69 per week.
7. The employer paid $\ 500.00 in medical aid.
8. The employee reached maximum medical improvement on April 16, 2006.

1. Medical causation.
2. Liability of the Second Injury Fund for permanent total or permanent partial disability.

A. Medical records of Baptist Memorial Hospital.

B. Medical records of Cape Radiology Group.

C. Medical records of DAEOC Women's Health Care Clinic.

D. Medical records of Dr. Fitzwater.

E . Medical records of Pemiscot Memorial Hospital.

F. Records of Dr. Arshad/Pemiscot Primary Care Center.

G. Medical records of Dr. Ray.

H. Medical records of Semmes Murphy Neurologic and Spine Institute.

I. Medical records of St. Francis Medical Center.

J. Records of Sikeston Rehab.

K. Medical records of Twin Rivers Regional Medical Center.

L. Medical report of Dr. Volarich.

M. Vocational Rehabilitation Evaluation of James England.

N. Deposition of Dr. Volarich.

Second Injury Fund Exhibits:

1. Vocational and Rehabilitation Assessment of Stephen Dolan.
2. Medical report of Dr. David Robson.
3. Deposition of Patricia Thomas.

Judicial notice of the contents of the Division's files for the employee was taken.

Patricia Thomas, the employee.

The employee and the Second Injury Fund filed briefs on July 24, 2013.

The employee was born on June 18, 1962. She is divorced and has four children who are all girls. Her two youngest children live with her. The employee has been on Social Security disability since December of 2007. In 1980, she graduated from high school in Hawaii. She went to vocational technical school to become a CNA and to perform EKG monitoring. She was in the United States Army from November of 1981 through February of 1982. She had almost completed basic training when she was honorably discharged. She performed EKG monitoring for nine years where she sat at a desk and watched monitors in the ICU unit. She performed monitoring and charted EKG rhythms. She was a secretary for the ICU and telemetery units and transcribed lab and doctor notes. She worked six years in Hawaii and three years in Missouri. The employee received her CNA license in 1998 and is licensed in both Arkansas and Missouri. She worked as a CNA for about 15 years and worked for Hayti Health Systems. For seven years she did not work and took care of her home when she was married to her second husband. She worked at Fred's as an apparel clerk, an assistant manager, and a manger. She worked on the floor and unloaded and loaded trucks, stocked shelves, worked on payroll, and did scheduling.

The employee testified that she first worked for Pemiscot Health Systems around 1993 for a year as a certified nurse's assistant. She moved to Georgia. She returned to work at Pemiscot in 1996 and worked again as a certified nurse's assistant there for about a year and then in 2001 for a year at a nursing home in Caruthersville. In between the home health jobs, she worked at Fred's and at Casino Aztar.

The employee testified that she started having back problems in 1996. She had an accident at the Casino Aztar when she slipped and fell on her bottom. She received treatment for her back. In 2002, she was working as a certified nurse's assistant and had back pain, numbness

and spasms more on the right side. She had an MRI, was diagnosed with degenerative disc disease, and had physical therapy which did not help. She was put on pain medication and muscle relaxers. She continued to receive medication once a month and her problems continued up until her neck injury in 2005. Around 2001 she started having problems with headaches, weakness, numbness and tingling in her arms.

On April 2, 2002, the employee went to Dr. Fitzwater's office due to back spasms and leg numbness. The records noted that she had an x-ray six years ago and had osteoarthritis. The Celebrex and Lodine did not work. A lumbar MRI performed on April 25 showed degenerative changes involving the discs at L3-4, L4-5, and L5-S1 with disc space narrowing and minimal midline posterior protrusion at L3-4, and to a lesser extent minimal posterior protrusion at L5-S1 with no disc space narrowing. Osteophytes were present at L3-4.

On April 30, 2002, the employee had a physical therapy assessment for degenerative spine disease and minimal L3-4 protrusion ordered by Dr. Fitzwater. In 1996, while working at the casino she hurt her back and had a slipped disc. The employee started having pain and numbness in her back and legs in December of 2001 which got progressively worse. She worked as a CNA for a number of years and had to quit her job due to back problems. The employee had pain of 2-9 out of 10 with constant aching, throbbing, stabbing, and sometimes sharp numbness that went down both legs; right worse than left. She had cramping on the right side in the lumbar area with tightness; numbness and tingling sensations in the bilateral thigh and knee area. She had pain, loss of motion, weakness, and functional difficulty.

On May 15, 2002, the employee stated that she needed the Skelaxin changed. On May 28, 2002 Dr. Fitzwater noted that physical therapy was finished. Due to the back pain being unresponsive to the therapy he prescribed Tylenol \#3 and referred the employee to Dr. Ray, a neurosurgeon.

The employee testified that she does not recall being referred to Dr. Ray, was never informed of it, and did not see Dr. Ray at that time.

In June of 2002, the employee saw Dr. Fitzwater for persistent pain in the back and legs. The medications were not helping so Flexeril and Lortab were prescribed. In August and September of 2002, Dr. Fitzwater prescribed Zanaflex, Bextra and Lortab for back pain. In October of 2002, the employee saw Dr. Fitzwater for back pain. Prescribed were Flexeril and Lortab. In November of 2002, the employee saw Dr. Fitzwater for back pain. Prescribed were Flexeril, Lortab and Bextra.

In January of 2003, Dr. Fitzwater prescribed Flexeril and Lortab for back pain. In March, the employee saw Dr. Fitzwater for back pain. Prescribed were Mobic and hydrocodone. Diagnosed was arthritis. In April of 2003, the employee saw Dr. Fitzwater for back pain. He diagnosed arthritis and prescribed Mobic and hydrocodone. In August of 2003, the employee saw Dr. Fitzwater for back pain. Mobic, hydrocodone, and Zanaflex were prescribed.

The employee in February and March of 2004 saw Dr. Fitzwater for back pain and he prescribed Flexeril, Mobic, and hydrocodone.

The employee testified that the last time she was employed by Pemiscot Health she began on August 4, 2004. She told her employer that she had prior back problems. She had difficulty performing her job including lifting patients out of bed or pulling them up in bed. She asked for assistance in lifting which was not always available because a lot of times they were shorthanded. She adjusted how she lifted to get it done but it took longer