Judith Moore v. Delmar Gardens

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 03-098032

Employee: Judith Moore

Employer: Delmar Gardens

Insurer: Travelers Commercial Casualty

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 July 14, 2014. The award and decision of Administrative Law Judge Margaret D. Landolt, issued July 14, 2014, 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 $9^{\text {th }}$ day of December 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Judith Moore

Injury No.: 03-098032

Dependents: N/A

Employer: Delmar Gardens

Additional Party: N/A

Insurer: Travelers Insurance Company

Hearing Date: April 8, 2014

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

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 6, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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: Employee was involved in a motor vehicle accident on Employer's parking lot.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Neck
14. Nature and extent of any permanent disability: 2.5 % PPD of the body as a whole referable to the cervical spine
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? 0

1. Value necessary medical aid not furnished by employer/insurer? \5,333.26
2. Employee's average weekly wages: \ 443.32
3. Weekly compensation rate: $\ 295.55 for PPD
4. Method wages computation: By stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 5,333.26

10 weeks of permanent partial disability from Employer $\ 2,955.50

1. Second Injury Fund liability No
2. Credit to Employer from Employee's failure to appear at medical examinations

(\300.00)

TOTAL: \ 7,988.76

1. Future requirements awarded: None

Said payments to begin 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: Mr. Joseph Robbins

Employee: Judith Moore

Departments: N/A

Employer: Delmar Gardens

Additional Party: N/A

Insurer: Travelers Insurance Company

Injury No.: 03-098032

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on April 8, 2014 at the Division of Workers' Compensation in the City of St. Louis, Missouri. Judith Moore ("Claimant") was represented by Mr. Joseph Robbins. Delmar Gardens ("Employer") and its insurer Travelers Insurance Company were represented by Mr. Gregory Temme. Mr. Robbins requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about September 6, 2003 Claimant sustained an accidental injury arising out of and in the course of employment; Claimant was an employee of Employer, venue is proper in the City of St. Louis, Missouri; Employer received proper notice of the injury; the claim was timely filed; Claimant was earning an average weekly wage of $\ 443.32 resulting in a rate of $\ 295.55 for Permanent Partial Disability ("PPD") benefits; and Employer paid no TTD benefits and $\ 300.00 in medical expenses.

The issues to be determined are medical causation; liability of Employer for past medical benefits of $\ 5,333.26; and nature and extent of PPD sustained by Claimant.

Claimant was working for Employer as a Certified Nursing Assistant on September 6, 2003. Claimant clocked out, and was in her car in Employer's parking lot when her vehicle was struck on the driver side by another vehicle. Claimant testified at the hearing she sustained injury to her neck, upper back and arms from the motor vehicle accident. Claimant testified at her deposition on June 20, 2006 that the injuries she sustained from the car accident were to her neck, upper shoulders and arms. (Exhibit 7, pg. 19). Claimant did not testify at her deposition that she sustained injury to her low back from the September 6, 2003 work injury.

Claimant reported the incident to Employer immediately following the accident. Claimant requested medical treatment which Employer denied. Claimant pursued medical treatment on her own with her primary care physician on September 12, 2003. She gave a history of a motor vehicle accident 6 days before, and complained of soreness and neck pain with headaches which occurred 2 to 3 times a day. Claimant was prescribed medication. Claimant

treated one time with her family physician. Claimant received chiropractic treatment from September 12, 2003 through March 17, 2004. Claimant was never taken off work or put on restrictions due to her work injury of September 6, 2003, and she continued to work full duty following the work injury. After Claimant was released from chiropractic care, she did not seek further treatment in connection with her work accident of September 6, 2003. Claimant testified she incurred medical expenses of $\ 5,333.26 as a result of her work accident of September 6, 2003.

Ms. Fern Wolf, a claims adjuster for Travelers Insurance Company, testified on behalf of Employer. Ms. Wolf testified Employer/Insurer scheduled Claimant for an exam with Dr. Russell Cantrell on three separate occasions, and Claimant failed to attend any of the scheduled exams. The exams were scheduled for December 16, 2003, January 13, 2004 and April 21, 2004. Ms. Wolf prepared and sent letters to Claimant's attorney notifying him of the exams. (Exhibit 5). She also called and spoke with Claimant's attorney, Joseph Robbins notifying him of the exams with Dr. Cantrell. Ms. Wolf testified each time Claimant failed to attend the exam with Dr. Cantrell, Travelers Insurance was charged a $\ 100.00 no-show fee. (Exhibit 5). Travelers Insurance paid $\ 300.00 in no show charges due to the fact that Claimant failed to attend the three scheduled exams. (Exhibit 5). Ms. Wolf testified no further exams were scheduled for Claimant since she failed to attend any of the three previously scheduled exams with Dr. Cantrell. Claimant denied any knowledge of the scheduled exams with Dr. Cantrell.

Dr. Jerry Meyers, a general surgeon, examined Claimant on August 5, 2010, prepared a report, and testified on behalf of Claimant. In his report dated September 6, 2010 Dr. Meyers found that following the motor vehicle accident Claimant had some mild posterior neck problems but resumed her work without difficulty. (Exhibit A-3, pg. 2). Upon examination, Claimant had some mild posterior neck pain with no crepitus. There was no back pain, and she had full range of motion of her neck and back. There were no radicular symptoms, and her neurological examination was normal. Dr. Meyers reviewed the x-rays of the cervical spine which showed no significant degenerative disease or other acute findings, and the lumbar spine showed some mild degenerative changes at the SI joint. (Exhibit A-3, pg. 3). Dr. Meyers opined that Clamant sustained soft tissue injuries of the neck with sprain/strain secondary to a motor vehicle accident. (Exhibit A-3, pg. 3). Dr. Meyers assigned a 12 % PPD rating to body as a whole related to the neck. (Exhibit A-3, pg. 4). In regard to the low back, Dr. Meyers found Claimant sustained soft tissue injuries with strain/sprain of the back secondary to the motor vehicle accident. (Exhibit A3, pg. 3). Dr. Meyers assigned a 12 % PPD rating to the body as a whole referable to the back. (Exhibit A-3, pg. 4). Dr. Meyers felt Claimant had attained Maximum Medical Improvement (MMI). Dr. Myers stated that Claimant incurred medical expenses of $\ 5,333.26 as a result of her accident of September 6, 2003, and opined the medical expenses were fair, reasonable, and necessary as a result of her September 6, 2003 injury.

Dr. Daniel Kitchens, a neurosurgeon, testified on behalf of Employer. On October 8, 2008, Dr. Kitchens took a history from Claimant, reviewed her medical records, and performed a physical examination. In his examination of Claimant on October 8, 2008, Claimant denied neck pain or pain down her arms or hands. Dr. Kitchens opined, within a reasonable degree of medical certainty, that Claimant did not require additional medical treatment for the cervical strain from the automobile accident of September 6, 2003. Dr. Kitchens did not diagnose a low back injury as a result of the work accident of September 6, 2003.

Based upon a comprehensive review of the evidence, my observations of Claimant at hearing and the application of Missouri Law, I find:

Pursuant to the stipulation of the parties, Claimant sustained an accident arising out of and in the course of employment on September 6, 2003 when she was involved in a motor vehicle accident in the parking lot of Employer.

The motor vehicle accident of September 6, 2003 was the prevailing factor in the cause of Claimant's cervical strain. I do not find Claimant sustained injury to her low back from the September 6, 2003 motor vehicle accident. Claimant testified at her deposition and at hearing that she sustained injuries to her neck, shoulders, arms and upper back as a result of the motor vehicle accident of September 6, 2003. Claimant did not testify she sustained injury to her low back from the September 6, 2003 work injury. Dr. Kitchens did not diagnose a low back injury as a result of the accident of September 6, 2003.

Claimant sustained 2.5\% PPD of the body as a whole referable to the cervical spine as a result of the September 6, 2003 work injury.

Claimant pursued medical treatment on her own following the September 6, 2003 work injury. Claimant requested treatment, which was denied by Employer. Claimant incurred medical bills of $\ 5,333.26 as a result of the accident. Dr. Myers stated the $\ 5,333.26 in medical expenses were fair and reasonable. Employer offered no evidence to the contrary.

Employer/Insurer attempted three times to have Claimant examined by Dr. Russell Cantrell. Employer/ Insurer scheduled Claimant for an examination with Dr. Cantrell on December 16, 2003, January 13, 2004 and April 21, 2004. Ms. Wolf sent letters to Claimant's attorney and spoke with him on the phone notifying him of the scheduled exams. Claimant failed to attend all three e