Althea Burlison v. Department of Public Safety

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: 8-14-2009 and 7-2-2010
5. State location where accident occurred or occupational disease was contracted: LAWRENCE COUNTY, MO
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: PERFROMING DUTIES AS A CERTIFIED MEDICAL TECHNICIAN
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: LEFT LEG / LEFT ARM
14. Nature and extent of any permanent disability: 5\% BODY AS A WHOLE FOR LEFT LEG PERMANENT TOTAL DISABILITY FOR 2010 INJURY
15. Compensation paid to-date for temporary disability: $\ 6,902.81 - 2010 $\ 0.00 - 2009
16. Value necessary medical aid paid to date by employer/insurer? \$24,693.23
17. Value necessary medical aid not furnished by employer/insurer? -0 -

Employee: Althea Burlison Injury No. 09-065236 \& 10-051245

1. Employee's average weekly wages:
2. Weekly compensation rate: $\ 330.00
3. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses:

weeks of temporary total disability (or temporary partial disability)

20 weeks of permanent partial disability from Employer for 2009 injury - 5\% body as a whole $20 \times \$ 330=\ 6,600.00

0 weeks of disfigurement from Employer

1. Second Injury Fund liability: None

TOTAL: $\ 6,600.00

1. Future requirements awarded: Permanent total disability for 2010 injury for claimant's life beginning 3/2/2011

Said payments to begin 8-14-2009 for 2009 injury and 3-2-2011 for 2010 injury 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:

Patrick Platter

Employee: Althea Burlison

Departments: N/A

Employer: Department of Public Safety

Additional Party: Second Injury Fund

Insurer: Missouri Office of Administration

Hearing Date: May 12, 2014

Injury No. 09-065236 \& 10-051245

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

AWARD

A hearing was held in this matter on May 12, 2014, involving two injury numbers. Claimant appeared in person and through her attorney, Patrick Platter. Employer/self-insured appeared through its attorney, Stephen Freeland. The Second Injury Fund appeared through its attorney, Laura Van Fleet. The record was left open for 30 days following the hearing.

An off-the-record discussion was held regarding the issues to be presented for determination. The following was the only issue in the 2009 case:

(1) The nature and extent of any disability with claimant alleging permanent partial disability for a left ankle injury.

For the 2010 injury:

(1) The nature and extent of disability with permanent total disability being alleged.

(2) The liability of the Second Injury Fund.

(3) The need for future medical care.

(4) Causation of any psychological injuries that claimant may have suffered and causation for reflex sympathetic dystrophy / complex regional pain syndrome.

(5) Whether this matter is subject to a penalty pursuant to $\S 287.120 .4, RSMo. for violation of \S 213.055 .1(\mathrm{~b}).

The parties agree that the workers' compensation rate for both cases is \ 330.00 per week. The parties additionally agree that medical benefits were paid in the 2009 case in the amount of $\ 3601.49. In the 2010 case the parties agree that medical benefits were paid in the amount of $\ 24,693.23, and that temporary total disability benefits were paid in the amount of $\ 6,902.81 at the rate of $\ 320.00 per week for a total of $214 / 7$ weeks.

Testifying at the hearing were claimant; Suzanne Hayward, a retired certified nurse assistant (CNA); Alice Brewer, a social worker; Joan Elwing, director of nursing; Diane

Huckeby, a registered nurse unit manager; and Nina Thompson, activity therapist. Also testifying by deposition were Dr. Lennard; Dr. Abrams; James England; Wilber Swearingin; James Dennis (superintendent of the Missouri Veterans Home); Dr. Jackson, a psychologist; and Dr. Halfaker, a neuropsychologist.

At hearing, employer/self-insurer offered into evidence Exhibit 6, a DVD containing surveillance video of claimant. Employer/self-insurer made an offer of proof with a private investigator identifying the DVD as a compilation of surveillance video taken by him on two separate dates. Claimant objected to the offer of proof of the testimony and admission of the video. Claimant argued that pursuant to the Notice of Deposition of James Dennis, superintendent of the Missouri Veterans Home employer/self-insurer should have given claimant a copy of any surveillance video. That notice included a request for statements and any video taken of claimant. No video existed at the time of either of Mr. Dennis' depositions. However, employer/self-insurer later obtained the video surveillance and failed to provide a copy to claimant. At hearing employer/self-insurer argue they had no duty to supplement claimant's deposition testimony and Request for Production and later argued in its brief that no discovery was required since no Subpoena Duces Tecum was presented to Mr. Dennis with the Notice of Deposition. I sustained claimant's objection at hearing and again sustain the objection following claimant's and employer/self-insured's post-hearing briefs. Section 287.560, RSMo., permits the Division to issue process, subpoena witnesses, administer oaths, examine books and papers and require the production thereof and to cause the deposition of any witness to be taken. It also entitles any party to process to compel the attendance of witnesses and the production of books and papers and the taking depositions in like manner as in civil cases. Those general discovery powers and rights are recognized by the Missouri Supreme Court in State ex rel McConaha v. Allen, 979 SW2d, 188(Mo banc 1988). Specifically in McConaha the right to discovery of surveillance video was allowed through the deposition process and a Subpoena Duces Tecum. That right was also recognized in State ex rel Feltz v. Bob Sight Ford, 341 SW3d 863(Mo App SD 2011). The Court in Feltz opined that Rule 56.01(b), the general rule on civil discovery, allows discovery of any books, documents, or other tangible things including statements. As noted in Feltz the general purpose of discovery is to facilitate settlement and avoid surprise, citing Fisher v. Waste Mgmt. of Mo, 58 SW3d 523 (Mo banc 2001). The Court recognized a requirement for parties to provide surveillance video tapes through the use of deposition and Subpoena Duces Tecum pursuant to the discovery provisions of $\S 287.560, RSMo., and not via an informal request for statements pursuant to \S 287.215$, RSMo. In this case, claimant did not by subpoena compel Mr. Dennis, a representative of the employer, to attend but simply noticed the deposition with Mr. Dennis including a Request for Production of any surveillance video and statements. I find and conclude that no Subpoena Duces Tecum was necessary since Mr. Dennis voluntarily appeared through the notice and had thereby a duty to supplement any deposition testimony and production of video or statements through claimant's Request for Production of those materials pursuant to Missouri Supreme Court Rule 56.01(e) which sets forth a duty to seasonably amend a prior response to Request for Production in this case for any video surveillance. As a result, I deny the admission into evidence the video surveillance DVD (Exhibit).

Claimant worked as a certified medical technician at the Missouri Veterans Home in Mt. Vernon, Missouri. She also was a certified nurse assistant and at times would have to assist other CNAs with their duties. She was born July 22, 1952, and was 61 years old at the date of the

hearing. She received education through the $10^{\text {th }}$ grade and later obtained a GED. For many years she was a stay-at-home mother. She later worked at nursing homes and eventually at the Missouri Veterans Home.

On August 14, 2009, while working as a certified medical technician, claimant was injured when the wheelchair of a resident of the Missouri Veterans Home hit her left ankle with his wheelchair. She was treated for her left ankle injury, underwent an MRI, and was eventually placed in an air cast. Ultimately she was treated by Dr. David Hicks, an orthopedic surgeon, who diagnosed her condition as a soft tissue injury involving a left ankle contusion/strain and left posterior tibial strain. In addition to an air cast, claimant also used a CAM boot. Nevertheless, claimant continued to have problems with her left ankle following her release without restrictions by Dr. Hicks on November 17, 2009. Dr. Bernard Abrams, a neurologist, eventually examined claimant, finding that she had a restriction of no standing over 30 minutes and no walking over 20 minutes. He rated claimant's left ankle injury, (which involved ankle swelling and pain, her needing to take extra breaks and her needing to lean on her medication cart while walking) as resulting in a 5 percent permanent partial disability to the body as a whole.

Based upon claimant's testimony and the findings of Dr. Abrams, I find and conclude that claimant suffered a left