Frederick Winingear v. Fulton State Hospital

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 11-013401

Employee: Frederick Winingear

Employer: Fulton State Hospital (Settled)

Insurer: C A R O (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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 7, 2014, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Vicky Ruth, issued November 7, 2014, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 10^{\text {th }}$ day of February 2015.

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? No.
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: February 23.2011.
5. State location where accident occurred or occupational disease was contracted: Callaway County, Missouri.
6. Was above employee in the employ of above employer at the time of the 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? See Award.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was involved in an altercation at work when a patient put him in a "choke hold" from behind, injuring his neck.
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: Neck.
14. Nature and extent of any permanent disability: 4 % of the body as a whole referable to the neck.
15. Compensation paid to-date for temporary disability: N/A.
16. Value necessary medical aid paid to date by employer/insurer? N/A.

On August 4, 2014, Frederick Winingear (the claimant) and the Second Injury Fun appeared in Jefferson City, Missouri, for a final award hearing regarding the Second Injury Fun claim. Claimant was represented by attorney Christine Kiefer. The Second Injury Fund wa represented by attorney Maggie Ahrens. Claimant testified in person at the hearing. Claimar and the Second Injury Fund submitted briefs on or about August 5, 2014, and the record close at that time.

The partics stipulated to the following:

1. On or about February 23, 2011, Frederick Winingear (the claimant) was an employee c Fulton State Hospital (the employer) when he sustained an injury by accident to his necl This accident occurred while Claimant was working in the course and scope of hi employment with employer.
2. The employer was operating subject to the provisions of Missouri Workers Compensation Law.
3. The employer's liability for workers' compensation was insured by State of Missour Office of Administration in care of CARO.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Callawa County is proper. For trial purposes, venue is also proper in Jefferson City, Missouri.
5. Claimant's compensation rate was $\ 418.58 for permanent partial disability benefits.
6. The parties agree that the Second Injury Fund claim was re-filed on December 4, 2013.

The parties agreed that the issues to be resolved in this proceeding are as follows:

1. Whether the Second Injury Fund claim was timely filed/statute of limitations issue;
2. Nature and extent of Claimant's permanent partial disability, and
3. Liability, if any, of the Second Injury Fund.

On behalf of the claimant, the following exhibits were entered into evidence without objection:

Exhibit 1 Stipulation for Compromise Settlement, Injury No. 11-013401.

Exhibit 2 Stipulation for Compromise Settlement, Injury No. 10-075021.

Exhibit 3 Claim for Compensation, Injury No. 11-013401, filed 5/5/2011.

Exhibit 4 Claim for Compensation. Second Injury Fund only, Injury No. 11-013401, filed 12/04/2013.

Exhibit 5 Medical report of Dr. Raymond Cohen and Curriculum Vitae.

Exhibit 6 Medical records from Callaway Community Hospital.

Exhibit 7 Medical records from St. Mary's Occupational Medicine.

Exhibit 8 Medical records from Select Physical Therapy.

Exhibit 9 Medical records from Runde Occupational \& Environmental Physicians.

Exhibit 10 Medical records from University Hospital and Clinics.

Exhibit 11 Medical records from Select Physical Therapy.

Exhibit 12 Medical records from Runde Occupational \& Environmental Physicians.

Exhibit 13 Medical records from Callaway Community Hospital.

Exhibit 14 Medical records from Select Physical Therapy.

Exhibit 15 Medical records from Orthopedic and Sports Medicine, Inc.

Exhibit 16 Medical records from Fulton Medical Clinic.

Exhibit 17 Medical records from Fulton Dental Clinic.

Exhibit 18 Medical records from Columbia Orthopaedic Group.

On behalf of the Second Injury Fund, the following exhibits were entered into evidence without objection:

Exhibit A Claim acknowledgement letter, 12/09/2013, Injury No. 11-013401, and Claim for Compensation.

Exhibit B Dismissal request v. Second Injury Fund, Injury No. 11-013401 and Injury No. 11-054685.

Exhibit C Claim acknowledgement letter, 5/10/2011, Injury No. 11-013401, and Claim for Compensation.

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings:

1. Claimant was born on October 30, 1954. He is 59 years of age. Claimant currently works at the Dollar General Warehouse in Fulton, Missouri, where he has been employed for about two years.
2. Claimant previously worked for Fulton State Hospital (the employer) for approximately 23 and one-half years. He was employed as an SA-II. He was in charge of his assigned ward, including staff and clients/patients.
3. On February 23, 2011, Claimant sustained an injury by accident arising out of and in the course and scope of employment. The accident occurred when a patient put Claimant in a "choke hold" from behind, injuring Claimant's neck. Claimant promptly reported the incident and the employer/insurer sent him for medical treatment. That day, Claimant treated at the Callaway Community Hospital emergency room, where a diagnostic scan of Claimant's neck was performed. The CT report indicates the impression was "Spondylosis. Atherosclerosis. I doubt acute fracture. Findings agree with preliminary report given on call."'
4. On February 28, 2011, Claimant treated with Dr. Eddie Runde. ${ }^{2}$ The diagnosis was neck pain. The doctor put Claimant on restricted duty with no staff supports while they wait for the CT report.
5. Claimant returned to Dr. Runde on March 7, 2011. Dr. Runde noted that the CT scan report revealed advanced spondylosis, especially at C5-6 and C6-7. There was also evidence of calcifications in the posterior cervical spine at the C7 and T1 spinous processes, which were felt to be benign and chronic. There was some prominent bony spinal and foraminal stenosis at C5-6 and C6-7 with lesser changes elsewhere. No acute fractures were found. Dr. Runde's diagnosis was neck pain/strain and degenerative disc disease, and he continued the same restrictions as the prior visit.
6. On March 14, 2011, Claimant returned to Dr. Runde with no significant change in his symptoms. Dr. Runde prescribed Cataflam and Flexcril. On March 31, 2011, Dr. Runde discharged Claimant from treatment and returned him to regular duty work with no restrictions. The diagnosis was (1) neck pain, improving, and (2) degenerative disc disease of the cervical spine.
7. At trial, Claimant's attorney asked him about his continuing neck symptoms and Claimant indicated that he still has some problems with stiffness and range of motion, but that the problems were not as bad as they were before. ${ }^{3}$ He would have some problems at

[^0]

[^0]: 'Exh. 13.

${ }^{2} Exh. 12.

{ }^{3}$ Trial transcript, pp. 10-11.

**Employee:** Frederick Winingear

**Injury No.:** 11-013401

Work if he had to do a lot of looking upwards. After the 2011 work injury, Claimant's neck pain has averaged a 3 or 4 on a 10-point scale.

1. Claimant testified that in 1993 he was hit over the head with a typewriter. When asked whether he was having trouble with his range of motion before the 2011 work injury, Claimant testified "[N]ot too much...." He did indicate that he would probably have to say that he did have some neck stiffness. He also indicated that before his 2011 work injury, he did not have a lot of pain in his neck, and sometimes he was even pain-free.

1. On October 17, 2008, Claimant saw Dr. Runde regarding a work injury from October 15, 2008. Dr. Runde's diagnosis was mid cervical strain/sprain and occipital contusion. Dr. Runde put Claimant on restricted duty with no staff supports. The doctor also prescribed physical therapy. Claimant continued to treat with Dr. Runde on October 28 and November 4, 2008, and was given the same restrictions and therapy was continued. On November 11, 2008, Dr. Runde noted that Claimant continued to have improvements in his neck and head pain. Dr. Runde returned Claimant to regular work duty with no restrictions.

1. On November 18, 2008, Claimant saw Dr. Runde, who gave him a diagnosis of cervical strain, resolved, and discharged him from treatment. The doctor also returned Claimant to regular work duty with no restrictions.

1. On or about December 1, 2009, Claimant was head-butted by a client. Handwritten notes from St. Mary's Occupational Medicine, dated December 2, 2009, are difficult to decipher. Claimant returned on January 12, 2010, and reported that his neck was better but he still had some soreness, headaches, and restricted movement. On February 1, 2010, Claimant saw Dr. Janet Elliot, who noted that he had returned to work on regular duty on January 28, and on that day he was involved in three take-downs. Claimant reported that the last take-down re-injured his neck. Dr. Elliot noted Claimant has a cervical strain. Dr. Elliot restricted Claimant to no staff supports or one-on-one situations; although she further found that Claimant could return to regular duty work on February 15, 20