Carla Fowler v. State of Missouri/Department of Corrections

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 09-065204

Employee: Carla Fowler

(a/k/a Carla Helmig)

Employer: State of Missouri/Department of Corrections

Insurer: C A R O

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 January 23, 2015, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Vicky Ruth, issued January 23, 2015, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $28^{\text {th }}$ day of May 2015.

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? See Award.
3. Was there an accident or incident of occupational disease under the Law? See Award .
4. Date of accident or onset of occupational disease: June 27, 2009.
5. State location where accident occurred or occupational disease was contracted: Jefferson City, Missouri (alleged).
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? See Award.
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: Claimant alleges she was working in the perimeter tower on a hot day, that the air conditioner was not working, and that she suffered heat exhaustion.
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: alleged body as whole.
14. Nature and extent of any permanent disability: N/A.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None.

1. Value necessary medical aid not furnished by employer/insurer? N/A.
2. Employee's average weekly wages: $\ 535.15.
3. Weekly compensation rate: $\ 356.78.
4. Method of wages computation: By agreement.

1. Amount of compensation payable from employer: None.
2. Second Injury Fund liability: None.
3. Future medical awarded: None.

Employee: Carla Fowler

(a/k/a Carla Helmig)

Dependents: N/A

Employer: State of Missouri/Dept. of Corrections

Additional Party: Second Injury Fund

Insurer: State of Missouri

c/o CARO

Hearing Date: October 20, 2014

On October 20, 2014, Carla Fowler (the claimant), State of Missouri Department of Corrections (the employer), State of Missouri in care of CARO (the insurer), and the Second Injury Fund appeared in Jefferson City, Missouri, for a final award hearing regarding Injury Nos. 09065204 and 09-111731. Awards will be issued in each case. Claimant was represented by counsel Doug Van Camp; attorney Christine Kiefer was also present. The employer/insurer was represented by attorney Brian Herman, Assistant Attorney General. The Second Injury Fund was represented by Collette Neuner, Assistant Attorney General. David McCain, Assistant Attorney General, observed. Claimant testified in person at the hearing and by deposition. Dr. Raymond Cohen, Dr. Eric Caywood, and Dr. A.E. Daniel testified by deposition. The parties submitted briefs on or about November 10, 2014, and the record closed at that time.

The parties stipulated to the following:

Injury No. 09-065204

1. On or about June 27, 2009, Carla Fowler (the claimant) was an employee of the State of Missouri Department of Corrections (the employer) when she allegedly sustained an injury by accident.
2. The employer was operating subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was self-insured by the State of Missouri in care of CARO.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Cole County is proper.
5. Notice is not an issue.
6. Claimant filed a Claim for Compensation within the time prescribed by law.

1. Claimant's average weekly wage is $\ 535.15, yielding a weekly compensation rate of $\ 356.78 for permanent partial disability benefits.
2. No medical aid was provided.
3. No temporary total disability was provided.

1. On or about August 3, 2009, Carla Fowler (the claimant) was an employee of the State of Missouri Department of Corrections (the employer) when she allegedly sustained an injury by accident.
2. The employer was operating subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was self-insured by the State of Missouri in care of CARO.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Cole County is proper.
5. Notice is not an issue.
6. Claimant filed a Claim for Compensation within the time prescribed by law.
7. Claimant's average weekly wage is $\ 535.15, yielding a weekly compensation rate of $\ 368.76 for permanent partial disability benefits.
8. Some medical aid was provided.
9. No temporary total disability was provided.

The parties agreed that the following issues were to be resolved in each case:

1. Accident or occupational disease arising out of and in the course of employment.
2. Medical causation.
3. Nature and extent of permanent partial disability.
4. Additional medical care.
5. Second Injury Fund liability.

On behalf of Claimant, the following exhibits were entered into evidence:

Exhibit 1 Medical report of Dr. Raymond Cohen with curriculum vitae.

Exhibit 2 Medical report of Dr. Eric Caywood with curriculum vitae.

Exhibit 3 Medical report of Dr. A. E. Daniel with curriculum vitae.

Exhibit 4 Deposition of Dr. Cohen, taken November 9, 2012.

Exhibit 5 Withdrawn.

Exhibit 6 Deposition of Dr. A. E. Daniel.

Exhibit 7 Medical records of Dr. Janet Elliot.

Exhibit 8 Medical records from Capital Region Family Care/Dr. Caywood.

Exhibit 9 Medical records from Capital Region Medical Center.

On behalf of the employer/insurer, the following exhibits were admitted into the record:

Exhibit A Medical report of Dr. Anne-Marie M. Puricelli and curriculum vitae.

Exhibit B Medical report of Dr. Michael R. Jarvis and curriculum vitae.

Exhibit C Memorandum of Rodney Perry, Safety Manager.

Exhibit D Deposition of Dr. Eric Caywood.

On behalf of the employer/insurer, the following exhibits were admitted into the record:

Exhibit I. Deposition of claimant (Carla Fowler) December 6, 2012.

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence. All depositions were admitted subject to any objections contained therein. Unless noted otherwise, the objections are overruled.

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

1. Claimant was born on January 20, 1959. On the date of the hearing, she was 55 years of age. Claimant lives in Linn, Missouri.
2. Claimant completed the $11^{\text {th }}$ grade and has a G.E.D. Claimant's work history includes working in a nursing home, in a factory, and in a recording studio. Claimant started working for the Department of Corrections with Jefferson City Correctional Center (the employer) in approximately July 2008. Her duties included working in a control tower or in a vehicle that she used to check the perimeter of the facility. She testified that she usually worked four hours at each task (control tower or vehicle work) and she would swap tasks with another officer for the remaining four hours of her shift.
3. On June 27, 2009, claimant was working in the control tower when her shift began at approximately 3:10 p.m. The control tower has two floors; the first floor was a sally port and the second, where claimant worked, was the perimeter tower. Each floor had separate air conditioning units. The tower had windows on all sides and there were one or two fans. There was also a toilet and a sink. Claimant testified that on June 27, 2009, the windows in the tower were open as the fans were on as the air conditioner was not working, but it was still excessively hot. According to claimant, a thermometer hanging near her desk read 100 degrees Fahrenheit. Claimant testified that she had previously complained to her

supervisors about the air conditioner not working and that she had specifically told Sgt. Warnell of this problem.

1. Claimant testified that on June 27, 2009, she began to feel light-headed, sick to her stomach, and weak. She had the dry heaves despite drinking a lot of water. After her shift ended at around 11:30 p.m., she drove home. She felt ill the next two to three days, with symptoms of achiness, nausea, light-headedness, and lethargy. She testified that she called the office of her primary care physician, Dr. Eric Caywood, and was told to rest and drink plenty of fluids as it sounded like she had heat exhaustion. It must be noted, however, that Dr. Caywood's medical records do not reflect any call on June 27 or 28, 2009. Instead, on June 29, 2009, claimant called the doctor's office and requested a prescription for new medication as her current prescription, Celexa, made her hyper and kept her from sleeping. ${ }^{1}$
2. After the alleged June 2009 incident, claimant continued to work full duty for the employer.
3. Claimant testified that on August 3, 2009, she suffered another heat-related incident. According to claimant, when she arrived in the tower around 3:30 p.m. on August 3, 2009, the thermometer read 101 degrees even though the fans were on and the windows were open. Claimant indicated the air conditioner was not working. Claimant expected to be relieved after four hours in the tower, but she was not. She testified that she called Sgt. Leonard and told him she was ill but he instructed her to finish her entire shift in the tower. Claimant testified that she was very ill in the tower; she was disoriented, weak, and vomited.
4. As part of her job duties, claimant would write in a "Chronological Log" during her shifts. ${ }^{2}$ On August 3, 2009, claimant made the following notations (in pertinent part):

3:25 Helmig ${ }^{3}$ Relieves Bohling....

5:55 SGT Leonard called to get \# of other VP vehicles. Trouble w/Jeep.

7:00 SGT Leonard called to tell me he wanted me to stay in the tower all night because CO1 [illegible] wanted to leave early.