Isabella Lovadina v. City of St. Louis

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 09-081847

Employee: Isabella Lovadina

Employer: City of St. Louis (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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated May 11, 2015. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued May 11, 2015, 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 $25^{\text {th }}$ day of September 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? 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: October 5, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis
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: Claimant was assaulted by a suspect.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: body as a whole and right shoulder
14. Nature and extent of any permanent disability: 40 % of the body as a whole and 17.5 % of the right shoulder (200.6 weeks)
15. Compensation paid to-date for temporary disability: $\ 52,904.89
16. Value necessary medical aid paid to date by employer/insurer? $\ 144,841.46

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 746.00
3. Weekly compensation rate: $\$ 497.77 / \ 422.97
4. Method wages computation: By Stipulation

1. Amount of compensation payable:

Employer previously settled its liability.

1. Second Injury Fund liability: Yes

Beginning on September 11, 2012, and continuing for 200.6 weeks, the SIF is liable for weekly payments in the differential amount of $\ 74.80 for 200.6 weeks, and then $\ 497.77 per week thereafter, and continuing in accordance with the law.

TOTAL:

INDETERMINANT

1. Future requirements awarded: See Award

Said payments to begin immediately 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: Stephen Thurmer

The matter of Isabella Lovadina ("Claimant") proceeded hearing. Attorney Stephen Thurmer represented Claimant. Assistant Attorney General Elad Gross represented the Second Injury Fund. The City of St. Louis ("Employer") previously settled its liability in this case and was not present for this trial.

The parties agreed that as of the date of injury, Claimant was an employee of Employer, and the parties were operating under and subject to the provision of the Missouri Worker's Compensation Law (the "Act"). Further, on or about October 5, 2009, Claimant sustained an accidental injury arising out of and in the course employment that resulted in injury to Claimant. The parties agreed jurisdiction and venue are proper, and notice and filing of the claim were timely. Claimant's average weekly wage was $\ 746.00, making the weekly compensation rate $\ 497.77 for permanent total disability ("PTD") benefits and temporary total disability ("TTD") benefits and $\ 422.97 for permanent partial disability ("PPD") benefits. The parties stipulated Employer/Insurer paid $\ 144,841.46 in medical expenses and $\ 52,904.89 in TTD benefits. Claimant attained maximum medical improvement on September 11, 2012, and Claimant and Employer reached a settlement on the primary injury.

The issues to be determined are the nature and extent of permanent disability associated with the primary injury and the liability of the Second Injury Fund for PTD or PPD benefits.

The following exhibits were admitted on Claimant's behalf:

1. Employer Report of Injury
2. Deposition of David T. Volarich, D.O. with exhibits dated June 13, 2014
3. Deposition of Dr. Adam Sky with exhibits dated January 5, 2015
4. Deposition of James England with exhibits dated August 14, 2014
5. Medical Records from City of St. Louis - EMS
6. Medical Records from St. Louis University Hospital
7. Medical Records from Barnes Jewish Hospital
8. Medical Records from PRORehab
9. Medical Records from J. Todd Glass, M.D.
10. Medical Records from Barnes Care

1. Medical Records from Susan MacKinnon, M.D.
2. Medical Records from Charles Nathan, M.D.
3. Medical Records from Delmar Gardens Home Care
4. Medical Records from Frontenac Surgery \& Spine Care Center
5. Medical Records from Orthopedic Sports Medicine \& Spine Care Institute
6. Medical Records from Rehabilitation Institute of St. Louis
7. Additional Medical Records from Rehabilitation Institute of St. Louis
8. Medical Records from Barnes-Jewish West County Hospital
9. Medical Records from Wayne Stillings, M.D.
10. Medical Records from Melissa Harbit, M.D.
11. Medical Records from Mercy Hospital
12. Medical Records from Charles Nathan, M.D.
13. Medical Records from Marcia McCabe, Ph.D
14. Medical Records from Barnes BJH
15. Medical Records from Tara Galovski, Ph.D.
16. Stipulation for Compromise Settlement on Primary Injury ${ }^{1}$
17. Deposition of Dr. Paul Michael Packman with exhibits dated January 28, 2015

The Second Injury Fund offered two depositions as follows, which were admitted without objection:

A. Deposition of Karen Kane-Thaler with Exhibits dated January 15, 2015

B. Deposition of Gregg Evan Bassett with Exhibits dated January 30, 2015

To the extent there are objections contained in the depositions to which the attorneys have not specifically directed the ALJ, those objections are now overruled. Any highlights or marks on the exhibits were present when submitted and were not placed thereon by the ALJ.

Based on my observations of Claimant's demeanor during her testimony, I find that she is a very credible witness. Based on the testimony of Claimant, the medical records introduced, the evidenced admitted, and the expert evidence presented on behalf of Claimant, I make the following findings of fact:

Claimant is a 33 year old female who fulfilled a dream to become a police officer in 2007 when she entered the Police Academy and joined the City of St. Louis Metropolitan Police Department. She joined the force because she wanted to help people and was inspired by her older brother Alex, who was a police officer. Police officers had been a part of Claimant's life from an early age because her father was a drug addict who was physically and emotionally abusive, and when police officers were around her, she felt safe.

Claimant's childhood was difficult; she attended several schools but dropped out during her junior year, later earning her GED. There was a history of mental illness in her family.

[^0]

[^0]: ${ }^{1}$ On the date of the hearing, Claimant settled her primary injury claim against Employer for 40 % of the body as a whole (psych), 17.5 % PPD of the right shoulder and for an additional 20 weeks of disfigurement. Future medical treatment was left open for reasonably related issues. Said settlement also resolved disputed past medical, unpaid medical and disputed unpaid TTD benefits.

Claimant herself attempted suicide twice and received intermittent psychological care over the years, including four hospitalizations and ongoing medication for depression.

Before she became an officer, Claimant worked as a waitress, esthetician, and in retail. While some reports in evidence only discuss four or five prior jobs, Claimant also reported she held many jobs since she entered the work force at age 16, but was habitually late, had some conflicts at work, and left jobs frequently. In hindsight, Claimant realized her preexisting psychiatric problems interfered with her ability to work for a variety of reasons: they reduced her concentration, pace and persistence in the workplace and interfered with her motivation to get ahead. ${ }^{2}$ Once she joined the force, Claimant successfully carried out the physical, stressful and demanding tasks of a patrol officer for two years leading up to the incident that forms the basis of this claim.

Late at night on October 5, 2009, Claimant was walking in the City of St. Louis with a male friend when two men with guns approached and forced them into a residence. ${ }^{3}$ As the armed men ransacked the house, Claimant was forced at gunpoint to lie face down on the floor. She began thinking like a cop: playing out possible scenarios, trying to memorize the appearance of the perpetrators and being aware of everybody's location in the house. When one of the perpetrators was going to take another female downstairs to the basement, Claimant volunteered to go instead as she feared that the man would rape or kill her friend. Claimant rose to her feet and attacked the suspect in an attempt to disarm him. However, gunshots rang out. Claimant was shot five times, her male friend was shot, and the other woman was killed. The assailants fled, but were apprehended shortly thereafter and ultimately sentenced to lengthy prison terms.

Claimant was transported to Saint Louis University Hospital for multiple gunshot wounds. One bullet entered her right anterior chest and exited her shoulder, a second bullet grazed her right cheek, a third entered her right breast lodging in her left breast, a fourth bullet entered her right breast, and a fifth bullet entered her right posterior thigh which traveled through her uterus and became lodged in her pelvis. She suffered a collapsed lung and a sternal fracture. In addition to the initial surgical and conservative treatment for the gunshot wounds, Claimant required re