Carmela McCurdy-Cade v. State of Missouri, Department of Corrections

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 13-005378

Employee: Carmela McCurdy-Cade

Employer: Department of Corrections

Insurer: C A R O

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 June 23, 2015. The award and decision of Administrative Law Judge David L. Zerrer, issued June 23, 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 $8^{\text {th }}$ day of October 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Carmela McCurdy-Cade

Injury No. 13-005378

Dependents:

Employer: State of Missouri, Department of Corrections

Address: 201 S. 11th Street, Missouri, U.S. 37102

Address: 201 S. 11th Street, Missouri, U.S. 37103

Address: 201 S. 11th Street, Missouri, U.S. 37104

Address: 201 S. 11th Street, Missouri, U.S. 37105

Address: 201 S. 11th Street, Missouri, U.S. 37106

Insurer: Central Accident Reporting Office (CARO)

Hearing Date: March 18, 2015/April 10, 2015

Address: 201 S. 11th Street, Missouri, U.S. 37102

Address: 201 S. 11th Street, Missouri, U.S. 37103

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: January 30, 2013
5. State location where accident occurred or occupational disease was contracted: Vandalia, Audrain County, 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: Claimant was running when felt pop in knee
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: Right knee
14. Nature and extent of any permanent disability: 20 % of the right knee at the 160 -week level
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? $\ 30,988.87

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 598.67
3. Weekly compensation rate: $\ 399.11
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: -0-

-0- weeks of temporary total disability (or temporary partial disability)

32 weeks of permanent partial disability from Employer-\12,771.52

Mileage reimbursement of \ 417.99

1. Second Injury Fund liability: Yes No X Open

TOTAL: \$13,189.51 PLUS FUTURE MEDICAL TREATMENT

1. Future requirements awarded: As set out in this 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: Van Camp Law Firm

Employee: Carmela McCurdy-Cade

Employee: Carmela McCurdy-Cade

Dependents:

Employer: State of Missouri, Department of Corrections

Central Accident Reporting Office (CARO)

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

On the $18^{\text {th }}$ day of March, 2015, the parties appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and by her attorney, Kevin Spear. The Employer appeared by its attorneys, Assistant Attorneys General Erin Smith and Brian Herman. The record was ordered to remain open until April 10, 2015, at 5 p.m.

The parties have stipulated to certain facts which are not at issue in this claim as follows, to wit: On or about the $30^{\text {th }}$ day of January, 2013, the State of Missouri, Department of Corrections, was an employer operating subject to the Missouri Workers' Compensation Law; the Employer's liability was fully self-insured by and through the Central Accident Reporting Office (CARO); on the alleged injury date of January 30, 2013, Carmela McCurdy-Cade was an employee of the Employer; the Claimant was working subject to the Missouri Workers' Compensation Law; the parties agree that on or about January 30, 2013, Claimant sustained an accident, which arose out of the course of and scope of employment; the employment occurred in Audrain County, Missouri, and the parties agree that Audrain County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed accident, Claimant's average weekly wage was $\ 598.67, sufficient to allow a

Employee: Carmela McCurdy-Cade

Injury No. 13-005378

compensation rate of $\ 399.11 for temporary total disability, permanent partial disability, and permanent total disability; no temporary disability benefits have been paid prior to the date of this hearing; the Employer has paid medical benefits in the amount of $\ 30,988.87 prior to the date of this hearing; Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award; the parties further agree that medical treatment mileage subject to reimbursement is 2,381.68 miles; the parties agree that Employer has paid medical mileage reimbursement of $\ 844.23 prior to the date of this hearing.

Whether the Claimant has sustained injuries that will require future medical care in order to cure and relieve the Claimant of the effects of the injuries?

The nature and extent of any permanent disabilities?

What is proper mileage reimbursement rate?

What is the amount of medical mileage reimbursement due to Claimant?

A legal file was established for this hearing which consisted of the following documents, to wit: Report of Injury; Claim for Compensation, filed with the Division July 8, 2014; Employer's Answer to Claim for Compensation, filed with the Division July 24, 2014; Request for Final Hearing, filed with the Division December 18, 2014.

Carmela McCurdy-Cade, claimant herein, testified in her own behalf. Claimant testified that she is one and the same person as Carmela McCurdy, Carmela Cade, and Carmela McCurdyCade, and that she has been married to Henry Cade for one and one-half years at the date of the

Improvement in the Treatment of Depression

hearing. Claimant testified that she has been employed by the State of Missouri, Department of Corrections, Women's Eastern Reception, Diagnostic, and Correctional Center (WERDCC) for a period of 16 years. Claimant's current job classification is CO1, transportation officer, and that she has worked in that position for about three and one-half years. Claimant's job tasks involved maintaining safety in the institution, which involves bending, squatting, running, kneeling, and making rapid responses to situations at the prison.

Claimant testified that prior to working at her present position, she worked within the housing units which required more contact with the inmates and more walking than her current position.

Claimant testified that on January 30, 2013, she was standing in the area of the food hall when she was dispatched to a fight among inmates. Claimant stated that she began running toward where the incident was occurring when she felt her right knee "pop," causing immediate sharp stabbing pain. She stopped running and sat down. Claimant further stated that when her supervisor saw her sitting in the chair, he addressed Claimant's issues and that when Claimant stood up from the chair, she did not have feeling in her right leg.

Claimant testified that she was sent to Pike County Memorial Hospital where she was treated with X-rays, a knee wrap, and discharged on crutches. Claimant was referred to Dr. Henry for follow-up treatment. Dr. Henry prescribed a metal knee brace and physical therapy. Claimant stated that Dr. Henry released Claimant to full duty in April of 2013. Claimant testified that after her release from treatment she continued to have painful swelling and popping of the right knee. Claimant returned to Dr. Henry who ordered an MRI.

Claimant testified that after the MRI she was referred to Dr. Krause, an orthopedic surgeon. Claimant stated that Dr. Krause treated her with a second MRI and injections, which

Employee: Carmela McCurdy-Cade Injury No. 13-005378

did not provide relief from right knee pain. Dr. Krause took Claimant to surgery in August 2013, after which Claimant received physical therapy and was released at maximum medical improvement on October 14, 2013.

Claimant testified that she currently continues to have pain in the right knee. She stated that on a good day her pain level would be about 3 on a scale of 0 to 10 . After working all day, her knee burns and throbs and averages about 6 on a scale of 0 to 10 . She further stated that on a bad day, her pain level increases to an 8 on a scale of 0 to 10 . Claimant testified that she takes Tramadol every day for pain in her knee and that she still has some grinding and popping in her right knee.

Claimant testified that she now has a fear of running and thereby reinjuring her right knee. Claimant is on her feet for five to six hours in an eight-hour workday. She stated that after a full day of work, her knee swells up and that she requires more breaks during the day then prior to the date of her injury. Claimant testified that she does not complain of knee pain while at work because officers in her classification are expected to be able to perform their assigned job tasks.

Claimant testified that she has too much knee pain to work in her garden at home since the injury and, further, that she has difficulty getting down and up from the floor to play with her grandchildren because of her knee pain.

Claimant testified that she drives a 2007 Dodge Charger and that she pays for fuel, maintenance, equipment, insurance, license fees, interest, and property taxes on her car. She further testified that she was never told by anyone at the State of Missouri to use the state's "trip optimizer;" never told she could use a state vehicle to travel to and from medical treatment

Employee: Carmela McCurdy-Cade Injury No. 13-005378

appointments; and never informed that travel to medical appointments was considered "official state business."

On cross-examination Claimant admitted that she was released from Dr. Krause without restrictions. She further admitted that she never requested accommodations from Employer because officers "have to be able to do their job, there are no accommodations."

Claimant admitted that she returned to full duty after her release from