Charlene Conlan v. Southwestern Bell Telephone, LP

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 06-098170

Employee: Charlene K. Conlan

Employer: Southwestern Bell Telephone, LP

Insurer: Self-Insured

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 April 16, 2015. The award and decision of Administrative Law Judge L. Timothy Wilson, issued April 16, 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 $20^{\text {th }}$ day of November 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Charlene K. Conlan

Injury No. 06-098170

Dependents: $\quad \mathrm{N} / \mathrm{A}

Employer: Southwestern Bell Telephone, LP

Insurer: \quad \mathrm{N} / \mathrm{A}$ (Self-insured Employer)

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Hearing Date: February 3, 2015

Checked by: LTW

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 13, 2006
5. State location where accident occurred or occupational disease was contracted: Greene 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: While engaged in employment with the Employer, and while the Employee was attempting to ride an elevator on Employer's property to her fifth floor office, the elevator malfunctioned after Employee pushed floor button 5. This malfunction resulted in all floor buttons to light-up, the door shut, and the elevator rose to the $6^{\text {th }}$ floor; then the elevator doors opened briefly, but slammed shut. Upon slamming the doors, the whole elevator jerked and Employee fell to the floor; while the elevator dropped to the fifth floor. In falling to the floor, Employee hit her head on the steel rail situated on the wall and tried to reach out with her left hand to catch herself. When Employee stood up, she was situated on the fifth floor and the doors were not opening. Employee remained stuck on the elevator for approximately one hour. As a consequence of this work incident, Employee sustained physical injuries to her head and neck (mild concussion and neck strain) and to her left wrist (left wrist strain). Also, as a consequence of this work incident, Employee sustained a mental injury in the nature of Post-Traumatic Stress Disorder.
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: Head, Neck, Left Wrist \& Body as a Whole (Mental Injury)

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Charlene K. Conlan

1. Nature and extent of any permanent disability: Permanent Total Disability
2. Compensation paid to-date for temporary disability: $\ 410.78
3. Value necessary medical aid paid to date by employer/insurer? $\ 7,153.72
4. Value necessary medical aid not furnished by employer/insurer? $\ 11,742.14
5. Employee's average weekly wages: $\ 1,015.23
6. Weekly compensation rate: $\ 676.82 (TTD / PTD) \& $\ 376.55 (PPD)
7. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

$\ 11,742.14

Future medical care:

(See Award)

(Employee is entitled to future medical care from Employer and Insurer.)

Weeks of temporary total disability (or temporary partial disability):

$\ 81,194.38

(This sum represents $1204 / 7$ weeks of TTD, payable for the period of Oct. 14, 2006, to Feb. 4, 2009, less credit for the prior payment of $\ 410.78.)

Weeks of permanent partial disability from Employer / Insurer:

Weeks of disfigurement from Employer / Insurer:

Permanent total disability benefits from Employer / Insurer: (See Award)

(Employee is entitled to permanent total disability benefits from Employer and Insurer beginning Feb. 4, 2009, at the rate of $\ 676.82 per week, for Employee's lifetime.)

1. Second Injury Fund liability: N/A

TOTAL: \$676.82 PER WEEK, EFFECTIVE FEBRUARY 4, 2009, AND CONTINUING FOR EMPLOYEE'S LIFETIME, PLUS FUTURE MEDICAL CARE

1. Future requirements awarded: Future medical and permanent total disability benefits

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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: John Newman, Esq.

Employee: Charlene K. Conlan

Injury No. 06-098170

Dependents: N/A

Employer: Southwestern Bell Telephone, LP

Insurer: N/A (Self-insured Employer)

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on February 3, 2015. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about March 9, 2015.

The employee appeared personally and through her attorney, John Newman, Esq. The employer appeared through its attorney, Shari Lockhart. The Second Injury Fund appeared through its attorney, Cara Harris, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about October 13, 2006, Southwestern Bell Telephone, LP ${ }^{1}$ was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully self-insured, with the benefits being administered by Sedgwick Claims Management Services.

(2) On the alleged injury date of October 13, 2006, Charlene K. Conlan was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about October 13, 2006, the employee sustained an accident, which arose out of and in the course of her employment with the employer.

(4) The above-referenced employment and accident of October 13, 2006, occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(5) The employee notified the employer of her injury as required by Section, 287.420, RSMo.

[^0]

[^0]: ${ }^{1}$ The parties use the names "Southwestern Bell Telephone, LP" and "AT\&T" interchangeably. The Report of Injury identifies the employer as both AT\&T, Inc. and Southwestern Bell Telephone Co.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the alleged accident of October 13, 2006, the employee's average weekly wage was $\ 1,015.23, which is sufficient to allow a compensation rate of $\ 676.82 for temporary total disability compensation / permanent total disability compensation, and a compensation rate of $\ 376.55 for permanent partial disability compensation.

(8) Temporary disability compensation has been provided to the employee in the amount of $\ 410.78.

(9) The employer has provided medical treatment to the employee, having paid $\ 7,153.72 in medical expenses.

The issues to be resolved by hearing include:

(1) Whether the claimed accident of October 13, 2006, caused the injuries and disabilities for which benefits are now being claimed?

(2) Whether the employer is obligated to pay for certain past medical care and expenses?

(3) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries?

(4) What is the applicable maximum medical improvement ("MMI") date?

(5) Whether the employee is entitled to temporary total disability compensation?

(6) Whether the employee sustained any permanent disability as a consequence of the claimed accident of October 13, 2006; and, if so, what is the nature and extent of the disability?

(7) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

The employee testified at the hearing in support of her claim. Also, the employee presented at the hearing of this case the testimony of three additional witnesses - Wilbur Swearingin, CRC; Anthony Conlan (son); and Daniel Conlan (husband). In addition, the employee offered for admission the following exhibits:

Exhibit A Curriculum Vitae of David Volarich, D.O.

Exhibit B Medical Report of David Volarich, D.O. (August 1, 2007)

Exhibit C Addendum to IME of August 1, 2007

Exhibit D Medical Bill Review \& Attachment

Exhibit E Deposition of David Volarich, D.O. (July 1, 2008)

Exhibit F Medical Records

Tab 1 Medical Records from Donald K. Hopewell, M.D.

Tab 2 Medical Records from Burrell, Inc.

Tab 3 Medical Records from Doctors Hospital - South Clinic

Tab 4 Medical Records from MRI of Springfield

Tab 5 Medical Records from Doctors Hospital - South

Tab 6 Medical Records from Skaggs Community Health Center

Tab 7 Medical Records from Kenneth S. Sharlin, M.D.

Tab 8 Medical Records from Peak Performance Physical Therapy \& Rehabilitation

Tab 9 Medical Records from Orthopaedic Specialists of Springfield

Tab 10 Medical Records from Doctors Hospital of Springfield

Tab 11 Medical Records from Kenneth S. Sharlin, M.D.

Tab 12 Medical Records from Fordland Clinic, Inc.

Exhibit G Curriculum Vitae of Dale A. Halfaker, Ph. D.

Exhibit H Neuropsychological Report of Dale A. Halfaker, Ph.D.

Exhibit I Deposition of Dale A. Halfaker, Ph.D. (Aug. 24, 2011)

Exhibit J Deposition of Dale A. Halfaker, Ph.D. (Aug. 20, 2014)

Exhibit K Curriculum Vitae of Wilbur Swearingin, CRC

Exhibit L Vocational Report of Wilbur Swearingin, CRC

Exhibit M Deposition of Charlene Conlan (April 27, 2007)

Exhibit N Deposition of Charlene Conlan (September 3, 2013)

The exhibits were received and admitted into evidence.

The employer did not present any witnesses at the hearing of this case. The employer, however, offered for admission the following exhibits:

Exhibit 1 Deposition of Ted A. Lennard, M.D. (Nov. 20, 2013)

(Inclusive of Deposition Exhibits)

Exhibit 2 Deposition of Michael Jarvis, M.D. (Sept. 19, 2013)

(Inclusive of Deposition Exhibits)

Exhibit 3 Deposition of James England, Jr. (Jan. 16, 2014)

(Inclusive of Deposition Exhibits)

Exhibit 4... Medical Report of Chris Fevurly, M.D., CIME (Filed Sept. 26, 2013)

(Inclusive of Attachments to Report)

Exhibit 5 Medical Records from Ozarks Community Hospital

The exhibits were received and admitted into evidence.

The Second Injury Fund did not present any witnesses or offer any additional exhibit