Makeyta Jones v. HCR Manor Care

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 11-071977

Employee: Makeyta Jones

Employer: HCR Manor Care

Insurer: Insurance Company of the State of Pennsylvania

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 29, 2015. The award and decision of Administrative Law Judge Kathleen M. Hart, issued June 29, 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 $22^{\text {nd }}$ day of December 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Makeyta Jones

Injury No.: 11-071977

Dependents: $\mathrm{n} / \mathrm{a}$

Before the

Employer: HCR Manor Care

Division of Workers' Compensation

Department of Labor and Industrial

Relationships of Missouri

Jefferson City, Missouri

Industrial Party: None

Insurer: Insurance Company of the State of Pennsylvania, c/o Broadspire

Hearing Date: April 6, 2015

Checked by: KMH

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: September 1, 2011
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 assisting a resident and injured her shoulders, neck and low back.
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: shoulders, neck, and low back
14. Nature and extent of any permanent disability: 2.5 % of the body as a whole
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? \$5,474.31

Employee: Makeyta Jones Injury No.: 11-071977

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 256.59
3. Weekly compensation rate: $\$ 171.06 / \ 171.06
4. Method wages computation: operation of law

1. Amount of compensation payable:

10 weeks of permanent partial disability from Employer $\ 1,710.60

1. Second Injury Fund liability:

None

TOTAL:

$\ 1,710.60

1. Future requirements awarded: $\mathrm{n} / \mathrm{a}$

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:

Mark Cordes

Employee: Makeyta Jones

Injury No.: 11-071977

Dependents: $\mathrm{n} / \mathrm{a}$

Employer: HCR Manor Care

Additional Party: n/a

Insurer: Insurance Co. of the State of Pennsylvania, c/o Broadspire

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter April 6, 2015. Makeyta Jones (Claimant) appeared pro se. One of her former attorneys, Mark Cordes, appeared specially to protect his lien. HCR Manor Care (Employer) was represented by attorney Mark Kornblum.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

The parties stipulated to the following:

1. Claimant sustained an injury by accident September 1, 2011, while in the course and scope of her employment for Employer.
2. Employer and Claimant were operating under the provisions of the Missouri workers' compensation law.
3. Employer's liability was fully insured by Insurance Company of the State of Pennsylvania, c/o Broadspire.
4. Employer had notice of the injury and a Claim for Compensation was timely filed.
5. Claimant received $\ 5,474.31 in medical benefits.

The parties stipulated the issues to be resolved are as follows:

1. Medical causation
2. Future medical care
3. Rate
4. TTD
5. PPD
6. Attorney liens

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant was hired by Employer October 27, 2010, as Certified Nurse Assistant. Her duties included lifting residents and assisting them with therapy, eating, bathing, and using the restroom. Claimant testified Employer was typically short staffed and had a high turnover of employees. There were not enough CNAs, so Claimant cared for up to 25 residents at a time.
2. Claimant testified she was injured when she was assisting a resident to the bedside commode. The resident was weak, so Claimant got Tasha Allen to help. The resident's legs buckled, and Claimant had to use her left side to support him. Claimant testified this caused injury to her left shoulder and arm. Claimant testified Tasha completed a report that night, but Claimant does not have the paperwork that describes how this injury happened because the documents were altered so much, and Employer would not give them to her. Claimant took over the counter Tylenol that night and kept working. The next day, Carol Hoette called her to see if she was okay and asked Claimant to let her know if her injury got worse. Claimant did not seek further treatment for this injury.
3. Employer's incident report was completed and signed by Claimant. Claimant reported she injured her right shoulder August 8, 2011, when she was assisting a resident, and Tasha Allen witnessed the injury. Claimant filed a Claim for Compensation September 15, 2011, alleging injury to her right shoulder, upper back, mid back, spine and whole body. Employer completed a First Report of Injury indicating they were notified of an August 1, 2011 injury to multiple body parts on September 20, 2011. A second Report of Injury was filed indicating Employer was notified of the injury September 26, 2011.
4. Claimant testified she was reinjured September 1, 2011, when she was assisting a resident who was a two person assist. Claimant testified she asked multiple co-workers to help her, and they all said no. Claimant had to move the 450 pound resident by herself. Claimant helped the resident back to her bed. When she lifted the resident's legs onto the bed, she felt pain in her neck, shoulders, arms, and back.
5. Claimant testified she reported this to her supervisor and completed an injury report. Employer's incident report, completed and signed by Claimant, states Claimant injured her neck, shoulder, arm, low back, and hands while assisting a resident back to bed on September 1, 2011. Claimant filed a Claim for Compensation alleging injury to her left shoulder, right shoulder, neck and back. The Claim was amended to allege injuries to her left upper extremity, and then was amended to allege injuries to her right upper extremity.
6. Claimant went to the Emergency Room after her September 1, 2011 injury and complained of numbness and tingling in her hands. She had x-rays. Claimant testified Cassandra, her supervisor, came to the Emergency Room and told Claimant to leave because Employer was not paying, and she told Claimant to go to Concentra.

1. Claimant testified the Emergency Room x-rays showed straightening of the cervical lordosis and possibly a rotator cuff tear. Claimant went home and called Miss Hoette, who sent her to Concentra. The records from Concentra indicate a history of injury September 1, 2011, consistent with Claimant's testimony. The doctor diagnosed a cervical and lumbar strain, prescribed medications and physical therapy, and recommended light duty.
2. Claimant went to physical therapy and took a prescription muscle relaxer at night. Her symptoms were typically worse at the end of the day, and the muscle relaxer made her drowsy. Claimant worked light duty, which consisted of taking vital signs and bringing water to 40-50 residents. Claimant testified this was exhausting because she was on her feet and had to put the information from the vitals into the computer. Claimant testified she had a lot of pain, but continued light duty and physical therapy.
3. Follow up records from Concentra indicate the doctor opined Claimant magnified her symptoms. By September 21, 2011, Claimant's pain continued undiminished and she was afraid to return to work. The Concentra physician recommended an evaluation by Dr. Cantrell.
4. Claimant testified the appointment with Dr. Cantrell was scheduled a month later. Claimant told Employer the light duty was hard work and made her drowsy, but they did not change her light duty. Employer frequently sent CNAs home to save money, so Claimant asked if she could go home. On other days, she called in to tell Employer she could not work because of her injuries.
5. On October 25, 2011, Claimant had her first appointment with Dr. Cantrell. Claimant testified she told him about her two injuries, one on the left and one on the right that affected her left side. She filled out the patient information sheet, but the doctor's office won't give her that document. Dr. Cantrell examined Claimant and recommended medications, physical therapy and light duty.
6. Claimant went to physical therapy October 27, 2011 for her shoulders, arms, back and neck. Claimant testified Employer fired her because of absenteeism and said the doctor did not say she was not able to work.
7. Claimant continued her physical therapy. At her November 14, 2011, visit to Dr. Cantrell, she told him her complaints continued. Claimant testified Dr. Cantrell recommended she see a neurologist. She asked for the referral, and Dr. Cantrell told her she will get it from Concentra. Claimant called Concentra and they told her once you leave there, you don't go back. She never got the referral to the neurologist. Claimant testified Dr. Cantrell didn't further investigate her injuries. He did x-rays but no other tests to determine why she still had swelling and pain in her neck, back and shoulders.
8. Dr. Cantrell's November 14, 2011, report indicates Claimant had no decrease in pain complaints in her neck and low back, and the therapist opined her complaints did not

correlate with the objective findings. Dr. Cantrell opined Claimant had reached MMI and could work without restrictions.

1. Claimant testified she went to her primary care physician for muscle relaxers. She didn't feel like she could do much. She had pain, and numbness, tingling, and burning. She requested an MRI, but her doctor said they needed to treat her first.
2. Claimant hired Mr. Swaney when she left her doctor's office. Claimant testified she told Mr. Swaney she was in pain, but he didn't send her to a doctor. Mr. Swaney told Mr. Kornblum that Claimant was supposed to se