Nisfesta Mujanic v. Holiday Inn St. Louis South

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 07-077189

Employee: Nisfeta Mujanic

Employer: Holiday Inn St. Louis South

Insurer: Midamerica Hotels Corporation

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 June 25, 2015. The award and decision of Administrative Law Judge John K. Ottenad, issued June 25, 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 $\qquad 21^{\text {st }} \qquad$ day of January 2016.

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: August 16, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 worked as a housekeeper for Employer and was injured when she was attacked by a German shepherd (dog) as she opened a guest room to begin cleaning it.
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: Body as a Whole (Left Breast and Psychiatric) and Left Shoulder
14. Nature and extent of any permanent disability: 15 % of the Left Shoulder, 7.5 % of the Body as a Whole—Left Breast and 10 % of the Body as a Whole-Psychiatric
15. Compensation paid to-date for temporary disability: $\ 1,365.17
16. Value necessary medical aid paid to date by employer/insurer? $\ 7,398.17

Employee: Nisfeta Mujanic Injury No.: 07-077189

1. Value necessary medical aid not furnished by employer/insurer? $\ 1,620.00
2. Employee's average weekly wages: Sufficient to result in the applicable rates of compensation
3. Weekly compensation rate: $\ 215.00 for TTD/ $\ 215.00 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Underpayment of $63 / 7$ weeks of temporary total disability (08/17/07 to 09/30/07) $\ 16.97

104.8 weeks of permanent partial disability $\ 22,532.00

1. Second Injury Fund liability:

29.22 weeks of permanent partial disability $\ 6,282.30

TOTAL: $\mathbf{\$ 2 8 , 8 3 1 . 2 7 ^ { 1 }}$

1. Future requirements awarded: None

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: Frank J. Niesen.

[^0]

[^0]: ${ }^{1}$ While Employer placed in evidence a document regarding subrogation concerning a third party civil recovery, and even included in its post-trial brief a purported calculation of said subrogation under the Ruediger case, the parties did not make subrogation, or any calculation of subrogation recovery, an issue in this case. In that respect, while they may have an agreement between themselves as to how such subrogation recovery benefits will be calculated, I am unwilling to include any such calculation in this Award as that issue was not placed before this Court for disposition. The parties are free to calculate subrogation recovery benefits pursuant to any side agreement they have, on their own, without its inclusion in this Award.

Employee: Nisfeta Mujanic

Dependents: N/A

Employer: Holiday Inn St. Louis South

Additional Party: Second Injury Fund

Insurer: Midamerica Hotels Corporation

C/O Claims Management, Inc.

Injury No.: 07-077189

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On January 29, 2015, the employee, Nisfeta Mujanic, appeared in person and by her attorney, Mr. Frank J. Niesen, for a hearing for a final award on her claim against the employer, Holiday Inn St. Louis South, its insurer, Midamerica Hotels Corporation C/O Claims Management, Inc., and the Second Injury Fund. The employer, Holiday Inn St. Louis South, and its insurer, Midamerica Hotels Corporation C/O Claims Management, Inc., were represented at the hearing by their attorney, Mr. Edward L. Weiss. The Second Injury Fund was represented at the hearing by Assistant Attorney General Elad Gross.

To allow the parties time to prepare and file their proposed awards or briefs in this matter, the record did not technically close until February 28, 2015. Although we did not go back on the record or take any further evidence in this matter after January 29, 2015, the record was, then, closed on that date and the briefs were submitted by the parties by March 9, 2015, after an extension for filing was requested by the parties and granted.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about August 16, 2007, Nisfeta Mujanic (Claimant) sustained an accidental injury arising out of and in the course of her employment that resulted in injury to Claimant.

2) Claimant was an employee of Holiday Inn St. Louis South (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage sufficient to result in applicable rates of compensation of $\ 215.00 for total disability benefits and $\ 215.00 for permanent partial disability (PPD) benefits.

7) Employer paid temporary total disability (TTD) benefits in the amount of $\ 1,365.17, representing a period of time from August 17, 2007 to September 30, 2007, or 6 3/7 weeks, at a rate of $\ 212.36.

8) Employer paid medical benefits totaling $\ 7,398.17.

1) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to her accidental injury at work on August 16, 2007?

2) Is Employer responsible for the payment of past medical benefits in the stipulated amount of $\ 1,620.00 ?

3) Is Claimant entitled to future medical care on account of this work injury?

4) Is Claimant entitled to the payment of temporary total disability benefits for a period of time to be determined?

5) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury?

6) What is the liability, if any, of the Second Injury Fund?

The following exhibits were admitted into evidence:

1. Photographs of Claimant's injuries
2. Deposition of Dr. Edwin Wolfgram, with attachments, dated July 14, 2009
3. Deposition of Dr. Edwin Wolfgram, with attachments, dated September 5, 2013
4. Deposition of Dr. Thomas Musich, with attachments, dated June 16, 2010
5. Deposition of Mr. Vincent Stock, with attachments, dated July 26, 2013
6. Certified medical treatment records of St. Anthony's Medical Center
7. Certified medical treatment records of St. Alexius Hospital
8. Certified medical treatment records of Des Peres Hospital
9. Certified medical treatment records of Metro Imaging
10. Medical treatment records of Mattingly Chiropractic and Pressure Point Therapy
11. Medical treatment records of Unity Health

1. Medical treatment records of People's Health Center
2. Medical treatment records of Dr. Jawed Siddiqui
3. Certified medical treatment records of the Center for Survivors of Torture and War Trauma
4. Claimant's medication list
5. Amended Claim for Compensation in Injury Number 07-077189
6. Objections SUSTAINED—Not admitted into evidence in this case
7. Stipulation for Compromise Settlement in Injury Number 04-148380 (Date of Injury of March 31, 2004) between Claimant and employer
8. Certified medical treatment records of St. John's Mercy Corporate Health
9. Cervical spine x-ray report from St. Alexius Hospital dated December 24, 2014
10. Objections SUSTAINED—Not admitted into evidence in this case

A. Evidentiary Stipulation for Trial regarding subrogation and third party case

B. Withdrawn by Employer/Insurer prior to admission

C. Report of Dr. Wayne Stillings dated March 20, 2012

D. Claimant's performance evaluations from Employer

E. Various medical treatment records of Dr. Michael Ralph, St. John's Mercy Corporate Health and Unity Corporate Health

F. Deposition of Dr. James Doll, with attachments, dated June 17, 2010

G. Deposition of Dr. Wayne Stillings, with attachments, dated May 3, 2010

H. Deposition of Ms. Kimberly Gee, with attachments, dated July 30, 2014

Nothing offered or admitted into evidence in this case

Notes: 1) Unless otherwise specifically noted below, any objections contained in the deposition exhibits are overruled and the testimony is fully admitted into evidence in this case.

2) Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on January 29, 2015.

At the time of hearing, objections were raised on the record regarding the admission of Employee's Exhibits 17 and 21. Exhibit 17 is a Bid Agreement between Corporate Lodging Consultants, Inc. and Employer. Exhibit 21 is a psychological evaluation report authored by Dianna Moses-Nunley, Ph.D. of MEDEX, containing her findings from her evaluation of Claimant on November 10, 2011, as well as her diagnosis and prognosis of Claimant's

psychological condition. This evaluation was ordered by the Missouri Department of Social Services Disability Determinations Division on account of her social security disability claim.

With regard to Exhibit 17, Employer/Insurer raised objections as to relevance and collateral source, as this was an outside agreement not germane to any of the issues raised in this hearing. With regard to Exhibit 21, Employer/Insurer and the Second Injury Fund raised hearsay objections, noting that this was an