Tina Worley v. American Home Care Management, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 06-134256

Employee: Tina M. Worley

Employer: American Home Care Management, Inc.

Insurer: Missouri Retailers Insurance Trust

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 November 3, 2015. The award and decision of Administrative Law Judge Maureen Tilley, issued November 3, 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 $21^{\text {st }}$ day of April 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Tina M. Worley

Injury No. 06-134256

Dependents: N/A

Employer: American Home Care Management, Inc.

Additional Party: N/A

Insurer: Missouri Retailers Insurance Trust c/o Claims Management of Missouri, LLC

Hearing Date: July 8, 2015

Checked by: MT/kg

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? On or about July 5, 2006.
5. State the location where the accident occurred or occupational disease contracted: Ste. Genevieve County, Missouri.
6. Was the employee in the employ of above employer at the time of the alleged incident or occupational disease? Yes.
7. Did the employer receive proper notice? Yes.
8. Did the accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was a Claim for Compensation filed within time required by law? Yes.
10. Was the employer insured by the insurer? Yes.

1. Describe the work that the employee was doing and how the accident happened or occupational disease contracted: The claimant, while in the course and scope of her employ, was lifting and turning a paraplegic patient when she injured her low back.
2. Did the accident or occupational disease cause death? No.
3. Part of the body injured by the accident or occupational disease: Low back - body as a whole.
4. Nature and extent of any permanent disability: Permanent total disability.
5. Compensation paid to date for temporary total disability: None.
6. Value necessary medical aid paid to date by the employer-insurer: None.
7. Value necessary medical aid not furnished by employer-insurer: See findings.
8. Employee's average weekly wage: $\ 365.50
9. Weekly compensation rate: $\ 243.67
10. Method wages computation: By agreement.
11. Amount of compensation payable: See findings.
12. Second Injury Fund liability: N/A
13. Future requirements awarded: See findings.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: Lanzotti \& Rau, LLC

On July 8, 2015, the employee, Tina Worley, appeared in person and with her attorney, Sarah Heise, for a hearing for a final award. The employer was represented at the hearing by its attorney, Matthew Murphy. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: That the employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was fully insured.
2. Covered Employee: That on July 5, 2006, the employee was an employee of American Home Care Management in Ste. Genevieve County, Missouri, and was working under the Workers' Compensation Act.
3. Accident: That on or about July 5, 2006, the employee sustained an accident arising out of and in the course of her employment.
4. Statute of Limitations: That the employee's claim was filed within the time allowed by law.
5. Average weekly wage and rate: That the employee's average weekly wage was $\ 365.50 and the TTD, PPD and PTD rate is $\ 243.67.
6. Medical aid furnished by Employer-Insurer: That Employer-Insurer furnished no medical aid to Employee.
7. Temporary disability paid by Employer-Insurer: That Employer-Insurer paid to Employee no temporary total disability benefits.

1. Notice: Whether Employer had notice of Employee's accident.
2. Medical causation: Whether Employee's injury was medically causally related to the accident.
3. Previously incurred medical.
4. Future medical aid.
5. Temporary total disability.
6. Permanent total disability.
7. Permanent partial disability.

The following exhibits were offered and admitted into evidence:

1. Not admitted
2. Not admitted

1. Medicare Conditional Payment letter
2. Operating Engineers Local 513 Health \& Welfare lien (not admitted; offer of proof made)
3. United States Bankruptcy Court Discharge of Debtor Case No. 10-50156
4. Deposition of Dr. David Volarich dated October 18, 2013
5. Deposition of Mr. James England dated October 29, 2013
6. Prior Division of Workers' Compensation records of Employee
7. Certified medical records and bills
8. Updated medical records and bills of Dr. Fan of Ste. Genevieve Physicians Clinic

A. Medical records of Bonne Terre Primary Care

B. Records of Missouri Division of Employment Security

C. Employment records of Employee

D. Deposition of Debra Detring

E. Deposition of Employee taken March 28, 2008

F. Deposition of Employee taken June 29, 2010

G. Deposition of Lisa Cassidy

H. Deposition of Sharon Boyer

I. Various records of United States Bankruptcy Court Discharge of Debtor; Case No. 10-50156

J. Deposition of Dr. Chabot

K. Deposition of Mr. Gary Weimholt

Employee's exhibits 1(Medication list of Employee) and 2 (A list from Employee regarding activities that she is unable to do) were offered into evidence and were taken under advisement. After further consideration, these exhibits were not admitted into evidence. Employer-Insurer's Exhibit C was also offered into evidence. After further consideration, Employer-Insurer's Exhibit C was admitted into evidence.

On or about July 5, 2006, Employee was rolling a 350 pound patient over when she sustained an injury to her back. Employee stated that she felt something pop and fell to her knees.

Employee testified at hearing that she notified her supervisor of her accident by telephone on the date of the accident. Employee stated that she filled out the paperwork requested by her supervisor a few days later.

Employee testified that she advised her supervisor that she was going to her regularly scheduled doctor appointment on July 10, 2006. She stated that her supervisor instructed Employee to report back to the supervisor with the doctor's opinion in regards to her back injury. Employee testified that she mentioned her work accident to her gynecologist.

Employee presented to her gynecologist at Ladies First on July 10, 2006. Due to a history of bladder infections, a urine panel was performed to rule out infection. When this came back negative, she was taken off work and referred to her family physician for a probable back strain. Employee provided that work slip to her Employer.

Employee was then seen on July 13, 2006, at Bonne Terre Primary Care with complaints of low back pain, worse on the left and into her buttocks and legs. At that appointment, Employee described her lifting incident with the paraplegic patient to her physician. A trigger point injection was performed over her left SI joint and into the sciatic notch due to radiation into the lower end of the left buttock. A diagnosis of sacroiliitis and sciatica was given and she was told to remain off work. Employee turned that off work slip in to her employer as well.

After her appointment with Nurse Practitioner Blue, Employee spoke with her supervisor and was put on light duty work. Employee testified that she told her supervisor that she could not lift or twist. According to Employee, the supervisor agreed to call Employee in the event that American Home Care had any light-duty work that Employee could provide. Employee testified that she spoke with her supervisor every four to five months to see if Employee could perform any light-duty work for American Home Care.

On October 4, 2006, Employee had an appointment with Dr. Paul Moniz. The medical records show that Employee's "Chief Complaint" was lower back pain for the past week and a half.

Employee sought work elsewhere in late 2006 into 2007. She testified that she did parttime, light cleaning for another home healthcare business for a short time. She was then able to secure a full-time job with a factory by the name of Silvanus on August 2, 2007. However, after attempting to perform that job for a little over a month, Employee left on September 6, 2007. She indicated that the work was simply too strenuous for her low back.

Employee testified that she was able, through a family connection, to obtain a job with National Vinyl on September 12, 2007. This was much lighter work and she was able to alternately sit and stand as needed throughout her shift. Employee stated that there were a number of days of missed work due to her low back injury. Employee kept that job until March 5,2009 .

After leaving National Vinyl, Employee filed for unemployment. Employee received unemployment benefits starting March of 2009. With the exception of a six month grace period, Employee was required to submit weekly reports to the division of unemployment stating that she was ready, willing, and able to work. After collecting unemployment benefits, Employee filed for social security disability benefits. In 2012, Employee filed bankruptcy. In the bankruptcy proceedings, $\ 405,878.37 in medical charges was extinguished. $\ 3,248.76 of medical bills was not extinguished in bankruptcy proceedings and remains outstanding.

When Employee applied to American Home Care, National Vinyl, and Silvanus, her applications indicated that she obtained a high school diploma. Employee testified that she does not have a high school diploma. Employee testified that American Home Care was aware that

she did not have a high school diploma, but the supervisor told her to put in her application that she did. Employee stated that she does not remember checking the box which indicated that she had no previous workers' compensation claims.

Employee testified that she experiences ongoing neck, hand, and back pain. Employee stated that some previous lower back pain was related to female medical issues and is not related to the 2006 injury. Employee also stated that after having a procedure in 2009, the female related back pain subsided. Employee testified that her neck pain began around 2009 and is not related to the 2006 back injury. On a pain scale of zero to ten, Employee described her neck pain as being ten plus and stated that her neck "feels like it's on fire." Employee's neck pain intensifies when looking up, down, and side to side.

Prior to 2006, Employee began having medical issues with her hands and wrists