Colleen Nichols v. Belleview R-III School District

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-109067

Employee: Colleen Nichols

Employer: Belleview R-III School District

Insurer: Missouri United School Insurance

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 13, 2016. The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued June 13, 2016, 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 $\qquad 12^{\text {th }} \qquad$ day of January 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Colleen Nichols

Injury No. 09-109067

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

Employer: Belleview R-III School District

Additional Party: Second Injury Fund

Insurer: Missouri United School Insurance

Appearances: Kenneth Seufert, attorney for the employee.

Karen Mulroy and Mary Anne Lindsey, attorneys for the employer-insurer. Jackson Otto, attorney for the Second Injury Fund.

Hearing Date: March 15, 2016

Checked by: LCK/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? October 29, 2009.
5. State location where accident occurred or occupational disease contracted: Iron County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the 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.

On March 15, 2016, the employee, Colleen Nichols, appeared in person and with her attorney, Kenneth Seufert for a hearing for a final award. The employer-insurer was represented by its attorneys Karen Mulroy and Mary Anne Lindsey. The Second Injury Fund was represented by Assistant Attorney General Jackson Otto. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Belleview R-III School District was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Missouri United School Insurance c/o T/P/A Gallagher-Bassett Services, Inc.
2. On or about October 29, 2009, Colleen Nichols was an employee of Belleview R-III School District and was working under the Workers' Compensation Act.
3. On or about October 29, 2009, the employee sustained an accident arising out of and in the course of her employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage for temporary total disability was $\ 157.69 and her rate of compensation for temporary total disability is $\ 105.13 per week. The average weekly wage for permanent partial disability and permanent total disability is $\ 311.10. The rate of compensation for permanent partial disability and permanent total disability is $\ 207.74 per week.
7. The employee's injury to the left upper extremity is medically causally related to the accident.
8. The employer-insurer paid $\ 70,079.14 in medical aid.
9. The employer-insurer paid $\ 3,904.85 in temporary disability benefits for a total of $371 / 7$ weeks of compensation. The first period paid was March 23, 2010 through April 27, 2010. The second period paid was February 22, 2011 through March 14, 2011. The third period paid was January 12, 2012 through August 1, 2012.
10. The employee reached maximum medical improvement on August 1, 2012.

1. Medical causation as to the cervical and lumbar spine.
2. Claim for additional or future medical aid.
3. Claim for additional temporary total disability.
4. Nature and extent of permanent disability against the employer-insurer, either permanent partial disability or permanent total disability.
5. Liability of the Second Injury Fund for permanent partial disability or permanent total disability.

Exhibit 1-A: Report of Dr. Volarich

Exhibit 1-B: Curriculum Vitae of Dr. Volarich

Exhibit 1-C: Deposition of Dr. Volarich

Exhibit 2-A: Report of Delores Gonzalez

Exhibit 2-B: Curriculum Vitae of Delores Gonzalez

Exhibit 2-C: List of Exhibits (Records) provided to Delores Gonzalez

Exhibit 2-D: Deposition of Delores Gonzalez

Exhibit 2-E: Report of Delores Gonzalez

Exhibit 2-F: Deposition of Delores Gonzalez

Exhibit 3: Medical history of the employee regarding the October 29, 2009 accident and medical records from Mineral Area Regional Medical Center; Dr. Steele; Dr. Moore; Midwest Imaging Center; Dr. Doll; Dr. Rende; ProRehab; Dr. Paletta; Farmington Hand and Physical Therapy; Dr. Peeples; Farmington Sports and Rehabilitation Center; Washington County Memorial Hospital; Dr. Weber; and Dr. Chabot

Exhibit 4: Second Amended Claim for Compensation in Injury No. 09-109067

Exhibit 5: Report of Injury

Exhibit 6: Medical treatment history of the employee prior to October 29, 2009 and medical records from Mineral Area Regional Medical Center; Dr. Steele; Highland Health Clinic; and Dr. McGarry

Exhibit 7: Education history of the employee

Exhibit 8: Work history of the employee

Exhibit 9: Social Security Administration Retirement, Survivors and Disability Insurance - Notice of Award

Exhibit 10: Walgreens Pharmacy Printout

Exhibit 11: Social Security Statement, dated October 13, 2009

Exhibit 15: Medical Records of Dr. Weber

Exhibit 16: Pharmacy records for the employee

Exhibit 17: Division of Workers' Compensation minute entries in Injury Number 09-109067

Exhibit 18: Letter to attorney for the employer-insurer dated November 21, 2012 from employee's attorney

Exhibit 20: Temporary total disability benefits of the employee.

Note: Exhibits 12, 13, and 14 were withdrawn. Exhibit 19 was not offered.

Exhibit A: Deposition of Dr. Chabot including his C.V., report and other document

Exhibit B: Deposition of Dr. Paletta

Exhibit C: Deposition of James England including his C.V., report and other documents

Exhibit D: Supplemental Report of James England dated August 26, 2015

Exhibit E: Medical record and report of Dr. Doll

Exhibit F: Spreadsheet prepared by employer on temporary total disability benefits paid by the employer-insurer.

Exhibit G: Letter of termination of employment issued by employer to employee dated February 17, 2010

The Second Injury Fund did not offer any exhibits.

Judicial Notice of the contents of the Division's files for the employee was taken.

WITNESS: Colleen Nichols, the employee.

BRIEFS: The employee's proposed Award was received on April 8, 2016. The employerinsurer's Brief was received on May 2, 2016. The Second Injury Fund's letter Brief was received on May 4, 2016.

The employee testified that she was born on January 19, 1954, and is 62 years old. She lives in Belleview, Missouri. She is 5'7" tall and weighs about 162 pounds. At the time of the injury she weighed 180 pounds. She attributes the weight loss on nerves, pain and not eating. Her symptoms affected her appetite. She has been married for 45 years. She and her husband have two children, two grandchildren, and one great grandchild. The employee left high school in the $10^{\text {th }}$ grade and never got a GED. She agreed with the work history in Employee Exhibit 8. She performed factory work at Brown Shoe and at other places; has been a cook and waitress at several places; and did nurse's aide work where she bathed, fed and clothed residents. She worked for home care and supervised other employees, including performing evaluations. From 2006-2009 she worked at Disabled Citizens Alliance, where she helped the elderly and disabled including fixing meals, bathing and house cleaning. She worked there until the lady she cared for passed away. Prior to October 29, 2009, she was able to perform all the aspects of her jobs.

The employee testified regarding her pre-existing medical conditions. She had a mild stroke which affected the left side of her face. It caused twitching to the left side of face and her left eye. She took Gabapentin for the twitching. In 2007 she was in a hospital for gastric bleeding and anemia which caused fatigue, but no longer has issues with bleeding and anemia. She was diagnosed with COPD/emphysema 12-15 years ago and received treatment including inhalers. Up to October 29, 2009, she had trouble breathing; shortness of breath; coughed; got tired and was fatigued. She had problems at work where she would sit down and rest. She continued using inhalers about three times a week. She worked full duty without restrictions, and was able to do everything with her job, but it slowed her down performing her job.

In September of 2006, the employee had a heart stress test at Mineral Area Regional Medical Center for dyspnea. The results were normal wall motion and ejection fracture. She had normal bilateral venous duplex studies of the lower extremities due to a history of edema.

**In February 2007**, the employee was hospitalized for four days at Mineral Area Medical Center due to severe dizziness and a suspected GI bleed. She was severely anemic. Past medical history showed a TIA about eight years ago; GERD; and asthma. She was on Prilosec and Albuterol nebulizer. On examination there was mild paraspinal tension in the lumbar spine but no tenderness. The discharge diagnoses were severe anemia secondary to gastrointestinal blood loss; gastric ulcer; esophagitis, and CO