Shirlane Horton v. Lester E. Cox Medical Centers

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 15-105357

Employee: Shirlane Horton

Employer: Lester E. Cox Medical Centers

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 October 28, 2016, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge L. Timothy Wilson, issued October 28, 2016, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 14^{\text {th }} \qquad$ day of February 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Shirlane Horton

Injury No. 15-105357

Dependents: N/A

Employer: Lester E. Cox Medical Centers

Insurer: N/A (Self-insured Employer)

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

Hearing Date: September 9, 2016

Checked by: LTW

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: Allegedly May 1, 2015
5. State location where accident occurred or occupational disease was contracted: Allegedly 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? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was Employer insured by above insurer? N/A (Self-insured employer)
11. Describe work Employee was doing and how accident occurred or occupational disease contracted: N/A. Employee did not sustain an injury by accident or by occupational disease. However, Employee alleges sustaining an injury by accident when she grabbed a patient lift bar with her left hand. Also, Employee alleges sustaining an injury by occupational disease or repetitive trauma/use of her left arm in performance of her work duties as a housekeeper.
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: Allegedly Left Upper Extremity
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by Employer/Insurer? None

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 463.31
3. Weekly compensation rate: $\ 308.87 (TTD/PTD/PPD)
4. Method wages computation: Stipulation

1. Amount of compensation payable: None

Unpaid medical expenses: N/A

Weeks of temporary total disability (or temporary partial disability): N/A

Weeks of permanent partial disability from Employer: N/A

Weeks of disfigurement from Employer: N/A

1. Second Injury Fund liability: No

Weeks of permanent partial disability from Second Injury Fund: N/A

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund: N/A

TOTAL: None

1. Future requirements awarded: No

Employee: Shirlane Horton

Injury No. 15-105357

Dependents: N/A

Employer: Lester E. Cox Medical Centers

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, which involved the joining of two workers' compensation cases, was heard before the undersigned Administrative Law Judge on September 9, 2016. ${ }^{1}$ The parties were afforded an opportunity to submit briefs, resulting in the record being completed and submitted to the undersigned on or about October 7, 2016.

The employee, Shirlane Horton, appeared personally and through her attorney, Ronald J. Coticchio, Esq. The employer, Lester E. Cox Medical Centers, appeared through its attorney, Karen L. Johnson, Esq. The Second Injury Fund did not appear at the proceeding, in light of the parties being in agreement that the Second Injury Fund need not appear considering the nature of the hearing.

The parties entered into a stipulation of facts in Injury No. 15-031075. The stipulation is as follows:

(1) On or about May 1, 2015 Lester E. Cox Medical Centers was an employer operating under and subject to the Missouri Workers' Compensation law and during this time was fully self-insured under Chapter 287, RSMo, with benefits being administered by Corporate Claims Management, Inc. (TPA).

(2) On the alleged injury date of May 1, 2015, Shirlane Horton was an employee of the employer and was working under and subject to the Missouri Workers' Compensation law.

(3) The above-referenced employment and alleged accident occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

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[^0]: ${ }^{1}$ The workers' compensation cases that were joined for hearing include Injury No. 15-031075 and Injury No 15105357 .

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Shirlane Horton

Injury No. 15-105357

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

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

(6) At the time of the alleged accident, the employee's average weekly wage was $\ 463.31, which is sufficient to allow a compensation rate of $\ 308.87 for temporary total disability compensation and a compensation rate of $\ 308.87 for permanent disability compensation.

(7) Temporary disability benefits have not been provided to the employee.

(8) The employer has not provided medical treatment to the employee.

The parties further stipulated that the sole issues to be resolved by hearing in Injury No. 15-031075 include:

(1) Whether the employee sustained an accident or incident of occupational disease on or about May 1, 2015; and if so, whether the accident or occupational disease arose out of and in the course of employment.

(2) Whether the alleged accident or incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed.

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

(4) Whether the employee is entitled to temporary disability benefits. (The claimant seeks payment of temporary total disability compensation for the period of May 1, 2015, to the present and continuing indefinitely into the future.)

(5) Whether the employee sustained any permanent disability as a consequence of the alleged accident or occupational disease; and, if so, what is the nature and extent of the disability.

(6) 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.

In Injury No. 15-105357, the parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about May 1, 2015, Lester E. Cox Medical Centers was an employer operating under and subject to the Missouri Workers' Compensation law, and during this time was fully self-insured under Chapter 287, RSMo,

with benefits being administered by Corporate Claims Management, Inc. (TPA).

(2) On the alleged injury date of May 1, 2015, Shirlane Horton was an employee of the employer and was working under and subject to the Missouri Workers' Compensation law.

(3) The above-referenced employment and alleged incident of occupational disease occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

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

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

(6) At the time of the alleged accident, the employee's average weekly wage was $\ 463.31, which is sufficient to allow a compensation rate of $\ 308.87 for temporary total disability compensation and a compensation rate of $\ 308.87 for permanent disability compensation.

(7) Temporary disability benefits have not been provided to the employee.

(8) The employer has not provided medical treatment to the employee.

The sole issues to be resolved by hearing in Injury No. 15-105357 include:

(1) Whether the employee sustained an accident or incident of occupational disease on or about May 1, 2015; and, if so, whether the accident or occupational disease arose out of and in the course of employment.

(2) Whether the alleged accident or incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed.

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

(4) Whether the employee is entitled to temporary disability benefits. (The claimant seeks payment of temporary total disability compensation for the period of May 1, 2015, to the present, and continuing indefinitely into the future.)

(5) Whether the employee sustained any permanent disability as a consequence of the alleged accident or occupational disease; and, if so, what is the nature and extent of the disability.

(6) 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.

In regard to issues (5) and (6) above, referable to Injury No. 15-031075 and Injury No. 15-105357, the employer requested that the matter be heard on a final basis including a determination of permanent partial disability should the issues of accident/occupational disease and causation be found in employee's favor. This request was denied, resulting in the determination that the issues of permanent disability and the liability of the Second Injury would be deferred in the event the case was found to be compensable. Yet, it was recognized and understood that in the event the case was determined to be not compensable, the undersigned would issue a final award.

The employee testified at the hearing in support of her claim. In addition, the employee offered for admission the following exhibits:

Exhibit 1

Complete Medical Report of Mitchell Mullins, D.O.

(Inclusive of Deposition Exhibits)

The exhibit was received and admitted into evidence.

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

Exhibit A Deposition of Ted A. Lennard, M.D.

(Inclusive of Deposition Exhibits)

Exhibit B Deposition of Shirlane Horton

The Second Injury Fund, having elected to not appear for this evidentiary hearing, did not present any witnesses or offer any additional exhibits at the hearing of this case.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File. These documents includ