Lisa Deardorff v. State of Missouri, Fulton State Hospital

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 13-064364

Employee: Lisa Deardorff

Employer: State of Missouri, Fulton State Hospital

Insurer: CARO

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 March 3, 2017. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued March 3, 2017, 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 $\qquad 13^{\text {th }} \qquad$ day of June 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

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: September 4, 2013.
5. State location where accident occurred or occupational disease was contracted: Callaway 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? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Employer is self-insured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: In the course of her employment, Employee was repeatedly hit, kicked and stomped on by a mental patient.
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: Head, face, nose, knees, left upper extremity, low back, neck, psyche.
14. Nature and extent of any permanent disability: 10 % permanent partial disability of the right knee; 15 % permanent partial disability of the left knee; 10 % permanent partial disability of the left elbow; 10 % permanent partial disability of the body as a whole/lumbar spine; 5 % permanent partial disability of the body as a whole/cervical spine; 7.5 % permanent partial disability of the body as a whole/head; 30 % permanent partial disability of the body as a whole due to depression, anxiety and symptoms of post-traumatic stress disorder. Claimant is permanently and totally disabled due to the combination of this injury and preexisting disabilities.

1. Compensation paid to-date for temporary disability: $\ 19,958.14.
2. Value necessary medical aid paid to date by employer/insurer? $\ 96,389.31.
3. Value necessary medical aid not furnished by employer/insurer? Unknown.
4. Employee's average weekly wages: $\ 552.93.
5. Weekly compensation rate: $\ 368.62.
6. Method wages computation: Stipulation.

Employer is ordered to pay Claimant the sum of $\ 99,896.02 for permanent partial disability benefits, and the sum of $\ 5,529.30 for disfigurement.

Employer is also ordered to provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required to cure and relieve Claimant from the effects of the injury to both knees, head and psyche.

The Treasurer of the State of Missouri, as custodian of the Second Injury Fund, is ordered to pay permanent total disability benefits of $\ 368.62 per week, beginning March 30, 2020, for Claimant's lifetime.

Claimant's attorney, Van Camp Law Firm, is allowed 25\% of all benefits awarded herein, exclusive of future medical benefits, as and for necessary attorney's fees, and the amount of such fees shall constitute a lien on those benefits.

Any past due compensation shall bear interest as provided by law.

These three cases (Injury No. 11-087035, Injury No. 11-096226 and Injury No. 13064364) were consolidated for hearing. The evidentiary hearing was held on December 21, 2016 in Columbia. Claimant, Lisa Deardorff, appeared personally and by counsel, Christine Kiefer; Employer, Fulton State Hospital, appeared by counsel, Kirsten Dunham, Assistant Attorney General; the Second Injury Fund appeared by counsel, Da-Niel Cunningham, Assistant Attorney General. The parties requested leave to file post-hearing briefs, which leave was granted. The cases were submitted on January 27, 2017.

In Injury No. 11-087035, the parties agreed that the issues to be decided were:

1. Whether the accident of October 10, 2011, was the prevailing factor in causing any or all of the injuries and/or conditions alleged in evidence;
2. The liability, if any, of Employer for permanent partial disability benefits;
3. The liability, if any, of the Second Injury Fund for permanent partial disability benefits; and
4. The liability, if any, of Employer for future medical benefits.

In Injury No. 11-087035, the parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over the hearing and adjudication of the claim;

1. That venue for the hearing is proper in Callaway County and adjoining counties, including Boone County;
2. That the claim for compensation was filed within the time allowed by the statute of limitations, $\S 287.430$;
3. That both Employer and Employee were covered by the Missouri Workers' Compensation Law at all relevant times;
4. That Employee, Lisa Deardorff, sustained an accident arising out of and in the course of her employment with the Fulton State Hospital on October 10, 2011;
5. That Claimant's average weekly wage is $\ 590.55, and that the compensation rates are $\ 393.70 for temporary total disability and permanent total disability, and $\ 393.70 for permanent partial disability;
6. That the notice requirement of $\S 287.420$ is not a bar to the claim for compensation;
7. That Fulton State Hospital was an authorized self insured for Missouri Workers' Compensation purposes at all relevant times; and
8. That Employer paid $\ 2090.65 in medical benefits and no temporary total disability benefits.

In Injury No. 11-096226, the parties agreed that the issues to be decided were:

1. Whether the accident of November 27, 2011, was the prevailing factor in causing any or all of the injuries and/or conditions alleged in evidence;
2. The liability, if any, of Employer for permanent partial disability benefits;
3. The liability, if any, of the Second Injury Fund for permanent partial disability benefits; and
4. The liability, if any, of Employer for future medical benefits.

In Injury No. 11-096226, the parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over the hearing and adjudication of the claim;

1. That venue for the hearing is proper in Callaway County and adjoining counties, including Boone County;
2. That the claim for compensation was filed within the time allowed by the statute of limitations, $\S 287.430$;
3. That both Employer and Employee were covered by the Missouri Workers' Compensation Law at all relevant times;
4. That Employee, Lisa Deardorff, sustained an accident arising out of and in the course of her employment with the Fulton State Hospital on November 27, 2011;
5. That Claimant's average weekly wage is $\ 568.70, and that the compensation rates are $\ 379.13 for temporary total disability and permanent total disability, and $\ 379.13 for permanent partial disability;
6. That the notice requirement of $\S 287.420$ is not a bar to the claim for compensation;
7. That Fulton State Hospital was an authorized self insured for Missouri Workers' Compensation purposes at all relevant times; and
8. That Employer paid $\ 568.70 in medical benefits and $\ 1354.04 in temporary total disability benefits.

In Injury No. 13-064364, the parties agreed that the issues to be decided were:

1. Whether the accident of September 4, 2013, was the prevailing factor in causing any or all of the injuries and/or conditions alleged in the evidence;
2. The liability, if any, of Employer for permanent partial disability benefits or permanent total disability benefits;
3. The liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits;
4. The liability, if any, of Employer for future medical benefits; and
5. Whether additional benefits may be allowed for disfigurement.

In Injury No. 13-064364, the parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over the hearing and adjudication of the claim;
2. That venue for the hearing is proper in Callaway County and adjoining counties, including Boone County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, $\S 287.430$;
4. That both Employer and Employee were covered by the Missouri Workers' Compensation Law at all relevant times;
5. That Employee, Lisa Deardorff, sustained an accident arising out of and in the course of her employment with the Fulton State Hospital on September 4, 2013;
6. That Claimant's average weekly wage is $\ 552.93, and that the compensation rates are $\ 368.62 for temporary total disability and permanent total disability, and $\ 368.62 for permanent partial disability;
7. That the notice requirement of $\S 287.420$ is not a bar to the claim for compensation;
8. That Fulton State Hospital was an authorized self insured for Missouri Workers' Compensation purposes at all relevant times;
9. That Employer paid $\ 96,389.31 in medical benefits and $\ 19,958.14 in temporary total disability benefits;
10. That Claimant reached maximum medical improvement on January 18, 2015.

The evidence consisted of the testimony of Claimant, Lisa Jane Deardorff, as well as deposition testimony of Claimant; extensive medical records; narrative report of Dr. David T. Volarich; the narrative reports of Dr. Michael Snyder; the deposition testimony and narrative reports of Dr. A. E. Daniel; the narrative report and deposition testimony of Kristine Skahan, a vocational consultant; narrative reports of Dr. Andrew Wayne; the narrative report and deposition testimony of Benjamin Hughes, a vocational rehabilitation counselor; narrative report of Dr. Glen Johnson; narrative reports and deposition testimony of Dr. Jen