Lisa Leech v. Phoenix Home Care, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 15-056667

Employee: Lisa Leech

Employer: Phoenix Home Care, Inc.

Insurer: MMMA WC Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480$ RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the amended award and decision of the administrative law judge dated June 21, 2017.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

The amended award and decision of Administrative Law Judge Karen Fisher, issued June 21, 2017, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 12 ^{\text {th }} \qquad$ day of October 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Hearing Date: January 19, 2017

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 5, 2015
5. State location where accident occurred or occupational disease was contracted: 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? 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: Employee was lifting tubs into a vehicle when a tub slipped from her hand resulting in a jerking motion to her right shoulder/arm causing injury to the right shoulder/arm.
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: right arm/shoulder and

body as a whole. 14. Nature and extent of any permanent disability: N/A 15. Compensation paid to-date for temporary disability: $\ 0.00. 16. Value necessary medical aid paid to date by employer/insurer? \$ 2,738.36 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: $\ 213.57 19. Weekly compensation rate: $\ 142.38 20. Method wages computation: By agreement.

1. Amount of compensation payable: 70.86 weeks of temporary total disability from employer ( 70.86 weeks $\mathrm{x} \$ 142.38= \ 10,089.05 ) for dates September 11, 2015 - January 19, 2017.

Employer shall provide temporary total disability on an ongoing basis from the date of hearing, January 20, 2017, until claimant is no longer temporarily totally disabled. 22. Second Injury Fund liability: N/A 23. Future requirements awarded: See award.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded 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: Joseph P. Winget

Employee: Lisa Leech

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

Employer: PHOENIX HOME CARE, INC.

Additional Party: \quad \mathrm{N} / \mathrm{A}$

Insurer: MMMA WC FUND

Hearing Date: January 19, 2017

A hardship hearing was held on January 19, 2017, before the undersigned Administrative Law Judge, Karen Fisher. Attorney Joseph P. Winget represented the claimant. Attorney Jared Vessell represented the employer/insurer.

The parties stipulated to the accident arising out of or in the course and scope of employment. The parties stipulated to an average weekly rate of $\ 213.57 resulting in a compensation rate of $\ 142.38.

1. Whether the accident of August 5, 2015, was the prevailing factor causing claimant's injury and disability.
2. Whether the employer is obligated to pay for future medical expenses.
3. Whether the claimant is entitled to temporary total disability benefits.
4. Whether claimant's counsel is entitled to attorney fees and expenses under RSMo Section 287.560 .

The claimant offered the following exhibits which were admitted into evidence.

Exhibit 1 Family Medical Walk In Clinic

Exhibit 2 Ozark Community Hospital

Exhibit 3 ARC Physical Therapy

Exhibit 4 Jordan Valley Community Health Center

Exhibit 5 Dr. John Putnam - Deposition, 3/11/2016

Exhibit 6 TTD Benefits Due Chart

Exhibit 7 Attorney Fee and Case Expense Chart

The employer/insurer offered the following exhibits which were admitted into evidence:

Exhibit A Deposition of Lisa Leech

Exhibit B Deposition of Dr. Roeder

Exhibit C ARC Physical Therapy

Exhibit D Family Walk-In Clinic

Exhibit E Ozark Community Hospital

Exhibit F SNI Imaging

Exhibit G OCH Evergreen Clinic

Exhibit H Jordan Valley

Exhibit I Mercy Hospital Springfield

Exhibit J IME - Dr. Roeder, 1/4/2016

Claimant is a home healthcare worker for Phoenix Home Healthcare, Inc. The claimant testified she injured her right shoulder on August 5, 2015, when she was lifting a plastic tub weighing 20-25 pounds into the trunk of a patient's car. The claimant was lifting the tub when the tub slipped causing a jerking motion to her right shoulder. The claimant noted an immediate onset of pain in the shoulder at the time of the incident. The claimant contacted the employer and reported the injury on August 5, 2015. The claimant was then referred to Dr. Edwin Roeder for evaluation and treatment. The claimant denied any history of prior injuries, symptoms, or treatment to the right shoulder.

The claimant's treatment was initially conservative as directed by Dr. Edwin Roeder consisting of medication and physical therapy. The claimant was examined by Dr. Roeder on August 18, 2015. Dr. Roeder's record of August 18, 2015 indicates:

HISTORY: The patient is a 49-year-old female who has a history of problems in her right shoulder that she alleges began on August 5, 2015. She states at that time, she was working for Phoenix Home Care. She spent some time lifting tubs into the back of a client's car, and describes thereafter developing severe pain in her shoulder. She describes constant burning discomfort, persisting at 8/10 in intensity. She describes it generally worse with any use. Occasionally, she states she has numbness and tingling in her hand. She denies any popping, catching, or locking. She states she has had no previous history of shoulder problems...

IMPRESSION: Right shoulder pain which seems to have begun with a traumatic incident and raises concerns about a rotator cuff...

PLAN: I think with the acute injury nature of the pain, an MRI to be certain we are not dealing with any significant rotator cuff tear would be in order...

Dr. Roeder later ordered that the claimant undergo an MRI. The "IMPRESSION" section of the MRI performed on August 24, 2015, indicates:

1. Thickening and increased T2 signal of the inferior glenohumeral ligament and increased T2 signal within the rotator cuff interval. Findings are nonspecific but can represent adhesive capsulitis in the correct clinical setting. Other etiologies including the inferior glenohumeral ligament capsular injury is also possible in the setting of trauma.

On August 28, 2015, twenty-three days after the August 5, 2015 injury, Dr. Roeder changed his impression and noted claimant's symptoms were consistent with a pre-existing diabetic condition and diagnosed a diabetic frozen shoulder. Dr. Roeder then placed the claimant at maximum medical improvement and released the claimant from his medical care.

The claimant testified that she continued to have numbness and tingling in her right arm muscle atrophy, and limited range of motion in the right shoulder after her release from Dr. Roeder. The claimant stated she treated with Dr. Roeder on August 18, 2015, and was placed on restricted work status pending the results of an MRI. The claimant testified the employer did accommodate the restricted work status. The claimant then returned to Dr. Roeder on August 28, 2015 and was placed on a restrictive work status which the employer accommodated.

Claimant returned to Dr. Roeder on September 11, 2015, at which time Dr. Roeder removed her from work. The claimant testified that Dr. Roeder removed her from work as of September 11, 2015 until she was re-evaluated. The claimant testified she has not worked since September 11, 2015, that she is not able to work and has not sought any employment since that date. She never returned to Dr. Roeder as the employer denied the claim and did not provide further treatment. Dr. Roeder's "Work Status" report of September 22, 2015 indicated: "Working Diagnosis: @MMI for right shoulder pain related to 5 Aug 2015 injury."

The report and opinion of Dr. Edwin Roeder was admitted into evidence. His opinion is that the claimant's primary diagnosis of adhesive capsulitis was not thought to be traumatic in origin and not occupational related. He further opined her injury was the result of her underlying diabetes mellitus. Dr. Roeder indicated the claimant's condition was not due to a specific injury that occurred at work. As a result, Dr. Roeder did not order any additional treatment, but did provide a recommendation of manipulation under anesthesia.

Dr. Roeder further clarified his opinions by deposition testimony. Dr. Roeder testified the claimant did not describe a traumatic event. Dr. Roeder then ordered an MRI which ruled out any traumatic pathology within the shoulder. Dr. Roeder testified his clinical diagnosis

Employee: Lisa Leech

Injury No. 15-056667

was a diabetic frozen shoulder. Dr. Roeder further testified he did not believe there was an occupational component to claimant's problem. Dr. Roeder maintained throughout his testimony his exam was consistent with a frozen shoulder and no traumatic event.

Due to the claimant's ongoing problems with the right shoulder, the claimant sought a second opinion with Dr. John Putnam, orthopedic surgeon.

The report and opinion of Dr. John Putnam was admitted into evidence. Dr. Putnam disagreed with Dr. Roeder indicating adhesive capsulitis is not caused by diabetes mellitus. Dr. Putnam further stated the majority of patients that develop adhesive capsulitis due so because of an injury or traumatic event. Dr. Putnam reviewed the claimant's history, performed a physical exam of the claimant and reviewed th