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 the original MRI findings. Based on the evaluation, Dr. Putnam opined the review indicated pathology of an acute onset with injury. Dr. Putnam noted the claimant had failed conservative treatment and recommended right shoulder surgery.

Dr. Putnam further clarified his opinions by deposition testimony. Dr. Putnam indicated adhesive capsulitis can occur in many setting and is often idiopathic in nature. Dr. Putnam indicated the cause of adhesive capsulitis can be initiated by trauma with trauma being the most common presentation. Dr. Putnam testified the MRI findings were indicative of trauma and also suggestive of adhesive capsulitis. Dr. Putnam testified that as a diabetic there is higher risk of developing adhesive capsulitis, but diabetes does not cause adhesive capsulitis. Finally, Dr. Putnam testified that the accident of August 5, 2015, was the prevailing factor in causing the claimant's injury to her right shoulder, that because of the injury the claimant should undergo diagnostic arthroscopic surgery (Mumford procedure) followed by aggressive physical therapy and that this treatment is required to cure and relieve the effects of the injury to the claimant's right shoulder.

With regard to claimant's ability to work, Dr. Putnam opined that, because of her current condition, she is unable to work without restrictions.

Section 287.020.2 RSMo: The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

Section 287.020.3 RSMo:

(1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident

Employee: Lisa Leech

Injury No. 15-056667

was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

(3) An injury resulting directly or indirectly from idiopathic causes is not compensable.

(4) A cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition.

(5) The terms "injury" and "personal injuries" shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease or infection as naturally results therefrom. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the worker is at work.

Section 287.140.1 RSMo: In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense. Where the requirements are furnished by a public hospital or other institution, payment therefor shall be made to the proper authorities. Regardless of whether the health care provider is selected by the employer or is selected by the employee at the employee's expense, the health care provider shall have the affirmative duty to communicate fully with the employee regarding the nature of the employee's injury and recommended treatment exclusive of any evaluation for a permanent disability rating. Failure to perform such duty to communicate shall constitute a disciplinary violation by the provider subject to the provisions of chapter 620 . When an employee is required to submit to medical examinations or necessary medical treatment at a place outside of the local or metropolitan area from the employee's principal place of employment, the employer or its insurer shall advance or reimburse the employee for all necessary and reasonable expenses; except that an injured employee who resides outside the state of Missouri and who is employed by an

Employee: Lisa Leech

Injury No. 15-056667

employer located in Missouri shall have the option of selecting the location of services provided in this section either at a location within one hundred miles of the injured employee's residence, place of injury or place of hire by the employer. The choice of provider within the location selected shall continue to be made by the employer. In case of a medical examination if a dispute arises as to what expenses shall be paid by the employer, the matter shall be presented to the legal advisor, the administrative law judge or the commission, who shall set the sum to be paid and same shall be paid by the employer prior to the medical examination. In no event, however, shall the employer or its insurer be required to pay transportation costs for a greater distance than two hundred fifty miles each way from place of treatment.

Section 287.560 RSMo: The division, any administrative law judge thereof or the commission, shall have power to issue process, subpoena witnesses, administer oaths, examine books and papers, and require the production thereof, and to cause the deposition of any witness to be taken and the costs thereof paid as other costs under this chapter. Any party shall be entitled to process to compel the attendance of witnesses and the production of books and papers, and at his own cost to take and use depositions in like manner as in civil cases in the circuit court, except that depositions may be recorded by electronic means. The party electing to record a deposition by electronic means shall be responsible for the preparation and proper certification of the transcript and for maintaining a copy of the tape or other medium on which the deposition was recorded for the use of the division or any party upon request. Copies of the transcript shall be provided to all parties at a cost approved by the division. Subpoena shall extend to all parts of the state, and may be served as in civil actions in the circuit court, but the costs of the service shall be as in other civil actions. Each witness shall receive the fees and mileage prescribed by law in civil cases, but the same shall not be allowed as costs to the party in whose behalf the witness was summoned unless the persons before whom the hearing is had shall certify that the testimony of the witness was necessary. All costs under this section shall be approved by the division and paid out of the state treasury from the fund for the support of the Missouri division of workers' compensation; provided, however, that if the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them. The division or the commission may permit a claimant to prosecute a claim as a poor person as provided by law in civil cases.

Section 287.250.3 RSMo: If an employee is hired by the employer for less than the number of hours per week needed to be classified as a full-time or regular employee, benefits computed for purposes of this chapter for permanent partial disability, permanent total disability and death benefits shall be based upon the average weekly wage of a full-time or regular employee engaged by the employer to perform work of the same or similar nature and at the number of hours per week required by the employer to classify the employee as a full-time or regular employee, but such computation shall not be based on less than thirty hours per week.

I find the opinion of Dr Putnam to be credible and most persuasive in this case in comparison to the opinion of Dr. Roeder. I find Dr. Roeder's evaluations to be inconsistent at best. I find the opinions of Dr. Roeder are not supported by the evidence and the opinion of Dr. Putnam is more reliable.

Relying upon the opinion of Dr. Putnam, I find the accident was the prevailing factor in causing the resulting medical condition and disability. I find that that the claimant sustained an injury by accident within the course and scope of her employment on August 5, 2015. See Section 287.020.2 RSMo and Section 287.020.3 RSMo.

I find, based upon employee's current complaints and the opinion of Dr. Putnam, that claimant has not yet achieved maximum medical improvement with regard to her right shoulder. For this reason, I grant claimant's request that she receive additional medical care. The employer shall provide such additional medical treatment as may reasonably be required to cure and relieve claimant from the effects of the injury under Section 287.140.1 RSMo, said treatment shall include, but not be limited to, the treatment referred to in Dr. Putnam's deposition (diagnostic arthroscopic surgery, Mumford procedure, followed by aggressive physical therapy) and any other necessary treatment related thereto.

The claimant has met her burden of proof by establishing a compensable accident has occurred, and the employer is responsible for providing treatment that flows from the accident even if the treatment is for a pre-existing condition. Tillotson v. St. Joseph Medical Center, 347 S.W. 3d 511 (Mo.App.2012).

It is undisputed claimant was off work and temporarily and totally disabled from September 11, 2015 up to and including the date of the hearing - January 19, 2017. I find that as of September 11, 2015, claimant was unable to compete in the open labor market given her present condition and is entitled to past and future temporary total disability.

Employer shall provide temporary total disability starting on September 11, 2015, and continuing until claimant is no longer temporarily totally disabled.

The rate of compensation shall be determined on a 30 hour work week due to the claimant being a part-time employee as provided under Section 287.250.3 RSMo.

While I do not find the opinion of employer's doctor, Dr. Roeder, to be more persuasive, I do not find the employer's reliance upon his opinion in defense of this case to be unreasonable. I therefore deny employee's claim for attorney fees and costs under $\S 287.560$.

Also, attorney for employer/insurer, Jared Vessel, requests a $\ 1500.00 credit toward any amount awarded for cancellation of the deposition of Dr. Roeder by claimant's attorney. The request for credit is denied.

Claimant's attorney has requested attorney's fee of 25 % of all amounts awarded herein. I find that to be reasonable. Consequently, I allow claimant's attorney, Joseph P. Winget, 25 % of all amounts awarded herein which shall constitute a lien upon this award.

Made by: $\qquad$

Karen Fisher

Administrative Law Judge

Division of Workers' Compensation

Signed June 19, 2017