Connie Carty v. Southeast Missouri Mental Health Center-State of Missouri

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 11-089630

Employee: Connie J. Carty

Employer: Southeast Missouri Mental Health Center-State of Missouri

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 April 20, 2017. The award and decision of Administrative Law Judge Maureen Tilley, issued April 20, 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 $\qquad 18 ^{\text {th }} \qquad$ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Connie J. Carty

Injury No. 11-089630

Dependents: N/A

Employer: Southeast Missouri Mental Health Center-State of Missouri

Additional Party: Second Injury Fund

Insurer: CARO

Hearing Date: January 30, 2017

Checked by: MT/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? November 8, 2011.
5. State location where accident occurred or occupational disease contracted: Farmington, St. Francois 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.

On January 30, 2017, the employee, Connie J. Carty ("Employee"), appeared in person and with her attorney, Kenneth A. Seufert, for a hearing for a final award. Southeast Missouri Mental Health Center/Office of Administration ("Employer") was represented at the hearing by Assistant Attorney General, Rachel A. Harris. The Second Injury Fund appeared through counsel, Assistant Attorney General Mathew Kincade. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and liability was duly qualified as a self-insured employer through the Central Accident Reporting Office.
2. Covered Employee: On or about the date of the alleged accident, Employee was an employee of the employer and was working under the Workers' Compensation Act.
3. Accident: On or about November 8, 2011, the employee sustained an accident arising out of and in the course of her employment.
4. Notice: Employer had notice of the employee's accident.
5. Statute of Limitations: The employee's claim was filed within time allowed by law.
6. Average weekly wage and rate: At the time of the accident, Employee had an average weekly wage of $\ 436.15, and a PTD/TTD/PPD rate of 290.77 .
7. Medical causation: Employee's injuries were medically causally related to the accident on November 8, 2011.
8. Medical aid furnished by Employer-Insurer: Employer-Insurer furnished medical aid in the amount of $\ 24,462.02.
9. Temporary Disability paid by Employer-Insurer: Employer-Insurer paid \$4,112.33 for temporary disability from November 9, 2011 through February 29, 2012.

1. Previously incurred medical aid: Whether Employee is entitled to previously incurred medical aid in the form of pharmacy bills in the amount of $\ 290.02, and whether this aid was authorized, necessary, and causally related to the primary injury.
2. Future medical aid: Whether Employee is entitled to future medical aid.
3. Permanent total disability: Employee is making a claim against the employer-insurer for permanent total disability, or in the alternative, they are making a claim against the Second Injury Fund for permanent total disability.
4. Permanent partial disability: Employee is making a claim against the Second Injury Fund for permanent partial disability, or in the alternative against the employer for permanent partial disability.

The following exhibits were offered and admitted into evidence:

Exhibit 1-A: Report of David T. Volarich, D.O. dated October 13, 2014

Exhibit 1-B: Addendum Report of David T. Volarich, D.O. dated February 18, 2015

Exhibit 1-C: Curriculum Vitae of David T. Volarich, D.O.

Exhibit 1-D: Records provided to David T. Volarich, D.O.

Exhibit 1-E: Second Addendum Report of David T. Volarich, D.O. dated June 20, 2016

Exhibit 1-F: Deposition of David T. Volarich, D.O. dated December 11, 2015

Exhibit 2-A: Report of Delores Gonzalez dated January 2, 2015

Exhibit 2-B: Curriculum Vitae of Delores Gonzalez

Exhibit 2-C: Reports provided to Delores Gonzalez

Exhibit 2-D: Deposition of Delores Gonzalez dated August 26, 2015

Exhibit 3: Report of Injury (DOI: 11-08-2011)

Exhibit 4: Claim for Compensation (Injury No. 11-089630)

Exhibit 5: Medical History of Connie Carty regarding the injury she sustained on 11-082011 along with medical records from the following care providers attached:

a. Mineral Area Regional Medical Center

b. St. Louis University Hospital

c. Dirk Alander, M.D.

d. James Coyle, M.D., L.L.C.

Exhibit 6: Medical History of Connie Carty prior to 11-08-2011 along with medical records from the following care providers attached:

a. Mineral Area Regional Medical Center

b. Michael Chabot, D.O.

c. Imaging Partners

d. Harry Harness, D.O./Michelle Allen, N.P. (04-09-09 through 02-01-2013)

e. Harry Harness, D.O./Michelle Allen, N.P. (04-16-2013 through 10-29-2013)

Exhibit 7: Education History

Exhibit 8: Work History

Exhibit 9: Notice of Award from Social Security Administration Retirement, Survivors and Disability Insurance dated 01-10-2014

Exhibit 10: Pharmacy Records

Exhibit 11: Additional Records from Missouri Division of Workers' Compensation

Exhibit 12: Records from Missouri Division of Workers' Compensation

Exhibit 13: Patient Intake for James J. Coyle, M.D. medical evaluation

Exhibit 14: MRI of the Lumbar Spine without contrast dated August 1, 2013; taken at Mineral Area Regional Medical Center

Exhibit 15: Not admitted

Exhibit 16: Prescriptions from Walgreens dated 01/01/2014 through 01/26/2017

Exhibit 17: Medical Records from Family Care Clinic

Exhibit 18: Pharmacy expenses: Totals

Employer objected to the admittance of Exhibit 15. This objection was sustained on the record.

1. Exhibit A: Deposition of Mr. James England (11-10-2015)
2. Exhibit B: Deposition of James Coyle, M.D. (11-1-2016)

The Second Injury Fund did not present any exhibits.

Employee was born on July 30, 1950 and was 66 years old as of the date of the hearing. Employee testified that she graduated high school and later underwent CNA and CMT training. Employee worked for Employer as an Activity Aide II from 2002 up to July 30, 2013. Leading up to the work injury on November 8, 2011, Employee was responsible for coordinating recreational activity programs for patients. Employee also assisted patients in getting to and from locations in the facility. Employee was responsible for setting up rooms for such programs and was also responsible for any clean-up duties. Employee performed a combination of sitting, standing, and walking. Employee was required to lift lighter objects usually up to 20 pounds. Employee testified that she had to open and close heavy doors in the facility. Employee also had to periodically participate in defensive tactics training while working for Employer.

On November 8, 2011, Employee injured her low back while participating in defensive tactics training. Employee testified that she lost her balance and fell to the ground on her buttocks. Employee further noted that she experienced a popping sensation in her low back with an onset of severe pain in her back. Employee was initially transported to Mineral Area Regional Medical Center following the accident. CT scans revealed compression fractures at the superior end plate at L1 with approximately 5 mm retropulsion of the superior end plate upon the anterior thecal sac, in addition to degenerative disk height loss at L4-5.

Employee continued her medical treatment in reference to the work injury with Dr. Dirk H. Alander at St. Louis University Hospital. Dr. Alander reviewed the CT scan and opined that Employee had an L2 burst fracture with a 5 mm fragment retropulsion into the spinal canal. Dr. Alander admitted Employee into the hospital, prescribed pain medication, and also placed Employee in a TLSO brace. Dr. Alander eventually discharged Employee on November 11, 2011. However, Employee returned to Dr. Dirk Alander on November 23, 2011 due to continuing low back pain. While Employee noted she had prior low back pain, she expressed to Dr. Alander that her low back pain following the work injury was substantially different in nature and location from her prior symptoms. X-Rays failed to reveal additional retropulsion of the bony material into the canal. Dr. Alander continued Employee's pain medication treatment and brace use. Dr. Alander also recommended that Employee participate in physical therapy.

Employee briefly participated in physical therapy at PRORehab in March 2012. On March 26, 2012, Employee reported increased soreness after working on a flower bed in which she bent over for an unknown amount of times. Employee reported to medical staff that she did not think she overexerted herself during this incident. Dr. Alander eventually allowed Employee to return to light-duty work, in which Employee still reported