Barbara Simmons v. Mercy Hospital St. Louis

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 12-001723

**Employee:** Barbara Simmons

**Employer:** Mercy Hospital St. Louis (settled)

**Insurer:** Mercy Hospital East Communities (settled)

**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 5, 2018. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued April 5, 2018, 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 4th day of October 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find the employee failed to prove that she sustained permanent total disability as a result of her January 13, 2012, work injury.

The test for permanent total disability is whether an employee is able to compete in the open labor market. A worker is not required to be inert or completely inactive. He or she is considered totally disabled if unable to return to any normal or reasonable employment. The key question is whether any employer in the ordinary course of business would reasonably be expected to hire the worker in his or her current physical condition. See *Carkeek v. Treasurer*, 352 S.W.3d 604, 608 (Mo. App. 2011).

Prior her January 13, 2012 injury, the employee in this case was working full-time and full duty without any physician-imposed restrictions performing sedentary type work. Even after her injury and first surgery, she continued performing her job on a part-time basis until her position was eliminated. At the conclusion of treatment for her January 13, 2012, injury, Dr. Irvine, the employee's treating physician, imposed no restrictions relating to her right shoulder. Employee's own medical expert, Dr. Musich, also imposed no restrictions relating to either the employee's right shoulder or her knees.

Mr. Benjamin Hughes, a certified rehabilitation counselor since 2010, reviewed documents relevant to the employee's medical history, issued a written report and testified by deposition on November 27, 2017, regarding the issue of the employee's employability. Noting that no treating or evaluating physician imposed any work restrictions or limitations designed to protect the employee from future harm, Mr. Hughes concluded that employee could return to her previous line of work and otherwise compete in the open labor market. I consider Mr. Hughes' opinion, based on objective evidence, more credible than the opinion of employee's vocational expert Ms. Delores Gonzales, who relies on the employee's subjective limitations.

For all of the above reasons, I would find the employee in this case entitled only to an award of permanent partial disability benefits against the Second Injury Fund based on preexisting disability of 45% of the right shoulder, 22.5% of the left knee and 17% of the right knee, consistent with recommendation of the Fund's attorney. I respectfully dissent from the majority's decision finding otherwise.

*Reid K. Forrester*, Member

Employee: Barbara Simmons

Injury No.: 12-001723

Dependents: N/A

Employer: Mercy Hospital St. Louis (Settled)

Additional Party: Second Injury Fund

Insurer: Mercy Hospitals East Communities (Settled)

Hearing Date: February 1, 2018

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KOB

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: January 13, 2012
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Claimant was walking on a laminated floor in rubber clogs while clutching mail when she fell.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right shoulder
14. Nature and extent of any permanent disability: 45 % of the right shoulder
15. Compensation paid to-date for temporary disability: Not determined*
16. Value necessary medical aid paid to date by employer/insurer? Not determined*

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[^0]: * Employer's settlement included disputed amounts of medical and TTD.

Issued by DIVISION OF WORKERS' COMPENSATION

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: Qualified for rates noted

1. Weekly compensation rate: $392.17/$392.17

1. Method wages computation: By stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer previously settled its liability.

1. Second Injury Fund liability: Yes

Beginning on September 8, 2016, the SIF is liable for $392.17 per week and continuing in accordance with the law.

TOTAL: INDETERMINANT

1. Future requirements awarded: None

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

The compensation awarded to the claimant 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: Christopher Wagner

WC-32-R1 (6-81)

Injury No.: 12-001723

Page 2

Employee: Barbara Simmons

Injury No.: 12-001723

Dependents: N/A

Employer: Mercy Hospital St. Louis (Settled)

Additional Party: Second Injury Fund

Insurer: Mercy Hospitals East Communities (Settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KOB

The matter of Barbara Simmons ("Claimant") proceeded to hearing ${ }^{1}$ to determine the liability of the Second Injury Fund. Attorney Christopher Wagner represented Claimant. Assistant Attorney General Joye Hudson represented the Second Injury Fund. Mercy Hospital St. Louis ("Employer") and its Insurer previously reached a compromise of the claim with Claimant.

The parties stipulated that on January 13, 2012, Claimant sustained an accidental injury arising out of and in the course of employment. The parties agreed Claimant was an employee of Employer; venue is proper in the city of St. Louis; Employer received proper notice; and Claimant filed her claim within the time required by law. Claimant's average weekly wage resulted in a rate of compensation equal to $\ 392.17 for both permanent total disability ("PTD") benefits and permanent partial disability ("PPD") benefits. The parties stipulated Claimant reached maximum medical improvement ("MMI") on September 9, 2014.

The issues submitted for determination are 1) the nature and extent of Claimant's permanent disability, and 2) the liability of the Second Injury Fund. Claimant seeks PTD compensation, while the Second Injury Fund asserts it is only liable for PPD benefits.

The exhibits, offered and admitted without objection, were:

Exhibit A - Medical Records from Mercy Hospital

Exhibit B - Denial Letter

Exhibit C - Dr. David Irvine Records

Exhibit D - Dr. Frank Thomas Records

Exhibit E - Stipulation for Compromise Settlement - primary claim

Exhibit F - Dr. Thomas Musich Deposition

Exhibit G - Delores Gonzalez Deposition

Exhibit H - October 3, 2012, Hearing Transcript

Exhibit I - (SIF) Benjamin Hughes Deposition

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[^0]: ${ }^{1}$ On October 3, 2012, Claimant and Employer participated in a hearing to determine whether Claimant's accident arose out of and in the course of employment. The undersigned issued a temporary award dated December 20, 2012, in favor of Claimant, which the Labor and Industrial Relations Commission affirmed. The prior decision will be referred to herein as the "2012 Award." The Second Injury Fund is not challenging the determination.

Issued by DIVISION OF WORKERS' COMPENSATION

Based on a review of all the evidence and my observations of Claimant's demeanor during her testimony at both hearings, I find she is a credible witness. Considering the testimony of Claimant, the medical records and other evidence admitted, and the expert testimony, I make the following findings of fact:

Claimant is a 64-year-old high school graduate with some community college credits whose work since the early 1970s has consisted of sedentary office work in the health care industry. She worked for Employer from 2006 through the end of August 2012. Claimant has not worked since leaving Employer, although she had planned to work until she reached the age of 65.

Claimant has a history of bilateral knee disability. At the age of 16, she dislocated her left knee. Medical treatment at that time was limited and did not require surgery. However, over the years she developed "loose" knees bilaterally, her left knee "locked up," and she consciously avoided stressing her knees. Eventually, she required orthopedic treatment. Dr. Frank Thomas diagnosed bilateral knee osteoarthritis in 2008, and on January 30, 2009, performed a left knee partial medial meniscectomy, chondroplasty of the medial and lateral femoral condyles, and excision of two loose bodies. On November 19, 2010, Dr. Thomas performed right knee chondroplasty of the medial femoral condyle and excision of a large loose body.

Claimant recovered well post-surgery but continued to experience significant knee pain. She could not stand for more than two hours at a time, walk for more than 90 minutes, or ascend or descend staircases with regularity. She moved her bedroom to the first floor to avoid the stairs. Bilateral knee pain prevented her from getting on the floor to play with her grandchildren. She specifically chose a clerical career, as opposed to retail sales, for example, so she would not have to be on her feet all day.

On January 13, 2012, Claimant fell in the course and scope of her employment and sustained the accidental shoulder injury that is the subject of this claim. The details of the accident are contained in the 2012 Award. Dr. David Irvine, her treating physician, immediately performed an open reduction and internal fixation of a comminuted right proximal humerus fracture. Despite several months of physical therapy, Claimant continued to have pain and mobility problems. When x-rays revealed poor consolidation of the humeral fracture, Dr. Irvine undertoo