Karolyn Knierim v. Good Shepherd Nursing Home

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Temporary Award and Decision of Administrative Law Judge)

**Injury No.:** 16-097900

**Employee:** Karolyn Knierim

**Employer:** Good Shepherd Nursing Home

**Insurer:** Health Care Facilities of Missouri

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the Temporary Award and Decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to resolve the following issues: (1) whether employee¹ sustained an accident arising out of and in the course of employment on December 9, 2016; (2) whether employee's current symptoms of left ankle and left knee are causally related to a work accident on December 9, 2016; (3) whether employer is liable for medical treatment to cure and relieve the effects of the December 9, 2016 accident; and (4) whether employer is liable for costs and expenses due to an unreasonable defense pursuant to § 287.560.

The administrative law judge determined as follows: (1) employee sustained injury arising from a work-related accident on December 9, 2016; (2) employee's symptoms of left knee and ankle complaints are causally related to the December 9, 2016 accident; (3) employer is liable for medical treatment to the left knee and left ankle to cure and relieve the effects of the December 9, 2016 injury; and (4) employer owes costs and expenses due to its unreasonable defense pursuant to § 287.560, in the amount of $21,337.15. The administrative law judge also determined that employer is liable for additional medical care of the left knee and ankle pursuant to § 287.140.1, and future temporary total disability benefits, should an authorized medical provider find it necessary until employee has reached maximum medical improvement or working in the open labor market.

Employer/insurer filed a timely application for review² with the Commission on November 16, 2017, alleging the administrative law judge's award was erroneous in finding: (1) the injury suffered by employee on December 9, 2016, was within the scope

¹ We note that the record and the pleadings in this matter include references to both claimant and employee. Because of the relevant definitions under § 287.020, we generally refer to the injured worker as "employee" and to anyone else pursuing a claim on behalf of the employee, as "claimant." However, in this matter the terms are used interchangeably by the parties and the administrative law judge. We use the designation of "employee" throughout this award.

² Employer/insurer filed an Amended Application for Review on November 20, 2017.

Injury No.: 16-097900

Employee: Karolyn Knierim

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and course of employment with employer; (2) employee's left knee and ankle symptoms are causally related to a work injury; (3) that employer is responsible to provide medical treatment for the left knee and ankle; and (4) that employer's defense by denying compensability of the claim was unreasonable and without basis and that attorney's fees and costs pursuant to § 287.560 should be awarded.

We affirm and adopt the administrative law judge's findings, conclusions and award relating to all issues, except as modified below.

We modify the administrative law judge's award only with respect to her findings relating to the award of fees and costs, in the amount of $21,337.15, and for employer's unreasonable defense pursuant to § 287.560. We find that issue is not yet ripe for consideration and decline to rule on the issue in this temporary award. The extent of our review of a temporary award of an administrative law judge is limited to a challenge by a party aggrieved by the finding that the applicant is liable for the payment of any compensation. 8 CSR 20-3.040 (1) - Temporary or Partial Awards.

Discussion

The administrative law judge observed employee at the hearing. She found employee credible, "based upon observation during her testimony" and found employee "credibly testified through the hearing." Award, page 7. We adopt the administrative law judge's credibility finding. Employee's slight delay in reporting her injury on the next workday does not diminish her credibility. Employee credibly described the day, time and circumstances of the accident. She reported injury to her left knee and left ankle. Employee's behavior at work that day in carrying on with her workload on an exceptionally busy day says more about her work ethic than it reflects on the manner in which she displays or hides her pain symptoms. As noted by the administrative law judge, employer provided two witnesses who did not notice employee to be in pain. We agree with the administrative law judge that "two witnesses lack of observation of the event/effects of the event" does not equate to the "event not happening." Award, page 7-8.

We find that the administrative law judge's finding that employee's work-related accident of December 9, 2016 was the prevailing cause of the injury to her left knee and ankle, is well supported. This finding was based on employee's credible testimony; the objective evidence of injury to her left knee and left ankle; and the opinions of authorized medical professionals who treated employee close in time to the accident. Therefore, it follows that employer is responsible for medical care to cure and relieve the effects of employee's injuries.

At this juncture, the matter is not fully litigated and the employee was not at maximum medical improvement at the time this record was submitted for our review. The legislature has recognized the need for a hardship procedure under § 287.510, in order to obtain a temporary award in appropriate circumstances. This necessitates that the evidence that is presented is limited to what has been developed at that stage of the case, and the treatment course pursued to date. Because the record is not yet complete, we conclude the award of fees and costs, is best reviewed at the time that the

Injury No.: 16-097900

Employee: Karolyn Knierim

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case has been fully developed. The award of fees and costs in the amount of $21,337.15, pursuant to § 287.560, is not properly resolved at this time.³ Our ruling on this issue is without prejudice to either party raising this issue in the future.

**Order**

We modify the award of the administrative law judge only as to the issue of the award of fees and costs pursuant to § 287.560.

The award and decision of Chief Administrative Law Judge Lisa Pottenger, issued October 30, 2017, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby remanded to the Division of Worker's Compensation to be kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

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

Given at Jefferson City, State of Missouri, this 3/5th day of October 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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³ Section 287.560 provides "... if 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, prosecute or defended them..."

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Karolyn Knierim

Employee: Karolyn Knierim

Injury No. 16-097900

Dependents: N/A

Employer: Good Shepherd Nursing Home

Insurer: Health Care Facilities of Missouri

Additional Party: N/A

Hearing Date: September 26, 2017

Checked by: LP/lh

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: December 9, 2016
5. State location where accident occurred or occupational disease was contracted. Joplin, 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 pushed a food cart up a ramp and caused injury to her left ankle and knee while in the course and scope of employment
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 left ankle and knee
14. Nature and extent of any permanent disability, not at MMI

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Karolyn Knierim

Injury No. 16-097900

1. Compensation paid to-date for temporary disability: 0

1. Value necessary medical aid paid to date by employer/insurer? $5,476.81.

1. Value necessary medical aid not furnished by employer/insurer? 0

1. Employee's average weekly wages: 491.54

1. Weekly compensation rate: 337.71/$337.71

1. Method wages computation: stipulation

1. Additional requirements awarded: The employer is liable to claimant for additional medical care of the left knee and ankle pursuant to 287.140.1 RSMO, and future TTDB should an authorized medical provider find it necessary until claimant has reached MMI or working in the open labor market.

1. The employer is liable to claimant for costs and fees due to unreasonable defense of claim pursuant to 287.560 RSMO.

Said payments to begin as of the date of this award 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% payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Pat Platter

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Karolyn Knierim

Injury No. 16-097900

Employee: Karolyn Knierim

Dependents: N/A

Employer: Good Shepherd Nursing Home

Insurer: Health Care Facilities of Missouri

Additional Party: N/A

Hearing Date: September 26, 2017

Checked by: LP/lh

On September 26, 2017, the parties appeared for hearing. The Employee, Karolyn "Susie" Knierim, appeared in person and was represented by Patrick J. Platter. The Employer, Good Shepherd Nursing Home, through its insurer, Hartford Insurance Company, was represented by Joe Ebbert.

The parties stipulated to the following:

1. That the Employer was working subject to Missouri's workers' compensation law on December 9, 2016;
2. That Good Shepherd Nursing Home was insured c/o Sedgwick Claims Management Services;
3. That Ms. Knierim was their employee;
4. That the claim was filed within the time allowed by law;
5. That jurisdiction was proper in the state of Missouri;
6. That notice was given;
7. That the average weekly wage was $491.54, which makes the temporary total disability and permanent partial disability rates 337.71; and
8. That the Employer has provided 5,476.81

The parties stipulated that the issues to be tried are as follows:

1. Whether Claimant sustained an accident that arose out of and in the course of her employment on December 9, 2016;

WC-32-R1 (6-81)

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Issued by DIVISION OF WORK