James Allen v. State of Missouri Fulton State Hospital

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-031122

**Employee:** James Allen

**Employer:** State of Missouri Fulton State Hospital

**Insurer:** Missouri Office of Administration Central Accident Reporting Office

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 October 11, 2018. The award and decision of Administrative Law Judge Bruce Farmer, issued October 11, 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 13th day of June 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**Curtis E. Chick, Jr., Member**

Attest:

Secretary

Employee: James Allen

Injury No.: 15-031122

Dependents: N/A

Employer: State of Missouri Fulton State Hospital

Insurer: Missouri Office of Administration

Central Accident Reporting Office

Hearing Date: July 11, 2018

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

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: May 5, 2015
5. State location where accident occurred or occupational disease was contracted: Callaway 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: .See award.
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 shoulder, head, cervical spine, thoracic spine.
14. Nature and extent of any permanent disability: See award.
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer: $\ 57,814.59

1. Value necessary medical aid not furnished by employer/insurer? None.
2. Employee's average weekly wages: Not submitted.
3. Weekly compensation rate: $\ 451.02
4. Method wages computation: Stipulation

1. Amount of compensation payable: See award.

169 weeks of permanent partial disability from Employer

6 weeks of disfigurement from Employer

1. Second Injury Fund liability: N/A

TOTAL: $\ 78,928.50

1. 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 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: Van Camp Law Firm LLC.

Injury No.: 15-031122

Before the

DIVISION OF WORKERS' COMPENSATION Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

The above-referenced matter was heard for a final award hearing on July 11, 2018. The employee, James Allen, appeared in person and through his attorney, Tammy Kearns. The employer, State of Missouri Fulton State Hospital, and its insurer, the Missouri Office of Administration c/o Central Accident Reporting Office (CARO), appeared through their attorney, Erika Eliason.

This was a consolidated hearing involving four separate accidents. The parties agreed that four accidents occurred, the first on January 12, 2015 (Injury No. 15-000919), the second on February 1, 2015 (Injury No. 15-005001), the third on May 5, 2015 (Injury No. 15-031122), and the fourth on December 20, 2016 (Injury No. 16-099060). The parties agreed on certain undisputed facts and identified the issues that were in dispute. Unless otherwise indicated, the following undisputed facts and issues apply to all four claims.

1. The employment and accidents occurred in Fulton, Callaway County, Missouri. The hearing was held in Jefferson City, Cole County, Missouri. Venue for the hearing was therefore proper.
2. The State of Missouri Fulton State Hospital was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was duly qualified as a self-insured employer through the Missouri Office of Administration.

Issued by DIVISION OF WORKERS' COMPENSATION

1. On the four accident dates set forth above, James Allen was an employee of the State of Missouri Fulton State Hospital and was working under the Workers' Compensation Act.

1. On the four accident dates set forth above, the employee sustained accidents arising out of and in the course of his employment.

1. The employer had notice of each accident.

1. The employee's claims were each filed within the time allowed by law.

1. The employer-insurer paid medical benefits as follows:

- Jan. 12, 2015 injury: 1,216.22

- Feb. 1, 2015 injury: 28,393.02

- May 5, 2015 injury: 57,814.59

- Dec. 20, 2016 injury: 59.47

1. The employer-insurer paid temporary disability benefits only for the February 1, 2015 injury in the amount of $13,179.17.

1. The employee is entitled to the maximum permanent partial disability rate of 451.02 for the three 2015 injuries and 477.33 for the 2016 injury.

ISSUES

1. The nature and extent of any permanent disabilities.

1. Whether the employee has sustained injuries that will require future medical care in order to cure and relieve the employee of the effects of the injuries.

1. Disfigurement related to the May 5, 2015 accident.

The findings and conclusions will address all four claims. Separate awards will be issued for each injury number and date of injury. This award addresses Injury No. 15-031122, date of injury May 5, 2015.

FACTS

Mr. Allen has been employed at Fulton State Hospital since 2012. At the time of all four injuries discussed, Mr. Allen worked as a forensic rehabilitation specialist (FRS II). His job duties included scheduling staff for shifts and breaks, charting, meeting with treatment teams, and responding to staff supports. Mr. Allen still holds this position.

WC-32A

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

On January 12, 2015, Mr. Allen responded to a staff support on a different ward than the one he worked in and encountered a very large male client that was in crisis. The client had barricaded himself into his room with his bed pushed against his door. The nurse that was present directed Mr. Allen and other staff members to restrain the client. Approximately ten staff members pushed the door open and Mr. Allen was the first person in the room. The client immediately charged at him and Mr. Allen and another staff member each grabbed onto the client's arms. During the altercation, a different staff member grabbed Mr. Allen's legs, causing the client and another staff member to fall directly on top of Mr. Allen thereby forcefully shoving his head, neck, and shoulder into a brick column. Mr. Allen testified that client rooms are very small and the staff members are not equipped with protective gear, body armor, or helmets.

Mr. Allen went to the Callaway Community Hospital Emergency Room, where he was diagnosed with a contusion to the right temporal area. (Exhibit 2) Mr. Allen was instructed to follow up with his primary care physician in a week. Mr. Allen testified that he missed two days of work related to the January 12, 2015 accident. Mr. Allen did not see his primary care physician or schedule a follow-up appointment.

On February 1, 2015, Mr. Allen responded to a staff support involving the same large male client that charged him on January 12, 2015. This time, the client was tearing apart his mattress and trying to choke himself. When Mr. Allen entered the client's room to remove the mattress, the client clawed Mr. Allen's face and punched him several times on the right side of his head before Mr. Allen could get the client into restraints.

Mr. Allen received treatment the same day at the Callaway Community Hospital Emergency Room. He was diagnosed with contusions to his left face, mouth, and cheek. (Exhibit 2) Three days later, Mr. Allen was seen by Dr. Runde for both injuries. Regarding the January

12, 2015 injury, Dr. Runde noted pain on the right side of Mr. Allen's head and neck, a constant headache, an earache, difficulty hearing in the right ear, decreased memory, and concentration issues. Dr. Runde ordered an audiogram, which showed decreased hearing in the right ear. However, a follow-up audiogram showed normal hearing bilaterally. Dr. Runde diagnosed Mr. Allen with a head contusion, neck pain, and decreased hearing in the right ear. He also recommended a cervical spine x-ray and physical therapy to treat Mr. Allen's neck. (Exhibit 5)

With regard to the February 1, 2015 injury, Dr. Runde noted pain to the right side of Mr. Allen's head, neck, face, and right ear, mild photophobia, and decreased short-term memory. Dr. Runde diagnosed neck pain, headache possibly due to concussion, right shoulder pain, and facial abrasions. Dr. Runde recommended physical therapy to treat Mr. Allen's neck and right shoulder. Dr. Runde eventually ordered an MRI of Mr. Allen's right shoulder to evaluate the anterior serratus muscle and an electrodiagnostic study to rule out a long thoracic nerve injury. The MRI revealed suspected labral tears anteriorly and posteriorly with a paralabral cyst, tendinopathy with subacromial impingement of the supraspinatus and infraspinatus tendons, edema in the acromioclavicular joint, and edema along the serratus anterior in the lateral chest wall. Dr. Runde referred Mr. Allen to an orthopedic surgeon on March 20, 2015. (Exhibit 5)

While treating with Dr. Runde, Mr. Allen was also seen by Dr. Peeples for a neurologic evaluation and treatment. Dr. Peeples' records indicate that Mr. Allen continued to suffer from daily headaches, decreased concentration, decreased short-term memory, and right shoulder pain. Dr. Peeples' records further note that Mr. Allen's headaches were exacerbated by loud noises, concentration, and pushing or pulling with his right arm. Dr. Peeples diagnosed concussions without loss of consciousness on January 12, 2015 and February 1, 2015, post-concussive headaches, subjective memory and concentration problems, and right scapular winging.

Issued by DIVISION OF WORKERS' COMPENSATION

Dr. Peeples recommended an EMG/NCS for right scapular winging and prescribed Depakote to treat Mr. Allen's headaches. (Exhibit 6)

Before Mr. Allen could be seen by an orthopedic surgeon as recommended by Dr. Runde or obtain his nerve studies as recommended by Dr. Peeples, he was injured a third time. On May 5, 2015, a client had become very aggressive and