Kenna Morris v. Curators of the University of Missouri

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 12-079705

**Employee:** Kenna Morris

**Employer:** Curators of the University of Missouri (settled)

**Insurer:** Self Insured

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This 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, read the parties' briefs, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090, RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

In her award, the administrative law judge found that employee attended graduate school between May 2013 and July 2014. The record does not support that finding. Employee testified that she took some graduate level psychology courses for about a year "during a brief period of unemployment." Tr. p., 68. However, the record does not clarify exactly when that "brief period of unemployment" occurred.

Having clarified this point, and having carefully reviewed the evidence regarding employee's claim for permanent total disability, we do not discern a compelling reason to disturb the administrative law judge's findings that the opinions of Drs. Smith, Choma, and Chabot were persuasive and that employee was at maximum medical improvement regarding her work-related injuries and able to return to work without restrictions by May 26, 2016. Any other limitations of employee's ability to work were not due to work-related injuries, but other factors.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Melodie A. Powell is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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.

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Given at Jefferson City, State of Missouri, this 3rd day of October 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 12-079705

Employee: Kenna Morris

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified.

I agree with the majority that the record does not support a finding that employee attended graduate school between May 2013 and July 2014. However, I find more persuasive the opinions of Dr. Raymond Cohen and Ms. Kristine Skahan that employee is permanently and totally disabled. "The test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition." *Treasurer v. Cook*, 323 S.W.3d 105, 110 (Mo. App. 2010).

Based off of Dr. Cohen's restrictions, Ms. Skahan's vocational rehabilitation assessment, and employee's work history subsequent to the October 11, 2012 injury, I do not feel that any employer would reasonably be expected to hire employee. Dr. Cohen placed employee on the following restrictions:

> In regard to the lumbar spine, she needs to be restricted from any repetitive bending, lifting, or stooping; no lifting greater than 10 pounds except on a rare occasion; no walking greater than 20 minutes without being allowed to stop and rest; no sitting greater than 30 minutes without being allowed to take a change of position break; no standing greater than 30 minutes without the change of position break[;] and no climbing or ladder work.

*Tr., p. 2177.*

Ms. Skahan observed employee; looked at the medical records, including the records of Drs. Smith, Choma, and Chabot; and the independent medical evaluation of Dr. Cohen. Ultimately, Ms. Skahan found employee to be permanently and totally disabled, but not just because of Dr. Cohen's restrictions. Ms. Skahan noted that, given employee's work history, "[t]he restrictions outlined by Dr. Cohen and his 2/13/17 report eliminate all work at all levels." *Tr., p. 2272.* In her report, Ms. Skahan also stated,

> The following factors, conditions and characteristics will affect this worker's ability to access and to compete in the open competitive labor market. While [employee] does have a college degree, she has only worked in the service industry and in light to very heavy jobs. She has no transferable skills to sedentary, limited computer and office skills, and has not had any jobs that require extensive use of a computer. She has minimal typing skills and no experience with sedentary office type work that would familiarize her with office processes and procedures. [Employee] does not possess the vocational profile that would [be] sought by an employer seeking candidates for a sedentary office type position. [Employee] did work in an accommodated office position for a short period

Injury No.: 12-079705

Employee: Kenna Morris

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of time with the University of Missouri, but was only operating a radio to dispatch and spent the other half of her day on the floor. She would not have acquired skills from this accommodated position.

Tr., p. 2272. In her deposition, Ms. Skahan further indicated that employee was not an applicant for retraining. She stated,

> ... I'm looking at what she can physically do based on Cohen's restrictions, which are pretty consistent with her complaints, I don't think she could go back to school because of the things with the upper extremity and the back issues of sitting and standing and my observations of her -- of her describing this as a typical day for her. Those are the things I think would get in the way of her.

Tr., p. 2234-35.

Employee's work history also supports a conclusion that employee was not able to continue working full-time after the October 11, 2012 injury. Employee lost employment after her positions became too physically demanding. In an effort to retain her pharmacy technician position with Walgreens, employee had to reduce her hours. However, she lost that position after her absence from work due to her stroke. No employer would be reasonably expected to hire employee given her present physical condition in not being able to work more than thirty hours a week in a low to moderately-physical position.

In addition, no one accused employee of malingering. The administrative law judge did not find employee not credible. I find that employee met her burden to establish permanent and total disability. The Second Injury Fund did not present its own vocational expert to show that employee was not permanently and totally disabled.

Therefore, I would modify the administrative law judge's award allowing benefits and find employee permanently and totally disabled. Because the Commission majority has decided otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Employee: Kenna Morris

Injury No. 12-079705

Dependents: N/A

Employer: Curators of the University of Missouri (settled)

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

Address: 201 West 18th Street, Missouri

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: October 11, 2012
5. State location where accident occurred or occupational disease was contracted: Boone 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: Pushing a patient in a wheel chair
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: thoracic spine and right shoulder
14. Nature and extent of any permanent disability: 5\% BAW \& 21.8 % shoulder (settlement with Employer)
15. Compensation paid to-date for temporary disability: $\ 686.64
16. Value necessary medical aid paid to date by employer/insurer? $\ 37,037.00

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 514.98
3. Weekly compensation rate: $\ 343.32
4. Method wages computation: By agreement

1. Amount of compensation payable: $\ 7,082.69 from SIF

TOTAL:

1. Second Injury Fund liability: $\ 7,082.69
2. Future Requirements Awarded: N/A

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 Christine Kiefer.

Employee: Kenna Morris

Injury No: 12-079705

EHIDINGS OF FACT and RULINGS OF LAW:

Employee: Kenna Morris

Injury No: 12-079705

Dependents: N/A

Employer: Curators of the University of Missouri (settled)

Additional Party: Second Injury Fund

Insurer: Self Insured

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MAP/sb

On the $17^{\text {th }}$ day of July, 2018, the parties appeared before the undersigned Administrative Law Judge for final hearing on Claimant's claim against the Second Injury Fund. Claimant appeared in person and by her attorney, Christine Kiefer. The Second Injury Fund appeared by Erika Eliason.

The parties entered into a stipulation with regard to certain facts which are not at issue in this claim as follows: on or about the $11^{\text {th }}$ day of October, 2012, Claimant was in the employ of the Curators of the University of Missouri and sustained an injury by accident or occupational disease arising out of and in the course of employment. Both the employee and employer were operating under and subject to the terms and provisions of the Missouri Workers' Compensation law. The employer's liability was fully self-insured. The employer had notice of the claim and a claim for compensation was timely filed. The accident occurred in Boone County, therefore, venue was proper in Columbia, Missouri. The Claimant's average weekly wage is $\ 514.98 and the compensation rate is $\ 343.32. Temporary total disability benefits have been paid in the amount of $\ 686.64, representing two weeks, and medical has been paid in the amount of $\ 37,037.00. Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award.

The following exhibit