Sondra Denomy v. Francis Howell R-III School District

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 13-012655

**Employee:** Sondra Denomy

**Employer:** Francis Howell R-III School District

**Insurer:** Missouri United School Insurance Council

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 3, 2019. The award and decision of Administrative Law Judge Margaret D. Landolt, issued April 3, 2019, 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 **24th** day of October 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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Injury No.: 13-012655

Employee: Sondra Denomy

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conclusion that "claimant consistently complained of hip pain after the injury"¹ is a fallacy. There were no complaints to Mercy of right hip pain nor to Dr. Krause. On May 10, 2013, employee told Dr. Volarich she noted a shooting pain in her right hip. However, Dr. Volarich noted full motion and no groin pain over the hip joint. The administrative law judge cited a December 19, 2013, notation where employee told Dr. Peter she had pain in her low back shooting down to her groin area. These are one, perhaps two, arguable complaints to employee's hip out of multiple visits to others doctors. The administrative law judges' findings that employee consistently complained of hip pain after the injury are simply not supported by the evidence in the record. The administrative law judge's conclusion that possibly two complaints to the right hip equates to a diagnosis of labral tear is unrealistic and inaccurate.

The administrative law judge erred in rejecting Dr. Frisella's opinion that the labral tear in employee's right hip was not causally related to employee's work injury. Dr. Frisella's opinion did not lack a factual foundation because Dr. Frisella had Dr. Volarich's May 10, 2013 independent medical examination report with employee's history and complaints. Dr. Frisella noted that this report showed a normal right hip exam and that Dr. Volarich gave no diagnosis to employee's right hip. Dr. Frisella opined that a labral tear would have manifested itself at this time as loss of motion or pain in the hip. A note from Dr. Quigley's office dated September 10, 2013, documented "Physical Exam: hip is normal."² The administrative law judge ignored eight reasons Dr. Frisella gave why employee's March 1, 2013, injury was not the prevailing factor causing any diagnosis in employee's right hip.

Dr. Frisella accurately advised that employee had Cam impingement, which is abnormal touching of the bony structures of the hip, that this abnormal touching is the cause of employee's labral tear and not the result of an acute injury.

The administrative law judge erred in rejecting the findings and opinions of Dr. Jessee Crane, Dr. Krause, Dr. Volarich, Dr. Peter, Dr. Quigley, and Dr. Frisella. Her decision is contrary to the overwhelming weight of the competent and substantial evidence in that she finds the opinion of Dr. Dwight Woiteshek, who examined the employee over three years after the work accident, more persuasive than the treating physicians who examined the employee at or near the time of the injury.

Past Medical Bills

Employee failed to sustain her burden of proof with regard to medical bills for treatment to her right knee and hip.

Employer provided medical treatment to employee's right ankle, the only condition related to her March 1, 2013, injury. Because employee failed to prove that her right knee and right hip conditions were medically causally related to the injury, medical bills that flowed from those conditions are not compensable.

1 Award, p. 10.

2 Transcript, 177.

Enployee: Sondra Denomy

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Injury No.: 13-012655

The administrative law judge conceded that there was no evidence presented at hearing that employee made a specific demand for additional medical treatment. On her own, the administrative law judge took administrative notice of the Division of Workers' Compensation files. This is yet another example of how the administrative law judge ignored the evidence and reached outside the hearing record to find her own evidence.

**Past Temporary Total Disability Benefits**

Employee is not entitled to past temporary total benefits because employee was off work for surgeries to her right knee and right hip because, as explained *supra*, those conditions were not related to employee's March 1, 2013 injury.

**Nature and Extent of Permanent Partial Disability**

The administrative law judge erred in awarding employee permanent partial disability of 20% of the right hip, 25% of the right knee, and 10% of the right ankle.

Dr. Krause, employee's treating physician, found zero percent permanent partial disability from the March 1, 2013, injury. Dr. Frisella, employer's examining physician, found zero percent permanent partial disability to employee's right hip. Dr. Woiteshek, employee's examining physician, found 35% permanent partial disability to the right hip, 35% permanent partial disability to employee right knee, and 20% permanent partial disability to employee's right ankle.

The employee returned to work and continues to work without any restrictions attributable to the March 1, 2013 injury. She testified at hearing that she had no problems related to her right ankle, right knee, or right hip and that her only complaint involved the right thigh. No evidence supports the administrative law judge's conclusion that employee experiences problems with lifting, twisting, kneeling, squatting, climbing, reaching, bending and carrying.

**Conclusion**

There has been a serious miscarriage of justice against the employer and insurer in this case. The administrative law judge's award should be reversed in its entirety. I respectfully dissent from the majority's decision finding otherwise.

Reid K. Forrester, Member

*Award, 11.*

Employee: Sondra Denomy

Injury No.: 13-012655

Dependents: N/A

Employer: Francis Howell R-III School District

Additional Party: N/A

Insurer: Missouri United School Insurance Council

Hearing Date: January 22, 2019

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, 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: March 1, 2013
5. State location where accident occurred or occupational disease was contracted: St. Charles 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: Employee was holding a door open when a parallel bar fell on her right lower extremity
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: right ankle, right knee, and right hip
14. Nature and extent of any permanent disability: 10 % PPD of the right ankle, 25 % PPD of the right knee, and 20 % PPD of her right hip
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 3,459.38

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: Mr. Steve Trefts

Employee: Sondra Denomy

Dependents: N/A

Employer: Francis Howell R-III School District

Additional Party: N/A

Insurer: Missouri United School Insurance Council

Injury No.: 13-012655

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on January 22, 2019, at the Division of Workers' Compensation in St. Charles, Missouri. Sondra Denomy ("Claimant") was represented by Mr. Steve Trefts. Francis Howell R-III School District ("Employer") and its insurer Missouri United School Insurance Council were represented by Ms. Betsy Levitt. Mr. Trefts requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about March 1, 2013, Claimant sustained an accidental injury arising out of and in the course of employment; Claimant was an employee of Employer; venue is proper in St. Charles County, Missouri; Employer received proper notice of the injury; the claim was timely filed; Claimant was earning an average weekly wage of $\ 503.44 resulting in a rate of $\ 335.63 for Temporary Total Disability ("TTD") benefits and Permanent Partial Disability ("PPD") benefits; Employer paid no TTD benefits; and $\ 3,459.38 in medical benefits.

The issues to be resolved are medical causation with respect to Claimant's right knee, right hip, and low back; liability of Employer for past medical benefits of $\ 73,354.11; liability of Employer for past TTD benefits from September 9, 2013 to November 24, 2013, and September 30,2015 to January 15,2016 ; and what is the nature and extent of PPD sustained by Claimant with respect to her ankle, knee, low back, and right hip.

Only evidence necessary to support this award will be summarized. The exhibits are in the same condition as they were when received. No markings or highlights were placed on them by the court.

On its own, the Court takes administrative notice of the files of the Division of Workers' Compensation in Injury No. 13-012655.

Claimant is a 63-year-old woman who i