Lisa Coffer v. Health Management Associates, Inc./Twin Rivers Regional Medical Center

*(After Mandate from the Missouri Court of Appeals for the Southern District)*

**Injury No.:** 13-104240

**Employee:** Lisa Coffer

**Employer:** Health Management Associates, Inc./Twin Rivers Regional Medical Center (settled)

**Insurer:** Liberty Insurance Corporation (settled)

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

On April 14, 2020, the Missouri Court of Appeals, Southern District, issued an opinion in *Lisa Coffer v. Treasurer of the State of Missouri-Custodian 2d Injury Fund*, SD36471 (April 14, 2020). By mandate dated April 30, 2020, the court confirmed its decision to reverse the Labor and Industrial Relations Commission's award and decision and remanded this matter to the Commission with instructions to reinstate the administrative law judge's award of permanent total disability benefits to claimant.

Therefore, pursuant to the court's express directive and mandate, as authorized by Article V, Section 18. Constitution of Missouri, we issue the following award.

The Second Injury Fund is liable to employee for permanent total disability benefits commencing August 27, 2015, at the stipulated rate of $333.33 per week for the remainder of the employee's lifetime or until suspended if the employee is restored to her regular work or its equivalent as provided in § 287.200 RSMo.

The award and decision of Administrative Law Judge Lawrence C. Kasten, issued April 19, 2019, is attached and incorporated herein.

For necessary legal services rendered to employee, D. Matthew Edwards, Attorney at Law, is allowed a fee of 25% of the compensation awarded, which shall constitute a lien on said compensation.

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

Given at Jefferson City, State of Missouri, this **10th** day of June 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

- Robert W. Cornejo, Chairman

- Reid K. Forrester, Member

- Shalonn K. Curls, Member

**Attest:**

Secretary

Employee: Lisa Coffer

Injury No. 13-104240

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Health Management Associates, Inc. / Twin Rivers Regional Medical Center (Settled)

Additional Party: Second Injury Fund

Insurer: Liberty Insurance Corporation (Settled)

Appearances: D. Matthew Edwards, attorney for the employee. Rachel Harris, attorney for the Second Injury Fund.

Hearing Date: January 16, 2019

Checked by: LCK/kg

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 13, 2013.
5. State location where accident occurred or occupational disease contracted: Dunklin County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the 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.

Employee: Lisa Coffer

Injury No. 13-104240

1. Was the employer insured by above insurer? Yes.

1. Describe work the employee was doing and how accident happened or occupational disease contracted: The employee developed bilateral carpal tunnel syndrome from repetitive work activities and duties with her upper extremity.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Right hand at wrist and left hand at wrist.

1. Nature and extent of any permanent disability: 22.75% of the right hand at the wrist and 20% of the left hand at the wrist.

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

1. Value necessary medical aid paid to date by the employer-insurer: 2,868.72

1. Value necessary medical aid not furnished by the employer-insurer: N/A.

1. Employee's average weekly wage: 500

1. Weekly compensation rate: 333.33 for permanent partial disability and permanent total disability.

1. Method wages computation: By agreement.

1. Amount of compensation payable: See Rulings of Law.

1. Second Injury Fund liability: Permanent total disability.

1. Future requirements awarded: See Rulings of Law.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: D. Matthew Edwards.

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On January 16, 2019, the employee, Lisa Coffer, appeared in person and with her attorney, D. Matthew Edwards for a hearing for a final award. The Second Injury Fund was represented by Assistant Attorney General Rachel Harris. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. The parties agreed that the final hearing will be heard in Cape Girardeau but appellate jurisdiction remains with the Southern District Court of Appeals.
2. Health Management Associates, Inc. / Twin Rivers Regional Medical Center was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Liberty Insurance Corporation.
3. On or about December 13, 2013, Lisa Coffer was an employee of Health Management Associates, Inc. / Twin Rivers Regional Medical Center, and was working under the Workers' Compensation Act.
4. The employer had notice of the employee's alleged occupational disease as required by law.
5. The employee's claim for compensation was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 500. The rate of compensation for permanent total disability and permanent partial disability is $\ 333.33 per week.
7. Prior to the compromise settlement, the employer-insurer did not pay any medical aid. As part of the compromise settlement, the employer-insurer paid $\ 2,868.72 for future medical.
8. The employer-insurer paid no temporary disability benefits.

1. Occupational disease.
2. Medical causation.
3. Liability of the Second Injury Fund for either permanent total disability or permanent partial disability.

1. Stipulation for Compromise Settlement in Injury No. 13-104240
2. Medical Records from Twin Rivers Regional Medical Center
3. Medical Records from St. Francis Medical Center
4. Medical Records from St. Bernard's Hospital

Employee: Lisa Coffer

Injury No. 13-104240

1. Medical Records from Washington University Physicians

1. Medical Records from Barnes-Jewish Hospital

1. Medical Records from Kennett Clinic

1. Medical Records from Kennett Orthopaedic Center

1. Medical Records from Rehab Services Pro of Kennett

1. Medical Records from Neurology Associates of NE Arkansas

1. Medical Records from St. Bernard's Neurosurgery

1. Medical Report from Dr. Robert Poetz

1. Deposition of Dr. Paul Hinton including his C.V. and report

1. November 17, 2017 Deposition of Susan Shea including her C.V. and report

1. September 25, 2018 Deposition of Susan Shea including her addendum report

Ruling on Admissibility to Employee Exhibit 12 and Employee Exhibit 14:

At the hearing, the Second Injury Fund objected to the admission of Exhibit 12 alleging that Dr. Poetz was unavailable for cross examination and was not available within 7 days of the hearing to be cross examined. The employee stated that in February of 2017, Dr. Poetz's report was tendered to the Second Injury Fund under Section 287.210.7 RSMo, more than a year prior to their request to take his deposition. At the time the Second Injury Fund requested his deposition, Dr. Poetz was unavailable for deposition and later passed away. The Second Injury Fund argued that under Section 287.210.7 RSMo, the physician must be made available for cross examination up to 7 days before the hearing.

At the hearing, the Second Injury Fund objected to portions of Exhibit 14 which was Susan Shea's November 17, 2017 deposition and her report that related to Dr. Poetz. The specific portions of the deposition that was objected to were page 16, lines 18-25; page 17 lines 1-7, 13-14 and 18-22; page 24 lines 15-23; page 38 lines 12-25; page 39 lines 1-2 of her deposition. The pages of her report objected to were pages 6-10; 18 and 21.

At the hearing, the objections to Exhibits 12 and 14 were taken under advisement. In the proposed Awards, the attorneys made additional arguments on behalf of their respective clients.

In McDowell v. Mo. Dep't of Transportation, Injury No. 12-042672 (Mo. LIRC dec. March 3, 2017), The Missouri Labor and Industrial Relations Commission held that Section 287.210.7 RSMo codifies an exception to the hearsay rule by allowing admission of the complete report of a treating or examining physician without other foundational evidence, subject to a party's compliance with specified procedures set forth in the statute including the requirements that a party give notice to the other side within sixty days of the hearing that it intends to submit a report in lieu of testimony of its medical expert and also provide the other side a "reasonable opportunity" to obtain cross-examination testimony from the treating or examining physician. On August 14, 2014, the employee provided notice to the employer 60 days in advance of the hearing to submit Dr. Stillings' report in evidence. The employee's attorney offered possible dates and contact information to schedule a deposition. The employer did not depose Dr. Stillings prior to him passing away on March 16, 2015. The final hearing was held on April 6, 2016. The Commission stated that there was no evidence that the employee placed unreasonable

Page 4

**Injury No. 13-104240**

Restrictions on Dr. Stilling's availability. Dr. Stilling's unavailability nearly 7 months after the employee's 60 day notice was not something that the employee caused or could have avoided. The employer's delay of nearly 7 months in deposing Dr. Stillings was not relevant to the issue of whether the employee provided reasonable access and reasonable opportunity to depose him. The Commission found that employee provided the employer with a reasonable opportunity to obtain Dr. Stilling's cross-examination testimony as set forth in Section 287.210.7 RSMo.

In Ms. Coffer's case, on February 17, 2017, the employee submitted a complete medical report of Dr. Robert Poetz pursuant to Section 287.210.7 RSMo. The employee's attorney stated that the employee intended to submit the testimony of Dr. Robert Poetz on the issues in controversy by his complete medical report dated January 18, 2017. On February 17, 2017 a copy was sent to the Second Injury Fund's attorney. A letter enclosing an Intent to Submit Complete Medical Report Pursuant to Section 287.210.7 RSMo dated February 17, 2017 was received by the Division of Workers' Compensation on February 21, 2017. A letter dated February 17, 2017 from the employee's attorney to the Second Injury Fund's attorney stated that "I intend to submit the testimony of Dr. Poetz into evidence on the issues in controversy by the complete medical report. If you wish to cross-examine Dr. Poetz, please let me know and I will make arrangements for the deposition at your cost." The employee was evaluated by Susan Shea on March 21, 2017, the employee's deposition was taken on April 24, 2017, Ms. Shea issued a report, and her deposition was taken on November 17, 2017.

A letter dated January 8, 2018 from the employee's attorney to the Division stated that the employee had been ready for hearing for several months. He requested that a phone conference