Melissa Sulier v. SSM Health Care Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 13-064888

Employee: Melissa A. Sulier

Employer: SSM Health Care Corporation

Insurer: Self-Insured

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 February 9, 2021. ${ }^{1}$ The award and decision of Administrative Law Judge John K. Ottenad, issued February 9, 2021, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 8th \qquad$ day of June 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls

Shalonn K. Curls, Member

Attest:

Secretary

[^0]

[^0]: ${ }^{1}$ The Commission's statutory authority is generally limited to issues raised by a party's application for review. See Stonecipher v. Poplar Bluff R1Sch. Dist., 205 S.W.3d 326 (Mo. App. 2006) and Anhalt v. Penmac Pers. Servs., 505 S.W.3d 842 (Mo. App. 2016). In that the administrative law judge's award made no finding on the issue of the statute of limitations and because no party raised this issue in an application for review, consistent with 8 CSR 20.3.030(3)(A) the Commission declines to consider this issue.

Employee: Melissa Sulier

Injury No.: 13-064888

Dependents: N/A

Employer: SSM Health Care Corporation

Additional Party: None

Insurer: Self-Insured

C/O Cannon Cochran Management Services

Hearing Date: November 5, 2020

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: September 1, 2013
5. State location where accident occurred or occupational disease was contracted: St. Louis 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? Undetermined
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant worked as a nurse for Employer and allegedly injured her right forearm/elbow, when she was helping a patient to a bedside commode and the patient felt like she was losing her balance, causing the patient to grab her right forearm and jerk it down.
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: (Alleged) Right Elbow
14. Nature and extent of any permanent disability: Undetermined
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 2,357.00

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-064888

Employee: Melissa Sulier

Injury No.: 13-064888

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

1. Employee's average weekly wages: 1,205.78

1. Weekly compensation rate: 803.89 for TTD/$446.85 for PPD

1. Method wages computation: By agreement (stipulation) of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable:

No compensation awarded for this case

$0.00

1. Second Injury Fund liability: N/A

TOTAL: $0.00

1. 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 the following attorney for necessary legal services rendered to the claimant: Jeffrey R. Swaney.

WC-32-R1 (6-81)

Page 2

On November 5, 2020, the employee, Melissa Sulier (Claimant), appeared in person and by her attorney, Mr. Jeffrey R. Swaney, for a hearing for a final award on her claim against the employer, SSM Health Care Corporation (Employer), which is duly self-insured under the law C/O Cannon Cochran Management Services. The employer, SSM Health Care Corporation, which is duly self-insured under the law C/O Cannon Cochran Management Services, was represented at the hearing by its attorney, Mr. Kevin M. Leahy. The Second Injury Fund is not a party to this case.

Along with this Claim [Injury Number 13-064888, with a date of injury of September 1, 2013, alleging injury to the right forearm/elbow], Claimant also tried her other open companion claim at the same time. Injury Number 13-104948, with a date of injury of March 18, 2013, alleges injury to the left shoulder. A separate award has been issued for each of these cases.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about September 1, 2013, Melissa Sulier (Claimant) allegedly sustained an accidental injury.

2) Claimant was an employee of SSM Health Care Corporation (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) At the relevant time, Claimant earned an average weekly wage of $\ 1,205.78, resulting in applicable rates of compensation of $\ 803.89 for total disability benefits and $\ 446.85 for permanent partial disability benefits.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-064888

6) Employer paid no temporary total disability (TTD) benefits in this case.

7) Employer paid medical benefits totaling $2,357.00.

ISSUES:

1) Did Claimant sustain an accident?

2) Did the accident arise out of and in the course of Claimant's employment for Employer?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to her alleged accident at work for Employer on September 1, 2013?

4) What is the appropriate date of injury for this alleged accident?

5) Was the Claim for Compensation timely filed under the applicable statute of limitations?

6) What is the nature and extent of Claimant's permanent partial disability attributable to this injury?

EXHIBITS:

The following exhibits were admitted into evidence:

Employee Exhibits:

1. Deposition of Dr. Dwight Woiteshek, with attachments, dated August 20, 2020
2. Certified medical treatment records of SSM Health DePaul Hospital (Dr. Katherine Burns)
3. Withdrawn by Employee prior to admission
4. Certified medical treatment records of SSM Physical Therapy

Employer/Insurer Exhibits:

A. Report of Injury for March 18, 2013 date of injury

B. Report of Injury for September 1, 2013 date of injury

C. Amended Claim for Compensation for Injury Number 13-104948 (Date of Injury of March 18, 2013)

D. Amended Claim for Compensation originally for Injury Number 14-104504, which was amended to Injury Number 13-064888 (Date of Injury of September 1, 2013)

E. Claim for Compensation for Injury Number 14-104504 (Date of Injury of October 1, 2014), along with various setting notices for that case

WC-52-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-064888

F. Certified medical treatment records of Workhealth-St. Louis

G. Certified medical treatment records of Orthopedic Associates, LLC (Dr. Micah Hobbs, Dr. Frank Bender and Dr. William Strecker)

H. Deposition of Dr. Micah Hobbs, with attachments, dated June 25, 2020

I. Deposition of Dr. William Strecker, with attachments, dated October 26, 2020

J. Report of Injury for January 4, 2014 date of injury

**Notes:**

1) Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on November 5, 2020.

2) The deposition exhibits were admitted into evidence with objections contained in the transcripts. Unless otherwise noted differently below, the objections are overruled and the testimony fully admitted into evidence in this case.

3) The parties asked that I take judicial and/or administrative notice of the file contents of the Division of Workers' Compensation files in cases 13-104948 (Date of Injury of March 18, 2013), 13-064888 (Date of Injury of September 1, 2013) and 14-104504 (Date of Injury of October 1, 2014), as well as all Reports of Injury filed for Employee in the system. Without objection, I will take such judicial and/or administrative notice of those documents and file contents.

**FINDINGS OF FACT:**

Based on a comprehensive review of the evidence, including Claimant's testimony, the testimony of Employer's witness, the expert medical opinions and depositions, the medical treatment records, and the other documentary evidence, as well as based on my personal observations of Claimant and the other witness at hearing, I find:

1) **Claimant** is a 64-year-old nurse, who was employed by SSM Health Care Corporation (Employer), at or about the time of her alleged accident on September 1, 2013. She worked for Employer from January 1998 until 2015. She generally worked as a staff nurse, but occasionally as a charge nurse, too. She is presently employed as a nurse case manager for United Healthcare.

2) **Claimant** testified that on September 1, 2013, she was helping a patient to a bedside commode, when the patient felt like she was losing her balance and grabbed Claimant's right forearm and jerked it down, instead of grabbing the handrails to the bedside commode. She said this same thing happened twice during her shift. Claimant said that she had immediate, severe, aching pain from the right forearm down into her right hand. She reported the injury to her supervisor and got medical treatment.

3) **A Report of Injury (Exhibit B)**, which was assigned Injury Number 13-064888, shows that on September 1, 2013, Claimant injured her "upper extremities-upper arm" when her arm was grabbed by a patient. The report shows that Employer was notified

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-064888

of this injury on September 3, 2013, and the form was filed by Kris Givens on September 4, 2013.

4) According to the records of the Division of Workers' Compensation, there was also another Report of Injury, which was assigned Injury Number 13-064888, which showed a date of injury of September 2, 2013. It indicated that Claimant injured her upper arms, including her clavicle and scapula, when a patient grabbed her arm. The form showed that Employer was notified of the injury on September 3, 2013, and it was filed on September 4, 2013.

5) Claimant testified that she received medical treatment for her right arm from Dr. Bender. She said that she had three injections in the