Carol Gourley v. Cox Medical Center

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-031701

Employee: Carol Gourley

Employer: Cox Medical Center

Insurer: Self-Insured

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

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 November 5, 2020. The award and decision of Chief Administrative Law

Judge, Victorine R. Mahon issued November 5, 2020, 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 15th day of December 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence within the 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 award of the administrative law judge (ALJ) should be reversed.

The ALJ erred in not finding that employee's back injury is medically and causally related to her January 13, 2007 primary injury (2007 injury). Employee injured both knees and her back as a result of her 2007 injury. Employer/insurer accepted employee's injuries and deemed the 2007 injury to be compensable. Employer/insurer provided employee with limited medical care for her left knee, and did not provide any medical treatment for employee's back injury. I believe that the ALJ erroneously relied on Dr. Michael Nogalski's opinions when such opinions were based on information that was either incomplete, inaccurate or that she completely ignored to get to his desired conclusion.

I believe that Dr. David Volarich was the most credible and reliable expert on the issue of whether the 2007 injury was the prevailing factor in employee's injuries to her left knee, right knee, back and need for treatment. I further find the opinions of psychological expert Dr. Dale Halfaker and vocational expert Mr. Phillip Eldred to be persuasive.

The ALJ erred in finding that employee was not entitled to payment of her unpaid medical bills in the amount of $\ 173,896.25. Employee's medical bills for treatment related to the 2007 injury total $\ 179,546.23. Employer/insurer have paid medical bills totaling $\ 5,649.98, excluding the cost of their multiple independent medical examinations and a vocational evaluation. The only testimony regarding the medical bills came from Dr. Volarich. Dr. Volarich testified that the medical bills employee incurred for her 2007 injury were fair, reasonable, and customary. The $\ 179,546.23 in medical bills were directly related to her 2007 injury. In addition, the treatment incurred was necessary to cure and relieve the effects of her 2007 injury. Therefore, I believe that employee is entitled to payment for medical bills relating to employee's injury totaling $\ 173,896.25.

I believe that the ALJ erred in finding that employee was not entitled to temporary total disability (TTD) totaling $\ 109,574.64. Employee is owed TTD benefits from June 30, 2007 through March 31, 2008 (while she was continuing to receive medical treatment for her left knee and back). Employee began working at The Gardens on April 1, 2008. She could only perform her job duties at The Gardens because they provided significant accommodations to her. Despite all of the accommodations, she still could not do the work and was fired.

Employee never worked again after leaving work with The Gardens on April 1, 2010. From April 2, 2010 to November 27, 2016 employee is owed TTD benefits for the time period she was continuing to receive medical treatment for her work injuries and was physically unable to work until she achieved maximum medical improvement.

Employee is owed TTD benefits for the time periods of June 30, 2007 through March 31, 2008 and April 2, 2010 through November 27, 2016.

Employee received 54 weeks of unemployment benefits during this time period. The time periods for which employee is owed TTD benefits totals 387 weeks and two (2) days before excluding the 54 weeks for which employee received unemployment benefits. After excluding the 54 weeks of unemployment benefits, employee is owed 333 weeks and 2 days of TTD benefits.

The ALJ should have found employee to be entitled to permanent and total disability (PTD) benefits. Employee continues to experience difficulties from her injuries and has not been employed anywhere since being fired from her job at The Gardens on April 1, 2010. Employee is PTD. Employee testified that she is unable to do much. Employee is limited by her injuries; she lies down during the course of every day to alleviate the pain in her left knee and back.

Employee's medications interfere with her cognitive abilities, affect her alertness, and compromise her motor skills. Her activities are severely limited by her injuries. Dr. Dale Halfaker opined that the 2007 injury was the prevailing factor in the development of an adjustment disorder with depression and anxiety. Dr. Halfaker testified that employee was at maximum psychological improvement for the work-related psychological work disorders at the time of his September 12, 2017 psychological assessment report. Dr. Halfaker opined that employee was 10\% PPD BAW for the psychological injuries as a result of the 2007 injury.

Dr. Halfaker opined that, when the adjustment disorder for the 2007 injury was taken into account with the psychological disability for anxiety, depression and chronic PTSD that pre-existed the 2007 injury, it could result in employee being PTD. Dr. Halfaker opined that the combination of her disability from the work injury and the pre-existing disability that together totals 19\% PPD BAW suggests serious problems to the degree that, more likely than not, employee would be unable to keep a job. Dr. Halfaker opined that employee approaches the threshold of PTD psychologically (not considering her physical disabilities) when combining her pre-existing psychological disability and the psychological disability resulting from the 2007 injury.

Vocational expert Mr. Eldred noted that employee complained of pain in her back, neck (tension from pain), peripheral neuropathy, migraines, left knee, depression, and memory and cognitive problems. Mr. Eldred testified that employee had numerous work restrictions from numerous doctors as a result of the work injuries, and opined that employee was PTD as a result of her injuries, and their sequela, sustained from the 2007 injury.

Drs. Shannon Kelly, Christopher Miller, Shane Bennoch, Katie Weatherhogg, Volarich, and Halfaker all assigned medical restrictions for employee. All six physicians assigning medical restrictions in this case, assigned restrictions for employee that are at the less than sedentary work level. It is important to note that three of the six

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physicians, Drs. Kelly, Miller, and Weatherhogg, assigning medical restrictions were treating physicians in this case.

The ALJ erred in denying employee's claim for future medical care. Dr. Halfaker opined that employee will require ongoing medications such as anxiolytic and antidepressant medications, as the need for these medications flow from the 2007 injury. Dr. Volarich testified that employee would need additional treatment, including but not limited to narcotics and non-narcotic medications, muscle relaxants, physical therapy, and similar treatments to provide relief for her symptomatic complaints.

The ALJ should have found that the employee did not reach maximum medical improvement until November 28, 2016. Employee injured her back in the 2007 injury, and required ongoing treatment. Employee did not achieve maximum medical improvement until Dr. Volarich placed employee at maximum medical improvement on November 28, 2016.

For these reasons, I would find employee's back injury to be medically and causally related to her 2007 injury and that employer/insurer is liable for employee's PTD, past medical expenses and future medical treatment. Because the majority of the Missouri Labor and Industrial Relations Commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

Claimant: Carol Gourley

Injury No. 07-031701

Dependents: N/A

Employer: Cox Medical Center

Additional Party: Treasurer of Missouri

as custodian of the Second Injury Fund.

Insurer: Self Insured

Thomas McGee LC (TPA)

Hearing Date: September 10, 2020

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: January 13, 2007.
5. State location where accident occurred or occupational disease was contracted: Springfield, Greene County, Missouri.
6. Was above Claimant 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? No.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work Claimant was doing and how accident occurred or occupational disease was contracted: Claimant fell on ice outside of the building where she worked.
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: Bilateral knees.

Issued by Missouri Division of Workers' Compensation

Employee: Carol Gourley

Injury No.: 07 - 031701

1. Nature and extent of any permanent disability: 30 percent of the left knee (48 weeks).

1. Compensation paid to date for temporary disability: $2,094.07.

1. Value necessary medical aid paid to date by employer/insurer? $9,668.62.

1. Value necessary medical aid not furnished by employer/insurer? None.

1. Claimant's average weekly wages: 492.94.

1. Weekly compensation rate: 328.63.

1. Method wages computation: By agreement of the parties.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

30 percent permanent partial disability of the left knee (48 weeks x 328.63)

15,774.24

For past medical expenses

- Mileage reimbursement for IMEs with Dr. Nogalski: 348.60

For Temporary Total Disability

- 10 weeks x 328.63 (June 30, 2007 through September 7, 2007): $3,286.30

**TOTAL:** $19,409.14

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: The Newman Law Firm.