Ninette Garland v. Lifestyle Options & Opportunities

I concur in the opinion of the Commission awarding compensation for this injury.

However, in my opinion, the majority of the Commission has too restrictively evaluated the impact of the injury on the Employee. Clearly the evidence indicated that the permanent partial disability sustained by Employee as a result of this injury is greater than the amount awarded by the ALJ and affirmed by the majority.

Employee's testimony as to her pain problem following this accident is credible, and is demonstrative of significant injury. Fogelsong v. Banquet Foods Corp., 526 S.W.2d 886 (Mo.App. E.D. 886); Landman v. Ice Cream Specialties, Inc. 107 S.W.3d 240 (Mo.banc 2003).

Employee testified that for a number of years following the accident she was in constant pain and felt like a "fireball that runs down my spine." She was in too much pain to work. She experiences soreness in her neck and her back is inflamed.

It is for the Commission to determine the percentage of permanent partial disability attributable to injury. Sullivan v. Masters Jackson Paving Co., 35 S.W. 879, (Mo.App.S.D. 1995). I would award permanent partial disability of $71 / 2$ % of the unscheduled 400 weeks referable to the lumbar spine plus 5 % of the unscheduled 400 weeks referable to the cervical spine.

This amount would combine with the preexisting disability to create a liability for the Second Injury Fund of 12 weeks or a factor of 10 %.

John J. Hickey, Member

Employee: Ninette Garland Injury No.: 97-490278

Dependents: N/A Before the Division of Workers'

Employer: Lifestyle Options \& Opportunities Compensation

Additional Party: N/A

Relationships of Labor and Industrial

Relationships of Missouri

Insurer: AIG Claim Service, Inc.

Hearing Date: January 13, 2004 Checked by: KOB

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 17, 1997.

1. State location where accident occurred or occupational disease was contracted: Employer's premises in O'Fallon, Missouri.
2. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
3. Did employer receive proper notice? Yes.
4. Did accident or occupational disease arise out of and in the course of the employment? Yes.
5. Was claim for compensation filed within time required by Law? Yes.
6. Was employer insured by above insurer? Yes.
7. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was assisting a handicapped individual who started to collapse, and whom Employee had to catch to guide to the floor, which caused injury to Employee.
8. Did accident or occupational disease cause death? No. Date of death? N/A
9. Part(s) of body injured by accident or occupational disease: Body as a whole, lumbar and cervical spine.
10. Nature and extent of any permanent disability: 5 % body as a whole lumbar, 21 / 2 % body as a whole cervical.
11. Compensation paid to-date for temporary disability: $\ 3,564.00
12. Value necessary medical aid paid to date by employer/insurer? $\ 7,219.00

Employee: Ninette Garland Injury No.: 97-490278

1. Value necessary medical aid not furnished by employer/insurer? $\ 0.
2. Employee's average weekly wages: $\ 267.73
3. Weekly compensation rate: $\$ 178.22 / \ 178.22
4. Method wages computation: By stipulation / statute.

21.Amount of compensation payable:

30 weeks of permanent partial disability from Employer: $\quad \ 5,346.60

1. Second Injury Fund liability: No

TOTAL: $\quad \ 5,346.60

1. Future requirements awarded: None.

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: Jerome L.T. Lefton, Esq.

Employee: Ninette Garland Injury No.: 97-490278

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

Division of Workers'

Employer: Lifestyle Options \& Opportunities Compensation

Department of Labor and Industrial

Additional Party: $\quad \mathrm{N} / \mathrm{A} \quad$ Relations of Missouri

Jefferson City, Missouri

Insurer: AIG Claim Service, Inc.

Checked by: KOB

The matter of Ninette Garland[1] ("Claimant") proceeded to hearing on January 13, 2004 at the Division of Workers' Compensation in the City of St. Louis to determine the extent of the disability associated with Claimant's December 17, 1997 work-related accident. Attorney Jerome Lefton represented Claimant. Attorney Karie Casey represented Lifestyle Options and Opportunities ("Employer") and its Insurer, Granite State Insurance Company. Assistant Attorney General Rebecca Wright represented the Second Injury Fund.

The parties agreed that on or about December 17, 1997, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant's back. Employer and Second Injury Fund disputed the nature and extent of disability and Claimant's allegation that she hurt her neck as a result of the accident. The parties further agreed that at the time of her accident, Claimant earned an average weekly wage of $\ 267.73, which corresponds to a rate of compensation of $\ 178.22 for both total disability benefits and permanent partial disability benefits. [2] Employer paid temporary total disability benefits in the amount of $\ 3,564.00 covering a period of 20 weeks beginning December 17, 1997 through May 18, 1998. Employer also paid medical benefits totaling $\ 7,219.00. Employment, venue, notice, and timeliness of the claim were not at issue.

The issues to be determined are:

1. Is Claimant's cervical spine condition medically causally related to her December 17, 1997 work accident;
2. Is Claimant entitled to temporary total disability benefits from May 18, 1998 through October 3, 2002;
3. Is Claimant entitled to future medical care;
4. What is the nature and extent of Claimant's disability; and
5. What is the liability of the Second Injury Fund?

Claimant is a slim, well-groomed, 41-year old mother of three. Claimant was employed as a house parent in a group home in O'Fallon, where she supervised and cared for three physically and mentally challenged young women, providing assistance with mobility, feeding, leisure activities and personal grooming. On the evening of the $17^{\text {th }}$ of December 1997, Claimant was assisting Denise, a young, 160-pound girl, to the bathroom. Claimant had both her arms under Denise's armpits when Denise collapsed. Faced with having to suddenly carry Denise's full body weight, Claimant was able to ease Denise safely to the ground, but while doing so, Claimant heard a snap in her spinal column. She immediately felt pain and other symptoms in her lower back but testified that her entire spinal column hurt including her neck and upper back.

Following this incident, Claimant received immediate medical care at the direction of Employer, including treatment from December 23, 1997 through January 23, 1998 at the SSM Corporate Health Services clinic where she saw Drs. Robinson, Geiger and Chuwala. The treatment focused on her back pain, which extended to her toes, which were numb. The SSM records do not mention neck complaints or treatment, even though Claimant testified that at every visit to SSM Corporate Health Services, she reported that she had serious complaints in her neck, which felt inflamed, her head, which felt like a bowling ball on a toothpick, and her fingers, which felt numb and burned.

Claimant came under the care of Dr. Cynthia Guy in February of 1998 at West County Pain Control Center. Dr. Guy referred Claimant to Everson Orthopedics where she was treated by a "progressive" physical therapist. Claimant testified that it was not until she presented to Everson Orthopedics that someone listened to and recorded her complaints regarding her neck. Thereafter, Claimant came under the care of Dr. Katz from March 13 through May 22, 1998. Claimant testified that Dr. Katz told her he would only focus on her back. Claimant reported that overall she had no benefit from the care she received from the authorized treating physicians.

Dr. Katz released Claimant to return to work and found her to be at maximum medical improvement in May 1998. Claimant was assigned a job in Alton, Illinois, but could not get there because she was taking narcotic medications and could not drive for that long in one sitting. She testified that she wanted to remain working for Employer if she could do so within restrictions and that Employer indicated she would be called if a job became available. She has not received a call.

At hearing, Claimant testified she had ongoing neck and hand problems from 1998 to 2001. She has followed with Dr. Buegner who was a family physician and who prescribed a narcotic she found to be helpful with pain control. Claimant consulted Dr. Piper regarding surgery and received nerve injections. However, Claimant testified that the problem with undergoing surgery was that she was too young.

Claimant has many complaints. Claimant's low spine feels inflamed, the right sacral area hurts, she has sciatic nerve pain, and the lowest part of her back feels like a pin has stuck it. Her neck muscles are sore, tight, and inflamed, and her hands hurt and go numb. She can't open jars and do family activities. Sitting, standing, stairs, and riding on buses cause her hips to ache and her pain to increase. Claimant limits her trav