Cynthia Crozier v. Hy-Vee, Inc.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 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 Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge (ALJ) dated August 11, 2004. The award and decision of Administrative Law Judge R. Carl Mueller, Jr., issued August 11, 2004, is attached and incorporated by this reference.

The Commission finds that the ALJ correctly weighed and evaluated the lay and medical testimony in reaching his conclusions as to disability and causation. Reese v. Gary \& Roger Link, Inc., 5 S.W.3d 522 (Mo. App. E.D. 2002), Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879 (Mo. App. S.D. 2001), Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240 (Mo. banc 2003).

The Commission affirms the award of the ALJ. It is unfortunate that the state of the medical art is not yet sufficiently advanced to the point that cure and relief may be found for this thirty eight year old woman's pain problem.

However, this award affords a certain amount of flexibility allowing for continuing medical treatment while not binding employee to a lifetime of dependence upon disability for income.

The Commission earnestly hopes that new and innovative approaches to employee's medical situation may lead to relief of her symptoms if not to an outright cure.

The parties are reminded of employer's obligation to provide medical treatment. Hand in hand with that obligation is employer's right to obtain evaluations to monitor employee's progress and to seek methods to control and/or improve her condition.

Should employee's condition improve to the point that a return to her regular employment, or its equivalent, is a viable consideration, the law provides that the weekly payment portion of this award may be suspended during the time employee is restored to her regular work or its equivalent. Section 287.200.2 RSMo.

The medical portion of the award, however, shall continue in effect, even during the period of such employment, for conditions related to this injury.

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 $20^{\text {th }}$ day of April 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Employee: Cindy Crozier

Injury No: 99-174729

Dependents: N/A

Employer: HyVee, Inc.

Additional Party: State Treasurer as Custodian of the Second Injury Fund

Insurer: One Beacon Insurance Co.

Hearing Date: June 15, 2004

Briefs Filed: July 30, 2004

Checked by: RCM/rm

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: October 5, 1999.

On June 15, 2004, the Employee, the Employer, and the State Treasurer as Custodian of the Second Injury Fund ("the Fund") appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. Mrs. Cynthia Crozier, appeared in person and with counsel, John Boyd. The Employer, HyVee, Inc. ("HyVee"), appeared and was represented by Tom Clinkenbeard. The Fund was represented by Assistant Attorney General Benita M. Seliga. The parties requested the Division to determine the nature and extent of the Mrs. Crozier’s disability and whether she the Fund was liable to her for any benefits. I find that Mrs. Crozier is permanently and totally disabled as a result of her October 5, 1999 injury alone and that there is no Fund liability. In addition, I award her ongoing medical treatment.

The parties stipulated that:

1. On or about October 5, 1999 ("the injury date"), HyVee was an employer operating subject to Missouri's Workers' compensation law with its liability fully insured by One Beacon Insurance Co.;
2. Mrs. Crozier was its employee working subject to the law in Belton, Cass, County, Missouri;
3. Mrs. Crozier sustained an occupational disease arising out of and in the course of employment;
4. Mrs. Crozier notified HyVee of her injury and filed her claim within the time allowed by law;
5. HyVee provided Mrs. Crozier with medical care costing $\ 82,220.45; and,
6. HyVee paid Mrs. Crozier temporary total disability compensation totaling $\ 42,974.75 representing 132 and 2/7ths weeks paid through December 4, 2002.

The parties requested the Division to determine:

1. Whether HyVee must provide Mrs. Crozier with additional medical care?
2. Whether Mrs. Crozier suffered any disability and, if so, the nature and extent of her disability and whether she is permanently and totally disabled?

1. Whether the Second Injury Fund is liable to Mrs. Crozier for any benefits?

Mrs. Crozier testified on her own behalf and called as witnesses at hearing both her husband, Douglas Crozier, and Mr. Michael Dreiling, a vocational expert. In addition, Mrs. Crozier offered the following exhibits, which were admitted into evidence:

A - Deposition, P. Brent Koprivica, MD, October 23, 2003

B - Deposition, Daniel Kloster, MD, April 9, 2004

C - Vocational Report, Michael Dreiling,

D - Boyd \& Kenter Attorney Fee Contract

E - Curriculum Vitae, Michael Dreiling

HyVee called Mrs. Sarah Anderson as a witness who testified as to the availability of sedentary work for Mrs. Crozier. In addition, HyVee offered the April 8, 2004 deposition of Terrence Pratt, M.D., which was admitted into evidence. The Fund did not offer any exhibits.

Based upon the above exhibits and the testimony of the witnesses, I make the following findings:

Cynthia "Cindy" Lou Crozier ("Employee") is married to Douglas Crozier and is the mother of a 12-year-old daughter. They live at 109 East Calico Drive, in Raymore, Missouri. She stands 5 feet 2 inches in height, weighs 120 pounds, and was born November 17, 1965. She is finished the $11^{\text {th }}$ grade, and one year later obtained her GED. She has attended educational courses at the American Institute of Banking while an employee of a local bank.

Employee's past work includes jobs as a bank vault teller, waitress, cashier, department manager, receptionist, office clerk, collections clerk and collections supervisor. She commenced her employment with HyVee at its Belton, Missouri store, in June 1999. She worked through November 6, 2000. During her employment, she was an inventory control specialist pricing coordinator.

Tasks of her employment at HyVee included scanning product bar codes into a computer system. This job required her to hold a product in one hand and utilize a five-pound bar code reader in the other. She typed in an office setting, made promotional signs, and described her work as essentially constant use of both hands in a gripping and grasping techniques, upwards to 50 hours per week.

As a consequence of her employment, Mrs. Crozier sustained an admitted occupational disease, which culminated in her undergoing an open right carpal tunnel surgery on April 27, 2000, and a left carpal tunnel release on June 15, 2000. Complications ensued after her left hand surgery, and she ultimately came under the care of Daniel Kloster, M.D., a pain management specialist, who continues to treat her as of the date of the hearing. His treatment is principally for Complex Regional Pain Syndrome, Type II. She has undergone 15 stellate ganglion blocks, and had an unsuccessful effort with the use of a Morphine pump. Mrs. Crozier has undergone a removal of an inclusion cyst from the left palm during a surgery performed by Lanny Harris, M.D., on October 2, 2001.

As of the date of trial, Mrs. Crozier reported taking the following medications:

Provigil..................... 200 mg daily

Methadone............... 10 mg three times daily

Dextromethorphan1..... 5 mg three times daily

Lamictal..