Mary Sieberg v. American Food & Vending, Inc.

I must respectfully dissent from the award and decision of the majority of this Commission affirming the award and decision of the administrative law judge. Based upon my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified. I concur in the portion of the award and decision awarding compensation for employee's low back injury but I must dissent from the portion of the award denying compensation for her left ankle injuries. I find employee has established that she sustained compensable injuries to her left ankle.

I find employee to be a credible witness. Employee testified that she had no problems with her left ankle before the work accident. She testified that she began having pain in her left ankle about one week after the work accident. She testified that she reported the pain to the physical therapist no later than June 18, 2002 - thirteen days after the accident. The physical therapist observed employee was limping on that day which corroborates employee's testimony. On June 26, 2002, employee reported ankle pain to the physician at Barnes Care. On June 29, 2002, employee reported to the emergency room because her ankle pain became unbearable. The medical records of St. Anthony's confirm employee's ankle complaints.

Employee's testimony and the medical records clearly establish that employee suffered from ankle problems in the weeks immediately following her work injury. Notwithstanding employee's ankle complaints on June 26, 2002, the Barnes Care physician released employee to work at her standing-intensive job.

Dr. Weltmer, the treating surgeon, explained that the accident as described by employee could cause a degenerating tendon to rupture or could cause an asymptomatic torn tendon to become symptomatic. Dr. Weltmer testified within a reasonable degree of medical certainty that the work accident was the substantial factor in causing employee's need for ankle surgery and her resultant disability. Dr. Weltmer believes employee's permanent disability is in the neighborhood of 25 % (presumably at the level of the ankle). I am persuaded by Dr. Weltmer's testimony regarding causation.

I would issue a modified award finding employee's left ankle injury compensable. I would find employer liable for past medical expenses, temporary total disability benefits, and permanent partial disability benefits for the left ankle injury.

For the foregoing reasons, I must respectfully dissent from the portion of the award of majority affirming the denial of compensation for the left ankle injury.

Claimant: Mary Sieberg

Injury No.: 02-064719

Dependents: N/A

Employer: American Food \& Vending, Inc.

Additional Party:

Insurer: Hanover Insurance Company

Hearing Date:February 3, 2004

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Second Injury Fund Relations of Missouri

Jefferson City, Missouri

Checked by: JED:tr

1. Are any benefits awarded herein? Yes

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:

Inez Ross

Claimant: Mary Sieberg

Injury No.: 02-064719

Dependents: N/A

Employer: American Food \& Vending, Inc.

Additional Party: Second Injury Fund (Open)

Insurer: Hanover Insurance Company

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves a low back injury to Claimant, Mary Sieberg, with the reported accident date of June 4, 2002. Employer, American Food and Vending, Inc., agrees that Claimant was employed on said date and that any liability was fully insured by Hanover Insurance Co. The Second Injury Fund is a party to this claim. All parties were represented by counsel.

1. medical causal connection;
2. nature and extent of temporary total disability;
3. nature and extent of permanent partial disability;
4. unpaid medical expenses;
5. liability of the Second Injury Fund.

1. The parties stipulated that the Claimant was a Claimant of the Employer, and on June 4, 2002 was acting in the course and scope of her employment when she sustained an accident. It was stipulated that appropriate notice was given, and the claim was timely filed by the Claimant.
2. It is further stipulated that the Claimant had an average weekly wage of $\ 307.50, which results in a permanent partial disability and a temporary total disability rate of $\ 205.00 per week.

3 Employer paid $\ 895.41 in medical benefits and no TTD was paid to date.

1. It is stipulated further that the Employer had made advances on permanent partial disability in the aggregate amount of $\ 2,104.00.
2. Disputed and unpaid medical expenses are stipulated in amount at $\ 23,674.09.

Claimant testified she normally worked a 40 -hour day. Her job duties involved working as a grill cook and a server. She testified that her job required her to stand 8 hours a day.

On the accident date, she was leaving the cafeteria. She noticed that a cart was backing up and, subsequently, knocked her down. She testified that the cart hit her in the legs and knocked her straight backwards. She hit her head upon the floor and landed on her tailbone. She testified that the bumper of the cart hit her right leg. Her supervisor came over to check on her, and ultimately paramedics were called. She initially went to the infirmary in the Chrysler building. They looked at her head and her right leg and her tailbone. She was given pain medications and released. She was returned to work on 6/10/02 on light duty. According to the Claimant, light duty was not available, but she was able to work.

She had treatment and physical therapy for pain in her tailbone. At her last physical therapy appointment, prior to being released, she complained about her left ankle. She complained that she had no examination of her left ankle at that time. She was released to full duty by Barnes Care on 6/26/2002.

Claimant then testified that she went to the St. Anthony's Emergency Room on 6/29/2002 with complaints to her left ankle. She testified that she told the nurse and doctor at St. Anthony's that she fell at work and hurt her left ankle. She was given an X-ray and released.

Then, because of further problems, she went to see her own doctor, Dr. Mehra. She was unclear about the dates. She testified that she gave him a history that she had hurt her left ankle in the initial incident. He prescribed an MRI for her, and after the MRI, referred her to Dr. Weltmer. Dr. Weltmer performed surgery on her left ankle on October 29, 2002.

Claimant testified about her lack of satisfaction with treatment at Barnes Care. She testified about reinjuring her ankle while walking at work. She testified that her ankle gave way. She was sent to Barnes Care West where they treated and released her without restrictions. She has not worked since the date of her first surgery.

She underwent a second left ankle surgery in May 2003.

She testified that her current complaints are primarily her left ankle. She stated that she's lucky to go a single day without any pain in the left ankle. She can stand for four hours at a time and she has pain after walking a couple of miles. She is taking medications for her left ankle but did not specify them. She testified that her tailbone is still troubling her. She has trouble sitting still, and she has some soreness in her tailbone. She testified that she cannot stand for a long time also because of her tailbone.

She identified her medical records and bills corresponding to her two surgeries.

On cross-examination regarding her medical records from St. Anthony's, she denied telling the nurse that she had only complained on June 29, 2002 of left ankle pain for the past five or six days. She denied stating that the pain became worse during the night and it became difficult to bear weight. She denied tel