Mary Coffee v. Husch & Eppenberger

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 dated November 29, 2004, with the following supplemental findings and conclusions.

Dr. Samuel Bernstein testified that employee is unemployable in the open labor market because of her advanced age and because he did not believe that she could work an eight-hour day due to pain and a requirement that she elevate her legs during the day. We are not persuaded by Dr. Bernstein's opinion. He stated that employee could only function for fifteen minutes at a time because of pain, then she must rest. However, employee testified that she can sit, stand, drive and perform other activities for up to 30 minutes at a time. Dr. David Volarich recommended that employee not stay in a fixed position in excess of sixty minutes at a time. Additionally, neither employee nor Dr. Volarich mentioned that employee must elevate her legs during the day. We are unclear where Dr. Bernstein came under this impression, but this assumption appeared to play a significant role in his opinion that employee is unemployable. The restrictions that Dr. Bernstein assumed in rendering his opinion are not supported by employee's testimony or by Dr. Volarich. Dr. Volarich's opinion is that employee is unemployable only if a vocational assessment is unable to identify a job for which she is suited to perform. His opinion does not establish permanent and total disability.

Employee's preexisting back problems did not significantly impair her ability to perform her work duties. She had occasional flare-ups when she had to do some heavy lifting and she had assistance when she had to reach items that were located on a high shelf or a low shelf, but this did not significantly interfere with her ability to perform the job duties. She stated that her left ankle only bothered her when she had to stand for long periods of time or when she had to rush down the hall. Her preexisting disabilities were hindrances or obstacles to employment and combine with the primary injury to cause enhanced disability, but we do not find that her preexisting disabilities combine with her primary knee injury to render her unemployable on the open labor market.

Additionally, employee has worked as a legal secretary for 35-37 years, the last 23 years of which were with the same law firm as a litigation secretary. Common sense dictates that she has acquired highly valuable and desirable skills during the course of her employment. Her physical restrictions from her disabilities are not of the degree that would prohibit her from working in a sedentary capacity with a sit/stand option, including in the secretarial field. Her “advanced age” of 60 at the time of the hearing, although a factor to be considered in determining employability, is not such an impediment that no employer in the open labor market would employee her. Individuals do not become unemployable simply by reaching a certain age. Age is but one factor to consider

along with an individual's work experience, educational history, and medical restrictions. Just as the Commission is prohibited from using a person's younger age to negate the existence or the nature of a disability (Baxi v. United Technologies Automotive, 956 S.W.2d 340, 343 (Mo. App. 1997)), we cannot use age alone to affirm or exaggerate the existence or the nature of a disability. Employee's medical restrictions, physical condition, work history, and educational history do not render her unemployable. We find employee is employable on the open labor market.

The Commission further approves and affirms said 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.

The award and decision of Administrative Law Judge Linda J. Wenman, issued November 29, 2004, are attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $4^{\text {th }}$ day of May 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

Employee: Mary Coffee

Injury No.: 01-128915

Dependents: N/A

Before the

Delays: Husch \& Eppenberger (settled)

Divisions of Workers'

Compensation

Department of Labor and Industrial

Additional Party: Second Injury Fund

Relations of Missouri

Jefferson City, Missouri

Insurer: Lumbermens Mutual Casualty Company

Hearing Date: August 20, 2004

Checked by: LJW:tr

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 22, 2001
5. State location where accident occurred or occupational disease was contracted: St. Louis City, MO

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? Yes
3. Did accident or occupational disease arise out of and in the course of the employment? Yes
4. Was claim for compensation filed within time required by Law? Yes
5. Was employer insured by above insurer? Yes
6. Describe work employee was doing and how accident occurred or occupational disease contracted: When arising from a chair, Claimant felt a pop and pain in her right knee.
7. Did accident or occupational disease cause death? No Date of death? N/A
8. Part(s) of body injured by accident or occupational disease: Right knee
9. Nature and extent of any permanent disability: 35 % permanent partial disability referable to right knee previously paid from Employer.
10. Compensation paid to-date for temporary disability: $\ 3,152.28 from Employer.
11. Value necessary medical aid paid to date by employer/insurer? $\ 14,030.28 from Employer.

Employee: Mary Coffee

Injury No.: 01-128915

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 721.15
3. Weekly compensation rate: $\$ 513.16 / \ 329.42
4. Method wages computation: Stipulated

1. Amount of compensation payable: Previously settled
2. Second Injury Fund liability: Yes

25.39 weeks of permanent partial disability from Second Injury Fund $\ 8,363.97

TOTAL: $\ 8,363.97

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: Thomas Gregory

On October 22, 2001, Mary Coffee (Claimant) injured her right knee while in the course and scope of her employment with the law firm Husch \& Eppenberger (Employer). The parties stipulate that on July 7, 2004, Claimant and Employer entered into a stipulation for compromise settlement. Employer agreed to settle Claimant’s work related injury for 35\% permanent partial disability referable to Claimant’s right knee. At the time of settlement, Claimant’s claim against the Second Injury Fund (SIF) was left open, to be concluded at a later date.

The SIF claim was heard by the undersigned Administrative Law Judge on August 20, 2004. Briefs were received, and the case was formally submitted on September 20, 2004. Attorney Thomas Gregory represented Claimant. Assistant Attorney General Kevin Nelson represented SIF.

Prior to the start of the hearing the parties identified the following issues for disposition in this case: liability of SIF for permanent total disability benefits, and SIF liability for permanent partial disability. Claimant offered Exhibits A-C, and the exhibits were admitted into the hearing record. Any objections not expressly ruled on in this award are overruled.

Only testimony necessary to support this award will be reviewed and summarized.

Claimant: Claimant is 61 years old, a high school graduate, who has worked primarily as a legal secretary for the past 35 years, and for Employer for the last 23 years. Her job duties included litigation preparation, typing, filing, copying and answering the telephone. Claimant currently lives in Kansas. On October 22, 2001, Claimant was arising from her chair when she heard a pop and experienced pain in her right knee. Claimant came under the care of Dr. Anderson, and initially received conservative care. During December 2001, an MRI was obtained of her right knee, and as a result of the MRI Dr. Anderson recommended Claimant undergo surgery.

Claimant waited to undergo surgery until she left her employment with Employer. Employer was moving its office from St. Louis City to Clayton, Missouri, and Claimant had decided not to continue her employment, as she lived in Illinois and did not want to drive a further distance to work. On March 19, 2002, Dr. Anderson performed a right knee arthroscopy and partial meniscectomy. Post-operatively, Claimant attended physical therapy, and Dr. Anderson discussed with her the eventual need of a knee replacement. Claimant last saw Dr. Anderson during May 2002.

Claimant has pre-existing medical conditions that include a 1991 lumbar discectomy. Following that surgery Claimant missed 8 weeks of work, but did return to employment with Employer. Upon her return to work, Claimant utilized

lifting safety precautions including bending her knees when lifting, and requesting assistance from co-workers. During 1999, Claimant underwent surgical removal of a bone spur that necessitated disruption of her Achilles tendon that was surgically repaired. Following her post-operative period, Claimant could no longer wear high-heeled shoes.

Claimant's current complaints include: pain approximately 3-4 days per week; pain when walking or sitting longer than 30 minutes on days that she has pain; difficulty bending and stooping, sleep disturbance; and climbing stairs. Claimant is no longer able to bend to reach low cabinets or wash floors without using a mop. She no longer vacuums, her husband assists with laundry, and Claimant limits her driving time to 30 minutes. Weather changes cause increased discomfort. Claimant testified she has not sought employment due to her knee and low back discomfort. She continues to take Tylenol with Codeine, and muscle relaxants to control her discomfort. Claimant planned to work to age 62 or 65 before retiring, and does not believe she can return to work as a legal secret