Diane Parker v. Daimler Chrysler Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 96-441933

Employee: Diane Parker

Employer: Daimler Chrysler Corporation (Settled)

Insurer: Self-Insured (Settled)

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

Date of Accident: November 18, 1996

Place and County of Accident: St. Louis County, Missouri

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 October 18, 2004, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued October 18, 2004, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 26^{\text {th }}$ day of May 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

1. Are any benefits awarded herein? No.
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: November 18, 1996
5. State location where accident occurred or occupational disease was contracted: St. Louis County.
6. Was above employee 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? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was knocked to the ground by a forklift.
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: Back
14. Nature and extent of any permanent disability: Not determined.
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 1,200.00

Employee: Diane Parker Injury No.: 96-441933 17. Value necessary medical aid not furnished by employer/insurer? $\ 0 18. Employee's average weekly wages: Qualifies for maximum rates. 19. Weekly compensation rate: $\$ 513.01 / \ 268.02 20. Method wages computation: By agreement

1. Amount of compensation payable:

Claimant previously settled with Employer. 22. Second Injury Fund liability: No

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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Susan Roach

The matter of Diane Parker ("Claimant") proceeded to hearing in the City of St. Louis to determine whether Claimant is entitled to recover benefits from the Second Injury Fund. Attorney Susan Roach represented Claimant. Assistant Attorney General Carol Barnard represented the Second Injury Fund. Daimler Chrysler Corp.("Employer") previously settled its risk of liability.

The parties agreed that on or about November 18, 1996, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant's body. At that time, Claimant earned an average weekly wage that qualified her for the maximum rates of compensation of $\ 513.01 for total disability benefits and $\ 268.02 for permanent partial disability benefits. Employer paid no temporary total disability benefits, but did pay medical benefits totaling $\ 1,200.00. Employment, venue, notice, and timeliness of the claim were not at issue.

The sole issue to be determined is the liability of the Second Injury Fund. Claimant seeks permanent total disability benefits.

Claimant was employed full time with Employer beginning in 1995. She worked a "hard and heavy" job as an assembler through June 2000, except for the last few months of her employment when she also worked a lighter job as an inspector. Her most recent assembly job involved mounting power steering brackets and units on the assembly line. Previously, Claimant was self-employed in an antique reproduction wholesale business, which was a full time job she held for about ten years. She also drove a bus part time. Prior the 1980s, Claimant worked as an ad manager for media outlets and in sales and marketing. She is a high school graduate.

On November 18, 1996, Claimant was thrown to the ground when a forklift operator knocked a bin onto her. Following this incident, Claimant continued to work but she said she had trouble bending and went to lots of doctors.

Claimant testified that believed she missed six months or more off and on due to her back.[1]

Following the forklift incident, Claimant said she had spasms and pain in her back, but thought it was her Graves’ disease at first. However, the problems continued when the Graves’ disease came under control. Claimant testified that Employer continually put her on jobs that damaged her back, which continually worsened. Claimant went to the finish line working with tailgate applications, which purported to be less physically demanding. However, Claimant testified she had problems with the machine that performed the tailgate application. The plant medical records show Claimant was complaining about significant problems with such a machine throughout 1999, although Claimant testified she was injured with the tailgate application machine in 1997. She said she took sick leave because the machine threw her back out.

Claimant testified that she was able to work after 1997 because the doctors were continually experimenting with pain medication. She used ice packs on the job, while leaving work, and at home. She testified that she has used a TENS unit since 1997. Claimant stopped working in June of 2000 because her back pain escalated. However, she missed a good amount of time in 1999 for heart surgery.

Currently Claimant takes multiple medications for arthritis and muscle relaxing, including Oxycontin on bad days. When she is able, she takes aquatic treatment for her multiple complaints but can only do so two or three times a month. She has discontinued chiropractic treatment because it makes things worse. She uses arch supports for her feet. She has not sought employment since June 2000 because of her fibromyalgia, which affects her thinking and pain.

Claimant testified she had preexisting disabilities. In the early 1990s, Claimant underwent bilateral bunion surgery. Employer allowed her to take extra breaks for a few days, but after that she was on regular duty. She had trouble with jobs involving continuous walking, had foot cramping and pain radiating up her calves, did hot/cold therapy to relieve the pain, and took over the counter medications. She testified that her husband, who was a supervisor in her area, would relieve her so she could have extra breaks in addition to her regular breaks. She testified she continues to have sharp pains throughout the day and wears arch braces in all her shoes. Contrary to her hearing testimony, at her deposition taken in April 2004 by the Second Injury Fund, Claimant denied she had problems with her feet after the bunion surgery. (Exhibit Roman Numeral I).

Claimant also testified to preexisting problems with her upper extremities. In 1989 and the early 1990s, Claimant underwent bilateral carpal tunnel surgeries. She wore arm braces bilaterally at work and at home, and dropped things. Claimant went to the medical unit in November 1995 with complaints of right biceps pain. She testified that she received help from a coworker and her husband, took a steroid for a brief period of time, took over the counter medications, and wore a brace. Claimant also testified that she had restrictions regarding lifting overhead and twisting the arms with regards to her elbows. She had tendon soreness but worked around it. Claimant also testified that she switched jobs several times to try to find a job where her hands did not hurt so much. Current complaints include weakness and tingling. Contrary to her hearing testimony, at her deposition taken in April 2004 by the Second Injury Fund, Claimant indicated that leading up to 1996, her grip was in pretty good shape and here were no things she could not do because of hand problems (Exhibit Roman Numeral I).

Claimant submitted several sets of medical records into evidence. The evidence is identified and briefly summarized in this section, with additional details presented in the Findings of Fact and Rulings of Law sections below.

Records that dealt specifically and exclusively with treatment for her back include the two November 1997 visits to Dr. Sertl wherein the doctor diagnosed degenerative lumbar arthritis, but found the MRI was normal (Exhibit L). When she saw Dr. Mannis on February 8, 1999, Claimant complained that pulling on a machine at work aggravated her back. Dr. Mannis diagnosed chronic lumbar syndrome with probable radiculopathy, suggested physical therapy and a back brace, and suggested a reexamination, which apparently did not occur (Exhibit J). Claimant saw Dr. Krettek on March 22, 1999 with complaints of low back pain related to the use of a machine at work - she attributed recent flare-ups in back pain to work activities. In July 2000, Dr. Krettek found Claimant had complete resolution of a small herniated disc, and felt no surgical intervention would be appropriate (Exhibit I).

The BJC Union Clinic records (Exhibits G and H) and the Chrysler Plant medical records (Exhibit F) cover many different medical issues, including spinal complaints, cardiac/blood flow problems, Graves’ disease, vertigo, eye problems, depression and anxiety, minor burns or splinters, and diseases of ordinary life such a viral infections. The records of Dr. Moore, a rheumatologist, confirm Claimant’s diagnosis of fibromyalgia as of the fall of 2001, but make no causal connection between the condition and either work injury (Exhibit K).

There were several treatment records that were notable for their absence from the court record. There were no treatment records regarding the prior bunionectomies or carpal tunnel surgeries. Claimant reported she saw a chiropractor for her back, but did not submit any records. The file of Dr. Popp, who apparently followed Claimant’s Graves’ disease, is not of record.

Claimant submitted two medical reports by and the deposition of Dr. Poetz (Exhibits B, D \& E). He took a history of a specific