Annie Dicus v. Hobbs Pizza, Inc. d/b/a Dominos and Daily Journal

Decision date: December 16, 200514 pages

Summary

The Commission affirmed the administrative law judge's award allowing workers' compensation benefits for Annie Dicus for back injuries sustained in two separate accidents on August 20, 1996 (slip and fall while delivering pizza) and February 20, 1997 (motor vehicle accident while delivering newspapers). The employee was awarded 10% permanent disability of the body as a whole for each claim, with necessary medical aid to be paid by the employer-insurer.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 96-137088

Employee: Annie Dicus

Employer: Hobbs Pizza, Inc. d/b/a Dominos and Daily Journal

Insurer: Travelers and Employers Insurance of Wausau

Dates of Accident: August 20, 1996 \& February 20, 1997

Place and County of Accident: St. Francois 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 April 15, 2005. The award and decision of Chief Administrative Law Judge Jack H. Knowlan, Jr., issued April 15, 2005, is attached and incorporated by this reference.

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 $16^{\text {th }}$ day of December 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

ISSUED BY DIVISION OF WORKERS' COMPENSATION

Employee:	Annie Dicus	Injury Nos. 96-137088 and 97-496131
Dependents:	N/A
Employer:	Hobbs Pizza, Inc., d/b/a Dominos and Daily Journal
Additional Party:	None
Insurer:	Travelers and Employers Insurance of Wausau
Hearing Date:	November 4, 2004 (hearing completed December 23, 2004)	Checked by: JK/sm
SUMMARY OF FINDINGS
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? August 20, 1996 and February 20, 1997
5.	State location where accident occurred or occupational disease contracted: St. Francois County, Missouri
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 happened or occupational disease contracted:
August 20, 1996 accident – employee slipped and fell while delivering a pizza
February 20, 1997 accident – employee was involved in a motor vehicle accident while delivering newspapers
12.	Did accident or occupational disease cause death? No
13.	Parts of body injured by accident or occupational disease: Back
14.	Nature and extent of any permanent disability: 10% of the body as a whole for the August 20, 1996 claim and 10% of the body as a whole for the February 20, 1997claim
15.	Compensation paid to date for temporary total disability: None
16.	Value necessary medical aid paid to date by employer-insurer: None paid on 1996 claim and $2,443.00 paid by employer-insurer on 1997claim
17.	Value necessary medical aid not furnished by employer-insurer: 1,833.93 to be paid by Hobbs Pizza, Inc., and Travelers and 1,833.93 to be paid by theDaily Journal and Employers Insurance of Wausau (see findings)
18.	Employee's average weekly wage: 150.00 per week for 1996 claim and 142.50 per week for 1997 claim
19.	Weekly compensation rate: 100.00 per week for 1996 claim and 94.99 per week for 1997 claim
20.	Method wages computation: By agreement
21.	Amount of compensation payable:

a. Hobbs Pizza, Inc., d/b/a Dominos and Travelers:
Unpaid medical expenses:	$1,833.93
40 weeks of permanent partial disability ($4,000.00)
TOTAL:
b. Daily Journal and Employers Insurance of Wausau:
Unpaid medical expenses:	$1,833.93
40 weeks of permanent partial disability ($3,799.60)
TOTAL:
22. Second Injury Fund liability:	N/A
23. Future requirements awarded:	None
Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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 (excluding medical expenses) in favor of the following attorney for necessary legal services rendered to the claimant:
Mr. Evan Beatty (see also lien for costs in favor of Michael L. Maynard under Issue 4)
FINDINGS OF FACT AND RULINGS OF LAW
On November 4, 2004, the employee, Annie Dicus, appeared in person and by her attorney, Mr. Evan Beatty, for a hearing for a final award. Hobbs Pizza, Inc., and Travelers, the employer-insurer under Injury Number 96-137088, were represented at the hearing by attorney, Steve Prosperi. The Daily Journal and Employers Insurance of Wausau, the employer-insurer under Injury Number 97-496131, were represented at the hearing by attorney, Debbie Hellmann. Although the employee's 1996 and 1997 claims involved different employers with different insurance companies, the parties requested a consolidated evidentiary hearing because both claims involved injuries to the employee's back and the evidence to be submitted was felt to be identical for both claims.
Prior the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute for both claims. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:
UNDISPUTED FACTS:
Injury 96-137088
1. On or about August 20, 1996, Hobbs Pizza, Inc., d/b/a Dominos Pizza, was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Travelers.
2. On or about August 20, 1996, Annie Dicus was an employee of Hobbs Pizza, Inc., d/b/a Dominos, and was working under the provisions of the Missouri Workers' Compensation Act.
3. On or about August 20, 1996, the employee sustained an accident which arose out of and in the course of her employment.
4. The employer had notice of the employee's accident.
5. The employee's claim for compensation was filed within the time allowed by law.
6. The employee's average weekly wage was $150.00 per week and her rate of compensation for permanent partial disability is equal to $100.00 per week.
7. The employee's injury to her back was medically causally related to her August 20, 1996 accident.
8. No medical aid was furnished by the employer-insurer.
9. No temporary total disability benefits were paid by the employer-insurer.
Injury Number 97-496131
1. On or about February 20, 1997, the Daily Journal was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Employers Insurance of Wausau.
2. On or about February 20, 1997, Annie Dicus was an employee of the Daily Journal, and was working under the provisions of the Missouri Workers' Compensation Act.
3. On or about February 20, 1997, the employee sustained an accident which arose out of and in the course of her employment.

The employer had notice of the employee's accident.
The employee's claim for compensation was filed within the time allowed by law.
The employee's average weekly wage was $\ 142.50 per week, and her rate of compensation for permanent partial disability is $\ 94.99 per week.
The employee's injury to her back was medically causally related to her accident.
The employer-insurer paid medical expenses in the amount of $\ 2,443.00.
No temporary total disability benefits were paid.

ISSUES:

(96-137088 and 97-496131)

Medical causation as to any injuries to the employee's neck or cervical spine
Additional medical aid - past and future
Nature and extent of permanent partial disability
Attorney's lien

SUMMARY OF THE EVIDENCE:

At the time of the hearing, the employee, Annie Dicus, was 36 years-old, and was working part time for Disabled Citizens Alliance. The employee was also receiving Social Security Disability benefits that were awarded starting in 1999, with net benefits of $\ 522.00 per month. The employee left school after the eight grade, but later took some basic classes at a junior college. She does not have her GED.

The employee's first accident occurred on August 20, 1996. She was delivering pizzas for Hobbs Pizza, Inc., when she tripped and fell. The employee landed on a concrete sidewalk and felt pain in her back and left hip.

Although she was able to finish her shift, the employee's pain got worse and she sought treatment at the Washington County Memorial Hospital in Potosi (Employee's Exhibit A). Her follow-up care was provided by Dr. Timothy Wulfert, who is a chiropractor in Farmington (Employee's Exhibit B). When Dr. Wulfert's treatment failed to improve her symptoms, the employee asked her employer to send her to a medical doctor. The employee's request was denied and she was later terminated.

The employee's second accident occurred on or about February 20, 1997. The employee was delivering newspapers for the Daily Journal when a cargo van backed into the vehicle she was driving. Although her back was still hurting from her 1996 accident, the motor vehicle accident in 1997 caused her back pain to increase. The employee also began to experience pain down her leg.

After reporting her injury to the Daily Journal and requesting treatment, her claim was denied, and she subsequently lost her job. The employee sought treatment on her own. A partial list of health care providers that furnished treatment after her second accident included Parkland Health Center, Dr. Frank Luechtefeld of Northland Orthopedic Group, Dr. Seth Paskon of the Potosi Medical Center, and Dr. David Wilkinson, who is a neurosurgeon in St. Louis, Missouri (Employee's Exhibits C, D, E, F and G).

Although both the employee's testimony and the medical records confirm that the employee continued to complain of significant pain in her back, multiple MRIs and a myelogram-CT scan failed to reveal any disc herniations or nerve impingements in her thoracic or lumbar spine. The employee also developed pain in her cervical spine and had surgery for a herniated disc at the C6-7 level in January of 2001. There is no evidence, however, to support a finding that the employee's herniated disc was related to either of her work accidents.

Notwithstanding the lack of any objective findings of a herniated disc in her back, the employee has continued to experience significant pain and limitations as a result of the injuries to her mid and low back. The employee testified that she has severe pain every day with burning in her left hip and left foot. She noted that her foot feels like it has a big thorn in it. The employee has problems sitting or standing for extended periods of time, and any physical activity causes her back pain to increase. The employee is no longer able to do heavy lifting, and has been forced to limit her activities at home and at work.

Full decision text continues in the plain-text archive copy.

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