Cheryl Shargel v. Daimler Chrysler Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-160009

Employee: Cheryl Shargel

Employer: Daimler Chrysler Corporation

Insurer: Self-Insured

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

Date of Accident: January 1, 2001

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 August 15, 2005. The award and decision of Administrative Law Judge John Howard Percy, issued August 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 $\qquad \underline{\text { th }}$ day of February 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

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: January 1, 2001
5. State location where accident occurred or occupational disease was contracted: St. Louis County, Mo.
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? Self-Insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Installing auto parts.
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: Right elbow
14. Nature and extent of any permanent disability: 20.5 % permanent partial disability of right elbow
15. Compensation paid to-date for temporary disability: $\ 4,717.54
16. Value necessary medical aid paid to date by employer/insurer? $\ 5,894.24

Employee: Cheryl Shargel Injury No.: 01-160009 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $\ 759.37 19. Weekly compensation rate: $\ 506.25 TTD/\$314.26 20. Method wages computation: Stipulation

1. Amount of compensation payable:

A hearing in this proceeding was held on May 3, 2005. All parties submitted proposed awards on July 18, 2005. Injury No. 02-154181 was also heard with this claim. The record comprises 150 pages of depositions of expert witnesses and 225 pages of medical records and reports. Claimant asserted permanent total disability in each case. Additional time was required in issuing this award due to the complexities of this case.

The parties stipulated that on or about January 1, 2001:

1. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. the employer's liability was self-insured;

1. the employee's average weekly wage was $\ 759.37;
2. the rate of compensation for temporary total disability was $\ 506.25 and the rate of compensation for permanent partial disability was $\ 314.26; and
3. the employee sustained an injury as a result of an occupational disease arising out of and in the course of employee's employment in St. Louis County, Missouri.

The parties further stipulated that:

1. the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law;
2. compensation has been paid in the amount of $\ 4,717.54 representing $8-4 / 7$ weeks of benefits covering the periods from January 4 through February 28, 2002 and from March 6 through March 11, 2002;
3. employer is entitled to reimbursement of $\ 378.25 due to compensation being paid at the rate of $\ 550.38 rather than $\ 506.25; and
4. employer has paid medical expenses in the amount of $\ 5,894.24.

The issues to be resolved in this proceeding are:

1. whether the employee should be provided with any future medical treatment;
2. the nature and extent of any permanent disability sustained by the employee as a result of the work-related injury of January 1, 2001; and
3. whether and to what extent the employee sustained any additional permanent partial or permanent total disability for which the Second Injury Fund would be liable as a result of the combination of any preexisting disabilities with the primary injury.

There is no dispute that Cheryl Shargel, employee herein, developed right cubital tunnel syndrome was a result of her work on the assembly line at DaimlerChrysler Corporation. Employee is requesting an award of future medical care for her right elbow.

Section287.140 Mo. Rev. Stat. (2000) requires that the employer/insurer provide "such medical, surgical, chiropractic, and hospital treatment ... as may reasonably be required ... to cure and relieve [the employee] from the effects of the injury." Future medical care can be awarded even though claimant has reached maximum medical improvement. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 278 (Mo. App. 1996). It can be awarded even where permanent partial disability is determined. The employee must prove beyond speculation and by competent and substantial evidence that his or her work-related injury is in need of treatment. Williams v. A.B. Chance Co., 676 S.W.2d 1 (Mo. App. 1984). Conclusive evidence is not required. However, evidence which shows only a mere possibility of the need for future treatment will not support an award. It is sufficient if claimant shows by reasonable probability that he or she will need future medical treatment. Dean v. St. Luke's Hospital, 936 S.W.2d 601, 603 (Mo. App. 1997); Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo. App. 1996); Sifferman v. Sears, Roebuck and Co., 906 S.W.2d 823, 828 (Mo. App. 1995). "Probable means founded on reason and experience which inclines the mind to believe but leaves room to doubt." Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo. App. 1986); Sifferman at 828.

Where the sole medical expert believes that it is "very likely" that the claimant will need future medical treatment, but is unable to say whether it is more likely than not that the claimant will need such treatment, that opinion, when combined with credible testimony from the claimant and the medical records in evidence, can be sufficient to support an award which leaves the future treatment issue open. This is particularly true where the medical expert states that the need for treatment will depend largely on the claimant's pain level in the future and how well the claimant tolerates that pain. Dean, supra at 604-06.

The amount of the award for future medical expenses may be indefinite. Section 287.140 .1 does not require that the medical evidence identify particular procedures or treatments to be performed or administered. Dean, supra at 604; Talley v. Runny Meade Estates, Ltd., 831 S.W.2d 692, 695 (Mo. App. 1992); Bradshaw v. Brown Shoe Co., 660 S.W.2d 390, 393-394 (Mo. App. 1983). The award may extend for the duration of an employee's life. P.M. v. Metromedia Steakhouses Co., Inc., 931 S.W.2d 846, 849 (Mo. App. 1996). The award may require the employer to provide future medical treatment which the claimant may require to relieve the effects of an injury or occupational disease. Polavarapu v. General Motors Corporation, 897 S.W.2d 63 (Mo. App. 1995). It is not necessary that such treatment has been prescribed or recommended as of the date

of the hearing. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo. App. 1996). Where future medical care and treatment is awarded, such care and treatment "must flow from the accident before the employer is to be held responsible." Modlin v. Sun Mark, Inc., 699 S.W.2d 5, 7 (Mo. App. 1985); Talley v. Runny Meade Estates, Ltd. at 694. The employer/insurer may be ordered to provide medical and hospital treatment to cure and relieve the employee from the effects of the injury even though some of such treatment may also give relief from pain caused by a preexisting condition. Hall v. Spot Martin, 304 S.W.2d 844, 854-55 (Mo. 1957). However, where preexisting conditions also require future medical care, the medical experts must testify to a reasonable medical certainty as to what treatment is required for the injuries attributable to the last accident. O'Donnell v. Guarantee Elec. Co., 690 S.W.2d 190, 191 (Mo. App. 1985).

Based on my observations of claimant's demeanor during her testimony, I find that she is a credible witness and that her testimony is generally credible. Based on the credible testimony of claimant and on the medical records, I make the following findings of fact.

Mr. Shargel began working for the Employer on November 10, 1994. She was not then taking any medications for injuries. She began to experience problems with her right arm while repeatedly installing parts on the assembly line in January of 2001. She had to contort her body into a variety of positions in order to perform her duties. She reported her injury to her employer after dropping her gun. She was then 40 years old. (Claimant's Testimony)

Employer sent Ms. Shargel to Dr. Mitchell B. Rotman, an orthopedic surgeon, who had treated claimant for bilateral carpal tunnel syndrome in 1998-99. He examined employee on August 14, 2001. Claimantcomplained primarily of medial and lateral right elbow pain which began in January. She also reported occasional numbness and tingling in the elbow and right shoulder pain. She described her work duties, which required frequent pronation and supination. Ibuprofen had not helped and wearing a