Linda Tubb v. Daimler Chrysler Corporation

medication. While still under the care of Dr. Berman, employee stopped working August 16, 2002, because she was no longer able to physically tolerate her work.

In March 2003, employee presented to Heidi Prather, D.O., with complaints of mid-thoracic pain. An April 3, 2003, MRI revealed multi-level disc degeneration and very small disc protrusions at T5-6, T7-8, T9-10 and T10-11. Dr. Prater treated employee with injections.

Employee currently suffers from constant mid-back pain at a level of five to 10 on a scale from zero to 10. Her mid-back complaints worsen when she performs activities with her arms extended from her torso such as playing the piano, cooking, sweeping, mopping or driving. Employee has difficulty sleeping. She is unable to efficiently perform household chores. After performing any activity, employee must recline for a time to recover. Employee must descend stairs backwards and she is unable to walk up an incline.

In 1999, employee suffered a torn medial meniscus in her left knee stepping off a ladder at home. After conservative care failed, employee had knee surgery in April 2001. Employee continued to have pain in her knee post-surgery. In particular, as her work shift wore on, employee's knee became increasingly more painful and she experienced significant pain going up and down steps. Walking and standing at work caused employee problems and she was unable to kneel or crawl. Employee attempted to manage her pain with Ibuprofen. Dr. Ritchie identified standing on a concrete floor during work as a factor in employee's knee pain and he noted that employee's knee pain subsided when she was not working. Dr. Ritchie, her treating surgeon, recommended job modification to ease her symptoms. Dr. Ritchie continued to treat employee's knee pain with injections at least into 2004. He believes employee will ultimately need a total knee replacement.

Claimant developed carpal tunnel syndrome in late 1999, for which employer provided treatment including surgical releases. At the conclusion of her treatment, her treating surgeon, Dr. Kendall, believed that employee suffered permanent partial disability of each wrist. He released employee to work with a recommendation that she wear padded gloves. Employee testified regarding her residual upper extremity problems after the releases. She experienced stiffness and loss of grip strength in her hands. She wore wrist braces at work but still had difficulty gripping items. Employee used her break periods to stretch and treat her hands. Employee is unable to perform activities requiring gripping such as lifting a skillet with one hand or opening a jar.

Thomas F. Musich, M.D., reviewed an extensive collection of employee's medical records. He examined employee on May 10, 2004, taking a complete history and recording employee's medical complaints. Dr. Musich believes that employee developed a significant mid thoracic pain in May 2002, during the course and scope of her employment as a floater for employer. After reviewing employee's history and medical records, Dr. Musich is of the medical opinion that employee's work for employer in May 2002 is a substantial factor in employee's development of mid thoracic pain, which has resulted in constant pain due to multilevel disc protrusions, chronic myofascial pain, and neurogenic pain. Dr. Musich is of the opinion that employee suffers a permanent partial disability of 40 % of the body as a whole referable to her mid thoracic pain ( 160 weeks). He is also of the opinion that employee suffered preexisting permanent partial disabilities of 30 % of the left knee ( 48 weeks) and 30 % of each wrist at the level of the wrist ( 52.5 weeks each). Dr. Musich believes that the combination of employee's past and present disabilities is significantly greater than their simple sum.

Dr. Musich would impose restrictions of occasional lifting of no more than 15 pounds, occasional bending and stooping; no squatting and climbing; no repetitive gripping, grasping, or holding objects with either hand; no prolonged sitting; standing a total of six hours daily if she is allowed frequent rest periods and the ability to frequently move or walk at her discretion in order to relieve her chronic pain symptoms. Dr. Musich believes it would be very difficult for employee to obtain and maintain any gainful employment in the open job market.

Dr. Berman evaluated employee and issued a disability report on February 20, 2003. His disability report was admitted without objection. Dr. Berman believed that employee suffered a work injury to her thoracic spine by repetitive trauma in her work as a floater for employer. Dr. Berman believed employee suffers a 25 % permanent partial disability of the body as a whole at the level of the thoracic spine, of which he apportioned 20 % to the primary injury and 5 % to preexisting spinal degeneration. Dr. Berman also believed employee suffered a 10\%

permanent partial disability of the body as a whole referable to the lumbar spine and apportioned 7.5 % to the primary injury and 2.5 % to preexisting spinal degeneration. Dr. Berman opined employee suffered a preexisting 15 % permanent partial disability at the level of each wrist with a 10 % load factor due to the bilateral nature of the wrist disabilities. Dr. Berman determined that the combination of employee's past and present disabilities is significantly greater than their simple sum.

Michael O'Day, D.O., evaluated employee for Social Security purposes on November 3, 2003. His report was admitted without objection. Dr. O'Day recommended restrictions for employee on lifting (15 to 20 pound occasional), standing, walking, sitting, bending, and stooping. He recommended no crouching or squatting for employee. He noted a decrement in grip strength.

James England, vocational expert, evaluated employee on March 31, 2004, after reviewing her medical records. Mr. England summarized employee's vocational history noting that most of her jobs required significant use of her upper extremities. He also noted that her most recent employment involved being on her feet all day and lifting 20-40 pounds. Mr. England considered the physical restrictions imposed by Drs. Musich and O'Day. Mr. England believed that the lifting restrictions would eliminate employee from most light duty jobs. Mr. England believed the restriction on repetitive upper extremity work would limit employee to less than a full range of even sedentary work. In light of her advanced age, extremity-intensive work history, obesity, and physical restrictions, Mr. England does not believe employee is employable in the open labor market.

The administrative law judge ruled that employee "did not sustain an occupational disease that arose out of and in the course of employment at Chrysler." However, the occurrence or non-occurrence of an occupational disease was not stipulated as an issue for trial. Rather, the parties stipulated to the occurrence of an accident arising out of and in the course of employment on May 28, 2002. The Second Injury Fund concedes accident in its brief.

Workers' compensation hearings are conducted in accord with 8 CSR 50-2.010 (14), which provides, in relevant part:

Hearings before the division shall be simple, informal proceedings. The rules of evidence for civil cases in the state of Missouri shall apply. Prior to hearing, the parties shall stipulate uncontested facts and present evidence only on contested issues.

The question of the scope of an award was addressed by our appellate courts in Boyer v. National Express Company, 49 S.W.3d 700 (Mo. App. 2001). The Boyer court:

[T]he administrative law judge should confine the evidence during the hearing to the stated contested issues...Stipulations are controlling and conclusive, and the courts are bound to enforce them...A stipulation should be interpreted in view of the result, which the parties were attempting to accomplish...In Lawson, our colleagues in the Southern District concluded that the Commission acted in excess of its powers in making its award on grounds not in issue. Lawson v. Emerson Electric Company, 809 S.W.2d at 126.

Boyer, 49 S.W.3d at 705.

Pursuant to the foregoing authority, the administrative law judge erred in issuing a ruling contrary to the stipulation of the parties. As stipulated by the parties, employee sustained an accident arising out of and in the course of her employment on May 28, 2002. We note the stipulatio