Diane Smith v. The Board of Education of the City of St. Louis

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-068375

Employee: Diane Smith

Employer: The Board of Education of the City of St. Louis

Insurer: Self-Insured

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

Date of Accident: May 7, 1998

Place and County of Accident: St. Louis, 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 November 14, 2005. The award and decision of Administrative Law Judge Margaret D. Landolt, issued November 14, 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 $24^{\text {th }}$ day of August 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: May 7, 1998
5. State location where accident occurred or occupational disease was contracted: St. Louis
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: Repetitive use of his wrists, right upper extremity, shoulders and neck.
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: Wrists, right shoulder, and neck
14. Nature and extent of any permanent disability: 171 / 2 % permanent partial disability of the right wrist, 10 % of the right shoulder, and 25 % of the body as a whole
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? $\ 6,780.65 Employee: Diane Smith Injury No.: 98-068375
17. Value necessary medical aid not furnished by employer/insurer? $\ 40,052.80
18. Employee's average weekly wages: $\ 359.06
19. Weekly compensation rate: $\$ 239.37 / \ 239.37
20. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\quad \ 40,052.80

175 weeks of permanent partial disability from Employer 41,889.75

1. Second Injury Fund liability: No

TOTAL: 93,021.96

1. Future requirements awarded:

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:

Mr. Charles Bobinette

A hearing was held on August 8, 2005, at the Division of Workers’ Compensation in the City of St. Louis. Diane Smith (“Claimant”) was represented by Mr. Charles Bobinette. The Board of Education of the City of St. Louis (“Employer”), which was self-insured, was represented by Ms. Robin Higgins. The Second Injury Fund was represented by Assistant Attorney General Rachel Paul. Claimant filed four claims: 98-068375 (date of injury May 7, 1998); 99-054526 (date of injury April 30, 1999); 00-005912 (date of injury January 11, 2000); and 01-161057 (date of injury November 14, 2001). By agreement, the claims were consolidated and tried together. Claimant’s attorney requested a fee of 25% of Claimant’s awards.

In Injury Number 98-068375, the parties stipulated that Claimant’s average weekly wage is 359.06, and the permanent partial and temporary total disability rate is 239.37. Employer paid $6,780.65 in medical expenses. The issues

in this claim are occupational disease, medical causation, past due temporary total disability benefits, past medical expenses, disfigurement, and nature and extent of permanent partial disability referable to the right and the left wrists, right upper extremity, shoulder and neck.

In Injury Number 99-054526, the parties stipulated that as of April 30, 1999, Claimant's average weekly wage was $\ 416.21, yielding a permanent partial disability rate of $\ 277.47. Employer paid $\ 342.13 in medical expenses, and no temporary total disability benefits. The issues presented are nature and extent of permanent partial disability referable to the back, and liability of the Second Injury Fund.

In Injury Number 00-005912, the parties stipulated Claimant's average weekly wage is $\ 434.94 and the permanent partial disability rate is $\ 289.96. Employer paid $\ 1,976.93 in medical expenses, and no temporary total disability benefits. The issues are nature and extent of permanent partial disability of the neck and lower back, and liability of the Second Injury Fund.

In Injury Number 01-161057, the parties stipulated Claimant's average weekly wage is $\ 460.18, and the total disability and permanent partial disability rate is $\ 306.79. Employer paid $\ 1,005.11 in medical expenses, and no temporary total disability benefits. The issues presented for resolution are occupational disease, medical causation, past due temporary total disability benefits, disfigurement, past and future medical expenses, nature and extent of permanent partial disability, permanent total disability, and liability of the Second Injury Fund.

Claimant is 50 years old and is right-handed. In 1972, after completing the eleventh grade at Sumner High School, she dropped out of school. In the early 1980s, she obtained her GED. Claimant has no vocational training, office experience, or computer or typing skills. In the early 1970s, Claimant worked at a McDonald's restaurant as a food service worker for a couple of months. She then moved to Michigan where she worked at a factory assembling toys for about a year. In 1973, she returned to St. Louis.

In 1978, Employer hired Claimant as a food service worker preparing lunches. She was promoted to Baker, and eventually to a Head Cook II. She worked from 6:00 a.m. to 2:30 p.m., Monday through Friday, ten months a year. She prepared approximately 200 breakfasts and 600 lunches each day as a Head Cook. She supervised ten to eleven workers. She was not required to plan menus, order food, or perform personnel work. Sometimes, she had to help serve the food as a fill-in when another worker was absent. She spent most of her time on her feet, and performed paperwork at the end of the day. Daily, she used both hands for slicing, dicing, peeling, scooping, pulling, cutting and stirring. When cooking, the heaviest she had to lift were pans, which weighed between 35 and 40 pounds when filled. She was required to reach overhead and use her upper extremities constantly. Claimant continuously looked down as she cooked, and raised her head backwards when she lifted. When lifting, she had to stand on her toes holding the pans in her hand and reach overhead to put them into the oven or rack. Claimant asked her supervisor for a step stool, but was never provided with one.

Claimant began experiencing problems with her hands, right shoulder and neck in late 1996 or early 1997. Although she requested medical treatment on several occasions, her supervisor did not prepare a report until Claimant lost control of her hand and spilled hot soup on a customer. On April 7, 1998, Claimant was seen by her private physician, Dr. Josyula, who suspected bilateral carpal tunnel syndrome and diagnosed cervical strain. Dr. Josyula felt that her condition was work related.

Eventually, on April 29, 1998, Employer referred Claimant to Dr. Ollinger, who diagnosed possible bilateral carpal tunnel syndrome substantially related to her work activities, and a small ganglion volar of the right wrist (not work related). Nerve conduction studies performed on the same day were abnormal on the right hand and normal on the left. On May 7, 1998, Dr. Ollinger prescribed medications and hand splints to be worn at night. Dr. Ollinger suggested that if she did not respond to medical treatment, she should be referred to an orthopedist for her shoulder complaints.

On June 11, 1998, Claimant continued to complain of bilateral numbness and tingling of her hands, and right shoulder pain. Dr. Ollinger recommended surgery on the right wrist, and an orthopedic referral for her right shoulder problem if her symptoms continued after her carpal tunnel syndrome surgery and post op rest.

Surgery was performed at Missouri Baptist Hospital on June 23, 1998. On July 6, 1998, Dr. Ollinger recommended alternative work with light use of the right hand, no power gripping, and a five-pound lifting restriction. Dr. Ollinger released Claimant to regular work on September 24, 1998. On December 3, 1990, Dr. Ollinger gave Claimant a 0\% permanent partial disability rating on both wrists, and found no symptoms or signs of left carpal tunnel syndrome. He noted that her NCVs were normal. He did not feel that Claimant required any additional evaluation, care or work restrictions, and felt Claimant was at maximum medical improvement. On January 7, 1999, Employer refused to authorize any additional

Claimant planned to work during the summer school break cleaning offices with her sister. Because of the planned surgery and her recovery, she remained unemployed between June 5 and the start of school on August 26, 1998. On September 24, 1998, Dr. Ollinger released Claimant for regular work.

Claimant continues to have difficulty with her right hand following her surgery. She frequently rubs her right hand to alleviate her pain. She has reduced strength, which results in difficulty with such tasks as opening jars, combing her hair, vacuuming, and grasping items. She frequently drops things.

Claimant reported that for the past several months, she had been having progressive discomfort in her right shoulder area, and that her work involved picking up steam table pans on a regular basis. At the time of her examination, she could not raise her arm above her head. She was diagnosed with a history of rotator cuff strain versus tear. She was prescribed medications, and referred to Dr. Kenneth Yamaguchi, an orthopedic surgeon.

On p