Laura Belmar v. Dial Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 96-438230

Employee: Laura Belmar

Employer: Dial Corporation (Settled)

Insurer: Self-Insured (Settled)

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

Date of Accident: December 31, 1996

Place and County of Accident: St. Louis City, 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 December 22, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Linda J. Wenman, issued December 22, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $10^{\text {th }}$ day of August 2007.

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? 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: December 31, 1996 (corrected date)
5. State location where accident occurred or occupational disease was contracted: St. Louis City, 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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant fell while walking down stairs at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left foot/ankle and left 4th finger
14. Nature and extent of any permanent disability: Disputed by Employer, but 20% BAW permanent partial disability referable to the cervical spine paid as a compromise settlement.
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Laura Belmar Injury No.: 96-438230 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: $\ 800.00 19. Weekly compensation rate: $\$ 513.01 / \ 268.72 20. Method wages computation: Stipulated

1. Second Injury Fund liability: No

The above referenced Workers' Compensation claim was heard by the undersigned Administrative Law Judge on November 1, 2006. Briefs were received and the case was formally submitted on December 12, 2006. Attorney Harry Nichols represented Laura Belmar (Claimant). Assistant Attorney General Kay Osborne represented the Second Injury Fund (SIF).

Prior to hearing, Dial Corporation (Employer) disputed all issues regarding the primary injury. On December 19, 2005, Employer compromised the disputed issues, and agreed to pay the equivalent of 20 % BAW permanent partial disability (PPD) referable to Claimant's cervical spine to settle all issues in the primary case.

Prior to the start of the hearing the parties identified the following issues for disposition: accident; arising out of and

in the course and scope of employment; notice; medical causation; date of maximum medical improvement (MMI); and liability of SIF for permanent total or permanent partial disability. Hearing venue is correct, and jurisdiction properly lies with the Missouri Division of Workers’ Compensation.

Claimant offered Exhibits A-T. Claimant withdrew Exhibit H. SIF’s objection to Exhibit K was sustained, and the remaining exhibits were admitted into the record without objection. SIF offered no exhibits. Any markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit. Any objections not expressly ruled on in this award are overruled.

All evidence presented has been reviewed. Only testimony necessary to support this award will be summarized.

Claimant: Claimant is sixty-four years old, and began working full-time at age sixteen as a waitress. Claimant next became a factory worker, and worked with various employers until 1975. Between 1975 and 1980, Claimant left employment to raise her children. Claimant returned to factory work during 1980, and worked until September 1997.

When Claimant returned to work in 1980, she obtained employment with Employer as a fork-lift driver. ${ }^{[2]}$ As a fork-lift driver, Claimant moved materials from the manufacturing line to the loading dock. Claimant was required to hand lift pallets containing an average of thirty-five cases per pallet. Each case weighed approximately fifty-nine pounds, and needed to be loaded by hand. Claimant was scheduled to work a forty hour week, but was required to work mandatory overtime and frequently worked sixty hours or more per week.

In 1982, Claimant injured her low back at work, and underwent a lumbar fusion. She returned to work as a fork-lift driver until 1990, when she successfully bid for a job as a shipping clerk. Claimant sought the shipping clerk position as it was physically less demanding, and provided greater mental stimulus. Although Claimant's work still involved physical lifting, it also required her to use a computer, calculate shipping weights, and make sure shipments were loaded correctly. Claimant continued to work as a shipping clerk until she left her employment in 1997.

On December 31, 1996, Claimant was descending stairs at work when she slipped and fell six to seven steps. As a result of the fall, Claimant testified she injured her head, neck, shoulders, left ring finger, and left foot. She was assisted from the floor by co-workers, and Employer arranged to have Claimant taken to Barnes Care by taxi. Following treatment, Claimant lost no time from work, and Employer did not pay TTD or medical benefits. Claimant did file a report of incident/accident with Employer.

Barnes Care provided care to Claimant for her injuries until January 1997, and Claimant also sought treatment with her personal physician, Dr. Carmody. The injuries to her foot, head, neck, and shoulders never healed, and Claimant sought treatment with neurosurgeons, Dr. Kitchens and Dr. Albana. During her initial visit on October 17, 1997, Claimant was informed she had a herniated disc in her neck, and on January 8, 1998, Claimant underwent a cervical fusion at St. Anthony's Hospital. Post-operatively, Claimant continued to experience cervical pain, and she was provided pain management treatment. She never returned to work.

As of the date of hearing, Claimant complained of constant neck and shoulder pain, and she takes Celebrex for her discomfort. She experiences frequent headaches that she attributes to tension and stress. She avoids any activity involving bending, doesn't vacuum, mop floors, or dust at low levels. She is able to do laundry as long as she does not bend down. She spends her day reading, doing cross-word puzzles, and enjoys performing family research. Claimant lives in a rural area of south-central Missouri. Claimant receives a monthly union pension, has not looked for further employment, and does not believe she is capable of employment. Claimant considers her low back and neck condition as the main factors in her inability to work.

In addition to her lumbar fusion, Claimant listed eight additional medical conditions that predated the January 1996 fall. At age three, Claimant was struck by a car, she remembered not being able to go out and play, but testified she "healed well" from that incident. In 1976, Claimant fractured a bone in her right hand while at work, has full range of motion, but experiences arthritis in the hand. During 1984, Claimant was diagnosed with narrow angle glaucoma, underwent surgery for the condition after her January 1996 work injury, and now uses eye drops every day that cause headaches. She underwent mastoid surgery in 1985, was in the hospital overnight, but "healed fairly well." Claimant fractured her left wrist in 1994, has pain with wrist rotation, and was told the bone didn't heal correctly. Claimant underwent a hernia repair in 1975, and "healed fine." She fractured her left foot in 1995, but didn't pursue it as a workers' compensation case. In 1972, she was diagnosed with cancer of the cervix, but has not suffered a reoccurrence. Finally, in 2000 and 2001, Claimant was diagnosed and underwent right knee surgery.

Upon cross-examination, Claimant disputed September 19, 1997 was the first time she told Dr. Carmody about her

neck pain, and also disputed a Barnes Care record listing her complaints on the date of injury to be to her left foot and finger. Claimant verified Dr. Kitchen performed a single level fusion of her cervical spine, and she has not had treatment for her neck since May 1999. In regard to her preexisting conditions, Claimant has not had treatment for her low back since 1982, and prior to 1996 had no permanent work restrictions. Claimant verified she uses a TENS unit for her cervical spine symptoms, and not for her low back, and her recent right knee surgeries are part of the reason she is unable to work. Finally, Claimant denied telling Dr. Bernstein she fell in 1998 injuring her right shoulder.

Barnes Care: Claimant's first visit occurred on August 30, 1995, after she slipped on a wet work floor and injured her left foot. ${ }^{[3]}$ The initial x-rays were negative, and Claimant was diagnosed with a hyperextension injury, and strained left foot. The next day, repeat x-rays were obtained of Claimant's left foot, which showed a questionable cortex crack in her $3^{\text {rd }}$ metatarsal bone, and Claimant was placed in a "post-op" shoe. Claimant was discharged from care on October 20, 1995.

Claimant was next seen on December 31, 1996, after she twisted her left foot while descending stairs at work. Claimant reported she had struck her left foot and left $4^{\text {th }}$ finger as she fell. Upon examination, Claimant was noted to display slight soft tissue swelling over the dorsal lateral aspect of her left foot. X-rays of her left foot were reported as negative. Claimant was diagnosed with a left foot sprain, and acute sprain of the DIP joint of her left $4^{\text {th }}$ finger. By January 10, 1997, Claimant had normal range of motion in her left foot and $4^{\text {th }}$ finger, and she was discharged from care.

Dr. Carmody: Claimant was first examined on January 21, 1991. Other pertinent visits were recorded as follows:

11/29/93 - Claimant fractured her left arm, and