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Linda Cardwell v. Schnucks Markets, Inc.

Decision date: August 10, 200719 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award allowing workers' compensation benefits to Linda Cardwell for a work-related fall injury on May 31, 2001, that resulted in low back injury requiring surgery and psychiatric complications. The claimant was found to have sustained a compensable occupational injury with permanent disability of 15% of body as a whole for low back injury and 12.5% for psychiatric injury.

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Caption

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
FINAL AWARD ALLOWING COMPENSATION
(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 01-165842
Employee:Linda Cardwell
Employer:Schnucks Markets, Inc. (Settled)
Insurer:Self-Insured (Settled)
Additional Party:Treasurer of Missouri as Custodian of Second Injury Fund
Date of Accident:May 31, 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 January 4, 2007. The award and decision of Administrative Law Judge John K. Ottenad, issued January 4, 2007, 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 $10^{\text {th }}$ day of August 2007. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

Alice A. Bartlett, Member John J. Hickey, Member Attest:

Secretary

AWARD

Dependents:N/ABefore the
Employer:Schnucks Markets, Inc. (Settled)Division of Workers’ Compensation
Additional Party: Second Injury FundDepartment of Labor and
Insurer:Self-Insured (Settled)Industrial Relations of Missouri
Jefferson City, Missouri
Hearing Date:September 5, 2006 and September 6, 2006Checked by: JKO

FINDINGS OF FACT AND RULINGS OF LAW

  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 31, 2001
  5. State location where accident occurred or occupational disease was contracted: St. Louis County
  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 working in the floral department for Employer and developed low back pain, resulting in surgery at L4-5 and depression.
  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: Body as a Whole—Low Back and Psychiatric
  14. Nature and extent of any permanent disability: 15 % of the BAW referable to the low back \& 12.5 % of the BAW referable to psychiatric
  15. Compensation paid to-date for temporary disability: Settled as "disputed" with Employer
  16. Value necessary medical aid paid to date by employer/insurer? Settled as "disputed" with Employer

Employee: Linda Cardwell Injury No.: 01-165842 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: $\ 489.60 19. Weekly compensation rate: $\ 326.40 for TTD/ $\ 314.26 for PPD 20. Method wages computation: By agreement (stipulation) of the parties

COMPENSATION PAYABLE

  1. Amount of compensation payable:

Claim against Employer previously settled

21 weeks of permanent partial disability from Second Injury Fund$6,599.46
TOTAL:$6,599.46
23. Future requirements awarded: None
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 attorneys for necessary legal services rendered to the claimant:
Ray B. Marglous and Robert Merlin.

FINDINGS OF FACT and RULINGS OF LAW:

Employee:Linda CardwellInjury No.: 01-165842
Dependents:N/ABefore the
Division of Workers'
Employer:Schnucks Markets, Inc. (Settled)Compensation
Department of Labor and Industrial
Additional Party:Second Injury FundRelations of Missouri
Jefferson City, Missouri
Insurer:Self-Insured (Settled)Checked by: JKO

On September 5, 2006, the employee, Linda Cardwell, appeared in person and by her attorneys, Mr. Ray B. Marglous and Mr. Robert Merlin, for a hearing for a final award on her claim against the Second Injury Fund. The employer, Schnucks Markets, Inc., which is Self-Insured, was not represented at the hearing because their portion of the Claim was previously settled by Stipulation for Compromise Settlement. The Second Injury Fund was represented at the hearing by Assistant Attorney General Kevin Nelson. The hearing was continued until September 6, 2006 to give Claimant the opportunity to submit two additional exhibits into evidence. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of facts and rulings of law, are set forth below as follows:

STIPULATIONS:

1) On or about May 31, 2001, Linda Cardwell (Claimant), sustained an accidental injury arising out of and in the course of her employment that resulted in injury to Claimant. 2) Claimant was an employee of Schnucks Markets, Inc. (Employer). 3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage of $\ 489.60, resulting in applicable rates of compensation of $\ 326.40 for total disability benefits and $\ 314.26 for permanent partial disability (PPD) benefits.

7) Whether or not Employer paid temporary total disability (TTD) benefits or medical benefits in connection with this case was in dispute at the time Employer settled their liability.

ISSUES:

1) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this accident?

2) What is the liability of the Second Injury Fund?

EXHIBITS:

The following exhibits were admitted into evidence:

Employee Exhibits:

A-Deposition of Mr. James M. England, Jr., with attachments, dated August 30, 2006.

B-Deposition of Jerome F. Levy, M.D., with attachments, dated August 18, 2006.

C-Deposition of Wayne Stillings, M.D., with attachments, dated August 14, 2006.

D-Certified medical treatment records from Christian Hospital.

E-Certified medical treatment records from SSM DePaul Health Center.

F-Certified medical treatment records from SSM DePaul Health Center.

G-Certified medical treatment records from Christian Hospital.

H-Medical records of Jonathan A. Gold, M.D.

I-Certified medical treatment records from Joseph Novinger, D.O.

J-Certified medical treatment records from St. Louis Labor Health Institute.

Second Injury Fund Exhibits:

Nothing submitted at the time of trial.

Notes: The Second Injury Fund's objections to Exhibit C are OVERRULED, and the exhibit is fully admitted into evidence in this case.

Exhibit B was admitted with objections from the Second Injury Fund contained in the record on pages 30 and 53. Both of those objections are SUSTAINED.

Unless otherwise specifically noted below, any other objections contained in the exhibits are overruled and the testimony fully admitted into evidence.

FINDINGS OF FACT:

Based on a comprehensive review of the substantial and competent evidence, including Claimant's testimony, the expert medical opinions and depositions, and the medical records, as well as my personal observations of Claimant at hearing, I find:

1) Claimant was 55 -years-old at the time of the hearing. Her highest level of education was achieving a high school diploma from Riverview Gardens in 1969. She had no formal education or training after her high school graduation.

2) Claimant testified that after high school her first job was as a cashier for National Food Stores from 1969 - 1973. She left her job to become a homemaker after the birth of her second child. Claimant returned to work in 1985 for Sears in the ladies department, carrying clothes, stocking shelves, carrying boxes, and helping customers. She worked for Sears until 1990 when her neck was injured when a rack fell and hit her on her head. Her treatment consisted of physical therapy and cervical fusion surgery. After this injury she left her job because she could not do the lifting or reaching overhead.

3) Medical treatment records of Dr. Jonathan A. Gold (Exhibit H) indicate Claimant had a one level anterior cervical fusion at C5-6 on February 26, 1991. The records also document her initial evaluation when she was sent for work hardening after the cervical fusion surgery. Although this was the subject of a Workers' Compensation case, the prior settlement document and/or award was not submitted into evidence at this hearing.

4) After her treatment ended, Claimant was not working for a couple of years, until she was hired by Schnucks Markets. She was hired to work in the video department, but only stayed in that department for a few months. She was then transferred to the floral department where she worked from 1993 until her first work-related injury in 2001.

5) Regarding other injuries prior to the 2001 back injury, Claimant testified that she had a prior injury to her low back. Her only treatment consisted of a few hot and cold packs. She testified that she was able to continue to operate fairly well. She also described a prior right shoulder injury when she slipped and fell. She did not have surgery. Again, she testified she recovered fairly well. In the mid 1990s, she said she was diagnosed with bilateral carpal tunnel syndrome, which she attributed to making ribbons and stripping roses. She did not file a Workers' Compensation claim. She was treated with injections and testified that she had problems gripping, and she noticed she was not as fast. She never had carpal tunnel releases until after the 2002 injury. She also had a prior right knee injury from 1996 that was not the subject of a Workers' Compensation Claim. She said she fell on it wrong and dislocated her kneecap. She testified she had arthroscopic surgery to put the kneecap back in place. She described continued complaints affected by changes in the weather. She said the knee would bend less and she worked slower on it. On cross-examination, Claimant admitted that she was working full duty without restrictions prior to the 2001 injury.

6) Certified medical records from St. Louis Labor Health Institute (Exhibit J) document treatment Claimant had for many various conditions and body parts from approximately 1972 to 1999. Included in those records are notes regarding a recommendation for a right knee arthroscopic surgery in 1994 to perform a capsular release to treat her patella that was tracking laterally. Although it appears she had the surgery, there is no surgical note contained in the file to know exactly what was done, nor are there any significant follow-up notes that explain her progress. There are also notes from 1996 diagnosing carpal tunnel syndrome, because of nocturnal numbness and complaints in both hands, as well as x-ray reports that document basilar joint arthritis of the left thumb. She was treated with injections and cock-up spli

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

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