Joan Panhorst v. Metalcraft Enterprises, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 96-438133

Employee: Joan Panhorst

Employer: Metalcraft Enterprises, Inc.

Insurer: American Manufacturers Mutual Insurance Company

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

Date of Accident: Alleged on or about July 1, 1996

Place and County of Accident: Alleged Franklin 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 September 22, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Leslie E. H. Brown, issued September 22, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 14^{\text {th }}$ 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? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: alleged on or about July 1, 1996
5. State location where accident occurred or occupational disease was contracted: Franklin County, Missouri
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? No
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: factory work
12. Did accident or occupational disease cause death? No Date of death? ---- 13. Part(s) of body injured by accident or occupational disease: alleged mental injury 14. Nature and extent of any permanent disability: ---- 15. Compensation paid to-date for temporary disability: None 16. Value necessary medical aid paid to date by employer/insurer? None
13. Value necessary medical aid not furnished by employer/insurer? ---- 18. Employee's average weekly wages: $\ 280.46
14. Weekly compensation rate: $\$ 186.67 / \ 186.67
15. Method wages computation: by agreement of the parties

1. Amount of compensation payable:

Unpaid medical expenses: ----

---- weeks of temporary total disability (or temporary partial disability)

---- weeks of permanent partial disability from Employer

---- weeks of disfigurement from Employer

---- Permanent total disability benefits from Employer beginning ----, for

Claimant's lifetime

1. Second Injury Fund liability: No

TOTAL: DENIED CASE

1. Future requirements awarded: ----

Said payments to begin ---- 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 ---- of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Joseph Dolgin, Attorney for Claimant

Employee: Joan Panhorst

Injury No: 96-438133

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: $\quad-$

Employer: Metalcraft Enterprises, Inc.

Additional Party State Treasurer, as custodian of the Second Injury Fund

Insurer: American Manufacturers Mutual Insurance Company

Checked by: LEHB/bfb

This is a hearing in Injury Number 96-438133. The claimant, Joan Panhorst, appeared in person and by counsel, Attorney Joseph J. Dolgin. The employer/insurer, Metalcraft Enterprises, Incorporated/American Manufacturers Mutual Insurance Company c/o Broadspire, appeared by and through counsel, Attorney Timothy M. Tierney. The Second Injury Fund appeared by and through counsel, Assistant Attorney General Jennifer Sommers.

The parties entered into certain stipulations, and agreements as to the complex issues ${ }^{[1]}$ and evidence to be presented in this hearing.

On or about July 1, 1996: a. the claimant was in the employment of Metalcraft Enterprises, Incorporated in Franklin County, Missouri; b. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law; c. the employer's liability was insured by American Manufacturers Mutual Insurance Company c/o Broadspire; d. employee's average weekly wage was $\ 280.46, the rate being $\ 186.67 over $\ 186.67.

e. The employer had notice of the injury. f. A Claim for Compensation was filed within the time prescribed by law. g. No temporary total disability benefits have been paid. h. No medical aid has been provided.

1. Whether or not the claimant suffered an occupational disease arising out of and in the course of her employment

a. Question of compensability under Section 287.120, the subsections concerning the mental mental injury

b. If there was a physical mental injury, then has this claim already been resolved

1. Medical causation
2. Liability of past medical expenses in the amount of $\ 4,977.21

a. Reasonableness and necessity

1. Future medical care
2. Nature and extent of permanent disability - whether partial or total

a. If found to be permanently and totally disabled, whether the employee was at a permanent total disability status as of August 7, 1997 forward to the present and into the future

1. Liability of the Second Injury Fund

The following exhibits were admitted into evidence without objections:

No. A: Deposition transcript of Dr. Ralph L. Biddy, M.D. taken on behalf of the claimant on June 8, 2005 (Admitted subject to the objections therein)

No. A-1: Medical bill of Crider Medical Center (Attached to No. A).

No. B: Record of the Crider Center

No. C: Deposition transcript of S. Parwatikar, M.D., taken on behalf of the claimant on August 30, 2002 (Admitted subject tot the objections therein)

No. D: Deposition transcript of James Israel, CRC, CVE taken on behalf of the claimant on July 13, 2004 (Admitted subjected to objections therein)

No. E: Records of Dr. John Crane, November 21, 1996 through March 26, 1998

No. F: Records of Dr. Eddie Paulk, D.O. (Stipulation - for a time period of January 24, 1994 through January 30, 1996; as some of the pages it's difficult to determine the month because the copies cut off, but we have the date and year)

No. G: Records of Dr. Alfred Fischer, D.C. (Rulings: a. Employer/Insurer's and Second Injury Fund's objections on grounds of the Seven Day Rule/hearsay to Dr. Fischer's narrative reports of 11-5-98 and 11-25-98 are overruled; b. Second Injury Fund's objection on grounds of hearsay in regards to a handwritten note by the claimant at page 4 of the record is sustained.)

No. H: Record of Dr. Jesse Susi, M.D. of Mid County Orthopaedic Surgery and Sports Medicine, December 20, 1997 through June 20, 2000

No. I: WITHDRAWN (Records of St. John's Mercy Medical Center, MRI imaging of the left shoulder)

No. J: Record of M. R. Jones, D.C. [Ruling: Second Injury Fund's objection a letter by Dr. Jones, D.C. dated February 16, 1998 (the very front page of the exhibit) on grounds of -- hearsay, appears to be a report not prepared to treat the claimant or kept in the usual course of the doctor's practice -- is sustained.]

No. K: Record of St. John's Mercy Medical Center from August 1, 1997 through March 20, 2000

No. L: WITHDRAWN (St. John's Mercy Rehabilitation record)

No. M: Records of Dr. Shankar Rao, M.D.

No. N: Records of Dr. Sanjay Ghosh, M.D.

No. O: NOT OFFERED (Records of Dr. Steven Radel, M.D./St. John's Mercy, from November 15, 1989 through July 27, 1992; MR. DOLGIN - part of the record of St. John's Mercy Hospital)

No. P: Stipulation for Compromise Settlement in Injury No. 96-440491

No. Q: Stipulation for Compromise Settlement in Injury No. 94-182442

No. R: Stipulation for Compromise Settlement of the claim against the Second Injury Fund on Injury No. 96-440491

No. 1: Deposition transcript of Dr. Wayne Stillings, M.D. taken on behalf of the employer/insurer on July 22, 2004 (Admitted subject to the objections therein).

No. 2: Records of Dr. Radel dated 11-15-89 through 7-27-92

Roman Numeral I: Records of St. John's Mercy Rehabilitation, April 12, 2000 through June 19, 2001

The claimant, Joan Panhorst, testified about the injury for which she is seeking compensation from Metalcraft. Panhorst testified that she worked for Metalcraft from January 21, 1990 until her termination on August 11, 1997 Testifying as to the nature of the business of Metalcraft, Panhorst stated that they did aluminum and steel, "like make legs like for a table", and sweeper handles; it was mainly with steel and aluminum. My job with Metalcraft was just a worker on different jobs, the claimant said. You would go in and the supervisor would tell you that day the job that he wanted you on; you may work on the same job a couple days, but then they would also move you around. It was all physical type labor, she agreed. At one time the plant manager wanted to know if I would clean the men's restrooms even, which is not part of my normal duties, Panhorst noted.

"Starting to work at Metalcraft I didn't have no injury, but I was stiff and sore", Panhorst testified, but the first real injury I had was May of 1991, I think. I had got my finger in a roll bender and I had to have I think five stitches put in it, she said. I did not file a workers' compensation claim, Panhorst said. Explaining why she did not file a claim, Panhorst testified my supervisor, Melvin Duvall, come down, then the president, Connie Laudy, and Chester Nichols, the vice president and quality control, and the set-up man, Jim Leaky, all come down there, and that was before they took me up to the doctor. And the first thing that was said to me after they got down there was, Chester Nichols said to me - "Anybody that uses that machine without a safety guard should automatically be terminated". And I said - "a safety guard; and I looked at Jim Leaky and I said Jim, a safety guard, where's the safety guard at, I've been working here how long, over a year and a half, I ain't never seen a safety guard"; they looked at Jim and he said there's never been a safety guard. Panhorst stated that a doctor put five stitches in the finger, but she couldn't get any pain pills or nothing. I told the doctor about the office at the workplace that they had pain pills in a little package, and he said it wouldn't hurt for me to take a couple packs of that because if you have pain that day they usually helped out and worked. So when Melvin Duvall, who had taken me to the doctor, got back to work I went ahead and went in his office and then he went to the assistant supervisor right there and when I was coming out the door, I hadn't stepped out of the office yet, the assistant supervisor, Jo Ann Feaserman at the time now Jo Ann Monday, she came up to me and told me that if I filed a workmen's comp claim against