Karla Barnes v. Insituform Technologies, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-001001

Employee: Karla Barnes

Employer: Insituform Technologies, Inc.

Insurer: Liberty Mutual Fire Insurance Co.

Date of Accident: January 9, 2002

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 April 25, 2007. The award and decision of Administrative Law Judge Margaret D. Landolt, issued April 25, 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 September 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? 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: January 9, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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:

Employee was moving a telephone extension when a cabinet fell on her. 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: Right wrist, cervical spine 14. Nature and extent of any permanent disability: 25 % of the right wrist, and 5 % of the body as a whole referable to the cervical spine 15. Compensation paid to-date for temporary disability: -0 - 16. Value necessary medical aid paid to date by employer/insurer? $\ 8,501.98

Employee: Karla Barnes Injury No.: 02-001001 17. Value necessary medical aid not furnished by employer/insurer? $\ 64,443.49 18. Employee's average weekly wages: $\ 769.23 19. Weekly compensation rate: $\$ 512.81 / \ 329.42 20. Method wages computation: Stipulation

1. Amount of compensation payable: 63.75 weeks of permanent partial disability from Employer $\ 21,000.53

1. 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 attorney for necessary legal services rendered to the claimant:

Mr. Andrew Mandel

A hearing was held on February 2, 2007, at the Division of Workers’ Compensation in the City of St. Louis. Karla Barnes (Claimant) was represented by Mr. Andrew Mandel. Insituform Technologies, Inc. (Employer) and its Insurer, Liberty Mutual Fire Insurance Company, were represented by Mr. John Sander. Mr. Mandel requested a fee of 25% of Claimant’s award.

The parties stipulated that on or about January 9, 2002, Claimant sustained an accidental injury arising out of and in the course of employment; Claimant was an employee of Employer; venue is proper in the City of St. Louis; Employer received proper notice of the injury; and the claim was timely filed. The parties further stipulated

Claimant was earning an average weekly wage of $\ 769.23 resulting in applicable rates of compensation of $\ 512.81 for total disability benefits and $\ 329.42 for permanent partial disability benefits. Employer paid medical benefits of $\ 8,501.98.

The issues for resolution by hearing are medical causation; liability of Employer for past medical benefits in the amount of $\ 64,443.49; liability of Employer for future medical care; whether Claimant is entitled to temporary total disability benefits from March 6, 2003 to the present; whether Claimant is permanently and totally disabled; and nature of extent of permanent partial disability sustained by Claimant.

Claimant is a 51 year old woman with an Associate of Arts Degree in Applied Sciences. Claimant has been working since she was 15 years old. Claimant worked for Steak N' Shake, then for Credit Systems, Inc. as an authorization operator, and then went to work for MasterCard as a product support analyst. Claimant next moved to Chicago and worked in telecommunications where she was responsible for stacking units for computers and telephone equipment. Claimant moved back to St. Louis in 1981 or 1982, and went to work for Management Systems, Inc. as a consultant. While traveling for them, she injured her neck in a car accident in 1983. After some medical treatment for her neck, her symptoms resolved and she had no other problems with her neck leading up to January 9, 2002.

Claimant also testified she had an injection in her back from Dr. Pierron in 1983, but had no other problems with her back until her pregnancy in 1986. Claimant testified she had a myelogram, which was negative, and she continued working.

Claimant testified that in 1986 she started working for a management company as a consultant responsible for telephone and fax equipment. The job was physical, and required heavy lifting, bending, and climbing ladders.

In 1999, Claimant went to work for Employer. She was hired as a communications engineer. Her duties involved lifting fax machines, moving and lifting furniture, bending, and getting down on her knees. Until 2002, Claimant never missed time from work because of her neck, back or right hand. Claimant testified that she strained a muscle in her neck before 2002, had one doctor's visit where she received muscle relaxants, and never received a settlement for that injury.

Claimant testified that in 1991 she went to her internist about her back. He referred her to Dr. Bridwell. Claimant testified she had no treatment in her back from 1991, until the date of injury and had no back problems during that time. She also testified she had some hip problems that subsided after she saw her internist.

On January 9, 2002, Claimant was at work moving a telephone extension for an employee when a cabinet fell on her. Her hand was on the desk and she fell back on her buttocks. When the cabinet hit her hand she felt severe pain and it cut her knuckles. Her neck also began to hurt. She didn't feel anything in her back at that time. Claimant received medical treatment that day. She first went to Dr. Gelfand, and told him that a hutch fell on top of her. Claimant testified her hand, neck, and shoulder were bothering her, but she didn't say anything about her back that day. Claimant testified Dr. Gelfand took her off work, and told her she had a cyst on her finger. Claimant testified on her second office visit on January 11, 2002, Dr. Gelfand injected her hand. Her complaints at that time were to her hand and head. Dr. Gelfand returned her to light duty on January 11, 2002, and she went to back to work. Claimant testified she returned to the doctor on January 16, 2002, and told him about numbness in her foot and leg. Claimant testified Dr. Gelfand put her on Vicodin for her hand and neck. Claimant testified she saw Dr. Gelfand again on February 5, 2002, complaining about her leg, continued hand and neck pain, and tingling down her leg. On February 19, 2002, Claimant began physical therapy for her hand and neck.

Claimant testified her back was bothering her up through April 30, 2002, but it wasn't severe until she started going off her medications. Claimant testified that on May 15, 2002, she saw Dr. Gelfand and complained of chronic severe back pain. When she saw Dr. Gelfand she couldn't even get out of bed. Dr. Gelfand gave her an injection in her back and prescribed medications. According to Claimant, Dr. Gelfand sent her for an MRI on

May 21, 2002, which, to her knowledge, showed a ruptured disc at L4-5 and problems at L5-S1. Claimant testified Dr. Gelfand did not send her to anyone because he did not consider it part of her workers' compensation claim. Claimant testified she informed Employer, and was told her back problems were not considered workers' compensation, and she should pursue treatment under her personal insurance.

Claimant continued to treat with Dr. Gelfand for her hand, and she was referred to Dr. Kaplan in March 2002. She was also prescribed physical therapy for her neck complaints. Eventually, Employer sent her to Dr. Coin who referred her to Dr. Tate.

Claimant testified she saw Dr. Mollman for her back in July 2002. At that time, she was still working for Employer at light duty. Eventually, Dr. Mollman ordered a myelogram and MRI which revealed problems with L34, L4-5, and L5-S1. Dr. Mollman referred her to Dr. Metzler who did some injections, which worked for a short period of time. On September 27, 2002, Dr. Mollman performed surgery. Following her surgery, her pain persisted and she asked for another myelogram and MRI, which led to another surgery in December 2002.

Claimant treated with Dr. Mollman through March of 2003, at which time he did another myelogram, and then released her to go back to work. After being released to return to work, Claimant continued to have pain and wasn't getting any better. She was fired by Employer in March 2003, and she doesn't know why she was fired.

In April of 2003, Claimant went to see Dr. Taylor who did a myelogram, MRI, and x-rays. He recommended physical therapy, but did not do surgery.

After seeing Dr. Taylor, she continued to have problems. In October 2003, Claimant went to Dr. Bernardi complaining of pain across her back down her legs, in her neck, shoulder, and hand, and tingling feet. He referred her to Dr. Anwar who did injections. In June 2004, Dr. Bernardi did another surgery, which helped relieve a little bit of pain. Claimant was unable to get up in the morning and was in severe, chronic pain. Claimant has received no treatment for her back since seeing Drs. Bernardi and Anwar.

Claimant testified that before her injury in 2002 she liked to water-ski and skied all summer. She liked to sew, type, and swing dance. She bowled, swam, played softball, mowed the lawn, washed the dogs, cleaned