Brenda Boyer v. Kuenze Heating and Sheet Metal

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-041331

Employee: Brenda K. Boyer

Employer: Kuenze Heating and Sheet Metal

Insurer: Missouri Employers Mutual Insurance Company

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

Date of Accident: May 11, 2005

Place and County of Accident: St. Charles 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 25, 2007. The award and decision of Administrative Law Judge Grant C. Gorman, issued

September 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 $31^{\text {st }}$ day of January 2008.

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 11, 2005
5. State location where accident occurred or occupational disease was contracted: St. Charles 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? 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 was engaged in work which required repetitive motion of the hands. 12. Did accident or occupational disease cause death? No 13. Part(s) of body injured by accident or occupational disease: Bilateral wrists and hands 14. Nature and extent of any permanent disability: 20 % bilateral upper extremity at 175 week level +10 % loading factor ( 77 weeks). 15. Compensation paid to-date for temporary disability: $\ 12,262.75 16. Value necessary medical aid paid to date by employer/insurer? $\ 11,046.35 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: Parties Stipulate that Claimant qualifies for maximum rate. 19. Weekly compensation rate: $\ 675.90 TTD/\$354.05 PPD 20. Method wages computation: Stipulation

1. Amount of compensation payable: $\ 27,261.85

77 weeks of permanent partial disability from Employer 0 weeks of disfigurement from Employer

Employee: Brenda K. Boyer Injury No: 05-041331 Before the DIVISION OF WORKERS’ COMPENSATION Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Dependents: None

Employer: Kuenze Heating and Sheet Metal Additional Party Second Injury Fund Insurer: Missouri Employers Mutual Insurance Company Checked by: GCG/In

Hearing on the above-referenced case was held before the undersigned Administrative Law Judge on June 22, 2007 at the Division of Workers’ Compensation in St. Charles, Missouri. Brenda Boyer (Claimant) was present, and represented by David Jerome. Paul Keeven represented Kuenz Heating and Sheet Metal (Employer) and Missouri Employers Mutual Insurance Co. (Insurer). Assistant Attorney General Laura Wagener represented the Second Injury Fund.

The following exhibits were offered by employer and insurer and received into evidence without objection: Exhibit 1: Medical records of Dr. Donald Pruitt Exhibit 2: Medical records of PRORehab The following exhibit was offered by the Second Injury Fund and received into evidence without objection: Exhibit I. Deposition of Dr. Edwin Wolfgram

Claimant is a 50 year old widow. She was a sheet metal worker for 22 years and worked for Kuenz Sheet Metal from 2003 to January 2005. Claimant was diagnosed with depression and began receiving psychiatric treatment in 1997. In 1997 she was having complaints which included fatigue, depression, crying spells, forgetfulness, and moodiness. In 1999 she was on medication for depression and attention deficit disorder and was having problems at work as her boss told her that she needed to focus better. Her psychiatric condition and complaints became worse following her husband’s suicide in December of 2002. She had problems concentrating, memory problems and sometimes couldn’t remember how to do her job. Her supervisor was aware of the condition and showed her how to do her job. She alsoreceived assistance from coworkers and was unable to work by herself due to her psychiatric condition. She sometimes missed work due to depression between 2002 and 2005. Claimant currently receives psychiatric treatment from Dr. Chilakamari and Joan Brady.

Claimant was diagnosed with bilateral carpal tunnel syndrome in May 2005. She initially saw Dr. Brown, and was then referred to Dr. Pruitt. She had a right carpal tunnel release on July 8, 2005 and left carpal tunnel release on August 18, 2005 by Dr. Pruitt. She is right-handed. She testified that the carpal tunnel surgeries did improve the condition of her hands. Currently, she complains of loss of strength in her hands. Claimant testified that Dr. Pruitt placed restrictions on the use of her hands. She has not had any treatment to her hands since she was discharged by Dr. Pruitt in November of 2005. No doctor is recommending any treatment for her hands. She does not wear any type of wrist splint or brace.

Claimant testified under cross-examination that she was laid off from work in January 2005. After she was laid off she applied for and received unemployment benefits. She testified under direct examination that after the treatment for her carpal tunnel syndrome was complete, her union put her on inactive status due to the restrictions placed on the use of her hands. The union indicated that if her condition improved, she could be returned to active status. She appliedfor and received Social Security disability in March of 2005 for depression which she stated was due to her husband’s suicide and not related to the problems with her hands.

Claimant has not sought employment due to memory problems. She doesn’t think she could learn new job skills. She alleges that her psychiatric complaints have worsened since she stopped working. She is able to do most of her household chores including cooking, cleaning and laundry. She is able to drive without any limitations. She is a high school graduate and also took some college courses. She is able to read and perform basic math. She does not have any problems or

Dr. David Volarich testified by deposition on behalf of the claimant on November 27, 2006 (Exhibit A). Dr. Volarich diagnosed bilateral carpal tunnel syndrome status post release as a result of repetitive work duties. He opined that Claimant was at maximum medical improvement (MMI). He testified that Claimant suffered 40 % PPD to each upper extremity at the wrist, and that there is an additional 15 % PPD due to the combination of the injuries to the upper extremities. Dr. Volarich further diagnosed pre-existing depression and post-traumatic stress disorder, but did not provide a rating of PPD pertaining to the mental conditions. Dr. Volarich placed restrictions on Claimant's use of her hands which include: Minimizing repetitive tasks, no lifting of weights greater than 1-3 pounds with either hand alone, and not handling weights over 5-10 pounds.

Dr. Stillings testified on behalf of the employee on September 5, 2006 (Exhibit B). He diagnosed major depressive disorder, ADD, and partner-relational problems. All three diagnoses pre-existed the work injury. He testified regarding her significant psychiatric complaints and treatment prior to 2005. He testified that her psychiatric condition was a hindrance or obstacle to employment prior to 2005. He testified that the work injury aggravated pre-existing psychiatric condition. He did not specify any permanent partial psychiatric disability attributable to the work injury. He was also unable to point out any specific psychiatric treatment directly related to the work injury. Dr. Stillings testified that she was permanently and totally disabled from a psychiatric standpoint alone, which is from a combination of her pre-existing psychiatric condition and her current psychiatric condition related to her loss of work.

The deposition of Timothy Lalk was taken on behalf of the employee on January 26, 2007 (Exhibit C). Mr. Lalk is a vocational rehabilitation counselor. Mr. Lalk testified regarding the extensive psychiatric complaints and treatment prior to 2005. Mr. Lalk testified that based on Dr. Pruitt's physical restrictions, she could not return to her wo