Elizabeth Leach v. Wal-Mart Associates, Inc.

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 July 20, 2007. The award and decision of Administrative Law Judge Grant C. Gorman, issued July 20, 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: December 21, 2003
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: Employee fell after tripping on floor mat.
12. Did accident or occupational disease cause death? No Date of death? Not Applicable
13. Part(s) of body injured by accident or occupational disease: left wrist, right knee, head and face
14. Nature and extent of any permanent disability: 10 % left wrist, 5 % right knee
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? $\ 8,272.41
17. Value necessary medical aid not furnished by employer/insurer? $\ 25.00
18. Employee's average weekly wages: $\ 388.80
19. Weekly compensation rate: $\ 260.50 PPD/TTD
20. Method wages computation: Statutory calculation $\S 287.240 .4$

1. Amount of compensation payable:

Unpaid medical expenses: 25.00 0 weeks of temporary total disability (or temporary partial disability) 22 weeks of permanent partial disability from Employer $\ 5,731.00

1. Second Injury Fund liability: Open

TOTAL:

1. Future requirements awarded: None

Said payments to begin as of the date of this award 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:

Ray Gerritzen

Employee: Elizabeth Leach

Injury No: 03-129740

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: None

Employer: Wal-Mart Associates, Inc.

Additional Party Second Injury Fund (Open)

Insurer: American Home Assurance

Checked by: GCG/In

Hearing was held in the above styled case on April 16, 2007, at the Division of Workers' Compensation in St. Charles County, Missouri. Elizabeth Leach (Claimant) was present and represented by Mr. Ray Gerritzen. WalMart Associates, Inc. (Employer) and its Insurer, American Home Assurance c/o Claims Management, Inc. were

represented by Ms. Dorothy Smith. The Second Injury Fund (SIF) is a party, but was not present at the hearing as it was agreed that SIF liability would be left open for future determination.

The parties made the following stipulations: that on or about December 21, 2003, claimant was an employee of Employer; an accident occurred on December 21, 2003 arising out of and in the course of employment; venue is proper in St. Charles County; Employer received proper notice of accident; and the claim was filed within the time provided by law. The parties further stipulated that Employer paid medical expenses in the amount of $\ 8272.41 and that no temporary total disability was paid.

The issues presented for resolution at hearing are: medical causation for left trigger ring finger and left trigger thumb conditions; liability of Employer for past medical benefits in an amount to be determined (\$7192.99 alleged); liability of Employer for temporary total disability (TTD) benefits from June 13, 2005 through July 14, 2005; nature and extent of permanent partial disability (PPD); and wage rate.

Only evidence relevant to the issues presented for dispute is summarized herein. Claimant is a 69 year old woman who works for Wal-Mart. She began this employment in July 2001. She was initially a cashier, but soon after her employment began was promoted to customer service manager. Her responsibilities include: Supervising cashiers (there are 31 registers in the store), closing out cash drawers and counting money, and processing returns.

Her employment is considered full-time. She generally worked 40 hours per week, and sometimes was required to work overtime. She testified that in April 2003, she took a leave of absence from work to care for her husband who had terminal cancer. Her husband passed away on June 14, 2003. She testified that she returned to work in August or September 2003. Claimant testified that at the time she returned to work, she may have only worked 7 hours per day for a few weeks. She testified that as of July 24, 2003, she received a raise that increased her hourly pay rate to $\ 9.72 per hour. She indicated that by late 2003, she was working a full-time schedule again.

Claimant testified regarding Employer's Exhibit 5, which is purportedly a wage statement, that was received into evidence without objection. After testimony about the contents of Exhibit 5, she conceded that she did not understand all the abbreviations contained on the form. Employer offered no testimony regarding Exhibit 5 or its contents. Ultimately, Claimant testified that she did not agree with the contents of Exhibit 5. However, she had lost all of her own pay stubs and employment records when her basement flooded.

In the early morning hours of December 21, 2003, Claimant fell at work when she tripped on a floor mat while on her way to put money into the customer service cash register. She testified that she hit her right knee, left hand, forehead and lip on the floor when she fell. Her lip immediately began to bleed. She was taken to the employee lounge to get ice. She rested 15 to 20 minutes and then returned to work.

After Claimant went home, the injuries worsened, and she called the store manager, who instructed another employee to take Claimant to an urgent care center. She was ultimately sent to St. Joseph's Hospital emergency room for x-rays. She testified that she was given a prescription for pain medication for which she paid $\ 25.00 to obtain. She took off one work shift, and then returned to light duty. At that time, her whole left hand hurt. Her hand was black and blue for a week and a half, then turned green.

Claimant testified that she wore a splint on her wrist for 16 to 18 months after the injury, and had to do most work with her right hand. Employer sent her for treatment with Dr. Anthony Sudekum. Dr. Sudekum gave her a smaller "spandex" brace with straps to wear. She also wore a knee brace for some time; she testified that she still wears the knee brace in bad weather.

Dr. Sudekum diagnosed Claimant with a left wrist sprain and possible mild ligamentous injury, and a contusion to the right knee as a result of the December 21, 2003 injury. Dr. Sudekum released Claimant from treatment on May 17, 2004. He assessed PPD of 3\% to the left wrist and no PPD to the right knee due to the fact

that there was not a bone injury, he observed no swelling in the knee, she did not ambulate with a limp, and she had not had any further complaints regarding the knee. At the time of her release from the care of Dr. Sudekum, Claimant had not made any complaints regarding locking or clicking of any of her left digits.

Claimant continued to have pain in her left hand and was reevaluated by Dr. Sudekum on April 18, 2005. He diagnosed left trigger thumb and palmar fasciitis or Dupuytren's contracture of the left palm. According to Dr. Sudekum, Claimant stated that her symptoms in her thumb began about six months prior the appointment, or November 2004. His opinion was that the left trigger thumb was not a result of the work injury of December 21, 2003 or her work duties. Dr. Sudekum also did not feel that the Dupuytren's nodules were work related. Dr. Sudekum testified that at the time of the April 18, 2005 evaluation, Claimant did not complain of, or demonstrate symptoms of a trigger condition to the left ring finger, and that generally a trigger digit condition would not be causally related to her employment. At the deposition of Dr. Sudekum, Claimant objected to a report dated July 25, 2006 for the reason that the report had not been disclosed at least seven days prior to the testimony. Employer provided no evidence that the report had been provided to Claimant, and the objection is sustained. The undersigned ALJ did not rely on the information in that report. Dr. Sudekum did include the same information regarding the trigger thumb condition in the April 18, 2005 report that was received into evidence. Further, his testimony on direct and cross exam demonstrate that his opinion on causation applies generally to trigger digit conditions.

Based on Dr. Sudekum's opinions, further treatment was not authorized. Claimant then sought treatment from her personal physician, Dr. Radpanor. Dr. Radpanor referred her to Dr. Polineni for treatment to the left hand. On June 13, 2005, Dr. Polineni surgically repaired the trigger conditions of the left thumb and ring finger. This treatment was not paid for by Employer or Insurer, and the alleged outstanding balance is $\ 7,192.99.

Claimant was then evaluated by Dr. Bruce Schlafly. Dr. Schlafly opined that the injury of December 21, 2003 and the subsequent use of her hand in her employment is the substantial factor in causing the trigger conditions in her left thumb and ring finger, in addition to the injuries to the wrist and knee. He assigned levels of PPD at 20 % to the thumb ( 60 week), 25 % finger ( 35 week), 12.5 % wrist, and 15 % knee.

Claimant has no current complaints regarding her head or lip. Her knee bothers her occasionally. She sometimes must wear a brace, when it hurts it "slows her down a lot." She limps when it hurts. She still gets "shock and tingle" in the left hand up to the wrist, and it hurts in the center of the palm. Sometimes she can't grip with the left thumb, and drops things. She still works at Wal-Mart, but is not able to lift like she used to. She no longer does "break packs" which are large packages of item which must be opened, sorted and taken to the proper department. She can't carry large containers of laundry detergent. At home, she no longer does yard work and can't lift things she used to be able to lift. Claimant concedes that she had a previous workers' compensation settlement for carpal tunnel syndrome and surgical release to her left wrist, with 20\% PPD assigned to her wrist in the settlement.

Mary Dalton, a co-worker of Claimant, testified that she has worked with Claimant for six years. Since the injury, she has observed that Claimant does not walk as fast as she used to. She also testified that Claimant no longer can lift the "break packs."

Based on the competent and substantial evidence presented, including the testimony of Claimant, the testimony of the other witness, my personal observations, the expert medical testimony, and all other exhibits received into evidence, I find:

Under Missouri law, it is well-settled that the claimant bears the burden of proving all the essential elements of a workers' compensation claim, including the causal connection between the accident and the injury. Grime v. Altec Indus., 83 S.W.3d 581, 583 (Mo.App. W.D.2002); see also Davies v. Carter Carburetor, 429 S.W.2d 738, 749 (Mo.1968); McCoy v. Simpson, 346 Mo. 72, 139 S.W.2d 950, 952 (1940). While the claimant is not required to prove the elements of his claim on the basis of "absolute certainty," he must at least establish the existence of those elements by "reasonable probability." Sanderson v. Porta-Fab Corp., 989 S.W.2d 599, 603 (Mo.App. E.D.1999) (citing Cook v. Sunnen Prods. Corp., 937 S.W.2d 221, 223 (Mo.App. E.D.1996)).

For an award of temporary disability and medical aid, proof of cause of injury is sufficiently made on reasonable probability. Griggs v. A. B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1973). Winsor v. Lee Johnson Const. Co., 950 S.W.2d 504 (Mo. App.W.D.1997). The employee must prove the nature and extent of any disability by a reasonable degree of certainty. Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. 1995); Griggs v. A. B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1973).

It is undisputed that Claimant developed trigger thumb and ring finger in her left hand. The parties offer conflicting expert medical opinions regarding causation of the trigger digit conditions. Where the opinions of medical experts are in conflict, the fact finder may reject all or part of one party's expert testimony, which it does not consider credible, and accept as true the contrary testimony given by other experts. Webber v. Chrysler Corp., 826 S.W.2d 51, 54 (Mo.App. E.D. 1992).

Dr. Sudekum's opinion is the more credible opinion regarding causation of the trigger digit conditions. Dr. Sudekum was the treating physician, giving him more opportunity to review Claimant's condition. Factors which make his opinion more credible are: the eleven month time lapse between injury and the onset of symptoms, his analysis of Claimant's pre-existing contributive factors (osteoarthritis, prior carpal and cubital tunnel, Dupuytren's nodules, and Claimant's age and gender) and his familiarity with medical literature which support his opinions.

Based on the greater credibility of Dr. Sudekum's medical opinion regarding causation, I find that Claimant's left trigger thumb and ring finger are not causally related to her injury of December 21, 2003 or the duties of her employment at Wal-Mart.

The claim made for TTD benefits is related to the time period Claimant was unable to work after having surgery to release her trigger digit conditions. For the reasons set forth above, the trigger digit conditions were not related to the injury of December 21, 2003 or Claimant's employment at Wal-Mart. As a result, Claimant is not entitled to TTD benefits from June 13, 2005 to July 14, 2005.

The overwhelming majority of medical expenses claimed $(\ 7,192.99) are for the costs of the surgery to release the trigger digit conditions. For the reasons set forth above, the trigger digit conditions were not related to the injury of December 21, 2003 or Claimant's employment at Wal-Mart. As a result, Claimant is not entitled to recover the costs said surgery.

However, Claimant provided credible testimony that she paid $\ 25.00 for medication which was prescribed to cure and relieve the effects of her work injury. Claimant is entitled to recover $\ 25.00 for past medical expenses as reimbursement for the cost of the prescription medication.

Claimant testified that she was a full time employee, and regularly worked 40 hours per week, and that sometimes, especially around the holidays, she worked overtime hours. Claimant testified regarding Exhibit 5, which purports to be a wage statement from Employer. On cross examination she conceded that she did not know the meaning of the "OT" and "OTH" abbreviations contained on Exhibit 5.

Employer provided no enlightenment for the information contained in Exhibit 5. Rather than calling a witness to verify the information which Employer asserts is contained in the exhibit, Employer chooses to rely on the exhibit itself, which is incomprehensible to anyone unfamiliar with it. There are a number of categories which

have abbreviations that remain unexplained.

Further, it appears it that it does not report weekly hours and wages, but bi-weekly hours and wages. Unless one assumes that each bi-weekly total is comprised of two exactly identical weeks of hours and wages, a bi-weekly report is insufficient foundation for a statutory calculation pursuant to $\S 287.240 .1(4)$ in that absences per week can affect how a particular week is used in the calculation.

Section 287.240.1(4) requires the use of the wages earned in the thirteen weeks preceding the injury "while actually employed by employer," and allows for use of fewer weeks "if actually employed by the employer for less than thirteen weeks." Claimant was actually employed by Employer for more than thirteen weeks, but not receiving wages for the entire preceding thirteen week period due to a leave of absence because of her husband's terminal illness and death. There is no definition of "actually employed" in the statute, and it is unclear whether the calculation should be made with fewer than thirteen weeks after she returned from her leave of absence, or if it should include the weeks worked and the wages earned prior to her leave of absence when she was actually employed and earning wages.

The evidentiary deficiencies in Exhibit 5 and the testimony, or lack thereof, surrounding it; and the ambiguity in the application of $\S 287.240 .1(4)$ raised by the specific set of facts which exist in this case make it impossible to fairly and justly determine Claimant's wage rate by using the formula set forth in §287.240.1(4). Section 287.240 .4 provides for the Division to determine the average weekly wage when such exceptional facts are presented.

Claimant's testimony regarding her wage and number of hours worked is credible. Employer offered no evidence to contradict Claimant's testimony that she normally works 40 hours per week, sometimes with overtime hours, and that she earns $\ 9.72 per hour. $40 \times \$ 9.72=\ 388.80 per week. $\$ 388.80 \times 0.67=\ 260.50. No overtime hours are included in the formula, as no evidence was presented regarding the customary amount of overtime hours worked. Using Claimant's testimony as the determinative factor in calculating average weekly wage and compensation rate fairly determines Claimant's average weekly wage under the exceptional facts presented in this case. Based on the foregoing, I find that Claimant's average weekly wage is $\ 388.80 and the corresponding compensation rate for PPD benefits is $\ 260.50.

A permanent partial award is intended to cover claimant's permanent limitations due to a work related injury and any restrictions his limitations may impose on employment opportunities. Phelps v. Jeff Wolk Construction Co., 803 S.W.2d 641,646 (Mo.App. 1991). With respect to the degree of permanent partial disability, a determination of the specific amount of percentage of disability is within the special province of the finder of fact. Banner Iron Works v. Mordis, 663 S.W.2d 770, 773 (Mo.App. 1983).

Based on the medical evidence and testimony presented, the credible testimony of Claimant regarding her current symptoms and physical limitations, and the credible testimony of Mary Dalton, I find that Claimant has sustained a 5\% permanent partial disability to her right knee as a result of the work injury of December 21, 2003. Five percent of 160 weeks is 8 weeks; $8 \times \$ 260.50=\ 2,084.00.

Based on the medical evidence and testimony presented, the credible testimony of Claimant regarding her current symptoms and physical limitations, and the credible testimony of Mary Dalton, I find that Claimant has sustained a 10\% permanent partial disability to her left wrist as a result of the work injury of December 21, 2003. Claimant, by her own admission, previously received an injury to, and compensation for 20\% PPD of her left wrist. Previous disability is presumed to continue undiminished. Twenty percent of 175 weeks is 35 weeks. $175-35= 140. Ten percent of 140 weeks =14 weeks; 14 \times \$ 260.50=\ 3,647.00.

Claimant is entitled to receive 22 weeks of compensation for a total of $\ 5,731.00 as a result of the December 21, 2003 work injury.

Attorney Ray Gerritzen is entitled to recover 25\% of all amounts awarded herein as and for attorney fees for necessary legal services provided to Claimant, and is hereby granted a lien for same.

A true copy: Attest:

/s/ Jeffrey W. Buker

Jeffrey W. Buker

Acting Director

Division of Workers' Compensation

Made by: /s/ Grant C. Gorman

Grant C. Gorman

Administrative Law Judge

Division of Workers' Compensation