Glennda Taylor v. Ballard RII School District

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-137509

Employee: Glennda Taylor

Claimant: Marvin Taylor, surviving spouse

Employer: Ballard RII School District

Insurer: Missouri United School Insurance Gallagher Bassett Services

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

Date of Accident: December 19, 2003

Place and County of Accident: Henry 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 July 2, 2007. The award and decision of Administrative Law Judge Karen Wells Fisher, issued July 2, 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 $1^{\text {st }}$ day of February 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

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: DECMEBER 19, 2003
5. State location where accident occurred or occupational disease was contracted: HENRY COUNTY, 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: DRIVING SCHOOL BUS
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: LOW BACK AND BODY AS A WHOLE
14. Nature and extent of any permanent disability: PERMANENT TOTAL DISABILITY
15. Compensation paid to-date for temporary disability: UNKNOWN
16. Value necessary medical aid paid to date by employer/insurer? UNKNOWN
17. Value necessary medical aid not furnished by employer/insurer? UNKNOWN
18. Employee's average weekly wages: $\ 316.28
19. Weekly compensation rate: $\ 210.85
20. Method wages computation: $\ 12,240 divided by 9 divided by $4.3=\$ 316.28 \times 2=\ 632.56 divided by $3=\ 210.85

1. Amount of compensation payable:

Unpaid medical expenses: $\ 49,400.37 weeks of temporary total disability (or temporary partial disability) weeks of permanent partial disability from Employer

1. Second Injury Fund liability: No

TOTAL: UNKNOWN

1. Future requirements awarded: Permanent total disability beginning January 29, 2004.

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

JOHN STANLEY

A hearing was held in the above injury before the undersigned Administrative Law Judge on March 2, 2007. The employee appeared in person and with attorney, John Stanley. Attorney, Howard Gosnell, appeared on behalf of the employer/insurer and Assistant Attorney General, Meredith Moser, appeared on behalf of the Second Injury Fund. Prior to going on the record the parties agreed that there were several issues to be determined as a result of the hearing, those issues are as follows:

1. Whether proper notice was given by the employee to the employer.
2. Whether employee was exposed to conditions as a part of her employment sufficient to case an occupational disease.

1. Whether the employer/insurer is liable for past medical treatment incurred by the employee for treatment of the alleged occupational disease.
2. What is the compensation rate in this case.
3. Whether or not the employee is entitled to permanent total disability benefits and would that permanent total disability be a result of the last injury alone or from a combination of the last injury and prior disabilities.
4. Whether or not the employee is entitled to future medical care.

The employee testified in person as well as offering the following exhibits which were admitted into evidence.

Exhibit A Dr. Koprivica deposition

Exhibit B Dr. Gillen deposition

Exhibit C Dr. Logan deposition

Exhibit D Ms. Titterington deposition

Exhibit E Dr Abercrombie records

Exhibit F Dr. Alexander records

Exhibit G Bates County Memorial Hospital records

Exhibit H Dr. Gillen records

Exhibit I Edward Jackson, Dr. Crabtree records

Exhibit J Headache \& Pain Centre records

Exhibit K Dr. Holmes records

Exhibit L Dr. Ogden records

Exhibit M A.J. Porter, DC records

Exhibit N Research Belton Hospital records

Exhibit O St. Luke's Hospital records

Exhibit P Shawnee Mission Medical Center records

Exhibit R Dr. Gillen bills

Exhibit S Research Belton bills

Exhibit T Ballard RII School Personnel file of Glennda Taylor

Exhibit U Midway School transcript of Glennda Taylor

Exhibit V Notice faxed to employer

The employee's husband, Marvin Taylor, also testified at the trial. The employee, Glennda Taylor, was 46 years on the date of the hearing. She has completed the 10th grade and has earned a GED. She has a work history of various employment including cashier work, warehouse work, fast food work, and some production work. She has earned her real estate license although she has never used that license professionally. Additionally, Ms. Taylor was a homemaker at different periods of time. Ms. Taylor did not have any work-related injuries until she was working at Longview Community College between 1990 and 1993 doing clerical activities and experienced a fall at work. This resulted in a distal and proximal spiral tibial fracture. It involved an extended recovery. Bone grafting from the pelvic area and intramedullary rod placement were performed to achieve healing. The rod has since been removed. As a result of this injury Ms. Taylor continues to walk with a limp.

Her employment history continued with various and multiple employers including positions as a mailroom clerk, cook, bus driver, clerical, and assembly worker. She was employed at Kemper Insurance when she developed bilateral carpal tunnel syndrome and had bilateral carpal tunnel release surgeries in approximately 2001. Those surgeries were not handled through workers' compensation. Ms. Taylor began working at Ballard School District for the second time on October 1, 2002. She worked as a bus driver. She also began a second job at Wal-Mart as a cashier beginning in November of 2002. In April of 2003 she was moved to the floor in the ladies wear department. She did do some stocking activities as well as assembly and disassembly of hanging racks. She last worked at Wal-Mart in July of 2003.

The claimant describes her work at Ballard School District as in her own mind the source of the development of her back pain as well as the progression of that back pain. She attributes this to the rough surface on the rural gravel roads and she describes a washboard-type effect where she would be bounced in her seat. The bridges over which she drove also have rough surfaces on entry and exit. The claimant's husband, Marvin Taylor, testified at hearing that he had helped work on the Ballard School District buses that the buses were eight to ten years old and that none of these buses had shock absorbers or

suspension systems that he knew of. He indicated that a bus would be broken down once or twice a month. He had, in fact, driven one year for Ballard School District in 1991. He indicated that Bus 9, which the claimant drove, had a manual shift. He testified that he had taken pictures which are indicated as Koprivica Exhibits A1 through A14N along his wife's regular bus route.

Mr. Taylor testified that the photograph marked as Exhibit A14F shows the bridge higher than the road level with approximately $71 / 2$ to 8 inch difference in height. He said that it was like coming off a curb. Mr. Taylor took pictures along the whole route to give a general representation of the entire route. He also used an aluminum concrete leveler in some pictures to help accurately show the road unevenness. He took those photos on a single day in the spring. He said that the county roads on which she drove were graded twice a month and the potholes filled with loose gravel. He testified that his wife drove two times a day five days a week.

Mr. Taylor also stated that three to four months after she started driving she complained of pain in her leg. The claimant had progression of numbness and pain into both legs as well. Initially the problem started In the right hip, but then progressed to where it was affecting both legs. One of her concerns was the safety of driving a bus because of the profound numbness as she would drive. As a result of the problems with her legs she was not able to perform the floor tasks required at Wal-Mart. She attempted to find a different position with Wal-Mart which was not offered. She was eventually terminated from that employment. Initially the claimant did not comprehend that her problems arose from her low back. She erroneously believed that they related to a bone graft taken from her pelvic area as a result of the leg fracture ten years earlier. The claimant did have a history of going to a chiropractor as a child which is why she initially sought chiropractic care. The chiropractor, Dr. Porter, recorded difficulties associated with her having to drive a different bus. The claimant first made these complaints to Dr. Porter on December 6, 2002. She then treated with her family physician, Dr. Alexander for "leg cramps" and pain in her back. He then referred her to Dr. Carroll who saw her on July 8, 2003. Dr.Carroll suspected lumbar radiculopathy and ordered electrodiagnostic studies which revealed abnormalities consistent with right lumbar radiculopathy.

On July 23, 2003, an MRI scan was ordered which indicated degenerative disk disease as well as a focal disk herniation at L4, L5 and a more prominent disk protrusion that was posterolateral to the right at L5-S1 with some S1 nerve root impingement. The claimant received epidural steroid injections which were unsuccessful in improving her symptoms. The claimant took medical lea