Decision date: February 25, 200816 pages
Summary
The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award allowing workers' compensation benefits for an occupational disease claim. The employee sustained a 15% permanent partial disability in both hands and wrists from repetitive use of hands and wrists performing job duties, with the Commission finding the award supported by competent and substantial evidence.
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| Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION | |
| FINAL AWARD ALLOWING COMPENSATION(Affirming Award and Decision of Administrative Law Judge) | |
| Injury No.: 04-142250 | |
| Employee: | Tina Kelley |
| Employer: | St. Francis Medical Center |
| Insurer: | Zurich American Insurance Company |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund (Open) |
| Date of Accident: | March 22, 2004 |
| Place and County of Accident: | Cape Girardeau County, Missouri |
| The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided bysection 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 3, 2007. The award and decision of Administrative Law Judge Lawrence C. Kasten, issued July 3, 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 25th day of February 2008. | |
| LABOR AND INDUSTRIAL RELATIONS COMMISSION | |
| William F. Ringer, Chairman | |
| Alice A. Bartlett, Member | |
| John J. Hickey, Member | |
| Attest: | |
| ***_******_******_***____ | |
| Secretary | |
| ISSUED BY DIVISION OF WORKERS' COMPENSATION |
| AWARD | |
| Employee: Tina Kelley | Injury No. 04-142250 |
| Employer: St. Francis Medical Center | |
| Additional Party: Second Injury Fund – left open | |
| Insurer: Zurich American Insurance Company | |
| Hearing Date: Commenced March 20, 2007 | Checked by: LK/kh |
| Completed March 21, 2007 | |
| SUMMARY OF FINDINGS | |
| 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? On or about March 21, 2005 |
| 5. | State location where accident occurred or occupational disease contracted: Cape Girardeau 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 happened or occupational disease contracted: The employee repeatedly used her hands and wrists performing her job duties at St. Francis Medical Center. |
| 12. | Did accident or occupational disease cause death? No |
| 13. | Parts of body injured by accident or occupational disease: Left hand and wrist and right hand and wrist |
| 14. | Nature and extent of any permanent disability: 15% permanent partial disability of the left hand and wrist, 15% permanent partial disability of the right hand and wrist, and 15% multiplicity. |
| 15. | Compensation paid to date for temporary total disability: None |
| 16. | Value necessary medical aid paid to date by employer-insurer? $563.50 |
| 17. | Value necessary medical aid not furnished by employer-insurer? $13,408.86 |
| 18. | Employee’s average weekly wage: $778.60. |
| 19. | Weekly compensation rate: $519.07/ $354.05. |
| 20. | Method wages computation: By agreement. |
| 21. | Amount of compensation payable: |
| Previously Incurred Medical Bills: | $13,408.86 |
| Medical Mileage: | $382.61 |
| Temporary Total Disability: | 1,112.29 |
| Permanent Partial Disability: | $21,375.77 |
| TOTAL: $36,279.53 | |
| 22. | Second Injury Fund liability: Left Open. |
| 23. | Future requirements awarded: None. |
| Said payments to begin (See Rulings of Law) and 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: Kim Heckemeyer. | |
| FINDINGS OF FACT AND RULINGS OF LAW | |
| On March 20, 2007, the employee, Tina Kelley, appeared in person and by her attorney, Kim Heckemeyer for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Jim Cochrane. Also present for the employer was Teri Kreitzer, the Director of Human Resources. The employee’s claim against the Second Injury Fund was left open by the agreement of the parties. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows: | |
| UNDISPUTED FACTS: | |
| 1. | St. Francis Medical Center was operating under and subject to the provisions of the Workers’ Compensation Act and its liability was fully insured by Zurich American Insurance Company. |
| 2. | On or about March 22, 2004, February 16, 2005 and March 24, 2005, Tina Kelley was an employee of St. Francis Medical Center and was working under the Workers’ Compensation Act of Missouri. |
| 3. | The employer had notice of the employee’s alleged accident or occupational disease. |
| 4. | The employee’s claim was filed within the time allowed by law. |
| 5. | The employee’s average weekly wage was $778.60. The employee’s rate of compensation for temporary total disability is 519.07. The rate of compensation for permanentpartial disability is 347.05 per week in 2004 and $354.05 per week in 2005. |
| 6. | The employer-insurer has paid a total of $563.50 in medical aid. |
| 7. | The employer-insurer has not paid any temporary disability. |
| Judicial Notice of the contents of the Division’s files in 01-162156 and 04-142250 was taken. | |
| ISSUES: | |
| 1. | Accident or occupational disease |
| 2. | Medical causation |
| 3. | Claim for previously incurred medical |
| 4. | Claim for mileage under Section 287.140 RSMo. |
| 5. | Temporary total disability |
| 6. | Permanent partial disability |
| 7. | Res Judicata due to Compromise Settlement in Injury Number 01-162156. |
| EXHIBITS: | |
| The following exhibits were offered and admitted into evidence: | |
| Employee’s Exhibits | |
| A. | Medical records for October 29, 2001 claim |
| B. | Medical records for present claim (The record was left open for ten days for the submission of this exhibit. It was received and admitted on March 21,2007.) |
| C. | Medical bills |
| D. | Medical mileage summary |
| E. | Deposition of Dr. Levy |
| F. | Proposed compromise settlement agreement in injury number 01-162156 |
| G. | Approved compromise settlement in injury number 01-162156 |
| Employer-insurer’s Exhibits | |
| 1. | Claim for compensation in injury number 01-162156 |
| 2. | Approved stipulation for compromise settlement in injury number 01-162156 |
| 3. | Original claim for compensation in injury number 04-142250 |
| 4. | Medical records of Dr. Deisher |
| 5. | Medical records of Dr. Stahly |
| 6. | Report of Dr. Eaton |
| 7. | Deposition of Dr. Eaton |
| 8. | Medical records of Dr. Straubinger |
| 9. | Incident report |
| 10. | Deposition of Dr. Levy |
| 11. | Reports of Dr. Levy |
| 12. | Deposition of Tina Kelley |
| 13. | Deposition of Steve Taylor |
| 14. | Deposition of Dale Gerecke |
| 15. | Volume stat report |
| 16. | Termination notice |
| 17. | Amended claim for compensation in injury number 04-142250 |
| 18. | Summary of hours worked by Tina Kelley from December of 2004 through April 2, 2005 |
| Note: | Several of the exhibits had various highlighted and underlined portions that were present when offered and admitted into evidence. |
| During the hearing, the employer-insurer made objections to parol evidence testimony about the compromise settlement in Injury Number 01-162156. The ruling on the objection was taken under advisement. The employer-insurer’s objection is sustained. Employer-Insurer Exhibits 12, 13, and 14 were offered and admitted subject to the parol evidence objection. The deposition testimony of Steve Taylor, Dale Gerecke, and the employee were not considered in my decision. The testimony of the employee and Teri Kreitzer that involved parole evidence concerning the compromise settlement were not considered in my decision. Employee Exhibit F, the proposed compromise settlement agreement was not considered in my decision. These exhibits shall be retained in the Division’s file and the testimony shall be part of the transcript for purposes of appellate review. | |
| Witnesses: | |
| 1. | Tina Kelley, the employee |
| 2. | Marlene Lyon, for the employer-insurer |
| 3. | Teri Kreitzer, for the employer-insurer |
Briefs: The employee filed her brief on April 9. The employer-insurer filed its brief on April 16. A response to the employer-insurer's brief was filed by the employee on May 1.
Based on a review of the evidence, I make the following Findings of Fact:
The employee started working for St. Francis Medical Center in February of 1982 and stopped working there in April of 2005. When she started at St. Francis, she had no complaints with her upper extremities. From 1982 through 1990, she worked as a certified respiratory therapist. In 1990, she switched to the sleep lab and worked with sleep studies. She became a registered polystenograhy technologist. She had no problems with her upper extremities.
01-162156 Claim:
2001:
In June of 2001, the employee became a hyperbaric technologist and worked in the hyperbaric center. Her job duties included data entry, and helping patients. She normally helped 6-10 patients a day and spent 1535 minutes per patient. The data entry portion of her job was 4-8 hours a day. She routinely moved patient's charts. In October of 2001, she started developing complaints of pain, tingling, and burning in her elbows into her small and ring fingers. She reported that injury and received treatment from the employer.
In November of 2001, the employee started seeing Dr. Ryan for bilateral elbow pain with numbness and tingling down the lateral aspect of the arms into the middle, ring and little fingers. The employee had decreased sensation in the little and ring fingers. The employee was prescribed wrist splints. Dr. Ryan's assessment was bilateral lateral epicondylitis; bilateral ulnar neuritis; bilateral shoulder pain; and bilateral wrist pain due to trying to move her wrist against the splints. The employee started receiving physical therapy. The employee had numbness in the middle, ring and small fingers bilaterally. The employee had aching from the elbows into the forearms and reported popping and cracking in the right wrist with active use. In December, Dr. Straubinger diagnosed right and left lateral epicondylitis and performed bilateral epicondylar injections.
The employee continued to see Dr. Ryan in January and February for bilateral lateral epicondylitis. When her elbows got worse in March, she was referred to Dr. Tobin. Dr. Tobin diagnosed bilateral lateral epicondyl
Full decision text continues in the plain-text archive copy.
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The Missouri Court of Appeals reversed the Commission's December 2020 award and remanded for reconsideration of whether the employee achieved permanent total disability status when combining her primary bilateral carpal tunnel injury with preexisting disabilities, including newly admitted vocational expert testimony and complete medical evaluation evidence. The Commission reconsidered the case on remand, admitting previously excluded vocational expert testimony documenting the employee's preexisting psychiatric disabilities (depression, PTSD, anxiety disorder) and modified its award accordingly.
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August 25, 2021#14-105395
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