Ruth Atkins v. Schreiber Foods

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

The administrative law judge erred by substituting her own vocational opinion for the uncontradicted expert vocational evidence provided by Ms. Browning. "[C]ompetent, substantial and undisputed evidence of witnesses who are not shown by the record to have been impeached" may not be disregarded or ignored. Knisley v. Charleswood Corp., 211 S.W.3d 629, 636 (Mo.App. 2007). Since there was no contrary evidence provided, and because Ms. Browning's testimony and report are wholly credible, it is unclear to me why the administrative law judge disregarded this evidence and instead injected her own opinion.

Ms. Browning determined that employee is permanently and totally disabled based on the synergistic effect of the combination of her prior disabilities and the primary injury. Ms. Browning opined that employee could not work as a File Clerk or Customer Service Representative because it was "highly likely that [employee] would have difficulty with continuous use of her hands . . . and use of a computer keyboard . . . secondary to reports of hand cramping after a few minutes of use with paresthesias and numbness and sensitivity to light." The administrative law judge did not find this opinion to be persuasive, making note that some of employee's limitations were based on subjective complaints. The administrative law judge then substituted her own "expert" opinion in place of Ms. Browning's and stated that she did not "believe" employee's hand cramping, numbness and paresthesias would prevent employee from performing sedentary work.

The evidence presented at the hearing shows otherwise. Nothing prohibits

Ms. Browning from considering employee's subjective complaints, especially in light of the fact that those complaints were not contrary to the expert medical evidence. Employee testified credibly that due to her wrist injuries, her hands still go numb, that she can only lift approximately one gallon of milk, and that she is unable to write for extended periods, stir when cooking, or peel potatoes. The administrative law judge does not dispute those findings or directly attack employee's credibility. Without explanation or supporting evidence, she simply stated that she believed employee could perform the job duties of a File Clerk, Customer Service Clerk or Motel Desk Clerk. Such a finding is contrary to the competent and substantial evidence in the record, especially since Ms. Browning's credible and undisputed expert vocation opinion shows that all of those job types would require employee to perform tasks that she is unable to perform due to her disabilities, limitations and restrictions.

Furthermore, even if employee's hand complaints were disregarded as the administrative law judge chose to do, employee is still permanently and totally disabled. Employee's sensitivity to light prevents employee from working jobs requiring the use of a computer monitor. Employee is unable to sit or stand for extended periods due to her prior knee, pelvis and back injuries, which Ms. Browning opined prevented employee from performing work as a File Clerk, Customer Service Clerk or Motel Desk Clerk.

Finally, I also note that the administrative law judge erred in finding that employee turned down offers of work based on the wage offered. Nowhere in the record did employee, or anyone else for that matter, provide evidence that employee was ever offered any work after her primary injury. This finding of fact is simply wrong.

Based on the above, I believe that employee has carried her burden of establishing that she is permanently

and totally disabled based on the synergistic effect of the combination of her prior injuries and her primary work injury of April 7, 2005. Ms. Browning provided expert vocational evidence that based on the combination of employee's physical impairments, restrictions, age, education and training, employee is unemployable in the open labor market. Therefore, employee is permanently and totally disabled. As such, I would reverse the award of the administrative law judge and award employee permanent total disability benefits against the second injury fund.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission to only award employee permanent partial disability benefits.

John J. Hickey, Member

Employee: Ruth Atkins

Injury No.: 05-029562

Dependents: N/A

Employer: Schreiber Foods (settled)

Additional Party: Second Injury Fund

Insumer:

N/A

Hearing Date: October 3, 2007

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL: ms

1. Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

- Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: April 7, 2005

- State location where accident occurred or occupational disease was contracted: St. Louis, Missouri

1. Was above employee in employ of above employer at time of alleged accident/occupational disease? Yes
2. Did employer receive proper notice? N/A

- Did accident or occupational disease arise out of and in the course of the employment? Yes

- Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee used her hands in a repetitive fashion.
3. Did accident or occupational disease cause death? No
4. Part(s) of body injured by accident or occupational disease: Both wrists

- Nature and extent of any permanent disability: 17.5\% PPD of each wrist

1. Compensation paid to-date for temporary disability: N/A
2. Value necessary medical aid paid to date by employer/insurer? N/A

Employee: Ruth Atkins

Injury No.: 05-029562

1. Value necessary medical aid not furnished by employer/insurer? N/A

- Employee's average weekly wages: N/A

1. Weekly compensation rate: $\$ 422.67 / \ 354.05
2. Method wages computation: By stipulation

COMPENSATION PAYABLE

1. Second Injury Fund liability: Yes

37.7 weeks of permanent partial disability from Second Injury Fund

$\ 13,347.69

Total:

$\ 13,347.69

1. Future requirements awarded: None

Said payments to begin 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. James Heckel

Employee: Ruth Atkins

Injury No.: 05-029562

Dependents: N/A

Before the

Employer: Schreiber Foods (settled)

Additional Party: Second Injury Fund

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Zurich American Insurance Company

Checked by: MDL: ms

A hearing was held on October 3, 2007, at the Division of Workers' Compensation in the City of St. Louis. Ruth Atkins (Claimant) was represented by Mr. James Heckel. Schreiber Foods (Employer) and its Insurer, Zurich American Insurance Company previously settled its liability with Claimant, and this case proceeded to a hearing against the Second Injury Fund, which was represented by Assistant Attorney General Kay Osborne. Mr. Heckel requested a fee of 25 % of Claimant's Award.

The parties stipulated that on or about April 7, 2005, Claimant sustained an occupational disease arising out of and in the course of employment; Claimant was an employee of Employer; venue is proper in the City of St. Louis; and the claim was timely filed. Claimant's rate is $\ 422.67 for total disability benefits and $\ 354.05 for PPD benefits.

The issues for determination by hearing are: nature and extent of permanent disability; and liability of the Second Injury Fund for permanent total or permanent partial disability.

Claimant is a 59 year old woman with a ninth grade education and no other vocational training or formal education. Claimant never performed office or sales work, and is unable to type or use a computer. After high school Claimant worked briefly in the fast food industry, and then worked in various jobs in the manufacturing industry.

In 1981, Claimant began working in the dairy industry for Raskas Dairy which later became Employer. Most of Claimant's work in the dairy industry was physically demanding. Claimant made boxes, cleaned, and broke down machines. Claimant had to work quickly, and speed was a major factor in her job. Claimant performed a job called "cheese peeling" which required her to clean tubs of cheese or sour cream.

In 1984, Claimant sprained her lower back at work, and briefly treated conservatively with Dr. Sedgwick. In 1985, Dr. Sedgwick rated 5\% PPD of the body as a whole referable to the low back. Claimant returned to see Dr. Sedgwick in 1988 for recurrence of low back pain. MRI scans of the lumbar spine in 1988 and 1989 were negative for herniated discs. Dr. Sedgwick did not recommend surgery, and released Claimant from his care in January 1990.

In 1996, Claimant injured her right shoulder when she fell, and had surgery to repair a rotator cuff tear. Dr. Johnston released Claimant at MMI, but recommended she avoid occupational activities with use of the arm above the shoulder level. Claimant settled her claim with Employer for 20\% of the right shoulder. At the same time Claimant was treating for her shoulder, Dr. Johnston also treated Claimant for a nondisplaced fracture of the right distal radius. Treatment consisted of a short arm cast, and the fracture healed without residual problems.

Claimant received conservative treatment for her knees in 2003 from Dr. Johnston and Dr. Wright. MRIs of her knees in May 2003 revealed early osteoar