Donna DeShaney v. MEMC Electronic Materials, Inc.

Employee: Donna DeShaney

Injury No. 98-123679

Dependents: ---

Employer: MEMC Electronic Materials, Inc. (previously settled)

Additional Party: State Treasurer, as Custodian of the Second Injury Fund

Insurer: (Previously Settled)

Hearing Date: December 18, 2007

Checked by: LEHB/In

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: April, 1998
5. State location where accident occurred or occupational disease was contracted: St. Charles, 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? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Performing her routine job duties when rack slipped jerking her left shoulder
12. Did accident or occupational disease cause death? No Date of death? ---
13. Part(s) of body injured by accident or occupational disease: Left shoulder

- Nature and extent of any permanent disability: PTD against SIF

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? N/A
3. Value necessary medical aid not furnished by employer/insurer? N/A
4. Employee's average weekly wages: ---
5. Weekly compensation rate: $\$ 240.00 / \ 240.00

- Method wages computation: by agreement of the parties

1. Amount of compensation payable:

Unpaid medical expenses: ---

--- weeks of temporary total disability (or temporary partial disability)

--- weeks of permanent partial disability from Employer

--- weeks of disfigurement from Employer

--- Permanent total disability benefits from Employer beginning --- for ---

Claimant's lifetime

1. Second Injury Fund liability: Yes

Total: PERMANENT TOTAL DISABILITY OF \$240.00/WEEK BEGINNING 46.4 WEEKS

AFTER aPRIL 24, 1998

(OR ON

APPROXIMATELY MARCH 16, 1999) FOR

OF CLAIMANT.

1. Future requirements awarded: None

Said payments to begin as of 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:

Mark Moreland, Attorney for Claimant

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ---

Employer: MEMC Electronic Materials, Inc. (previously settled)

Additional Party: State Treasurer, as Custodian of Second Injury Fund

Insurer: (Previously Settled)

Checked by: LEHB/In

This is a hearing in Injury Number 98-123679. The claimant, Donna DeShaney appeared in person and by counsel, Attorney Mark Moreland. The case against the employer/insurer was previously settled and the employer/insurer was not present at this hearing. The Second Injury Fund appeared by and through Assistant Attorney General Laura Wagener.

The parties entered into certain stipulations, and agreements as to the complex issues and evidence to be presented in this hearing.

On or about the last day of the claimant's employment in April of 1998 the claimant was in the employment of MEMC Electronic Materials Incorporated in St. Charles County, Missouri.

On or about April of 1998: the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation law; and the rate on the date in question is $\$ 240.00 / \ 240.00. A Claim for Compensation was filed within the time prescribed by law. No temporary total disability benefits were paid in the primary case, and no medical aid was paid in the primary case.

1. Whether or not the claimant suffered an accident
2. Notice
3. Medical causation
4. Nature and extent of permanent partial disability
5. Liability of the Second Injury Fund

The following exhibits were admitted into evidence:

No. A: Report of April 17, 1998 from Dr. J.H. Morrow, D.O.

No. B: Scott Radiological Group report, dated August 20, 1998, referencing DeShaney's low back and left wrist interpreted by Dr. McCown

No. C: Letter from Dr. Ray Clouse, M.D., dated February 26, 1999

No. D: Work-hardening report from CH Health Technologies concerning 16 visits to work hardening

No. E: Records from Westbury Allergy Group, P.C.

No. F: Report from Park Crest Orthopedics/Dr. James P. Emanuel dated March 11, 2002

No. G: Records from Heritage ENT/Dr. Levine, M.D.

No. H: Dr. Terrence L. Piper, M.D of St. Peters Bone and Joint Surgery, Inc.

No. I: Records from Barnes St. Peters Hospital

No. J: Records from O'Fallon Physical Therapy

No. K: Letter from Dr. David Robson, M.D., dated December 20th, 1991

No. L: Medical records from Arthritis Consultants, Inc.

No. M: Medical records from Dr. Michael K. Houser, M.D.

No. N: Certified records of Dr. Martin Glazer, D.O.

No. O: Records of Dr. Stanley Martin, M.D.

No. P: Copy of a Stipulation for Compromise Settlement referencing a 1996 right elbow injury, Injury Number 96-121722

No. Q: Copy of a Stipulation for Compromise Settlement in reference to 1995 bilateral carpal tunnel syndrome, Injury Number 95-051586

No. R: Deposition transcript Dr. Thomas Musich, M.D. taken on behalf of the employee on April 29, 2003 (Admitted subject to the objections therein)

No. S: Deposition transcript of vocational expert Gary Weimholt, M.S. taken on behalf of the employee on March 17, 2003 (Admitted subject to the objections therein)

No. T: Records of Dr. E.A. DiFilippo, M.D. of St. Charles Orthopaedic Surgery

No. U: Medical records of St. Joseph's Health Center, St. Charles

No. V: Medical records of Dr. Michael J. Adams, D O.

No. W: Medical records from St. Charles Clinic

No. X: Medical records of Dr. Richard Anderson, M.D.

No. Y: Claimant's written list of medications she testified at hearing she was on at the time of the hearing; which DeShaney stated were - Cymbalta, Geodon, Gabitrel, Gabapitin, Deplin 75, Trazadone, Ambien, Prevacid, Laboxso, Abututron, and Butatron SR.

Roman Numeral I: Deposition transcript of Dr. James P. Emanuel, M.D. taken on behalf of the employer/insurer on May 19, 2003 (Admitted subject to the objections therein)

Roman Numeral II: Deposition transcript of James M. England, Jr. taken on behalf of the Second Injury Fund on December 14, 2007 (Admitted subject to the objections therein)

The claimant, DeShaney, alleges that she sustained injuries to her left shoulder and neck as a result of a work related accident in April of 1998 while working at MEMC Electronics, Inc.. The applicable provisions for a compensable "accident" under Missouri Workers' Compensation Law at the time of the alleged work-related accident herein are set forth in Section 287.020, which states in pertinent part:

1. The word "accident" as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor.
2. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of

employment. The injury must be incidental to and not independent of the relation of employer and employee. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging shall not be compensable, except where the deterioration or degeneration follows as an incident of employment.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

(d) It does not come from a hazard of risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life:

DeShaney testified that she went to work for MEMC Electronics on May 30, 1990. My last day that I worked for MEMC Electronics was in April of 1998, DeShaney said. She was asked if she remembered a specific day in April of 1998, and DeShaney responded - No, I don't. She agreed that it was the day that she last injured herself that is the subject of this claim.

DeShaney testified about the various jobs she performed at MEMC, stating that she started her last jobs at MEMC, working in the LE MAT and FTIR department, starting in probably early 1997. I ran the LE MAT and the FTIR machines, she said. On the LE MAT we would take one wafer and put it down in the machine where it would go down into chemicals and stuff, and the machine would read the contents of what was in the wafer, certain levels of different things in the wafer; and it would print it out on the computer screen, and it would also print it out on paper, DeShaney testified. And we would have to enter all that data into the computer, she said. Agreeing that she would personally enter the data into the computer by typing it in, DeShaney further stated that they had to use the keyboard to run the machine, too. When that process in the machine was completed, we would take the wafer out and put it in a rack which handled 25 wafers, she said, and when I had 25 wafers in the rack, then it would go in a tub. The tubs are probably two, two and a half foot wide and are completely square, and are probably ten to twelve