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Judy Harder v. Burlington Coat Factory

Decision date: January 5, 200911 pages

Summary

The Commission affirmed the Administrative Law Judge's award allowing workers' compensation benefits for Judy A. Harder's left shoulder injury sustained on April 7, 2005, while unloading merchandise at Burlington Coat Factory. The Second Injury Fund was held liable for 50 weeks of permanent partial disability benefits totaling $11,511.50 for 25% permanent disability of the left upper extremity.

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This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-029316

Employee: Judy A. Harder

Employer: Burlington Coat Factory (Settled)

Insurer: Zurich American Insurance Company (Settled)

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

Date of Accident: April 7, 2005

Place and County of Accident: St. Louis City, 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 April 29, 2008. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued April 29, 2008, 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 5th day of January 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

AWARD

Employee: Judy A. Harder

Injury No.: 05-029316

Dependents: N/A

Before the

Employer: Burlington Coat Factory (settled)

Division of Workers' Compensation

Department of Labor and Industrial

Relationship: Second Injury Fund

Relationship: Third Injury

Insurer: Zurich American Insurance Company (settled)

Relations of Missouri

Jefferson City, Missouri

Hearing Dates: January 24, 2008

Checked by: KOB: ms

FINDINGS OF FACT AND RULINGS OF LAW

  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 7, 2005.
  5. State location where accident occurred or occupational disease was contracted: St. Louis City.
  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: Claimant was unloading merchandise when she fell into the bed of the truck, and got stuck, hurting her left shoulder.
  12. Did accident or occupational disease cause death? No.
  13. Part(s) of body injured by accident or occupational disease: Left Shoulder
  14. Nature and extent of any permanent disability: 25 % of the left upper extremity at the shoulder.
  15. Compensation paid to-date for temporary disability: None.
  16. Value necessary medical aid paid to date by employer/insurer? \$32,479.25

Employee: Judy Harder

Injury No.: 05-029316

17.Value necessary medical aid not furnished by employer/insurer? N/A
18.Employee's average weekly wages: $345.34
19.Weekly compensation rate: $230.23 /$230.23
20.Method wages computation: By agreement.
COMPENSATION PAYABLE
21.Amount of compensation payable: (Employer settled)
22.Second Injury Fund liability: Yes
50 weeks of permanent partial disability from Second Injury Fund:
$11,511.50
Total:
$11,511.50
23.Future requirements awarded: None

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

FINDINGS OF FACT and RULINGS OF LAW:

Employee:Judy A. HarderInjury No.: 05-029316
Dependents:N/ABefore the
Employer:Burlington Coat Factory (settled)Division of Workers'
Compensation
Additional Party:Second Injury FundDepartment of Labor and Industrial
Relations of Missouri
Insurer:Zurich American Insurance Company (settled)Jefferson City, Missouri
Checked by: KOB: ms

PRELIMINARIES

The matter of Judy A. Harder ("Claimant") proceeded to hearing to determine the liability of the Second Injury Fund. Attorney Thomas Fagan represented Claimant. Assistant Attorney General Jennifer Chestnut represented the Second Injury Fund. The claim against Burlington Coat Factory ("Employer") and its insurer, Zurich American Insurance Co., previously settled.

The parties stipulated Claimant sustained an accidental injury on April 7, 2005 arising out of and in the course of her employment which resulted in injury to her left shoulder. At the time, Claimant earned an average weekly wage

of $\ 345.34, resulting in a rate of compensation of $\ 230.23 for both permanent total disability benefits and permanent partial disability benefits. Employer did not pay any temporary total disability benefits, but did pay medical benefits totaling $\ 32,479.25. Employment, venue, notice, timeliness of the claim, and coverage of the Act are not at issue.

The sole issue presented is the liability of the Second Injury Fund. Claimant seeks to recover permanent total disability benefits. Exhibits B through O, and Exhibits I through III were admitted without objection.[1] Any marks on exhibits were present when the documents were admitted into evidence, and no marks were made by the Administrative Law Judge.

Claimant's Testimony and Records - Background \& Primary Injury

Claimant is a 59 year old woman who lives with her brother in St. Louis City. She is right handed, approximately 5'4" tall, and weighs about 140 pounds. A smoker since the age of 16, Claimant has cut her four packs a day habit down to one a day. Claimant left high school after the eleventh grade to start working. She did not obtain her GED, enroll in college, or have any further training, other than to become a security guard. For most of her life, Claimant was a receiving clerk, but her other vocational experience is as a bus girl, and a lead person with a cleaning agency.

For three decades, Claimant worked full time as a receiving clerk, first at Venture, and since the 1990's with Employer. Her job duties involved unloading boxes from trucks, ticketing, and taking merchandise to the floor. Claimant used a cart to transport merchandise, and a scanning gun to check prices. She had to lift up to 80 pounds, sometimes with help. Other activities included sweeping the floor, performing SKU counts, and watching fitting rooms.

On April 7, 2005, while unloading a truck, Claimant picked up a box, tripped over a cart, fell into the bed of the truck, and got stuck between the truck and the cart, hurting her left shoulder. On April 11, 2005, she began receiving conservative treatment at Barnes Care. Following an abnormal MRI, Employer authorized treatment with Dr. Haupt, who performed arthroscopic shoulder surgery on July 12, 2005, with physical therapy following at Pro-Rehab. His diagnosis was left shoulder impingement, acromioclavicular joint inflammation and fraying of various tendons. Dr. Haupt released Claimant to light duty in July, and full duty in late September 2005. He placed Claimant at MMI on October 17, 2005 with a forty pound lifting restriction, and rated her disability at 6 % of the left arm at the shoulder.

Following her shoulder surgery, Claimant worked for three months as a receiving clerk, although she said she did not perform as well. In late November 2005, Claimant stopped working to undergo a low back fusion for a condition unrelated to the April 7, 2005 accident.

Claimant's complaints with respect to her left shoulder include constant, "toothache like pain" that becomes worse when weather changes. Occasionally, Claimant experiences "pins and needles." Claimant cannot lift any significant weights, her range of motion is limited, and she cannot lie on her left side at all. Claimant reports her average pain is five on the ten-point scale, although the pain level fluctuates. Claimant takes Aleve up to four times per day, which relieves, but does not remove, the pain. Claimant is limited in activities of daily living. For example, she cannot reach for dishes in her cabinet, lift a gallon of milk or a bottle of soda, or do anything overhead. She has paresthesia and pain with extreme motions. Claimant settled her primary claim with Employer for 25 % of the left arm at the shoulder.

Claimant's Testimony and Records - Preexisting Disabilities

Claimant's history of injuries prior to April 7, 2005 includes back problems. She hurt her back in the 1980's. Epidural injections and pain pills helped, but she feels her back never returned to normal. After a hard day of work, Claimant used Icy Hot patches for pain. The symptoms got worse with time, and Claimant eventually developed shooting pain in her left leg. She did not have bilateral complaints leg prior to April 2005.

On March 25, 2004, Claimant went to SLUCare for back pain, and Dr. Hood diagnosed probable sciatica, prescribed medications, and limited her lifting at work. The next mention of back pain in the SLUCare records was on August 31, 2004, but it was in the context of diffuse, generalized pain that did not keep Claimant from working. In November and December, SLUCare doctors saw Claimant more than once for back pain, ordered an MRI that was abnormal, and ultimately referred her for an orthopedic evaluation.

Claimant testified she first sought treatment for back pain with Dr. Place in 2001. However, records indicate Claimant did not see Dr. Place until January 10, 2005, when he diagnosed degenerative lumbar spondylolisthesis with stenosis. Although potential treatment options included decompression and fusion, Claimant was not a surgical candidate at that time due to her smoking habit, and Dr. Place referred her for injections. As of March 3, 2005, Dr. Place indicated Claimant needed to address her nicotine abuse, or he would have to consider a more complex surgery. It was not until May 2, 2005, following another CT myelogram, that Dr. Place discussed the surgical options in detail. Claimant wanted time to consider the options, and did not follow up with Dr. Place until after her shoulder injury and treatment.

Before Claimant's shoulder injury, she had several chronic conditions. She was diagnosed with and experienced the symptoms of arthritis throughout her body, particularly in her back and knees. When she could, Claimant took Celebrex. In 2004, Claimant fell, hit her head, and continues to have headaches once or twice a week. More than 10 years ago, Claimant was diagnosed with a hiatal hernia which causes her swallowing problems, and requires her to take Prevacid. Claimant has also taken various blood pressure medications for more than 10 years, but recently her pressure is not in control. While Claimant was working, she sometimes felt lightheaded due to her blood pressure. Claimant also had symptoms of chronic obstructive pulmonary disorder before April 7, 2005, which limits her mobility and requires the use of two different inhalers. There are multiple records reflecting evaluation of cardiovascular complaints and problems.

Claimant also alleges preexisting problems with her right arm, knees and neck. In the 1990's, Claimant suffered a bad cut to her right forearm. Claimant recovered, with scarring, and still has weakness and trouble gripping items, but reports no restrictions. Prior to April 7, 2005, Claimant's right knee locked, occasionally at work, and her left

Full decision text continues in the plain-text archive copy.

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