Sabrina Brock Fisher v. Bristol Care, Inc.

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-131302

Employee: Sabrina L. (Brock) Fisher

Employer: Bristol Care, Inc.

Insurer: Missouri Retailers Insurance Trust

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

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 14, 2008. The award and decision of Administrative Law Judge Robert B. Miner, issued April 14, 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 2nd day of February 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

After a review of the entire record as a whole, and consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified.

I agree with my fellow commissioners that employee is entitled to compensation in this claim. However, I disagree with the finding that employee only suffered an 8 % permanent partial disability to the body as a whole as a result of her bilateral carpal tunnel syndrome. I believe employee has proven a greater degree of disability and that the award should be modified to increase the award of permanent partial disability to a 20 % permanent partial disability to the right wrist and 10 % permanent partial disability to the left wrist, with a 10 % load factor. I also disagree with the administrative law judge's finding that employee is not entitled to an award of future medical care and treatment.

The extent and percentage of a disability is a finding of fact within the special province of the Commission. Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo.App. W.D. 2000) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo.banc 2003). The Commission may consider all of the evidence, including the employee's testimony, and draw reasonable inferences in arriving at the percentage of disability. Id.

I believe the evidence supports that employee is entitled to a greater percentage of disability than awarded by the administrative law judge. Employee provided ample testimony with respect to her symptoms and how her work directly caused an increase in symptomology. Employee testified that she began experiencing problems with her upper extremities around six months after beginning work for employer. Employee's symptoms included pain, numbness and tingling. Employee's symptoms progressively worsened while working for employer, making her job duties and household tasks more difficult. Over the course of her employment, employee experienced increased pain in her hands and wrists; difficulty gripping and writing; and dropped things. Employee testified that when she reduced her work hours, that her symptoms improved. Upon resuming her normal work schedule, her symptoms got worse. Employee had to stop working for employer because of the pain in her hands and back. Following the end of her employment with employer, employee continued to experience problems with her upper extremities which worsened with increased use of her hands.

Employee's testimony was supported by medical expert testimony provided by Dr. Stuckmeyer. Dr. Stuckmeyer opined that employee's repetitive work was a substantial contributing factor in the development of bilateral carpal tunnel syndrome which caused symptoms including pain, loss of strength, tingling and numbness of the upper extremities. Dr. Stuckmeyer concluded that as a result of employee's bilateral carpal tunnel syndrome, employee suffered a 20 % permanent partial disability to the right wrist and 10 % permanent partial disability to the left wrist, with a 10 % load factor.

Dr. Stuckmeyer based his opinion on his examination of employee as well as the history she provided. I believe Dr. Stuckmeyer's findings as to employee's permanent partial disability more accurately reflects the level of employee's disability. Therefore, I find his opinion regarding the extent and percentage of disability most persuasive and worthy of belief.

I also believe that the administrative law judge erred in finding that employee failed to establish that she was entitled to an award of future medical care and treatment. I believe the evidence suggests otherwise.

Under section 287.140.1 RSMo (2000), employer is responsible for providing treatment that may reasonably be required after the injury to cure and relieve the employee from the effects of the injury. Future medical benefits may be awarded if employee shows by "reasonable probability" that he is in need of additional medical treatment by reason of his work-related accident. Landers v. Chrysler Corp., 963 S.W.2d 275, 283 (Mo.App. E.D. 1997).

Employee provided sufficient evidence that there was a need for ongoing medical treatment. Employee continues to experience ongoing symptoms in her upper extremities. Employee experiences numbness, tingling and pain in both hands. Her condition affects her ability to drive and write and also wakes her up at night. Employee experiences increased pain with activities requiring lifting or pulling. Employee testified that her condition limits activities that she is able to do at work and at home. Employee has modified her activities as a result.

Dr. Concannon testified that at this stage he would recommend treating employee's bilateral carpal tunnel syndrome with carpal tunnel releases on both employee's right and left hands. Furthermore, Dr. Concannon's opinion is supported by Dr. Stuckmeyer, who opined that the treatment recommended by Dr. Concannon was necessary to cure and relieve employee from the effects of employee's bilateral carpal tunnel syndrome.

The overwhelming weight of the competent and substantial evidence reveals that employee has shown by reasonable probability that she is in need of additional medical treatment for her work-related occupational disease.

Employee has shown that she is entitled to a greater degree of disability than awarded by the administrative law judge in this case. Employee has also shown that she is entitled to an award of future medical care and treatment.

Accordingly, I would modify the decision of the administrative law judge to increase the percentage of disability to 20 % permanent partial disability to the right wrist and 10 % permanent partial disability to the left wrist, with a 10 % load factor. In addition, I would award employee future medical care and treatment for employee's bilateral carpal tunnel syndrome.

For the foregoing reasons, I respectfully dissent from the majority's decision.

John J. Hickey, Member

AWARD

Employee: Sabrina L. Brock (now known as Sabrina L. Fisher) Injury No.: 04-131302

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: Through October 13, 2004.
5. State location where accident occurred or occupational disease was contracted: Brookfield, Linn 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? Not applicable.
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 engaged in cumulative repetitive cleaning, housekeeping, cooking, and paperwork.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right hand, right wrist, left hand and left wrist.
14. Nature and extent of any permanent disability: 8 % body as a whole for injury to the right hand, right wrist, left hand and left wrist.
15. Compensation paid to-date for temporary disability: None.

1. Value necessary medical aid paid to date by employer/insurer? None.
2. Value necessary medical aid not furnished by employer/insurer? $\ 13,938.44, including mileage.
3. Employee's average weekly wages: $\ 101.51 for temporary total disability and $\ 193.50 for permanent partial disability.
4. Weekly compensation rate: $\ 67.71 for temporary total disability and $\ 129.06 for permanent partial disability.
5. Method wages computation: Agreement of the parties.

1. Amount of compensation payable:

Unpaid medical expenses, including mileage: $\ 13,938.44.

$36 / 7 weeks of temporary total disability at the temporary total disability rate of \ 67.71 per week: $\ 261.17.

32 weeks of permanent partial disability from Employer at the permanent partial disability rate of $\ 129.06 per week: $\ 4,129.92.

No weeks of disfigurement from Employer.

1. Second Injury Fund liability: Not determined.

TOTAL: $\ 18,329.53.

1. 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: Rick E. Koenig.

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Sabrina L. Brock (now known as Sabrina L. Fisher) Injury No.: 04-131302

Employer: Bristol Care, Inc.

A hearing was held in this case in Linneus, Missouri on February 28, 2008. Employee, Sabrina L. Brock, now known as Sabrina L. Fisher ("Claimant") appeared in person and by her attorney, Rick E. Koenig. Employer, Bristol Care, Inc. ("Employer") and Insurer, Missouri Retailers Insurance Trust ("Insurer") appeared by their attorney, Susan M. Turner. The Second Injury Fund is a party to this case, but was not represented at the hearing since the parties agreed to leave the Second Injury Fund claim open. Rick E. Koenig requested an attorney's fee of 25 % from all amounts awarded. It was agreed that briefs would be due on March 13, 2008.

At the time of the hearing, the parties stipulated to the following:

- On or about October 13, 2004, or on such other date determined to be Claimant's last day of work for Employer, Bristol Care Inc. (Employer) was an employer operating under the provisions of the Missouri Workers' Compensation Law.

- On or about October 13, 2004, or on such other date determined to be Claimant's last day of work for Employer, the liability of Employer under said law was fully insured by Missouri Retailers Insurance Trust (Insurer).

- On or about October 13, 2004, or on such other date determined to be Claimant's last day of work for Employer, Sabrina L. Brock (Claimant) was an employee of Employer, and was working under the provisions of the Missouri Workers' Compensation Law.

- A claim for compensation was filed within the time prescribed by law.

- The average weekly wage was $\ 101.51 per week for temporary total disability and $\ 193.50 per week for perman