Paula Johnson v. Wal-Mart Associates, Inc.

Employee: Paula Johnson

Injury No. 03-028306

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

Dependents: N/A

Employer: Wal-Mart Associates, Inc. (settled)

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

Insurer: American Home Assurance (settled)

Hearing Date: June 11, 2008

Checked by: VRM/meb

1. Are any benefits awarded herein? No.
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: March 29, 2003.
5. State location where accident occurred or occupational disease was contracted: Camden 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.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was injured dislodging shopping carts.
2. Did accident or occupational disease cause death? No. Date of death? N/A
3. Part(s) of body injured by accident or occupational disease: Neck/Shoulder.
4. Nature and extent of any permanent disability: Permanent Total Disability from the last work accident; No liability by the Second Injury Fund.
5. Compensation paid to-date for temporary disability: Not applicable.
6. Value of necessary medical aid paid to date by employer/insurer? \$13,003.87.
7. Value necessary medical aid not furnished by employer/insurer? Not applicable.
8. Employee's average weekly wage: $\ 119.84.
9. Weekly compensation rate: $\ 79.90.
10. Method of wage computation: By agreement and evidence.

1. Amount of compensation payable: Not applicable.
2. Second Injury Fund liability: None.
3. Future requirements awarded: Not applicable.

Employee: Paula Johnson

Injury No. 03-028306

Dependents: N/A

Employer: Wal-Mart Associates, Inc.

Additional Party: Treasurer of the State of Missouri

as Custodian of the Second Injury Fund

Insurer: American Home Assurance

Hearing Date: June 11, 2008

Checked by: VRM/meb

The undersigned Administrative Law Judge heard this Workers' Compensation claim on June 11, 2008 in Springfield, Missouri. Jurisdiction is appropriate in Missouri and the parties agreed to venue in Springfield, Missouri, as the employee now resides here. On the date of hearing, Employer Wal-Mart Associates, Inc., and its Insurer American Home Assurance, through its attorney, reached a tentative settlement with Claimant and her counsel to resolve all issues for a lump sum. The parties advised the undersigned Administrative Law Judge that the settlement was awaiting a determination of a Medicare Set Aside. Claimant and the Second Injury Fund agreed to proceed to hearing solely on the issue of the Second Injury Fund's liability. As both entities were represented by counsel and appreciated the perils of moving forward without Employer, this case was tried solely against the Second Injury Fund. Claimant Paula Johnson appeared in person and with her counsel of record, Patrick Platter. The Treasurer of the State of Missouri, as custodian of the Second Injury Fund, appeared by Assistant Attorney General Susan Colburn.

Claimant contends the Second Injury Fund is liable for Permanent Total Disability based on a combination of preexisting disabilities and disabilities sustained to her neck and left shoulder as a result of an accident that occurred while working for Wal-Mart and Associates, Inc., on March 29, 2003. The Second Injury Fund has alleged that Claimant was totally disabled before the work accident, or in the alternative, was totally disabled as a result of the last work accident, alone. Claimant offered 45 exhibits, all of which were admitted. The Second Injury Fund offered Claimant's deposition, which also was admitted. The parties agreed, and the evidence demonstrates, that Claimant's rate of compensation is $\ 79.90, based on an average weekly wage of $\ 119.84.

- Fifty-two year old Paula Johnson dropped out of school after the ninth grade to get married. When she was in school she made Ds and Fs. She did not attain a GED. She had no formal vocational training. She has worked as a hotel maid, a machine operator, a cashier, and a stock clerk. At one point she worked for PenMac and was assigned to Banta Foods. She left that job after she injured her right arm lifting a trash container. She filed a claim for workers' compensation for a 1990 work injury due to carpal tunnel syndrome while employed by PenMac. Claimant underwent a carpal tunnel release. She received a lump sum to settle all issues related to that claim, but no specific degree of disability was set forth in the settlement document (Ex. 22).

- Claimant has a history of thoracic outlet syndrome with thoracic rib resection on the right, preexisting degenerative disc disease in the lumbar spine with some radiculopathy and chronic pain, and mild hypertension. The back condition is not amenable to surgery. Claimant applied for and obtained Social Security Disability in 1994, after which she never again worked full time. She has received Social Security Disability continuously through the date of the hearing in this case.

- In July 2001 Claimant was hired as a door greeter at Wal-Mart Associates, Inc. She specifically requested part-time work because she did not believe she could physically handle more than that. Phillip Eldred, Claimant's vocational expert, explained that Social Security allows disabled individuals to work some hours and still maintain their benefits.

- Claimant's job duties as a greeter included cleaning, pushing, and pulling shopping carts, cleaning the immediate work area, scanning bar codes on products that were returned, reading product codes on merchandise when an anti-theft alarm was activated, and lifting merchandise. The job required basic reading and writing and some physical stamina.

- A number of the full-time greeters are senior citizens in their mid to late 70s and 80s. Claimant knew at least one greeter in the Camdenton store that sat in a wheelchair. Another greeter used sign language or an electronic device to greet customers. But Claimant testified that, even if Wal-Mart had allowed her to sit, she did not believe she could have worked full time. This substantiates the testimony of Judy White, Wal-Mart's personnel director, who said that Claimant worked without accommodations in performing her part-time job.

- Wal-Mart originally hired Claimant to work three eight-hour shifts per week. She subsequently requested and received a reduction in her hours. At the time of her last work accident, Claimant was working 16 hours per week. Claimant said she reduced her hours because the three-day work schedule was too strenuous, even though she still worked two days consecutively. Asked why she went to work in the first place, Claimant explained that she needed the income and the insurance.

- According to Personnel Director Judy White, Claimant expressed the desire to work only part time due to back problems, but to Ms. White's knowledge, Claimant missed no work due to those back problems. Claimant received satisfactory work evaluations. And, Claimant reduced her work hours from 24 to 16 hours per week because she was watching her father who was gravely ill and not because she was having difficulty performing her work. Nancy Baez, Assistant Manager at the Osage Beach Wal-Mart, confirmed that Claimant's father had been ill and Claimant was providing care for him, including bathing, shaving, and lifting him.

- On the morning of March 29, 2003, while working as a greeter at Wal-Mart, Claimant injured her neck and left shoulder when she attempted to pull apart some shopping carts that had become stuck together. She underwent an open subacrominal decompression with subacromial bursectomy for treatment of her left shoulder on June 23, 2003. The surgeon anticipated that Claimant would continue to have problems with bicep tendonitis. Claimant also underwent an anterior cervical diskectomy with anterior cervical arthodesis on June 17, 2005.

- Dr. Shane Bennoch

- Dr. Bennoch concluded that Claimant suffered the following disabilities as a result of the accident on March 29, 2003: 35 percent Permanent Partial Disability for cervical radiculopathy (140 weeks), 25 percent to the left shoulder ( 58 weeks), 20 percent for dermatological complications from the cervical radiculopathy ( 80 weeks), and 10 percent to the body as a whole for depression resulting from discomfort associated with radiculopathy ( 40 weeks), or a total of 318 weeks of disability.

- As to preexisting disabilities, Dr. Bennoch said Claimant suffered a 20 percent Permanent Partial Disability to the body as a whole related to multilevel disk disease in the lumbar spine ( 80 weeks), 5 percent permanent partial disability as a result of hypertension ( 20 weeks), and 15 percent body as a whole rated at the chest, secondary to an obstructive thoracic outlet syndro