Grace Liggins v. Ameristar Casino

(Affirming Award and Decision of Administrative Law Judge)

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 June 30, 2008, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Kevin Dinwiddie, issued June 30, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 20th day of April 2009. LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED John J. Hickey, Member Attest:

Secretary

DISSENTING OPINION

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.

Section 287.063.2 RSMo, provides:

An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

It is important to point out that this matter was tried on a petition for hardship hearing wherein employee was seeking medical treatment. "For an award of temporary disability and medical aid, proof of cause of injury is sufficiently made on reasonable probability, while proof of permanency of injury requires reasonable certainty." Downing v. Willamette Indus., 895 S.W.2d 650, 655 (Mo.App.1995), citing Griggs v. A. B. Chance Co., 503 S.W.2d 697, 703 (Mo.App. 1973). "'Probable means founded on reason and experience which inclines the mind to believe but leaves room for doubt.' " Thorsen v. Sachs Elec. Co., 52 S.W.3d 611, 620 (Mo.App. 2001) (citations omitted).

Combining the governing statute with the legal standard of proof, the question presented to the Commission is did employee prove within a reasonable probability that the duties she performed for employer were a prevailing factor in causing her medical condition (neck, shoulder and upper extremity symptoms) and disability (difficulty performing her job duties)?

The answer to this question is clearly yes. Employee provided clear and easy to comprehend testimony regarding the manner in which she performs her duties of lifting and carrying trays loaded with drinks, glasses, ashtrays, etc. She testified to the heavy weight of the trays she carries. The medical records in evidence reveal that the employee's level of neck and shoulder discomfort increases after a work shift. Even a lay person like me can understand that carrying a heavy tray on one's palm at chest-level or higher puts stress on the structures involved with the upper extremity.

Dr. Neisen testified by deposition. Dr. Neisen believes within a reasonable degree of medical and surgical certainty that employee's work of repetitively lifting trays at her employment is the prevailing cause of the problems in her left shoulder and neck. This is consistent with the impression of the employer's treating physician at Barnes Care during the one physician visit employer provided to employee for treatment purposes.

Dr. Nogalski is content to speculate that employee suffers from no shoulder condition of ill-being without the benefit of an MRI. Dr. Neisen is not prepared to speculate about the condition of employee's shoulder and would like to see the results of an MRI of the shoulder before he diagnoses what is wrong, if anything, with the shoulder. Dr. Neisen's approach is the more medically sound.

The administrative law judge found the opinion of Dr. Nogalski - which was offered solely through his report - to be more credible than the opinion of Dr. Neisen. I disagree. After reading Dr. Nogalski's report I am convinced Dr. Nogalski believed employee first experienced neck symptoms before she began performing beverage service duties. Dr. Nogalski relied upon employee's neck and shoulder complaints and treatment beginning in 1998 to conclude that "[t]here are clearly preexisting conditions within the neck which are, within a reasonable degree of medical certainty, causing her current problems." Employee began serving beverages for employer's predecessor in 1995, so employee's 1998 conditions did not preexist her work exposure to the hazards of beverage service. Because he was not aware that employee's earliest symptoms surfaced three years after employee began performing beverage service duties, Dr. Nogalski's opinion

AWARD

Employee: Grace Liggins

Injury No.: 06-084782

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

Dependents: n/a

Employer: Ameristar Casino

Additional Party: n/a

Insurer: Self-insured, administered by Hartford Ins.Co.

Hearing Date: Wednesday, March 26, 2008 Checked by: KD/cmh

FINDINGS OF FACT AND RULINGS OF LAW 1. Are any benefits awarded herein? No 2. Was the injury or occupational disease compensable under Chapter 287? No 3. Was there an accident or incident of occupational disease under the Law? Issue as to injury by occupational disease found in favor of the employer and insurer 4. Date of accident or onset of occupational disease: alleged on or about 8/22/06 5. State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? Yes, See Award.
3. Did accident or occupational disease arise out of and in the course of the employment? No
4. Was claim for compensation filed within time required by Law? Yes; See Award
5. Was employer insured by above insurer? Employer was self-insured
6. Describe work employee was doing and how accident occurred or occupational disease contracted: Alleged occupational disease while working as a cocktail waitress in a casino
7. Did accident or occupational disease cause death? n/a Date of death? n/a
8. Part(s) of body injured by accident or occupational disease: See Award

- Nature and extent of any permanent disability: $\mathrm{n} / \mathrm{a}$

1. Compensation paid to-date for temporary disability: none
2. Value necessary medical aid paid to date by employer/insurer? See Award
3. Value necessary medical aid not furnished by employer/insurer? See Award
4. Employee's average weekly wages: $\ 500.00
5. Weekly compensation rate: $\$ 333.33 / \ 333.33

- Method wages computation: by agreement of the parties

1. Amount of compensation payable: Issue as to injury by occupational disease found in favor of the employer; see

Award.

1. Future requirements awarded: none; See Award

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: $\quad \mathrm{n} / \mathrm{a}

Employer: Ameristar Casino

Additional Party \quad \mathrm{n} / \mathrm{a}

Insurer: Self-insured, administered by Hartford Ins. Co.

Checked by: \mathrm{KD} / \mathrm{cmh}$

The claimant, Ms. Grace Liggins, and the employer, Ameristar Casino, self-insured in care of Hartford Insurance Co., appeared at hearing and entered into certain stipulations and agreements as to the issues and evidence to be presented in this matter. Claimant seeks a temporary or partial award for further medical care with respect to her neck and left shoulder complaints. No claim has been plead as to the Second Injury Fund.

Ms. Liggins appeared at hearing and testified on her own behalf. The claimant further submitted the deposition testimony of Dr. Frank J. Niesen. The employer and insurer chose not to elicit any witness testimony, and submitted in lieu thereof the medical evaluation report of Dr. Michael P. Nogalski.

The parties have acknowledged that the issues to be resolved at hearing are as follows:

Injury by occupational disease/medical causation;

Notice;

Statute of Limitations; and

Future medical care

The following exhibits were received in evidence without objection:

- Deposition of Frank J. Niesen, M.D., taken on 2/15/08

- Evaluation report of Frank J. Niesen, M.D., dated 11/1/06

- Evaluation report of Frank J. Niesen, M.D., dated 9/12/07

- Certified records of BarnesCare

- Certified chiropractic records of Patricia M. Rothermich, D.C.

- Certified chiropractic records of David E. Bemis, D.C.

1. Medical evaluation report of Michael P. Nogalski, M.D.
2. BarnesCare physical therapy records

Ms. Liggins, 52 years old as of the date of hearing in this matter, is currently working as a cocktail waitress for Ameristar Casino. Ms. Liggins began working at the casino fourteen years ago, at a time when the facility was known as 'Station Casino', and for the first year or so she worked at the front desk, where a ticket was needed to enter. Ms. Liggins was laid off for two months, and then returned to 'food and beverage', where she began her employment as a cocktail waitress in 1995 and has continued in that same employment up to the present.

Ms. Liggins has had working hours that have changed over the years, from 60 to 70 hours a week when she was first employed as a cocktail waitress, to 40 to 45 hours a week more recently, and to 32 hours a week, eight hour shifts four days a week, since last year. The claimant relates that her first duties at the beginning of a work shift include putting cup holders on tables; putting out ashtrays; making coffee; and putting fruit garnishes in trays. While on the floor serving drinks, the claimant would be carrying as many as 15 to 20 drinks on a tray, and would be constantly setting down drinks from the tray and picking u