Amanda Brooke v. Ramey's Supermarket

(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 November 14, 2008. The award and decision of Chief Administrative Law Judge Victorine R. Mahon, issued November 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 1st day of May 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Amanda Brooke

Injury No. 03-148116

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

Dependents: Not Applicable

Employer: Ramey's Supermarket

Additional Party: Not Applicable

Insurer: Roswil, Inc., Alternative Risk Services, TPA

Hearing Date: October 6, 2008

Checked by: VRM/MB

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: March 2, 2003.
5. State location where accident occurred or occupational disease was contracted: Seymour, 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.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Repetitive lifting as a meat assistant.
12. Did accident or occupational disease cause death? No. Date of death? Not applicable.

1. Part(s) of body injured by accident or occupational disease: Low back.

- Nature and extent of any permanent disability: Permanent Partial Disability.

1. Compensation paid to-date for temporary disability: $\ 15,372.96.
2. Value necessary medical aid paid to date by employer/insurer? $\ 107,879.83.
3. Value necessary medical aid not furnished by employer/insurer? None.
4. Employee's average weekly wages: $\ 280.83.
5. Weekly compensation rate: $\ 187.22.

- Method wages computation: Agreement.

1. Amount of compensation payable: 35 percent Permanent Partial Disability to the body as a whole attributable to the neck/back equaling $\ 26,210.80.
2. Second Injury Fund liability: No.

Total: $\ 26,210.80.

1. Future requirements awarded: Future medical care as set forth in award.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: William E. Lawrence.

Employee: Amanda Brooke Injury No. 03-148116

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: Not Applicable

The undersigned Chief Administrative Law Judge convened the final hearing in this case on October 6, 2008. Upon motion, and without objection from opposing counsel, the record remained open for the submission of the original deposition of Phil Eldred, which previously had been taken, along with the attached material from his file. The record closed October 30, 2008. Claimant appeared at the hearing in person and by her attorney, William E. Lawrence. Brandon Potter and Aaron Jones appeared on behalf of Ramey’s Supermarket and its insurer Roswil, Inc., and its third party administrator Alternative Risk Services (referenced hereafter collectively as Employer). The parties stipulated to the following facts.

1. On or about March 2, 2003, Claimant sustained an occupational disease that arose out of and in the course of employment with Ramey’s Supermarket.
2. Claimant was an employee of Ramey’s Supermarket, working under the protections of the Missouri Workers’ Compensation Act.
3. Employer was fully insured and subject to the Missouri Workers’ Compensation Act.
4. Venue is proper in Greene County, Missouri.
5. Employer received proper notice.
6. The claim was filed within the time prescribed by law and the parties do not dispute jurisdiction.
7. At all relevant times, Claimant earned an average weekly wage of 280.83, resulting in applicable rates of compensation of 187.22 for Temporary Total Disability, Permanent Partial Disability, and Permanent Total Disability benefits.
8. Employer paid $15,372.96 in Temporary Total Disability benefits.
9. Employer paid medical benefits in the amount of $107,879.83.

1. What is the nature and extent of Claimant’s permanent disability?
2. Are future medical benefits necessary and directly related to Claimant’s work-related injuries of on or about March 2, 2003?

1. Is Employer liable for outstanding medical benefits?

The following exhibits were offered and admitted. All objections contained in the depositions are ruled in a manner consistent with this Award.

- Deposition of Dr. Paul Olive with attached exhibits.

- Deposition of Dr. Shane Bennoch with attached exhibits.

- Deposition of Phillip Eldred with attached exhibits.

- Claimant's medical records.

1. Deposition of Dr. Norbert Belz with exhibits.
2. Surveillance tapes.
3. Surveillance computer disc.

Claimant is 33 years old and currently resides with her mother, Sue Sampson, in Seymour, Missouri. Claimant has 2 children, ages 10 and 15, but only one of the children live with her. Claimant dropped out of high school just prior to her 11th grade, although she later received her GED. She has not completed any post high school education. Despite dropping out of school, the Claimant was a good student. Throughout her testimony she appeared to be average or above average intellectually. Her vocational evaluation placed her in greater than high school ability in reading, high school ability in spelling, and eighth grade ability in arithmetic.

Prior Physical Condition

Claimant believed she was in excellent physical health prior to going to work for Employer. Although she had suffered bouts of depression in the past, she recovered with the help of anti-depressants. There is no evidence that Claimant suffers from long-term depression.

Work History

She described her paid work history as follows:

1) Six months as a bartender for Frank's Place;

2) Six months for Shamrock bar and pub;

3) Short-time position which Claimant describes as a scam;

4) Four or five months sewing inseams for Hagle's;

5) Three or four months for Ramey's supermarket;

6) One to two months as a telemarketer for Fairfield;

7) One year for Ramey's supermarket.

Claimant subsequently worked at least six months for a former boyfriend who owned an auto repair shop. Her job duties included running errands for parts, answering phones, and performing accounting tasks on the computer. Claimant was not paid for this work which was part-time and allowed her to vary her positions and rest as needed.

Job Injury

During her last stint with Employer, Claimant initially began working in the deli department in March 2002. She later obtained the position as an assistant in the meat department. In that position her job duties included, but were not limited to, unloading delivery trucks, lifting boxes of meat products, lifting meat

products in and around the cold storage area and meat cases, grinding meats, throwing away trash into a dumpster. The lifting was repetitive and occasionally up to 80 pounds. The pain in her back began about two months after starting her job in the meat department. She advised her supervisor that she believed her low back pain was related to her work in the meat department. She continued working until September 2002 at which time she was taken off work for her low back. Claimant remained off work until January 2003, at which time she returned to work for Employer as a checker. She testified that this position made her back complaints worse until ultimately she was forced to quit her job in late February or early March 2003. She notified her employer that she could not continue working due to her low back problems. Claimant has not worked in a paid position since late February or early March 2003.

Claimant initially received medical treatment for her back from the Fordland Family Clinic on June 20, 2002. She continued to return to the same clinic until October 1, 2002, when an orthopedic consultation was recommended.

In December 2002 Claimant first saw Dr. Olive, an orthopedic surgeon with Orthopedic Specialists of Springfield. He reviewed MRI scans which revealed a right side disc protrusion at L3-4 and a posterior annular tear at L4-5 with mild bulging of that disc. He prescribed Ultram, a painkiller, and one month of therapy. Although Claimant was supposed to follow up with Dr. Olive in a month after therapy, she failed to do so.

Claimant returned to Dr. Olive about 10 months later in October 2003, at which time she reported increased pain approximately two weeks prior, along with pain down her left leg. Claimant denied any new injury. Dr. Olive recommended that Claimant continue with Ultram for her pain. He also prescribed Vioxx. In December 2003 Claimant complained to Dr. Olive that she again had increased pain, swelling in her left knee, and uncontrollable shaking in her left knee. On December 16, 2003, Dr. Olive reviewed a second MRI of Claimant's back, which revealed a large disc protrusion at L-4. Dr. Olive prescribed an epidural steroid injection, which improved some of her pain but not the pain in her back and both buttocks. One month later in January 2004, based on Claimant's complaints and the MRI, Dr. Olive recommended a two-level fusion. That surgery was performed on February 3, 2004. The fusion involved caging and instrumentation. Dr. Olive said the herniated disc, resulting in the need for fusion surgery, was caused by her repetitive lifting at Ramey's. Employer paid Claimant $\ 15,372.96 in Temporary Total Disability while she was off work.

Dr. Olive initially indicated that Claimant sustained a 13 percent Permanent Partial Disability to the body as a whole. He indicated that many people who have had fusions become pain free, did not need medication, and could sit, stand, lift, and do many activities without restrictions.

In Claimant's case, however, Dr. Olive understood that, while Claimant had some initial pain relief after surgery, her legs and back still were sore. Claimant complained to Dr. Olive that she could not sit and do any type of work that he suggested, such as that of a telemarketer. Dr. Olive acknowledged that Claimant's pain complaints were subjective and could not be objectively tested; however, based on those subjective complaints, he opined t