Linda Kiemel v. American Airlines

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 December 2, 2008, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued December 2, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 19th day of May 2009. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member Attest:

Secretary

Employee: Linda Kiemel

Injury No.: 02-142380

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: American Airlines (Settled)

Additional Party: Second Injury Fund

Insurer: American Home Assurance

C/O Specialty Risk Services (Settled)

Hearing Date: August 28, 2008

Checked by: JKO

1. Are any benefits awarded herein? No

- Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: February 14, 2002

- State location where accident occurred or occupational disease was contracted: St. Louis County

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
3. Did accident or occupational disease arise out of and in the course of the employment? Yes

- Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was a flight attendant for

Employer who injured her neck, low back and body as a whole when she fell and hit the serving cart during a bout of severe turbulence.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Body as a Whole-Cervical and Lumbar Spine

- Nature and extent of any permanent disability: 32.5 % of the Body as a Whole referable to the Cervical Spine and 7.5 % of the Body as a Whole referable to the Lumbar Spine

1. Compensation paid to-date for temporary disability: $\ 18,207.65
2. Value necessary medical aid paid to date by employer/insurer? $\ 60,681.95

Employee: Linda Kiemel Injury No.: 02-142380

1. Value necessary medical aid not furnished by employer/insurer? N/A

- Employee's average weekly wages: approximately $\ 628.78

1. Weekly compensation rate: $\ 455.19 for TTD/ $\ 329.42 for PPD
2. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Employer/Insurer previously settled their risk of liability in this case

1. Second Injury Fund liability:

$\ 0.00

Total:

$\ 0.00

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: James B. Kleinschmidt.

On August 28, 2008, the employee, Linda Kiemel, appeared in person and by her attorney, Mr. James B. Kleinschmidt, for a hearing for a final award on her claim against the Second Injury Fund. The employer, American Airlines, and its insurer, American Home Assurance C/O Specialty Risk Services, were not present or represented at the hearing since they had previously settled their risk of liability in this claim. The Second Injury Fund was represented at the hearing by Assistant Attorney General Levander Smith. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

- On or about February 14, 2002, Linda Kiemel (Claimant) sustained an accidental injury arising out of and in the course of her employment that resulted in injury to Claimant.

- Claimant was an employee of American Airlines (Employer).

- Venue is proper in the City of St. Louis.

- Employer received proper notice.

- The Claim was filed within the time prescribed by the law.

- At the relevant time, Claimant earned an average weekly wage of $\ 628.78, resulting in applicable rates of compensation of $\ 455.19 for total disability benefits and $\ 329.42 for permanent partial disability (PPD) benefits.

- Employer paid temporary total disability (TTD) benefits in the amount of $\ 18,207.65, representing a period of time of 40 weeks beginning on April 11, 2003.

- Employer paid medical benefits totaling $\ 60,681.95.

- What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this accident?

- What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A Deposition of Dr. Shawn L. Berkin, with attachments, dated December 27, 2007

B Deposition of Mr. James England, with attachments, dated May 5, 2008

C Stipulation for Compromise Settlement for Injury Number 02-142380 between Claimant and Employer

D Medical treatment records of BJC Corporate Health

E Medical treatment records of Dr. David Kennedy

F Operative report from Missouri Baptist Medical Center dated April 11, 2003

G Medical treatment records of SSM Rehab

H Medical treatment records of Dr. Rachel A. Feinberg

I Medical treatment records of Injury Specialists

J Medical treatment records of Missouri Baptist Medical Center

K Medical report of Dr. Shawn Berkin dated February 24, 2005

L Vocational rehabilitation report of Mr. James England dated February 29, 2008

I. Deposition of Ms. Linda Kiemel (Claimant) dated June 27, 2008

Notes: 1) Unless otherwise specifically noted below, any objections contained in these Exhibits are overruled and the testimony fully admitted into evidence.

2) Some of the records submitted at hearing contain handwritten remarks or other marks on the Exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on August 28, 2008.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinion and deposition, the vocational opinion and deposition, the stipulations for compromise settlement, and the medical records, as well as my personal observations of Claimant at hearing, I find:

- Claimant is a 61-year-old, currently unemployed individual, who last worked for American Airlines as a flight attendant in January 2003. Claimant worked as a flight attendant for Ozark Airlines, TWA and then American Airlines (Employer) for over 36 years, from May 29, 1967 until July 1, 2003, on which date Employer laid off all of the flight attendants who had formally worked for TWA before American bought that airline. Although she was formally laid off on July 1, 2003, she last physically worked for Employer on January 26, 2003, when she asked to be removed from the flight line because she could not stand the pain anymore. In her position as a flight attendant, she was responsible for serving food and beverages to her passengers, getting pillows and blankets for them and helping them with their luggage. Her job required bending, stooping, carrying, and pushing food and beverage carts that weighed approximately 400 pounds. She testified that as a flight attendant she earned an annual salary of approximately $\ 32,000.00 per year.

- Claimant testified that her current income comes from Social Security disability of about $\ 1,600.00 per month and pensions from IAM, Ozark and American totaling about $\ 1,118.00 per month, for a total of approximately $\ 32,616.00 per year.

- According to the reports admitted into evidence, Claimant graduated from high school in Minnesota in 1964 and then took EMT training and a biology class at St. Charles Community College in the 1980's. She did not obtain any advanced degree or certificate from the community college.

- In her deposition taken on June 27, 2008 (SIF Exhibit I), Claimant testified that she first obtained her real estate license when she was working as a flight attendant. She took the training prior to working at American, but the money was not good and the people were too demanding. Claimant testified at trial that she then completed the testing and obtained her real estate license again in 2006, but it was set to expire at the end of August 2008. She testified that she never used the license since she obtained it, and she has not made any sales. Although she was unsure if she was going to do the necessary testing to retain that license, she left open the possibility that she may still take the tests in order to keep her real estate license.

- When she was asked in her deposition (SIF Exhibit I) why she had not more recently used the real estate license, she said that she was unable to fulfill the time schedule because of treatment she began to receive in 2004 for her brain tumor. According to her testimony, she was diagnosed with a brain tumor in September 2004 and had surgery to remove it in November 2004. She then had a course of treatment following surgery for the tumor and apparently as a result of that treatment schedule was unable to pursue any activity with her real estate license. When asked later in the deposition if the brain tumor was the exclusive reason that kept her from pursuing a real estate career, she replied that the tumor was 60 % of the reason, and the other 40 % was because of not being able to get her back and legs to do what she wants them to do. She also explained that the brain tumor was on her brain stem which cuts down on her ability to perform a lot of things. She described "severe shortness of breath

and multiple other issues." She described that she did not believe she would even be capable of doing sedentary work because she could not guarantee that she would be present at work for 5 days in a row. She said that her opinion in that regard was based on how she had been living for the year prior to her deposition, not just because of her back and legs, but also because of her headaches and breathing problems that may be related to her brain tumor. In further questioning, she admitted that she has limitations on her ability to function as a result of the effects of the brain tumor, and that would be the reason why she would not consider sedentary work.

- Claimant testified that her first injury on the job occurred in 1985 when she developed right wrist carpal tunnel syndrome, for which she had surgery by Dr. Gold. There are absolutely no medical treatment records in evidence for any pre-e