| Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION |
| FINAL AWARD ALLOWING COMPENSATION (Reversing Award and Decision of Administrative Law Judge) |
| Injury No.: 04-050587 |
| Employee: | Kathy Sandlin |
| Employer: | Daimler Chrysler |
| Insurer: | Self-Insured c/o Sedgwick CMS |
| 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. We have reviewed the evidence, read the briefs of the parties, heard oral argument and considered the whole record. Pursuant to section 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge dated August 13, 2008. |
| Preliminaries |
| The issues stipulated in dispute at trial were accident, medical causation, nature and extent of permanent disability; second injury fund liability; temporary total disability benefits; liability for past medical expenses; and future medical care and treatment.The administrative law judge determined and concluded that employee failed to prove that she sustained an accident which arose out of and in the course of her employment, or that any such incident caused any need for medical treatment or disability benefits. The administrative law judge denied employee benefits on the basis that employee failed to establish by any credible evidence or testimony that she sustained an accident while working for employer.Employee filed an Application for Review with the Commission alleging the administrative law judge erred in finding that employee did not prove that she sustained an accident arising out of and in the course of her employment on May 28, 2004. Employee alleges that the administrative law judge erroneously concluded that employee was not credible. Employee further alleges that the administrative law judge erred in concluding that employee is not permanently and totally disabled. Employee alleges that the administrative law judge’s award is not supported by competent and substantial evidence as the evidence demonstrates that employee is not able to compete in the open labor market.For the reasons set forth in this award and decision, the Commission reverses the administrative law judge’s award. |
| Summary of FactsEmployee began working for employer in 1995. Employee testified that she worked ten hour shifts for |
employer, Monday through Saturday, and traveled approximately one hour and ten minutes each way to work. Employee testified that she injured her low back at work on May 28, 2004, while moving boxes away from her computer terminal.
Employee had two prior shoulder injuries in 1996 and 1997 while working for employer and settled her claims with employer for 22.5 % of the right shoulder and 2 % of the right shoulder.
Dr. Baker's records indicate that employee had back pain in 2002 after her grandchild elbowed employee in her back. Employee had x-rays of her lumbar spine taken at St. Anthony's Medical center which were negative, showing mild scoliosis. In December of 2003, employee was seen by Dr. Baker for complaints of back pain, stomach pain and diarrhea.
Employee was diagnosed by Dr. Baker with a neck strain on May 13, 2004, and was taken off of work from May 13, 2004, until May 26, 2004. Employee testified that she returned to work on May 27, 2004, to work her evening shift. Employee testified that the usual fork lift driver was not working and the alternate driver placed boxes in front of her work station which obstructed access to her computer. Employee moved the boxes so she could have access to her computer. Employee testified that she used a "wiggle pull" motion to move the boxes and felt pain in her back. Employee testified that she felt as if someone had pinched her in the small of her back and twisted on it. Employee testified that the injury occurred at approximately 1:30 a.m. on May 28, 2004.
Employee's witness, Roy Zeier, testified that he was working on May 28, 2004, at the time of employee's injury. Mr. Zeier testified that employee was visible from his workstation. Mr. Zeier testified that he witnessed employee pushing one of the boxes when he heard employee scream and wince in pain. Mr. Zeier testified that employee paged her supervisor, but the supervisor never responded while Mr. Zeier was at work. Mr. Zeier testified that he later spoke with employee about her injury. Mr. Zeier testified that employee told him that she had been moving boxes and experienced shooting pain in her back.
Employee testified that she paged her supervisor on May 28, 2004, before her shift ended to report her injury. Employee finished her shift and drove home. Employee testified that when she arrived home that her back was sore but not as bad as the next morning because she had gotten off work and everything was still loose and limber. Employee put ice on her back and took ibuprofen when she got home. Employee testified that her back was worse when she woke up in the morning and that she felt sharp pains in her back when she attempted to move.
On May 28, 2004, employee drove to work and reported straight to the plant medical department. Employee was provided ice, medicine, and a brief massage before she reported to work. Employee was off the next three days because of Memorial Day holiday. Employee testified that she did not do anything over the holiday weekend except for try to take care of her back. Employee next reported to work on June 1, 2004. Employee paged her supervisor and told him she needed to go to the hospital. Employee went to the emergency room at St. Anthony's Hospital and reported that she had experienced persistent back pain since injuring her lower back at work five days earlier. Employee was diagnosed with a back strain and was taken off work for five days. Employee came to work on June 7, 2004, but testified that she was unable to complete her shift due to pain. Employee was seen by plant medical with a complaint of severe back pain.
On June 8, 2004, employee sought treatment from her primary care physician, Dr. Carl Baker, and was referred to Dr. Thomas Lee. Employee was seen by Dr. Lee on June 11, 2004. Employee underwent an MRI of the lumbar spine on June 16, 2004. The MRI showed a moderate to severe degree of stenosis at L45, created by facet arthropathy, prominent ligamentum flavum and diffuse disc bulge at L4-5; diffuse disc bulge at L5-S1 without herniation or root impingement; and diffuse facet arthropathy. Dr. Lee referred employee to pain management for epidural pain injections, physical therapy and pain medication. Employee
was seen by Dr. Lee on July 14, 2004; Dr. Lee noted employee had persisting symptoms related to a central L4-5 herniation, including back pain that radiated to her knee. Employee underwent a myelogram on
September 29, 2004, showing a L5-S1 central disc protrusion resulting in compression and probable impingement of the S1 nerve roots bilaterally; and annular disc bulges at L3-4, L4-5, and to a lesser extent at L2-3. Dr. Lee opined that the disc herniation was the cause of employee's symptoms. On September 29, 2004, Dr. Lee recommended laminectomy and discectomy at L4-5 and possibly L5-S1.
Employee was in a motor vehicle accident on October 14, 2004, and was seen at the emergency room at St. Anthony's hospital and by Dr. Baker. Employee reported bumping the left side of her head and pain in her shoulder, neck and knee.
Employee underwent a laminectomy at L4-5 and L5-S1 on October 21, 2004. Dr. Lee opined that employee had a likely recurrent disc herniation at L5-S1 on April 13, 2005. Dr. Lee noted that employee experienced back pain and pain radiating into her left lower extremity. On May 19, 2005, Dr. Lee performed a second surgery on employee including a laminectomy at L4-5, posterior spinal fusion at L4-5 and L5-S1, and placement of bone growth stimulator. On June 5, 2006, Dr. Lee discussed with employee reassessing the fusion at the adjacent levels, and employee only wanted treatment with respect to removal of the bone growth stimulator. Dr. Lee noted that employee did not want to consider any additional diagnostic work-up for reconstruction attempts, which he stated was reasonable given the results thus far. On June 22, 2006, Dr. Lee performed a third surgery to remove the bone growth stimulator implanted during employee's previous surgery. On September 8, 2006, Dr. Lee noted that there were probably areas of incomplete union. On May 7, 2007, Dr. Lee stated that employee had back pain with probable non-united L4-S1 fusion.
Employee testified that she is limited in her daily activities and is unable to clean her house. Employee testified that she has no social life and is barely able to function. Employee testified that she suffers pain and numbness in her lower extremities. Employee testified that she has difficulty sleeping and pain forces her to reposition herself throughout the night. Employee testified that she needs to change positions after 10-15 of sitting. Employee testified that there is no way that she could sit uninterrupted without being able to change positions, stand up or lay down. Employee testified that her pain medication is not always effective and that the medication makes her forgetful and foggy. Employee testified that her condition was worse following her back surgeries. Employee testified that she is electing not to have additional back surgery.