Carol King v. Tri-County Group XV, Incorporated

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 January 16, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Gary L. Robbins, issued January 16, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 24th day of June 2009. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

Alice A. Bartlett, Member John J. Hickey, Member Attest:

Secretary

Employee: Carol M. King

Injury No. 04-091729

Dependents: N/A

Additional Party: Second Injury Fund

Insurer: Liberty Mutual Insurance Company

Hearing Date: September 15, 2008

Checked by: GLR/sm

- Are any benefits awarded herein? No

- Was the injury or occupational disease compensable under Chapter 287? Yes as to the employer.

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

- Date of accident or onset of occupational disease? September 9, 2004

- State location where accident occurred or occupational disease contracted: Washington County, Missouri.

- Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

- Did employer receive proper notice? Yes

- 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

- Was employer insured by above insurer? Yes

- Describe work employee was doing and how accident happened or occupational disease contracted: The employee was lifting a vacuum cleaner when she injured her right shoulder.

- Did accident or occupational disease cause death? No

- Parts of body injured by accident or occupational disease: Right shoulder

- Nature and extent of any permanent disability: The employee settled with the employer-insurer for 36.40 percent permanent partial disability to the right shoulder.

- Compensation paid to date for temporary total disability: N/A

- Value necessary medical aid paid to date by employer-insurer: N/A

- Value necessary medical aid not furnished by employer-insurer: N/A

- Employee's average weekly wage: $\ 177.83

- Weekly compensation rate: $\ 118.55 for all purposes.

- Method wages computation: By agreement.

- Amount of compensation payable: $\ 0

- Second Injury Fund liability: \$0

- Future requirements awarded: None

No attorney fees are ordered in this case.

On, September 15, 2008, the employee, Carol M. King, appeared in person and by her attorney, Gary G. Matheny, for a hearing for a final award. The employer-insurer had previously settled the primary case with the employee. The Second Injury Fund was represented by Assistant Attorney General Frank A. Rodman. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. At the employee's request the record was left open to October 14, 2008 to allow the employee to obtain additional records from Rebekah A. Radmanesh, M.D. The record was closed on October 14, 2008 after the employee's counsel advised that the doctor's records were not available. These undisputed facts and issues, together with the statement of the findings of fact and rulings of law, are set forth below as follows:

- The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by Liberty Mutual Insurance Company.

- On or about the date of the alleged accident or occupational disease the employee was an employee of TriCounty Group XV and was working under the Workers' Compensation Act.

- On or about September 9, 2004 the employee sustained an accident or occupational disease arising out of and in the course of her employment.

- The employer had notice of the employee's claim.

- The employee's claim was filed within the time allowed by law.

- The employee's rate for permanent partial and permanent total disability was stipulated to by the parties as $\ 118.55 per week.

- The employee's injury was medically casually related to her accident or occupational disease.

Liability of the Second Injury for either permanent partial disability or permanent total disability.

The following exhibits were offered and admitted into evidence without objection:

Employee's Exhibits

A. Stipulation for Compromise Settlement

B. Medical records of David Shaw, M.D.

C. Medical records of Christian Hospital -- January 14, 2003 to May 14, 2005

D. Medical records of Dale Doer, M.D.

E. Medical records of Surgery Center of Kirkwood

G. Medical records from Washington County Memorial Hospital -- January 17, 2007 to February 16, 2007

H. Medical records from Christian Hospital -- February 7, 2007 to March 4, 2008

I. Deposition of Shawn L. Berkin, D.O.

J. Deposition of Samuel Bernstein, PhD.

1. Deposition of Patrick L. Hughes, M.D.

The employee, Carol M. King, was the only witness to testify live at her trial. All other evidence was presented through written documentation, medical records or deposition testimony.

The employee settled her case against the employer-insurer on July 10, 2008, approximately two months prior to this trial against the Second Injury Fund. The only issue in this case is whether the Second Injury Fund has any liability for either permanent partial or permanent total disability.

Employee Exhibit A is the Stipulation for Compromise Settlement that was approved by the Court. The Court approved the settlement for a permanent partial disability of 36.40 percent to the right shoulder. The employee filed an original claim, an amended claim and a second amended claim. No claim was made against the Second Injury Fund in the original claim. Second Injury Fund liability was added in the amended claim for preexisting psychological disability. The claim for over compensation of the left arm was added in the second amended claim.

Ms. King testified that she is forty-seven years old, is a high school graduate, is divorced from her husband, lives in Potosi, Missouri with her fourteen year old son, is not employed, and is currently receiving supplemental security income and social security disability benefits. The employee testified that she was divorced from her then husband, Roger King on May 19, 2008.

Before working for Tri-County Group XV, Ms. King was employed as a school bus driver (1988-1989), as a cashier for Shop and Save (1997-2000) for Maid Works cleaning houses (2000-2001), and as a home health aid. She began her employment with Tri-County Group XV in October 2003. She was terminated from that job on May 15, 2005. She has not worked or tried to work since that time

On September 9, 2004 Ms. King received the injury to her right shoulder that is the basis for her workers' compensation claim. As a result of that injury, she had two shoulder surgeries and settled her primary claim against her employer-insurer. The first surgery was performed on October 12, 2004 and the second surgery was performed on July 5, 2005. Both surgeries were performed by Dr. Miller. During cross examination by the Second Injury Fund, the employee agreed that Dr. Miller released her back to work after both surgeries with no permanent restrictions. Ms. King testified that she applied for and received unemployment benefits and certified that she was able to work. She testified that she told the unemployment officer of her situation and that she had restrictions.

The employee had knee surgeries prior to September 9, 2004, however she testified that she recovered from these completely and they therefore are not relevant to this matter. There are also no other physical injuries that existed prior to September 9, 2004 that could be the basis for Second Injury Fund liability in this workers' compensation claim.

The employee also testified that prior to September 9, 2004 she performed her job duties and had no permanent restrictions of any kind from any doctor. She further testified that as of September 9, 2004 she had no work

restrictions from any doctor concerning any stress or anxiety problems and had not ever been hospitalized for stress or anxiety problems prior to September 9, 2004. Ms. King testified that she settled the claim against the employer-insurer on July 10, 2008 and that it did not involve her left shoulder or any aspect of stress or anxiety.

During her testimony at trial, the employee described problems with her right shoulder. She stated that:

1. Her shoulder hurts most of the time and she has $6 / 10$ pain.
2. She cannot play ball with her grandkids.
3. Her arm is so weak that she cannot pick up a gallon of milk.
4. She has a burning sensation in the joint areas.
5. She has loss of motion and can only raise her arm to about eye level in the front and a little higher on the side.
6. It takes a lot of time to do laundry, vacuum and wash windows.
7. She takes Tylenol for her shoulder when she over exerts herself -- about four times a week.

Ms. King testified about her stress and anxiety problems. She testified that she has received care from a Dr. Radmanesh and then Dr. Shaw. The employee testified that she saw Dr. Radmanesh in 1999 and when that doctor left, Dr. Shaw took care of her emotional issues from 2001-2003. Employee's counsel indicated there were no records from Dr. Radmanesh's treatment of Ms. King.

The employee testified that she had anxiety and panic attacks that would cause her to get withdrawn and nervous. Some of the situations that she testified to that caused her these problems are:

1. She worked for Shop and Save from 1997 to 2000. While she was working there her boss cussed her out in front of customers. She testified that this embarrassed her, she did not like it, and she was afraid to go to work thinking that he would yell at her. She testified that she would take Xanax before she went to work and would try to avoid her boss. She indicated that she would miss time at work due to diarrhea from irritable bowel syndrome. She also indicated that she took two months stress leave and she never returned to work at Shop and Save after that.
2. She testified that her mother died while she was on leave and that her dad died in 2000.
3. She got married in 2000 and that she had problems with her husband's ex-wife and kids. She indicated that these problems got worse as of April 13, 2003 when her husband told her he loved his ex-wife and wanted to go back to her. She testified that after this she was no good. She indicated that this was what started her irritable bowel syndrome. Ms. King testified that she was talking to Dr. Shaw at that time and that is when she started taking Xanax.

Ms. King testified that shortly before her accident on September 9, 2004 she had stress and anxiety problems. She indicated she was withdrawn from people, could hardly work, could not function the way she was supposed to and that all she wanted to do was stay home and sleep.

Employee Exhibit B contains the records of Dr. Shaw. Dr. Shaw is neither a psychiatrist nor a psychologist. These records contain entries beginning August 8, 1998 and ending October 6, 2005. Most of