Valerie Hasenbeck v. AA & L Enterprises, Inc. d/b/a Bahr Discount Foods

Employee is not entitled to an award for future medical care.

The Second Injury Fund has no liability in this case.

We agree with the administrative law judge's conclusions. We offer this supplemental opinion in further support of said conclusions and to address issues raised by employee in her briefs.

The findings of fact and stipulations of the parties were accurately recounted in the award of the administrative law judge and are adopted by the Commission.

The claimant bears the burden of proving all the essential elements of a workers' compensation claim, including the causal connection between the accident and the injury. Grime v. Altec Indus., 83 S.W.3d 581, 583 (Mo. App. W.D. 2002) (citations omitted). With regard to employee's cervical condition and subsequent surgery of December 6, 2005, employee failed to meet her burden that the work-related accident of December 2, 2004, caused the condition and need for surgery.

The medical records of Drs. Lange, Kitchens, Dooley and Randolph, which were cited by the administrative law judge, make clear that the cervical fusion performed by Dr. Kennedy was neither necessary, nor related to the December 2, 2004 incident.

Based upon the totality of the evidence we find the following: 1) the cervical condition preexisted the accident; 2) the pre-existing cervical condition was not caused or aggravated by the accident; 3) the pre-existing cervical condition was not disabling prior to the accident; 4) the pre-existing cervical condition is independent of the accident; and 5) the pre-existing cervical condition progressed and/or blossomed after the accident and that this progression and/or blossoming was entirely unrelated to the accident. For the foregoing reasons, we find that employee is denied past medical expenses relating to her cervical condition.

Employee argued in her briefs that the instability of her cervical spine has caused her to be permanently totally disabled. First of all, as stated above, we agree with the administrative law judge's conclusion that employee's cervical instability was not medically causally related to the work incident. Likewise, we also agree with the administrative law judge's conclusion that employee is not permanently totally disabled.

Permanent and total disability is defined by section 287.020.7 RSMo (2004), as the "inability to return to any employment ...."

The test for permanent total disability is whether, given the employee's situation and condition he or she is competent to compete in the open labor market. The pivotal question is whether any employer would reasonably be expected to employ the employee in that person's present condition,

Injury No.: 04-142112

Employee: Valerie Hasenbeck

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reasonably expecting the employee to perform the work for which he or she is hired.

*Gordon v. Tri-State Motor Transit Company*, 908 S.W.2d 849, 853 (Mo. App. 1995) (citations omitted).

Employee is 49 years old, has a college degree, and scored well in vocational testing in reading and mathematics. She has many years of experience in retail management, and has skills in supervising, training, bookkeeping and inventory control. Both vocational experts, Mr. James England and Mr. Bob Hammond, agree that based on employee's academic ability she would be able to compete for a number of sedentary jobs in the open labor market. Both experts also testified that employee had transferable knowledge and skills from her previous employment. Mr. Hammond credibly testified that employee was able to compete and maintain employment in the open labor market. In addition to the facts listed above, the administrative law judge's aforementioned permanent partial disability ratings assigned to employee are fully supported by competent and substantial evidence and, even when combined, do not amount to permanent total disability.

In sum, employee's age, academic record, and transferable skills support the administrative law judge's finding that employee is merely permanently partially disabled, not permanently and totally disabled. For the foregoing reasons, the Commission agrees with the administrative law judge's determination that employee is merely permanently partially disabled as a result of the December 2, 2004, work-related accident. Thus, employee's claim that she be awarded past medical expenses relating to the treatment of her cervical condition and permanent total disability benefits, is denied.

The award and decision of Administrative Law Judge Vicky Ruth, issued December 11, 2008, is affirmed, and is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 15th day of September 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

CONCURRING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

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 Worker's Compensation Law, I agree with the reasoning and conclusions of the administrative law judge and I would affirm the award and decision of the administrative law judge without supplementation.

John J. Hickey, Member

Employee: Valerie Hasenbeck

Injury No. 04-142112

Dependents: N/A

Before the

Employer: AA \& L Enterprises, Inc. $\mathrm{d} / \mathrm{b} / \mathrm{a}$ Bahr Discount Foods

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Additional Party: Second Injury Fund

Insurer: American Home Assurance Company, c/o AIG Domestic Claim Services, Inc.

Hearing Date: September 11, 2008

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: December 2, 2004.
5. State location where accident occurred or occupational disease was contracted: Franklin County, 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: The employee was lifting the edge of a pallet when she sustained injuries to her neck, left shoulder, and left elbow.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Neck, left shoulder, and left elbow.
14. Nature and extent of any permanent disability: 12.5 % of the body as a whole (referable to the neck), 10 % of the left upper extremity at the level of the shoulder, and 19 % of the left elbow.
15. Compensation paid to-date for temporary disability: $\ 8,124.56.
16. Value necessary medical aid paid to date by employer/insurer? $\ 9,422.43.

Employee: Valerie Hasenbeck Injury No. 04-142112

1. Value necessary medical aid not furnished by employer/insurer? See Award.
2. Employee's average weekly wages: $\ 789.88.
3. Weekly compensation rate: $\ 526.59 for PTD and TTD; $\ 354.05 for PPD.
4. Method of wages computation: By agreement.

1. Amount of compensation payable:

Unpaid medical expenses:

113.1 weeks of permanent partial disability benefits:

8 and $5 / 7$ weeks of temporary total disability benefits:

\ 197.42 (for elbow)

\ 40,043.06

$\ 4,588.86

TOTAL: $\quad \ 44,829.34

1. Second Injury Fund liability: No.
2. Future medical awarded: No.

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: Kurt C. Hoener.

Employee: Valerie Hasenbeck

Injury No: 04-142112

Dependents: N/A

Employer: AA \& L Enterprises, Inc. d/b/a Bahrs Discount Foods

Insurer: American Home Assurance Company c/o AIG Domestic Claim Services, Inc.

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

On September 11, 2008, the claimant, the employer/insurer, and the Second Injury Fund appeared before Administrative Law Judge Vicky Ruth for a final award hearing. Pursuant to an order by Administrative Law Judge Dinwiddie, Injury Number 06-058679 was tried along with this claim. This Award addresses Injury No. 04-142112; a separate Award will be issued in Injury No. 06-058679. The claimant, Valerie Hasenbeck, was represented by Kurt Hoener. The employer/insurer in Injury No. 04-142112 was represented by Kenneth Alexander. The employer/insurer in Injury No. 06-058679 was represented by Patrick Patterson. The Second Injury Fund was represented by Jennifer Sommers. One witness, Valerie Hasenbeck, testified in person at the hearing. The parties submitted briefs on or about September 25, 2008.

The parties stipulated to the following:

1. On December 2, 2004, the date of the accident, the claimant was an employee of the employer.
2. The employer was operating under the provisions of Missouri's Workers' Compensation law.
3. The employer's liability for workers' compensation liability was insured by American Home Assurance Company, c/o AIG Domestic Claim Services, Inc., for all periods relevant to this Award.
4. A Claim for Compensation was filed within the time prescribed by law.
5. Venue in Franklin