Juanita Massey v. Curators of the University of Missouri

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-053791

Employee: Juanita Massey

Employer: Curators of the University of Missouri

Insurer: Self-Insured through Corporate Claims Management Inc.

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 10, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued April 10, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $23^{\text {rd }}$ day of September 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: May 21, 2003
5. State location where accident occurred or occupational disease contracted: St. Louis, County
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 happened or occupational disease contracted: Claimant injured her right forearm and low back when she slipped and fell on a wet floor.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: Right forearm and low back
14. Compensation paid to-date for temporary disability: $\ 924.84
15. Value necessary medical aid paid to date by employer/insurer? $\ 3,534.75
16. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: $\ 462.40
2. Weekly compensation rate: $\$ 308.27 / \ 308.27
3. Method wages computation: Stipulated

1. Amount of compensation payable:

None

1. Second Injury Fund: Open

TOTAL:

NONE

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Harry Nichols

Employee: Juanita Massey

Injury No.: 03-053791

Dependents: N/A

Employer: Curators of the University of Missouri

Additional Party: Second Injury Fund (Open)

Insurer: Self-insured through Corporate Claims Management Inc.

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

A hearing for a temporary award was held at the Missouri Division of Workers' Compensation ("DWC") St. Louis office at the request of Juanita Massey, ("Claimant"), on January 14, 2009, pursuant to Section 287.450 RSMo (2000). Attorney Harry Nichols represented Claimant. Attorney George Floros represented Curators of University of Missouri, ("Employer") self-insured through Corporate Claims Management Inc. ("Insurer") ${ }^{1}$. The Second Injury Fund remained open during the proceeding. The record closed after presentation of evidence. Venue is correct and jurisdiction properly lies with DWC.

Claimant's Exhibits A-G and Employer's Exhibits 1-12 are admitted. Claimant's Exhibits H and I are retained but not admitted. ${ }^{2}$ The Courts' Exhibit I and II are admitted. Any notations contained in the records were present when admitted.

Claimant submitted five separate claims for disposition; 03-053791, 03-145481, 04070381, 04-131626, and 04-148505. Although separate awards are issued for each claim, the facts and issues raised in each claim are closely related.

The parties stipulate that on or about May 21, 2003:

1. Claimant was employed by Employer and sustained an accident in St. Louis County;
2. The accident arose out of and in the course of employment;
3. Claimant and Employer operated under the Missouri Workers' Compensation Law;
4. Employer's liability was self insured ;
5. Employer had notice of the injury;
6. A Claim for Compensation was timely filed;
7. Claimant's average weekly wage was $\ 462.40, the TTD and PPD rate is $\ 308.27;

[^0]

[^0]: ${ }^{1} References to the Employer also include references to the Insurer.

{ }^{2}$ Prior to start of the hearing, the parties agreed in writing to submit records available as of November 14, 2008. On January 14, 2009, Employer objected to the admission of Exhibit H, a report to be prepared by Dr. Woiteshek, and to be admitted after completion. The report was in conjunction with an examination of Claimant about January 9, 2009. Employer also objected to the admission of Exhibit I, based on hearsay and lack of foundation. Employer's objections were sustained. Claimant made an offer of proof on the record for Exhibits H and I.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Massey

Injury Number: 04-070381

1. Employer and Insurer paid Temporary Total Disability ("TTD") totaling \924.84, representing 3 weeks and
2. Employer paid \ 3,534.75 in medical benefits.

The parties identified the following issues for disposition:

1. Is Claimant's low back condition medically causally related to the May 21, 2003 work accident?
2. If so, what is the nature and extent of Claimant's permanent partial disability ("PPD"), if any?
3. Is Employer liable for additional medical care related to the May 21, 2003 work injury?

Claimant did not meet her burden to show the May 21, 2003 accident caused her low back condition, based on the entire record, including Claimant's testimony, demeanor, medical reports, and the applicable law of the State of Missouri.

All evidence was reviewed, but only evidence supporting this award is considered to establish the following facts based upon competent and substantial evidence. Any objections not addressed in this award are overruled.

While working for Employer, Claimant stripped, refinished, and mopped floors, lifted buckets and filled them with water, and used a floor stripping machine and twenty-four ounce mop.

On May 21, 2003, Claimant injured her right forearm and low back when she slipped and fell on a wet floor. Claimant treated at Concentra for a right forearm contusion and low back pain. After her release, Claimant treated with Dr. Brig Vaid. Forearm symptoms have resolved.

Claimant injured her low back in 1997 when she fell down the steps at work. Dr. Brig Vaid treated her back. On August 3, 2004, Claimant informed Dr. Cantrell she had low back pain for four or five years, and consistent pain for the past three years. She told Dr. Hannaway her back problems began in 1997. Complaints since 1997 include daily back pain with occasional pain to the buttocks and knee.

Claimant takes Tylenol or Motrin for pain. She takes medication for diabetes and high blood pressure, and uses a cane to get around.

Employer terminated Claimant on August 18, 2004.

Claimant filed a claim for compensation alleging a low back injury on July12, 2004. She has not received treatment since 2004, but would like additional medical treatment for her back. Claimant believes she is unable to work at this time.

Claimant received conservative treatment at Concentra from June 18, 2003 to October 1, 2003 for contusions to the lumbar spine and forearm. Claimant was placed on restricted duty; no repetitive lifting over 20 pounds, no pushing or pulling over 40 pounds.

On June 18, 2003, Claimant began conservative treatment with Concentra. Examination revealed right low back and leg pain with flexion, positive straight leg raise bilaterally, and forearm tenderness.

Dr. Janan Lane diagnosed right forearm contusion, lumbar contusion and strain with right sciatica, and right knee strain, and prescribed physical therapy and medication.

A September 22, 2003 MRI showed bilateral facet joint bursitis at L3-4, and bilateral degenerative facet joint changes at L4-5 and L5-S1. On October 1, 2003, Dr. Jamil

Muhammad opined the condition was caused by degenerative changes, not work, and released Claimant to follow up with her personal physician.

Dr. Joseph Hanaway examined Claimant on June 30, 2005. Claimant reported a history of low back pain since 1997 that occasionally radiated to the buttock and knees. Examination revealed low back tenderness and a positive straight leg raise.

Dr. Hanaway diagnosed chronic low back problems and found Claimant permanently and totally disabled due to chronic low back pain, bilateral shoulder joint impingement, knees, and bilateral carpal tunnel syndrome. Dr. Hannaway noted mild peripheral neuropathy, but did not have "an absolute definite diagnosis of what her problems are."

In 2006, Dr. Hannaway addressed chronic low back pain in a report. He noted Claimant had back complaints since 1997, and back injuries in August 2002, 2003 and 2004. He opined Claimant was unable to work and diagnosed discogenic low back problems. Dr. Hanaway did not review the 2003 MRI of the low back or review additional medical records.

Claimant asserts her back condition was caused by the May 2003 work accident. Employer contends Claimant's back condition is not caused by the accident. The parties were asked to submit proposed awards, however the Claimant did not.

After careful consideration of the entire record, based upon the above testimony, the competent and substantial evidence presented, and the applicable law of the State of Missouri, I find Claimant did not meet her burden to establish her low back condition was caused by the May 21, 2003 accident for the reasons stated below.

The claimant in a workers' compensation case must prove all material elements of his claim. Mielves v. Morris, 422 S.W. 2d 335, 339 (Mo banc 1968). This includes the burden of establishing permanency to a reasonable degree of medical certainty. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 704 (Mo.App.1974). Claimant has the burden to establish she sustained an injury by accident arising out of and in the course of employment and the accident resulted in the alleged injuries. Choate v. Lily Tulip, Inc., 809 S.W.2d 102, 105 (Mo.App. 1991). (Overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo banc 200