Diane Dobbs v. MCI

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 97-497403

Employee: Diane Dobbs

Employer: MCI

Insurer: Zurich North America Insurance Company

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. 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 August 24, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge L. Timothy Wilson, issued August 24, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $22^{\text {nd }}$ day of October 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Diane Dobbs

Injury No. 97-497403

Dependents: N/A

Employer: MCI

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Zurich North America Insurance Co.

Hearing Date: August 10, 2009

Checked by: LTW

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? No
4. Date of accident or onset of occupational disease: Alleged November 1997
5. State location where accident occurred or occupational disease was contracted: Greene 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? No
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: Employee alleges that she developed upper extremity pain while performing her duties as a telemarketer.
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: Alleged upper extremities
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? $\ 151.00

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 295.06
3. Weekly compensation rate: $\ 196.71
4. Method wages computation: Stipulation

1. Amount of compensation payable: No compensation is awarded.
2. Second Injury Fund liability: No

TOTAL: $\ .00

1. Future requirements awarded: N/A

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on August 10, 2009.

The employee Diane Dobbs appeared personally pro se. ${ }^{1}$ The employer MCI, and its insurer Zurich North America Insurance Co., appeared through their attorney Michael Mayes, Esq. The Second Injury Fund appeared through its attorney, Cara Harris, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) In or around November 1997, MCI was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Zurich North America Insurance Co.

(2) On the alleged injury date of November 1997, Diane Dobbs was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) The above-referenced employment and alleged accident or incident of occupational disease occurred in Greene County, Missouri. The parties agree to venue lying in Springfield, Missouri. Venue is proper.

(4) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(5) At the time of the alleged accident or incident of occupational disease, the employee's average weekly wage was $\ 295.06, which is sufficient to allow a compensation rate of $\ 196.71 for both temporary total disability compensation and permanent disability compensation.

(6) Temporary disability benefits have not been provided to the employee.

(7) The employer and insurer have provided medical treatment to the employee, having paid $\ 151.00 in medical expenses.

[^0]

[^0]: ${ }^{1}$ Diane Dobbs was previously known as Diane Witt Gooch. Any reference to Diane Gooch in this award or in the evidence admitted at trial relates to the employee Diane Dobbs.

The sole issues to be resolved by hearing include:

(1) Whether the claimant sustained an accident or incident of occupational disease in or around November 1997; and, if so, whether the accident or occupational disease arose out of and in the course of the employee's employment with the employer?

(2) Whether the employee gave the employer proper notice of the injury, if applicable?

(3) Whether the alleged accident or incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed?

(4) Whether the employer and insurer are obligated to pay for certain past medical care and expenses?

(5) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries?

(6) Whether the employee is entitled to temporary disability benefits? (The employee seeks payment of temporary total disability compensation, payable for a four month period between November 1997 and February 1998.)

(7) Whether the employee sustained any permanent disability as a consequence of the alleged accident or occupational disease; and, if so, what is the nature and extent of the disability?

(8) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

The employee testified at the hearing in support of her claim. In addition, the employee offered for admission the following exhibits:

Exhibit A Medical Records from St. John's Physicians \& Clinics Exhibit B Deposition of David Paff, M.D. Exhibit C Deposition of Diane Gooch (Dobbs) Exhibit D Medical Records from Springfield Neurological Institute Exhibit E Medical Records from St. John's Physicians \& Clinics

Exhibit F Medical Imaging Consultation (MRI of Cervical Spine) from St. John's Regional Health Center

Exhibit G Social Security Benefit Statement

Exhibit H Letter Dated September 3, 2008 from Shane L. Bennoch, M.D. to John Newman, Esq.

Exhibit I Medical Report from Morfeo M. Suva, M.D.

Exhibit J Medical Records from St. John's Physicians \& Clinics

Exhibit K Medical Records from South Creek Family Care (allegedly)

Exhibit L Correspondence from Robert Freeman, Esq.

Exhibit M Medical Records from South Creek Family Care (allegedly)

Exhibits A, B, C, D, E, F, and H, were received and admitted into evidence without objection. Exhibit J was received and admitted into evidence over the objections of the employer and insurer, and Second Injury Fund. The undersigned sustained the objections of the employer and insurer, and Second Injury Fund, to the admission of Exhibits G, I, K, L and M. Exhibits G, I, K, L and M were received but denied admission into evidence.

The employer and insurer did not present any witnesses at the hearing of this case. The employer and insurer, however, offered for admission the following exhibit:

Exhibit 1 Deposition of Thomas B. Corsolini, M.D.

Exhibit 1 was received and admitted into evidence.

The Second Injury Fund did not present any witnesses or offer any additional exhibits at the hearing of this case.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took official or judicial notice of the documents contained in the Legal File, which include:

- Notice of Hearing (August 10, 2009)

- Proof of Mailing (Certified Mail) Notice of Hearing to Employee (August 10, 2009)

- Order - Cancellation of Trial Setting (June 19, 2009) \& Scheduling of a New Evidentiary Hearing Date (August 10, 2009)

- Notice of Cancellation of Hearing (August 19, 2009)

- Notice of Hearing (June 19, 2009)

- Request for Hearing-Final Award

- Answer of Employer/Insurer to Claim for Compensation

- Motion to Withdraw \& Order Granting Leave to Withdraw as Attorney for Employee (John Newman, Esq.)

- Order Granting Leave to Withdraw as Attorney for Employee (Robert Hill, Esq.)

- Motion to Withdraw (Robert Hill, Esq.)

- Order Granting Leave to Withdraw as Attorney for Employee (Robert Freeman, Esq.)

- Motion to Withdraw (Robert Freeman, Esq.)

- Notice of Attorney's Lien (Robert Freeman, Esq.)

Issued by DIVISION OF WORKERS' COMPENSATION

Name: Diane Dobbs

Injury No. 97-497403

- Order Granting Leave to Withdraw as Attorney for Employee (Kevin Dunaway, Esq.)

- Motion to Withdraw (Kevin Dunaway, Esq.)

- Order of Labor \& Industrial Relations Commission (Order of Dismissal Set Aside)

- Order of Dismissal

- Answer of Second Injury Fund to Amended Claim for Compensation

- Answer of Employer/Insurer to Amended Claim for Compensation

- Amended Claim for Compensation

- Answer of Employer/Insurer to Claim for Compensation

- Claim for Compensation

- Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The employee Diane Dobbs is 46 years of age, having been born on April 17, 1963. Ms. Dobbs resides in Ozark, Missouri.

Ms. Dobbs graduated from high school, and then attended college but did not graduate. During early adulthood, Ms. Dobbs married her former husband and moved to San Antonio, Texas, with her husband, who was in the Army. Initially, Ms. Dobbs did not work outside the home. Later, she obtained and engaged in various employment occupations, including work as a contract employee.

In 1994, Ms. Dobbs obtained employment with the employer MCI, working in telecommunications sales. This employment involved sales over the telephone. Ms. Dobbs worked for MCI until in or around July 1998. In describing the nature of this work and her use of the computer and telephone communications system while working for MCI, Ms. Dobbs testified in her deposition and trial as follows:

- MCI provided both a handset and a headset for talking on the telephone, but she used primarily the handset, which was connected to the telephone. (Ms. Dobbs described the handset as an "old time handset with two round ends.") Often times, the computer would dial the telephone numbers, but at other times she would have to manually dial the telephone numbers. Ms. Dobbs further indicated that she made approximately ten calls an hour, although these calls included busy signals, answering machines, and the calls not being answered. In using a handset, Ms. Dobbs commonly (approximately 90 percent of the time) held the phone in her left hand and typed with her right hand; but she alternated use of her hands. Additionally, she would put the phone down and type with both hands.

- During telephone sales calls, Ms. Dobbs input into the computer information relating to the customer and the sales incident, including details relating to the product and the name, address and t