Bonnie Olson v. Bass Pro, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-067294

Employee: Bonnie Olson

Employer: Bass Pro, Inc.

Insurer: St. Paul Fire \& Marine Insurance Company

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 15, 2009. The award and decision of Administrative Law Judge Margaret Ellis Holden, issued April 15, 2009, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $3^{\text {rd }}$ day of November 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Bonnie Olson

Injury No. 05-067294

Dependents: N/A

Employer: Bass Pro, Inc.

Additional Party: N/A

Insurer: St. Paul Fire \& Marine Insurance Company

Hearing Date: $\quad 1 / 12 / 09$

Checked by: MEH

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: 7/20/05
5. State location where accident occurred or occupational disease was contracted: GREENE COUNTY, MO
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: EMPLOYEE WAS STRUCK BY A BOX DROPPED ON HER BY A CO-WORKER.
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: RIGHT UPPER EXTREMITY
14. Nature and extent of any permanent disability: PERMANENT TOTAL DISABILITY
15. Compensation paid to-date for temporary disability: $\ 10,295.74
16. Value necessary medical aid paid to date by employer/insurer? $\ 106,289.53

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\ 211.61
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: N/A

$102 / 7$ weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

6 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning 11/26/06, for Claimant's lifetime

FUTURE MEDICAL TREATMENT

1. Second Injury Fund liability: Yes No X Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund:

weekly differential ( 0 ) payable by SIF for 0 weeks, beginning N/A

and, thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded: PERMANENT TOTAL DISABIILTY AND FUTURE MEDICAL TREATMENT

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:

PATRICK PLATTER

Employee: Bonnie Olson

Injury No. 05-067294

Dependents: N/A

Employer: Bass Pro, Inc.

Additional Party: N/A

Insurer: St. Paul Fire \& Marine Insurance Company

Hearing Date: $\quad 1 / 12 / 09$

Checked by: MEH

The parties appeared before the undersigned administrative law judge on January 12 2009, for a final hearing. The claimant appeared in person represented by Patrick Platter. The employer and insurer appeared represented by Robin Bullock. Memorandums of law were filed by February 2, 2009.

The parties stipulated to the following facts: On or about July 20, 2005, Bass Pro, Inc., was an employer operating subject to The Missouri Workers' Compensation Law. The employer's liability was fully insured by St. Paul Fire \& Marine Insurance Company. On the alleged injury date of July 20, 2005, Bonnie Olson was an employee of the employer. The claimant was working subject to the Missouri Workers Compensation Law. On or about July 20, 2005, the claimant sustained an accident, which arose out of and in the course and scope of employment. This employment occurred in Greene County, Missouri. The claimant notified the employer of her injury as required by Section, 287.420 RSMo. The Claim for Compensation was filed within the time prescribed by Section 287.430 RSMo. At the time of the accident the claimant's average weekly wage was sufficient to allow a compensation rate of $\ 211.61 for

temporary total and permanent partial disability compensation. Temporary disability benefits have been paid to the claimant in the amount of $\ 10,295.74, from May 23, 2006, to November 25, 2006. Temporary partial disability has been paid in the amount of $\ 1,106.74, between the dates of September 9, 2005 and November 25, 2005. The employer and insurer have paid medical benefits in the amount of $\ 106,289.53. The attorney fee being sought is 25 %.

A temporary hearing was held December 6, 2006; and an award was issued February 22, 2007.

ISSUES:

1. Whether the claimant has sustained injuries that will require future medical care in order to cure and relieve the claimant of the effects of the injuries.
2. Any temporary total benefits owed to the claimant between September 19, 2005, and October 11, 2005, and between November 21, 2005, and January 10, 2006.
3. The nature and extent of permanent disabilities, whether the claimant is permanently partially disabled or permanently totally disabled.
4. The amount of disfigurement assessed.

FINDINGS OF FACT and CONCLUSIONS OF LAW:

The claimant is 58 years old. She was a stay-at-home mother for 23 years. During this time she occasionally worked as a waitress, boxing TV dinners, and cashiering. She has a highschool education. Her work history includes primarily working as a secretary, cashier, and waiting tables. While she attended real estate school and became a licensed real estate agent in 1990, she has not been a real estate agent for many years. She also attended cosmetology school in 2000 but is no longer licensed. She testified that she did not believe she could work at this time as either a real estate agent or a cosmetologist.

In June 2005 claimant had been laid off her job as a secretary and went to work in the warehouse of the employer, Bass Pro Shops. She worked a 40-hour week in the "T" zone as order filler. The shelves in the area were approximately four feet high; the heights would vary. A ladder was necessary to reach the top shelf. The claimant's duties included pulling customer orders and orders for other stores. She would take items off the shelves and place in a cart, which she would roll to the packing area.

On July 20, 2005, claimant was retrieving merchandise. Another worker was moving a box approximately 10 feet above her. The box fell and hit the front of her. This box was approximately six feet long and 15 inches to 20 inches square. It brushed the front of her, hit her wrist hard, then hit her knee and shin hard. She felt a snap and instant burning pain in her right wrist.

Claimant reported the accident to her head leader and the HR director, David Bartelot. The employer sent her to Dr. David Pirotte that afternoon.

Claimant testified that the day of the accident she felt extreme pain, burning, numbness, and tingling. Dr. Pirotte ordered x-rays and prescribed pain medication. Dr. Pirotte imposed restrictions of no lifting over two pounds, no work above chest level, no power grip, no forceful pinching, and no power tools. Claimant was given medication and a splint to wear. Claimant could not take the medication while working, so she was sent home that day.

On July 25, 2005, Dr. Pirotte prescribed a sling as well as the brace. He continued the restrictions and ordered physical therapy. On August 3, 2005, he allowed modified duty with no use of the right hand and continued the sling and brace. Claimant returned to work on modified duty doing various jobs. The physical therapy gave her no relief.

On August 10, 2005, an MRI of the right forearm, wrist, and hand was performed which showed a ligament tear in her right arm. Dr. Pirotte referred her to an orthopedic surgeon, Dr. Kelly Holtkamp.

In late August 2005 claimant was dismissed from her employment at Bass Pro Shops. Her mother had had a stroke, and claimant was gone one week to visit her. When she returned she was dismissed.

Claimant was not paid temporary disability from September 19, 2005, to October 11, 2005.

Dr. Holtkamp performed a total of three surgeries on the claimant. On September 19, 2005, he performed arthroscopic surgery to repair the triangular fibro-cartilage complex ulnotriquetral ligament split tear. On October 11, 2005, he performed a right wrist scapholunate reconstruction with neurectomy and tendon transposition. Claimant was put in a cast from her hand past her elbow. Claimant testified that her hand and fingers were very swollen. When the cast was removed she described her hand as frozen and shriveled with a purple red color along her wrist and a blue color going up from it.

On October 24, 2005, Dr. Holtkamp noted that claimant was showing mild reflex sympathetic dystrophy symptoms and was concerned she was developing a pain disorder.

On November 7, 2005, Dr. Holtkamp performed a stellate ganglion block procedure. Dr. Holtkamp saw her again on the $21^{\text {st }}$ of November. At this time he returned her to light duty with no pushing or pulling greater than 0 pounds. He stated that, if modified duty was unavailable, claimant would be off work. He found she had extremely limited motion of her hand and fingers and was developing a claw hand. Dr. Holtkamp noted the claimant had developed a claw and felt surgery was now complicated with what appeared to be the development of complex regional pain syndrome.

Claimant was not paid temporary disability from November 21, 2005, to January 10, 2006.

On December 1, 2005, Dr. Jason Marquis examined the claimant. His examination was consistent with complex regional pain syndrome, and he also suspected she had developed adhesive capsulitis of the right shoulder. He ordered a triple-phase bone scan which was performed on December 13, 2005. The triple-phase bone scan confirmed reflex sympathetic dystrophy of the right upper extremity.

Claimant had surgery on December 27, 2005, for removal of hardware.

Claimant continued to treat with Dr. Holtkamp with physical therapy and Dr. Marquis for pain management. On January 10, 2006, Dr. Marquis stated the claimant was unable to work.

In March 2006, Dr. Holtkamp had the claimant on light duty for the right upper extremity and, if modified duty was unavailable, off work. Dr. Marquis recommended she be off work due to the amount of occupational therapy she was receiving.

Because claimant was not working and had no income, she had to m