Lisa Ambrose v. Wal-Mart Associates, Inc.

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 02-040236

Employee: Lisa M. Ambrose

Employer: Wal-Mart Associates, Inc.

Insurer: American Home Assurance Company

c/o Claims Management, Inc.

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. We have reviewed the evidence, heard the parties' arguments, and considered the whole record. Pursuant to section 286.090 RSMo, we modify the award. The award and decision of Administrative Law Judge Robert B. Miner, issued March 16, 2009, is attached and incorporated by this reference to the extent it is not inconsistent with our findings, conclusions, award, and decision herein.

We disagree with the conclusion of the administrative law judge that employee failed to establish that she sustained a compensable mental injury causally related to her work injury.

Like the administrative law judge, we consider the opinion of Dr. Patrick Hughes to be credible. However, we do not agree with the administrative law judge that the opinions of Dr. Hughes, as established by his testimony and medical report, support a conclusion that employee did not sustain a compensable mental injury as a result of her work injury. To the contrary, Dr. Hughes assessed a 10-12\% psychiatric impairment of the body as a whole based on a diagnosis of ongoing adjustment disorder with mixed features. Of that 10-12\%, Dr. Hughes opined that one third was related to a combination of being unemployed and employee's distress over life limitations from pain, and that a further one third of that one third was directly caused by employee's back pain stemming from her work injury. In this fashion, Dr. Hughes arrived at a 1.33\% psychiatric impairment of the body as a whole caused by employee's work injury.

Thus, when considered in its entirety, the opinion of Dr. Hughes is in agreement, however minutely, with the opinion of Dr. Daily that employee sustained a compensable mental injury as a result of her work injury. As a result, virtually all of the medical evidence provided by mental health professionals in this case is in agreement that employee sustained some measure of mental injury as a result of her work injury.

Having reviewed the competent medical evidence on the record, we find that employee has sustained a permanent partial psychiatric disability of 5 % of the body as a whole as a result of a compensable injury to her back sustained in the course of her employment for employer. Accordingly, we find that, in addition to the amount awarded by the administrative law judge as compensation for her physical injuries, employee is entitled to 20 weeks of compensation at a rate of $\ 214.75, for a total of $\ 4,295.00 in permanent partial psychiatric disability benefits from employer, and we modify the March 16, 2009 award accordingly.

As stated above, all remaining findings of fact and conclusions of law are affirmed.

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 $10^{\text {th }}$ day of November, 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Lisa M. Ambrose

Injury No. 02-040236

Employer: Wal-mart Associates, Inc.

Insurer: American Home Assurance Company, c/o Claims Management, Inc.

Hearing Date: December 29, 2008 and December 31, 2008

Checked by: RBM

FINDINGS OF FACT AND RULINGS OF LAW

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: Continuing to April 20, 2004.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Platte 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: Employee engaged in cumulative repetitive work for Employer including lifting, carrying, bending and stocking as a stocker, causing injury to her back.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Back.

1. Nature and extent of any permanent disability: 40 % permanent partial disability of the body as a whole.
2. Compensation paid to-date for temporary disability: None.
3. Value necessary medical aid paid to date by employer/insurer? $\ 1,872.00.
4. Value necessary medical aid not furnished by employer/insurer? None.
5. Employee's average weekly wages: $\ 322.13.
6. Weekly compensation rate: $\ 214.75 for temporary total disability, permanent total disability, and permanent partial disability.
7. Method wages computation: Section 287.250, RSMo.

1. Amount of compensation payable:

Unpaid medical expenses: None.

No weeks of temporary total disability.

160 weeks of permanent partial disability from Employer, or $\ 34,360.00 for permanent partial disability at the weekly rate of $\ 214.75.

No weeks of disfigurement from Employer.

1. Second Injury Fund liability: N/A

TOTAL: $\ 34,360.00.

1. Future requirements awarded:

Employer/Insurer is directed to authorize and furnish additional medical treatment to cure and relieve Claimant from the effects of her April 20, 2004 work injury, including the treatment that Dr. Bernhardt has recommended, in accordance with Section 287.140, RSMo.

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: Jeffrey S. Bloskey and Joani W. Harshman.

Employee: Lisa M. Ambrose

Injury No. 02-040236

Employer: Wal-mart Associates, Inc.

Insurer: American Home Assurance Company, c/o Claims Management, Inc.

Hearing Date: December 29, 2008 and December 31, 2008

Checked by: RBM

A final hearing was held in this case on Employee's claim against Employer on December 29, 2008 and December 31, 2008 in St. Joseph, Missouri. Employee, Lisa M. Ambrose, ("Claimant") appeared in person and by her attorneys, Jeffrey S. Bloskey and Joani W. Harshman. Employer, Wal-Mart Associates, Inc., ("Employer") and Insurer, American Home Assurance Company, c/o Claims Management, Inc. ("Insurer") appeared by their attorney, Charles R. Brown. The Second Injury Fund is not a party to this case. Jeffrey S. Bloskey and Joani W. Harshman requested an attorney's fee of 25 % from all amounts awarded.

At the time of the hearing, the parties stipulated to the following issues:

1. On or about April 4, 2002, Lisa M. Ambrose ("Claimant") was an employee of Wal-Mart Associates, Inc. ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.
2. On or about April 4, 2002, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was insured by American Home Assurance Company, c/o Claims Management, Inc. ("Insurer").
3. No compensation had been paid by Employer for temporary disability.
4. Employer/Insurer has paid $\ 1,872.00 in medical aid.

The parties agreed that there were disputes on the following issues:

1. Whether on or about April 4, 2002, Claimant sustained an injury by accident or occupational disease arising out of and in the course of her employment for Employer?
2. Whether Claimant's current condition is medically causally related to the alleged work injury of April 4, 2002?
3. Was Claimant's claim filed within the time allowed by law?
4. Did Employer have notice of Claimant's alleged injury?
5. What is Employer's liability, if any, for past medical expenses?
6. What is Employer's liability, if any, for future medical expenses?
7. What are Claimant's average weekly wage and compensation rates?
8. What is Employer's liability, if any, for past temporary total disability benefits?
9. What is the nature and extent of Claimant's permanent disability, including whether Claimant is permanently and totally disabled?
10. Is Employer liable for costs under Section 287.560, RSMo?

Claimant testified in person. In addition, Claimant offered the following exhibits which were admitted in evidence without objection:

A - Associate Statement--Workers' Compensation (4/4/02).

B - Workers' Compensation Request for Medical Care (4/24/02).

C - Treatment records Clay-Platte Family Medicine Clinic.

D - Additional Clay-Platte Family Medicine Clinic records (5/26/02 through

$11 / 26 / 06)$.

E - Treatment records Dr. Griffith and North Kansas City, Hospital.

F - Treatment records of James Waddell, D.C.

G - Treatment records of Shawnee Mission Medical Center.

H - Treatment records of Tri-County Mental Health.

I - Treatment records of Northland Pysch \& Associates.

J - 10/21/08 Report of Dr. Koprivica (with 60 day letter).

K - 10/20/2007 Report of Dr. Koprivica (with 60 day letter).

L - 1/3/08 Report of Dr. Griffith (with 60 day letter).

M - 8/5/08 Report of Steve Daily, MS (with 60 day letter).

N - Deposition and Reports of Dr. Bernhardt.

O - CV of Michael J. Dreiling.

P - 12/16/07 Report of Michael J. Dreiling.

Q - Claimant's Out of Pocket Medical Expenses.

R - Medical bills of Shawnee Mission Medical Center.

S - Medical bills of Dr. Anya/Tri-County Mental Health.

T - Medical bills of James Waddell, D.C.

U - Medical bills of Medical Imaging, Inc.

V - Medical bills of Pain Source Solutions, LLC.

W - Medical bills of Clay-Platte Family Medical.

X - Medical bills of North Kansas City Hospital.

Employer and Insurer offered the following exhibits which were admitted in evidence without objection:

2 - Dr. Hughes' Deposition (8/25/08).

3 - Dr. Hughes' Deposition (8/28/08).

4 - Terry Cordray Deposition (12/9/08).

6 - Clay-Platte Family Medicine records.

8 - Report of Injury.

9 - W/C Request for Medical Care.

10 - Associate's Statement--W/C.

11 - Earnings History--8 pages.

12 - North Kansas City Hospital records--8 pages.

13 - Clay Platte Family Medicine records--37 pages.

14 - Farm Bureau Insurance Letter.

17 - Shawnee Mission Medical Center records--19 pages.

18 - OHS Report--2 pages.

19 - North Kansas City Hospital records--35 pages.

20 -- Photographs.

Also, Employer and Insurer offered Exhibits 7, 15, and 16. Claimant's counsel objected to those Exhibits. The objections were sustained and Exhibits 7, 15, and 16 were not admitted in evidence.

Based on a comprehensive review of the substantial and competent evidence, including Claimant's testimony, the expert medical opinions and depositions, the vocational opinions and deposition, the medical records and reports, the testimony of Pamela Roberts, the report of Steven Dailey, and my personal observations of Claimant at the hearing, I find:

Claimant was born on October 13, 1971. Claimant quit high school in the $10^{\text {th }}$ grade. She received a GED at age twenty-one, but did not attend college, vocational school, or technical school.

Claimant began working for Employer on April 12, 2001 as an overnight stocker. She worked full-time. She helped unload trucks, put boxes on a belt, put boxes on a nonmotorized pallet jack. She