Marcia Rouse v. Trans World Airlines

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 99-070011

Employee: Marcia Rouse

Employer: Trans World Airlines

Insurer: Self-Insured

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

The above-captioned workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence and considered the whole record. We have reviewed the parties' briefs. We find 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, except as modified herein. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying the January 8, 2010, award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

On January 8, 2010, the administrative law judge issued his award. On January 25, 2010, employee filed her Application for Review. Also, on January 25, 2010, the administrative law judge issued an Order Correcting Award on Hearing. If the Application for Review was filed before the Order Correcting, the administrative law judge had no jurisdiction to issue the Order Correcting. We do not know if the Application for Review or the Order Correcting was issued earlier. To eliminate any question regarding the efficacy of the attempted corrections, we make those corrections here. Corrected language is in italics.

We modify page 1, section 13 of the January 8, 2010, award to read:

1. Part(s) of body injured by accident or occupational disease: Neck and left shoulder

We modify page 23, paragraph 2, sentence 1, of the January 8, 2010, award to read:

Dr. Wayne A. Stillings, a psychiatrist, testified by deposition on behalf of Employee on July 28, 2008.

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.

The award and decision of Administrative Law Judge, issued January 8, 2010, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $15^{\text {th }}$ day of June 2010.

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? 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: June 20, 1999
5. State location where accident occurred or occupational disease was contracted St. Louis 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, a flight attendant, was knocked to the floor of the airplane when the pilot unexpectedly applied the brakes during taxiing

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Neck and right shoulder
3. Nature and extent of any permanent disability: 15 % permanent partial disability of the body due chronic pain referable to the neck and left shoulder; 7-1/2\% permanent partial disability of the body due to exacerbation of somatoform disorder
4. Compensation paid to-date for temporary disability: $\ 8,846.44
5. Value necessary medical aid paid to date by employer/insurer? $\ 15,861.59

1. Value necessary medical aid not furnished by employer/insurer? None claimed
2. Employee's average weekly wages: $>\ 844.00
3. Weekly compensation rate: $\ 562.67 PTD/TTD/ \$294.73 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses None claimed

Underpayment of temporary total disability \$ 1,120.86

90 weeks of permanent partial disability from Employer \26,525.70

1. Second Injury Fund liability: No

TOTAL: \quad \ 27,646,56

1. Future requirements awarded: None

Said payments to begin and to be payable Immediately 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:

Robert Flavin

Claimant: Marcia Rouse

Dependents: N/A

Employer: Trans World Airlines

Additional Party: Second Injury Fund

Insurer: Self-insured

Injury No. 99-070011

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JHP

A hearing in this proceeding was held on September 15. The record was left open for 30 days to allow Claimant to submit medical record. The record was closed on October 6, 2000. All parties submitted proposed awards, the last of which was received on November 5, 2009.

The parties stipulated that on or about June 20, 1999:

1. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. the employer's liability was self-insured;
3. the employee's average weekly wage exceeded $\ 844.00;
4. the rate of compensation for temporary total disability and permanent total disability was $\ 562.67 and the rate of compensation for permanent partial disability was $\ 294.73; and
5. the employee sustained an injury as a result of an accident arising out of and in the course of employee's employment occurring in St. Louis County, Missouri.

The parties further stipulated that:

1. the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law;
2. compensation has been paid in the amount of $\ 8,846.44 representing $18-1 / 7 weeks of benefits at the rate of \ 483.79 per week; and
3. the employer has paid $\ 15,861.59 in medical expenses.

The issues to be resolved in this proceeding are:

1. whether the medical conditions in the employee's upper left extremity, cervical spine, and upper right thorax claimed by employee were caused or aggravated by the work-related accident of June 20, 1999;
2. whether the employee should be provided with any future medical treatment;

1. whether employee is entitled pursuant to Section 287.170 Mo. Rev. Stat. (2000) to any additional temporary total disability compensation;
2. the nature and extent of any permanent disability sustained by the employee as a result of the work-related injuries of June 20, 1999; and
3. whether and to what extent employee has sustained any additional permanent partial or permanent total disability for which the Second Injury Fund would be liable as a result of the combination of any preexisting disabilities with the primary injuries.

Marcia Rouse, Employee herein, claims that the present condition of the "entire left side" of her body, including the left arm, shoulder, clavicle, axilla, left upper back and chest, neck, the changing of the color of her left hand and left foot to blue, and the development of a significant mood disorder and pain disorder were caused by the work-related accident of June 20, 1999. ${ }^{1}$ Employer contends that some of these complaints were preexisting and some of these complaints were caused by a subsequent intervening incident.

The employee must establish a causal connection between the accident and the claimed injuries. Davies v. Carter Carburetor Div., 429 S.W.2d 738 (Mo. 1968); McGrath v. Satellite Sprinkler Systems, 877 S.W.2d 704, 708 (Mo. App. 1994); Blankenship v. Columbia Sportswear, 875 S.W.2d 937, 942 (Mo. App. 1994); Fisher v. Archdiocese of St. Louis, 793 S.W.2d 195, 198 (Mo. App. 1990); Cox v. General Motors Corp., 691 S.W.2d 294 (Mo. App. 1985); Griggs v. A.B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974); Smith v. Terminal Transfer Company, 372 S.W.2d 659, 664 (Mo. App. 1963).

Amendments made to Section 287.020.2 Mo. Rev. Stat. (2000) in 1993 require that the injury be "clearly work related" for it to be compensable. An injury is clearly work related "if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor." The Supreme Court held in Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo. 1999) that the foregoing language overruled the holdings in Wynn v. Navajo Freight Lines, Inc., 654 S.W.2d 87 (Mo. 1983), Bone v. Daniel Hamm Drayage Company, 449 S.W.2d 169 (Mo. 1970), and many other cases which had allowed an injury to be compensable so long as it was "triggered or precipitated" by work. Injuries which are triggered or precipitated by work may nevertheless be compensable if the work is found to be a "substantial factor" in causing the injury. Kasl, supra at 853. A substantial factor does not have to be the primary or most significant causative factor. Bloss v. Plastic Enterprises, 32 S.W.3d 666, 671 (Mo. App. 2000); Cahall v. Cahall, 963 S.W.2d 368, 372 (Mo. App. 1998). An accident may be both a triggering event and a substantial factor in causing an injury. Id. Subsection 2 also provides that an injury must be incidental and not independent of employment relationship and that "ordinary, gradual deterioration or progressive degeneration of the body caused by aging" is not compensable unless it "follows as an incident of employment." The extent to which the 1993 amendments have further modified prior caselaw will be determined by the appellate courts. See Cahall, supra at 372.

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[^0]: 1 As Employee's attorney failed to discuss the issue of medical causation in employee's Proposed award, this summary is based on Claimant's testimony at the hearing.

The quantum of proof is reasonable probability. Davies, supra at 749; Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. 1995); White v. Henderson Implement Co., 879 S.W.2d 575, 577 (Mo. App. 1994); Fischer at 199; Banner Iron Works v. Mordis, 664 S.W.2d 770, 773 (Mo. App. 1983); Griggs at 703. "Probable means founded on reason and experience which inclines the mind to believe but leaves room to doubt." Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo. App. 1986); Fischer at 198. Such proof is made only by competent and substantial evidence. It may not rest on speculation. Griggs v. A. B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974). Expert testimony may be required where there are complicated medical issues. Goleman v. MCI Transporters, 844 S.W.2d 463, 466 (Mo. App. 1993); Griggs at 704; Downs v. A.C.F. Industries, Incorporated, 460 S.W.2d 293, 295-96 (Mo. App. 1970). Expert testimony is required where the cause and effect relationship between the claimed injury or condition and the alleged cause is not within the realm of c