Maria Peck-Miller v. JPS Automotive

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-041483

Employee: Maria Peck-Miller

Employer: JPS Automotive (Settled)

Insurer: American Home Assurance Company (Settled)

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 February 10, 2010. The award and decision of Administrative Law Judge Linda J. Wenman, issued February 10, 2010, 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 $29^{\text {th }}$ day of July 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Hearing Date: November 9, 2009

Checked by: LJW

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: January 26, 2004 (corrected date)
5. State location where accident occurred or occupational disease was contracted: St. Louis 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: While walking to her car at the end of her work shift, employee slipped on ice and twisted her right knee as she slipped.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right and left knees.
14. Nature and extent of any permanent disability: 40 % PPD referable to the right knee, and 15 % PPD referable to the left knee previously paid by Employer.
15. Compensation paid to-date for temporary disability: $\ 15,843.27 representing 25 weeks of benefits.
16. Value necessary medical aid paid to date by employer/insurer? $\ 1,555.88

Employee: Maria Peck-Miller

Injury No.: 04-041483

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: Sufficient to produce rates noted below.
3. Weekly compensation rate: $\$ 633.00 / \ 347.05
4. Method wages computation: Stipulated

1. Second Injury Fund liability: Yes

19.2 weeks of permanent partial disability from Second Injury Fund

$\ 6,663.36

TOTAL:

$\ 6,663.36

1. Future requirements awarded: None

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 in favor of the following attorney for necessary legal services rendered to the claimant: Brian Stokes

A Second Injury Fund hearing for final award was held regarding the above referenced Workers' Compensation claim by the undersigned Administrative Law Judge on November 9, 2009. The parties filed post-trial briefs, and the case was formally submitted on December 7, 2009. Attorney Brian Stokes represented Maria Peck-Miller (Claimant). Assistant Attorney General Lacy Fields represented the Second Injury Fund (SIF).

On October 23, 2008, Claimant and JPS Automotive (Employer) reached a compromise settlement regarding Employer's liability in this claim. The stipulation for compromise settlement represented 40 % PPD referable to Claimant's right knee, and 15 % PPD referable to her left knee.

Prior to the start of the hearing the parties identified the issue for disposition in this case: accident; arising out of and in the course/scope of employment; medical causation; and the liability of SIF for permanent total disability (PTD) or permanent partial disability (PPD) benefits. Claimant offered Exhibits A-C, and F-N. SIF offered Exhibits I-IV. All exhibits were admitted into the record. Any markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit. Any objections not expressly ruled on in this award are overruled.

All evidence presented has been reviewed. Only testimony and evidence necessary to support this award will be reviewed and summarized.

1. Claimant is sixty years old, a high school graduate, who is approximately six credit hours shy of obtaining an associates degree. Claimant's work history includes working as an administrative secretary; as a production supervisor for Chrysler Corporation; as a project completion supervisor at the local General Motors plant; and for Employer, as a quality liaison at the local Chrysler plant. As a quality liaison, Claimant's job duties included: supervising and coordinating with Chrysler management staff; providing complete inspections of front and rear fascias and bumpers; supplying parts; inspecting the yard; and resolving any work site issues at the plant. Chrysler provided Claimant's office space, and a parking spot on Chrysler's parking lot.

1. On January 26, 2004, Claimant had completed her work shift, and while walking to her car, she slipped on a patch of ice and started to fall. While trying to stop her fall, Claimant twisted her right knee and experienced immediate pain in the knee. The next morning Claimant contacted an orthopedic surgeon and obtained the first appointment the physician had available, which was the following week. Throughout the remainder of the week Claimant's right knee symptoms continued and increased, and by February 1, 2004, Claimant sought medical treatment for her right knee at Christian Hospital Northeast (CHNE), after hearing a pop in her knee while walking. Claimant came under the care of an orthopedist, Dr. Sheridan, who diagnosed a complex tear of the posterior horn of her medial meniscus. On February 4, 2004, Dr. Sheridan performed arthroscopic right knee surgery to correct the medial meniscus tear, and Grade II-III chondromalacia. Claimant recovered poorly, and ultimately Claimant underwent a right total knee replacement on June 21, 2004.
2. During October 2004, while recovering from right total knee replacement, Claimant developed pain in her left knee. By March 2005, Claimant underwent a left total knee replacement.
3. On October 23, 2008, Claimant settled her case with Employer for 40 % PPD referable to her right knee, and 15 % PPD referable to her left knee.
4. Claimant had a prior left knee injury that preceded her last work related injury. During 1999 Claimant injured her left knee and sought medical with Dr. Lux, an orthopedic surgeon. Claimant underwent surgery on her left knee on September 1, 1999, for debridement of her unstable articular surface of the medial femoral condoyle, and resection of a tear of her medial meniscus. Prior to surgery, Claimant had been diagnosed with avascular necrosis of her left medial femoral condyle. Following a post-operative period, Claimant returned to work without physical restrictions, and continued to work without restrictions until her January 26, 2004 injury.
5. Claimant has not returned to work since her knee replacements. As of hearing, Claimant complains of pain and stiffness in both knees. She is unable to walk for distances greater than $1 / 2$ mile, and she is unable to sit for longer than 20 minutes. She spends her day watching television or reading, and her daughter or granddaughter assist her with grocery shopping and household chores. Claimant currently takes Vicodin for pain relief.
6. Dr. Lichtenfeld examined Claimant at her request on April 6, 2006. Upon examination, Dr. Musich noted the following abnormalities: right thigh atrophy, mild to moderate crepitus of both knees; lateral instability of both knees; and moderate to severe pain in both knees. Dr. Lichtenfeld diagnoses included: status post operative right knee replacement, depression, and exacerbation with acceleration of left knee degeneration all caused by the January 26, 2004 work injury. Dr. Lichtenfeld rated Claimant's January 2004 injuries at 75 % PPD referable to the right knee; and 17.5 % PPD referable to the left knee. Dr. Lichtenfeld rated the following preexisting disabilities: 50 % PPD referable to the left knee; and 30 % BAW PPD referable to chronic obstructive pulmonary disease (COPD). Dr. Lichtenfeld deferred to a psychiatrist regarding a rating for Claimant's depression. Dr. Lichtenfeld suggested numerous physical and environmental restrictions. Dr. Lichtenfeld opined Claimant's preexisting injuries were a hindrance to employment prior to her last injury, and the last injury and preexisting injuries combined to create an overall disability greater than the simple sum. Dr. Lichtenfeld further

opined Claimant is PTD due to a combination of her disabilities, taking into account her education, job history, and advanced work age.

1. Dr. Nogalski examined Claimant at the request of Employer on September 14, 2006. Dr. Nogalski did not find Claimant had sustained a work related injury on January 26, 2004, given Claimant's alleged injury was un-witnessed, medical records used inconsistent dates of injury, and she reported hearing her knee pop several days after the alleged date in injury. Upon crossexamination, Dr. Nogalski conceded a there was a pattern of consistency in reporting to medical care providers regarding the actual date and mechanism of injury.
2. Vocational rehabilitation counselor, Mr. James Israel, M.Ed., interviewed Claimant on January 16, 2007, and issued his report during May 2007 after reviewing the report issued by Dr. Lichtenfeld. Prior to receiving Dr. Lichtenfeld's report, Mr. Israel was "inconclusive" in reaching an opinion regarding Claimant's employability. Mr. Israel deemed Dr. Lichtenfeld's report to be "important because it defined abilities and limitations." During his evaluation Mr. Israel administered the Purdue Pegboard Test. Claimant scored from 1-5 ${ }^{\text {th }}$ percentile on the Purdue Pegboard Test. After reviewing Claimant's medical records, Mr. Israel noted her various treating physicians had not placed physical restrictions on Claimant's activities, but Dr. Lichtenfeld had placed numerous physical and environmental restrictions due to her knee replacements and pulmonary condition.