Sonia Revels v. State of Missouri, Fulton State Hospital

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-129922

Employee: Sonia Revels

Employer: State of Missouri, Fulton State Hospital (Settled)

Insurer: Self-Insured (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 18, 2010. The award and decision of Administrative Law Judge David L. Zerrer, issued February 18, 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 $\qquad 10 0^{\text {th }} \qquad$ day of August 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Claimant: Sonia Revels

Injury No. 01-129922

Dependents:

Employer: State of Missouri, Fulton State Hospital

Additional Party: Second Injury Fund

Insurer: Self-insured

Hearing Date: December 8, 2009

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

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: November 9, 2001
5. State location where accident occurred or occupational disease was contracted: Fulton, Callaway County, Missouri
6. Was above Claimant 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 Claimant was doing and how accident occurred or occupational disease contracted: Claimant was stacking boxes when box fell; Claimant felt pain in right shoulder
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: Body as a whole at the cervical region; right shoulder
14. Nature and extent of any permanent disability: 15 % body as a whole at the neck; 22.5 % right shoulder
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? N/A
17. Value necessary medical aid not furnished by employer/insurer? None

Claimant: Sonia Revels Injury No. 01-129922

1. Claimant's average weekly wages: $\ 336.21
2. Weekly compensation rate: $\ 224.14
3. Method wages computation: Stipulated

1. Amount of compensation payable:

Unpaid medical expenses: -0-

-0- weeks of temporary total disability (or temporary partial disability)

$111-1 / 7$ weeks of permanent partial disability from Employer

N/A weeks of disfigurement from Employer

1. Second Injury Fund liability: Yes X No Open

Permanent total disability benefits from Second Injury Fund:

$\ 224.14 per week beginning June 4, 2003, with credit for 111-1/7 weeks, and, thereafter, for Claimant's lifetime

TOTAL: \$51,321.99 PLUS \$224.14 FROM DECEMBER 9, 2009, FOR THE REMAINDER OF CLAIMANT'S LIFETIME

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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant: B. Michael Korte

Claimant: Sonia Revels

Injury Number: 01-129922

Claimant: Sonia Revels

Injury No: 01-129922

Dependents:

Before the

DIVISION OF WORKERS'

COMPENSATION

Employer: State of Missouri, Fulton State Hospital

Department of Labor and Industrial

Additional Party: Second Injury Fund

Relations of Missouri

Insurer: Self-insured

Jefferson City, Missouri

Checked by: DLZ

On the $8^{\text {th }}$ day of December, 2009, the parties appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and by her attorney, B. Michael Korte. The Employer, having previously settled all issues in the primary claim, did not appear. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General, Carol Barnard. The record remained open until January 4, 2010.

The parties entered into a stipulation as to certain facts which are not at issue in this claim as follows, to wit: On or about the $9^{\text {th }}$ day of November, 2001, the State of Missouri, Fulton State Hospital, was an employer, operating subject to the Missouri Workers' Compensation Law; on the alleged injury date of November 9, 2001, Sonia Revels was an employee of the Employer; the Claimant was working subject to the Missouri Workers' Compensation Law; the parties agree that on or about November 9, 2001, Claimant sustained an accident, which arose out of the course of and scope of employment; the employment occurred in Callaway County, Missouri, and the parties agree that Cole County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed accident Claimant's average weekly wage was $\ 336.21, sufficient to allow a compensation rate

Claimant: Sonia Revels Injury No. 01-129922

of $\ 224.14 for permanent partial disability and permanent total disability; Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award.

The liability of the Second Injury Fund for permanent total disability or enhanced permanent partial disability.

No legal file was established for this hearing.

Claimant offered, and there was admitted into evidence without objection, Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, and S.

Claimant testified on her own behalf. Claimant testified that she was 50 years of age at the time of hearing. She testified that she was formerly employed by the Fulton State Hospital, operated by the State of Missouri, in the dietary department where she assisted in serving meals, cleaning dishes, cleaning the dining room, lifting trash cans, lifting large pots, stacking and storing supplies. She lifted and carried as much as 30 pounds regularly in performing her job tasks.

Claimant graduated from high school in 1977 but has no special training past high school other than the training she received in the military. Claimant testified that after high school she worked in a shoe factory and later at a brick plant. Claimant testified that while she was working at the brick plant, she injured her back carrying 50-pound bricks. She also worked for a short period of time at a fast food restaurant. Thereafter, she joined the army and was trained to be a truck driver. After returning from military duty, she went to work at a convenience store owned

Claimant: Sonia Revels Injury No. 01-129922

by Claimant's parent. Claimant testified that while working at the convenience store, she had to lift heavy bags of product which made her back hurt and for which she received medical treatment from time to time and for which she missed work from time to time. Claimant also worked at a nursing home as a dietary aid and cook prior to becoming employed at the current Employer. Claimant testified that she left her last employment because she could not perform her job duties and she was given the option of quitting or be terminated.

Claimant testified that she cannot perform any of her former employment job tasks and that she has not worked since leaving the employment of the state of Missouri. Claimant testified that she does not know how to use a computer, she cannot type, and she considers her mathematics skills to be "bad."

Claimant testified concerning her accident and injury of November 9, 2001. Claimant was stacking supplies in the course and scope of her employment when she sustained an injury when a box fell and she tried to catch it.

The Claimant felt immediate pain in her right shoulder, notified the Employer of her accident and injury, and was examined and treated at Callaway Community Hospital with an immobilizer on the date of the accident. She thereafter came under the care of Dr. Tate who treated Claimant and eventually referred Claimant to Dr. Tarbox for treatment. Dr. Tarbox performed arthroscopic subacromial decompression surgery, with debridement of her anterior labrum, and mini-open rotator cuff repair of a three-centimeter tear of her right rotator cuff.

During postoperative physical therapy, the Claimant reported that she felt that increased weight in the therapy sessions and exercises had caused pain in her neck. After being released by Dr. Tarbox, she was referred to Dr. Parker for her neck complaints. After conservative treatment failed to resolve Claimant's neck pain complaints, Dr. Parker performed an anterior cervical

Claimant: Sonia Revels Injury No. 01-129922

discectomy at C5-6 and C6-7, an anterior cervical arthrodesis at C5-6 and C6-7 using allograft, and placed anterior cervical instrumentation at C5 through C7. Since that time, the Claimant has been examined and treated for neck complaints by Dr. Parker and Dr. Cravens, who prescribed medication for the control of Claimant's pain complaints. Exhibits H, I, J, M, N, O, P, Q, and R set out medical records which detail Claimant's treatment.

The Claimant testified that she currently has complaints as a result of the accident relating to her right shoulder and neck. She is in constant pain. She takes a number of prescription medications. She cannot lift or carry more than 25 pounds. Her sleep is poor; she awakes several times each night. Her attention, concentration and memory are limited by her pain. She cannot clean, wash windows, or use her right arm above shoulder level. Her housecleaning sometimes takes her all week. She does not lift pans of food and does use a dishwasher. She mostly stays at home, does only limited driving, and she has stopped swimming, camping, boating, gardening and playing cards with friends. She can watch TV if she changes positions, and rests about onehalf of each day.

The Claimant testified that, prior to her work-related accident, she received chiropractic treatment over the years from Dr. Tisch for low back pain after lifting bricks at her work in a brick plant. Dr. Tisch's records show treatment from time to time starting in April 1980 through April 1991. Claimant estimated that she experienced a flare-up about every 6 months, especially with bending and stooping. Claimant testified that she treated her back pain with medication as well as chiropractic treatment. Prior to her work-related accident, the Claimant's back pain had limited her ability to work at the brick plant as well as at the convenience store, especially with bending, squatting, and lifting heavy bags of dog food at the convenience store. Claimant also saw Dr. Phillips in 2000, who noted in August of 2000 a long history of back discomfort which

Claimant: Sonia Revels Injury No. 01-129922

bothered the Claimant every couple of years. Dr. Phillips prescribed pain medication, physical therapy and a referral to an orthopedist (Exhibit K).

After the Claimant's shoulder and neck surgeries, Dr. Parker stopped treating her neck and started treating her low back complaints on June 4, 2003. The Claimant underwent lumbar MRIs and lumbar facet blocks by Dr. Parker, and was also treated conservatively for back complaints by Dr. Cravens, as well as undergoing a bone scan and injections in her low back. Her low back currently causes her pain, and limits her ability to walk, stoop, bend, and to stand or sit for more than 20 minutes.

On cross-examination Claimant admitted that she lives in a rural area and that her husband takes care of lawn mowing. She further admitted that the bags of dog food she handled at the convenience store weighed about 50 pounds each.

Claimant admitted that she can stand for about one hour and that she does laundry at home but that she uses her left hand to pick out clothes from the top-loader clothes washer. Claimant further admitted that she has been married to her husband for 25 years and that they ride motorcycles from time to time for recreation. Claimant admitted that she can ride a motorcycle as a passenger for 30-40 miles but that they make frequent stops to rest and ease the pain in Claimant's back.

Claimant admitted that she did not have neck problems prior to the primary injury and that she was released without restrictions after the neck surgery. Claimant further admitted that she has taken depression medication since the 2001 injury and that she does not sleep well due to pain in her neck.

Claimant admitted that she was involved in a motor vehicle accident in 1980 but that her injuries from that accident resolved. Claimant further admitted that she suffered a back

Claimant: Sonia Revels Injury No. 01-129922

strain/sprain in 1977 while working at the brick plant, that she saw Dr. Tisch on her own in 1980 and that she worked without restrictions up to and through her employment with the convenience store.

Claimant admitted that she handled trash bags which weighed about 30 pounds while working at the Fulton State Hospital and that she was generally able to perform her job tasks prior to her injury of November 2001. Claimant further admitted that she keeps her grandchild part of the week but that her daughter cleans up the child's "mess" when she comes home from work.

Claimant admitted that she was involved in motor vehicle accidents in 2007 and 2009 but that her injuries in each accident were minor and her back injury in 2009 resolved to the level of her pre-existing condition prior to the accident.

Claimant admitted that she drinks 6-8 beers per day depending on the pain level in her body and that she smokes 1-1/2 packs of cigarettes per day.

On re-direct examination Claimant testified that she does housework a little at a time and that she has to stop and rest often and sometimes lie down.

Gary Weimholt, a vocational rehabilitation consultant, testified on behalf of the Claimant. Mr. Weimholt testified that he performed an independent vocational evaluation on the Claimant on December 1, 2005. Mr. Weimholt testified that he reviewed medical records in drawing conclusions concerning the Claimant's ability to be employed in the open labor market. Mr. Weimholt identified Exhibit G as a report authored by him that sets out the records reviewed, the interview conducted with the Claimant, and the results of various tests administered as part of the vocational evaluation. Mr. Weimholt testified that the test results indicated that the Claimant had weak mathematical skills and poor dexterity.

M. Weimholt testified that the Claimant has not performed skilled work and does not have any transferable job skills that would transfer to any occupation within her very limited range of physical capabilities based on the restrictions of either Dr. Parker or Dr. Poetz. The Claimant's need to alternate sitting and standing makes it even less predictable that she would be able to adequately function in any alternative jobs in the open labor market. The physical requirements of production and assembly jobs also exceed her physical capabilities. She lacks any other skill sets for lighter work such as office work, computer skills, or customer service type work. She would be expected to have poor work habits, poor team skills, and not be able to manage her time wisely.

Mr. Weimholt testified that, in his opinion, the Claimant is totally disabled from employment in the open labor market due to the combination of her work-related right upper extremity and cervical spine injuries, and her pre-existing lumbar spine condition. Mr. Weimholt further testified that the Claimant's right upper extremity and cervical spine injuries alone would not have precluded the Claimant from employment; however, the combination of those injuries with her lumbar spine condition created a level of disability that rendered the Claimant permanently and totally disabled.

On cross-examination Mr. Weimholt admitted that the Claimant's mathematics skills are good enough for her to make change.

Dr. Poetz testified on behalf of the Claimant by deposition. Dr. Poetz testified that the Claimant's neck range of motion was diminished and that the range of motion of the Claimant's right shoulder was diminished. Dr. Poetz testified that in his opinion, the Claimant's right rotator cuff tear and subsequent surgeries, and her cervical strain and subsequent discectomy and arthrodesis surgeries were all attributable to her work-related injury of November 9, 2001.

Claimant: Sonia Revels Injury No. 01-129922

Dr. Poetz testified that the accident of November 9, 2001, was a substantial factor in the need for treatment and that the treatment received was reasonable and necessary to cure and relieve the Claimant of the effects of her injuries.

Dr. Poetz testified that he rated the Claimant's work-related permanent disabilities at 40% of the cervical spine referable to the body as a whole and 40% of the right upper extremity referable to the 232-week level. Dr. Poetz further testified that he restricted the Claimant from heavy lifting, strenuous activity, prolonged sitting, standing, walking, stooping, bending, squatting, twisting or climbing, overhead use of her upper extremities, and the use of equipment that creates torque, vibration or impact to the upper extremities.

Dr. Poetz testified concerning medical records with regard to treatment of the Claimant's low back, both before and after November 9, 2001. He rated her permanent disabilities to her low back prior to November 9, 2001, at 25% of the lumbar spine referable to the body as a whole, and described her pre-existing low back problems as a hindrance or obstacle to the Claimant's employment. He testified that the combination of her work-related and pre-existing disabilities resulted in a substantially greater overall level of disability, which left the Claimant permanently and totally disabled.

On cross-examination, Dr. Poetz admitted that, although he assigned disability to the Claimant's cervical spine for pre-existing conditions, he reviewed no record which indicated that she had been treated for any neck symptoms prior to that date. He agreed that her low back range of motion was diminished in 2008 as opposed to 2005.

The Second Injury Fund presented no written or oral evidence.

Claimant: Sonia Revels Injury No. 01-129922

If the Claimant is permanently totally disabled from the effects of the last injury alone, no liability for the Second Injury Fund for permanent total disability will attach. The Claimant testified as to her injuries, treatment, complaints and limitations with her right upper extremity and cervical spine. Dr. Poetz testified that the Claimant's permanent disability from the last injury is 40 % of the cervical spine referable to the body as a whole and 40 % of the right upper extremity referable to the 232-week level. The Claimant settled her claim against the Employer for disabilities of 22.07 % of the right upper extremity referable to the 232 -week level and 15 % of her cervical spine referable to the body as a whole.

After a review of all the evidence presented at the hearing, both oral and written, and based on the record as a whole, I find that there is substantial and competent evidence that the Claimant has suffered a 15 % disability of the cervical spine referable to the body as a whole as a result of the last injury alone, and I further find that the Claimant has suffered a permanent partial disability of 22.07 % of the right upper extremity referable to the 232 -week level as a result of the last injury alone. I further find that the Claimant is not permanently totally disabled from the last injury alone.

For Second Injury Fund liability to attach to this claim, the Claimant must prove that she suffers from a condition which constitutes a hindrance or obstacle to employment or reemployment and that the Claimant had a pre-existing condition that is substantial enough to constitute an obstacle to employment.

Evidence was adduced at the hearing concerning the level of the Claimant's disability from her lumbar spine condition. Dr. Poetz testified that the Claimant's permanent disability from her pre-existing back injury is 25 % of the lumbar spine referable to the body as a whole. If the Claimant was not employable in the open labor market at the time of her last injury, and was therefore permanently totally disabled as a result of her condition immediately prior to the last injury, then the Second Injury Fund cannot be held liable for permanent total disability benefits as a result of the combination of the previously existing condition and the effects of the last injury. There is no evidence that the Claimant was terminated from any employment for reasons which could be directly connected to the effects of her lumbar spine condition. After a review of all the evidence presented at the hearing, both oral and written, and based on the record as a whole, I find that the Claimant was not permanently totally disabled from her pre-existing conditions alone prior to the last injury to the Claimant's right upper extremity and cervical spine.

Dr. Poetz and Mr. Weimholt each testified that the Claimant was permanently and totally disabled as a result of the combination of the Claimant's last injury to her right upper extremity and cervical spine, and the Claimant's lumbar spine condition that pre-existed the last injuries. Mr. Weimholt testified that the restrictions imposed by the right upper extremity, cervical spine and lumbar spine injuries would prevent the Claimant from being employable. The result is that the Claimant is considered unemployable, and not by any one medical condition alone.

After a review of all the evidence presented at the hearing, both oral and written, and based on the record as a whole, I find that there is substantial and competent evidence that the Claimant is permanently and totally disabled as a result of the combination of her pre-existing lumbar spine condition at the time of her last injury and the effects of her last injury to her right

Claimant: Sonia Revels Injury No. 01-129922

upper extremity and cervical spine. The Treasurer of the state of Missouri, as Custodian of the Second Injury Fund, is hereby ordered to pay to the Claimant the sum of $\ 224.14 per week from the date the Claimant reached maximum medical improvement, which I find to be June 4, 2003. The Treasurer is hereby awarded a credit for 111-1/7 weeks of benefits payable to the Claimant for permanent partial disability paid to the Claimant by the Employer pursuant to the Compromise Lump Sum Settlement Agreement approved by the Division. The Treasurer is ordered to pay to the Claimant the sum of $\ 224.14 per week beginning July 22, 2005, up to and including the date of hearing, a period of 228-4/7 weeks in the amount of $\ 51,231.99, as and for permanent total disability benefits (July 22,2005 to December 8, $2009=228-4 / 7 weeks x \$ 224.14=\ 51,231.99 ). The Treasurer is further ordered to pay to Claimant the sum of $\ 224.14 per week from and after December 8, 2009, for the remainder of Claimant's lifetime or as provided by law.

The Claimant's attorney has requested approval of an attorney fee of 25 % of the amount of this award. The Claimant's attorney's fee request is hereby approved. Claimant's attorney is awarded an attorney fee of 25 % of the amount of this award. The Claimant's attorney is hereby granted a lien on the proceeds of this award unless and until the attorney shall have been paid in full.

Date: $\qquad Made by: \qquad$

David L. Zerrer

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Naomi Pearson

Division of Workers' Compensation