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