Hali Batton v. Daimler Chrysler Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-055550

Employee: Hali Batton

Employer: Daimler Chrysler Corporation

Insurer: Self-Insured

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 26, 2010. The award and decision of Administrative Law Judge Kathleen M. Hart, issued February 26, 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 $12^{\text {th }}$ day of August 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Hali Batton

Departments: $\mathrm{n} / \mathrm{a}$

Employer: Daimler Chrysler Corporation

Additional Party: Second Injury Fund

Insurer: Self

Hearing Date: December 9, 2009

Injury No.: 04-055550

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

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: on or about January 21, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Claimant injured her neck, body as a whole, and left shoulder as a result of repetitive overhead work.
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: Neck, body as a whole, and left shoulder
14. Nature and extent of any permanent disability: 30 % body as a whole, 10 % left shoulder
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? as per award
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 662.55 / \ 347.05
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

as per award

143.20 weeks of permanent partial disability from Employer

$\ 49,697.56

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential of $\ 315.50 payable by SIF for 143.20 weeks beginning

March 1, 2005, and, thereafter, $\ 662.55 for Claimant's lifetime

TOTAL:

TO BE DETERMINED

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:

Jonathan Isbell

Employee: Hali Batton

Departments: $\mathrm{n} / \mathrm{a}$

Employer: Daimler Chrysler Corporation

Additional Party: Second Injury Fund

Insurer: Self

Injury No.: 04-055550

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter December 9, 2009. Hali Batton (Claimant) was represented by attorney Jonathan Isbell. Daimler Chrysler (Employer) was represented by attorney Joye Hudson. The Second Injury Fund (SIF) was represented by Assistant Attorney General Kay Osbourne.

Claimant alleges she sustained an occupational disease as a result of repetitive trauma on or about January 21, 2004. Employer denied liability and has paid no benefits to date.

All objections not expressly ruled upon in this award are overruled to the extent they conflict with this award. Exhibits D and E were withdrawn by Claimant as they were duplicate records. Any markings on the exhibits were done before admitted into evidence and were not made by the Court.

The parties stipulated to the following:

1. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law on the alleged date of injury.
2. Employer was self-insured.
3. Employer had notice of the alleged injury and a claim for compensation was timely filed.
4. Claimant's average weekly wage was sufficient to yield TTD/PTD and PPD rates of $\ 662.55 and $\ 347.05 respectively. Employer has paid no TTD or medical benefits to date.

The parties stipulated the issues to be resolved are as follows:

1. Accident
2. Arising out of and in the course of employment
3. Occupational disease
4. Medical causation
5. Liability for past medical expenses
6. Future medical care
7. Permanent disability
8. Second Injury Fund liability

Based upon the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 54 year old female who is a high school graduate and attended several semesters of college. She had no academic difficulty or learning disability. She began working for Employer in September 1995 as a production line assistant. She performed many different jobs on the line. Before working for Employer, Claimant was a licensed day care provider for several years. She cared for several children each day at her home.
2. In 1996 Claimant injured her right elbow and underwent open reduction and internal fixation. The hardware is still in her arm.
3. In 1997 Claimant had bilateral carpal tunnel releases. She returned to work and continued to have aching and decreased grip strength in both hands. Claimant testified the carpal tunnel syndrome made it difficult to work with small parts and screws because she dropped things frequently.
4. In April 2001 Claimant injured her neck in a non-work related incident. Her primary care physician (PCP) referred her to Dr. Heffner. Claimant had left arm and hand numbness and tingling with cervical pain. Dr. Heffner ordered an MRI in July 2001, which showed large herniations at C5-6 and C6-7. It did not show any abnormality at C4-5. After Claimant developed pain into her right shoulder and conservative treatment failed to relieve her symptoms, Dr. Heffner recommended surgery.
5. He performed a fusion at C5-6 and C6-7 on March 20, 2002. Claimant was released to return to work June 17, 2002, with no medical restrictions. She testified she continued to have limited motion in her neck, but she was able to return to work because she was assigned to one of the easier jobs on the line. She testified she had to be careful at work because heavy lifting caused pain and stiffness in her neck.

1. In November 2002, Claimant returned to Dr. Heffner with complaints of low back pain and sciatica. She did not have neck complaints at this visit. An MRI revealed a herniated disc at L4-5, and Dr. Heffner treated Claimant with epidural steroid injections.
2. Claimant returned to Dr. Heffner in January 2003 for her low back. She had no complaints with her neck at this time. Her pain was in her low back and left leg. She had another injection and began using a TENS unit. Claimant continues to have low back pain if she bends too long or does heavy work. This affected her work for Employer, and she was unable to do some of the heavy jobs.
3. In March 2003, Claimant saw Dr. Heffner for complaints of intermittent pain in her neck and left side. The records reveal Claimant had no symptoms for the most part, but had occasional sharp pain in the left side of her neck. She had no pain with motion in her neck. Dr. Heffner ordered x-rays which showed development of bony bridges and the plate was in good position. He opined she had no significant structural problem and no evidence of instability in her neck. He did not see Claimant again until February 2004.
4. Claimant continued to work her easier job at Employer until October 2003. During the time she worked this job, she had temporary flare ups of pain but Dr. Heffner just once in March 2003. Claimant testified the pain resolved on its own, and she did not take prescription pain medications.
5. In October 2003, Claimant's job changed, and she began working the Huntsville Inspection Job. This job involved repetitive overhead work. Claimant inspected the wiring on Dodge Ram Trucks while on the assembly line. To inspect the wiring, she released the truck hood, which was at chest height, and lifted it up into a vertical position. She reached under the hood and plugged in an electrical cord under the hood. She sat in the truck and plugged an approximately $4 \times 8$ " computer box into the truck under the steering wheel to test the wiring. While in the truck, she checked the interior to make sure parts were placed correctly. When the tests were complete, Claimant exited the truck and set the box down.
6. In order to close the truck hood, Claimant had to look up towards the ceiling, reach her arm all the way up, insert a hook into the front or side of the hood, and pull the hood down. She had her whole body extended with her head back and her arms up. She used both arms to grab the hook and pull it down because it was heavy. When she got the hood to her eye level, she took the hook out and reached up to push the hood closed. She believes this is the job that caused new neck complaints.
7. Claimant worked the inspection job from October 2003 until February 2004. She worked ten hour shifts. During each shift, she inspected approximately 150-175 trucks.
8. Claimant testified she did not have neck complaints when she started the inspection job. At some point in December 2003, her neck started aching at the end of her shift. Her neck did not ache like this before the inspection job. Claimant rested over the holiday leave, and the pain became more severe upon returning to work. She developed sharp pain when she looked up to put the hook in the truck hood. By January 21, 2004, the pain

was very sharp and severe. Claimant thought something was wrong, and went to Chrysler medical.

1. By January 21, the pain was constant and did not stop when she was off work. Claimant testified she went to plant medical and told the doctor she believed pulling on the hood caused her neck pain. She testified the plant doctor told her the condition was not work related and she should see her own doctor.
2. On February 3, 2004, Claimant went to her PCP for complaints of neck pain with tingling on her left side. The doctor ordered an MRI and referred Claimant back to Dr. Heffner. Dr. Heffner noted Claimant's neck had been doing well until October 2003 when she began doing heavy overhead work. He noted she had limited movement in the neck and was not able to turn to her left side. She was not