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Shelby Mays v. Arvinmeritor OE LLC

Decision date: September 3, 201011 pages

Summary

The Commission affirmed the administrative law judge's award of workers' compensation benefits to Shelby Mays for a low back injury sustained on March 3, 2005 while operating a sizer machine. The employee was awarded permanent total disability benefits from the Second Injury Fund, with compensation previously settled by compromise settlement agreement with the employer-insurer.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-036477

Employee: Shelby Mays

Employer: Arvinmeritor OE LLC (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 10, 2010. The award and decision of Administrative Law Judge Carl Strange, 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 $3^{\text {rd }}$ day of September 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

AWARD

Employee: Shelby Mays

Injury No. 05-036477

Dependents: N/A

Employer: Arvinmeritor OE LLC

Additional Party: Second Injury Fund

Insurer: Self-Insured

Hearing Date: November 18, 2009

Checked by: CS/rf

SUMMARY OF FINDINGS

  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? March 3, 2005
  5. State location where accident occurred or occupational disease contracted: New Madrid 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 happened or occupational disease contracted: The employee was operating a "sizer" machine. As she was twisting and moving product into and out of the machine, she injured her back.
  12. Did accident or occupational disease cause death? No
Employee: Shelby MaysInjury No. 05-036477
  1. Parts of body injured by accident or occupational disease: Low Back
  2. Nature and extent of any permanent disability: See Findings
  3. Compensation paid to date for temporary total disability: 42,215.12
  4. Value of necessary medical aid paid to date by employer-insurer: 239,070.20
  5. Value of necessary medical aid not furnished by employer-insurer: N/A
  6. Employee's average weekly wage: 688.29
  7. Weekly compensation rate: 458.86 for temporary total disability $354.05 for permanent partial disability
  8. Method wages computation: By Agreement
  9. Amount of compensation payable: a. Employee’s claim against the employer-insurer previously settled by compromise settlement agreement. b. Employee awarded permanent total disability benefits from the Second Injury Fund. (See Findings)
  10. Second Injury Fund liability: Yes
  11. Future requirements awarded: N/A

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Kim Heckemeyer.

FINDINGS OF FACT AND RULINGS OF LAW

On November 18, 2009, the employee, Shelby Mays, appeared in person and by her attorney, Kim Heckemeyer, for a hearing for a final award. The Second Injury Fund was represented at the hearing by their attorney, Assistant Attorney General Cliff Verhines. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows.

UNDISPUTED FACTS:

  1. On or about March 3, 2005, Arvinmeritor OE LLC was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was a self-insured employer.
  2. On or about March 3, 2005, the employee was an employee of Arvinmeritor OE LLC and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
  3. On or about March 3, 2005, the employee sustained an accident or occupational disease during the course of her employment.
  4. The employer had notice of employee's accident.
  5. The employee's claim was filed within the time allowed by law.
  6. The employee's average weekly wage was $\ 688.29, her rate for temporary total disability and permanent total disability is $\ 458.86, and her rate for permanent partial disability is $\ 354.05.
  7. The employee's injury is medically causally related to the work injury on or about March 3, 2005.
  8. The employer has furnished $\ 239,070.20 in medical aid to employee.
  9. The employer has paid temporary total disability benefits for 92 weeks at a rate of $\ 458.86 per week for a total of $\ 42,215.12.

ISSUES:

  1. Nature and Extent of Disability
  2. Liability of the Fund

EXHIBITS:

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Medical Records of

  1. Dr. August Ritter
  2. Physician Alliance Surgery Center
  3. Poplar Bluff Regional Medical Center
  4. Missouri Southern Healthcare
  1. Advanced Pain Centers
  2. Dr. Kee Park
  3. St. Francis Medical Center
  4. Dr. Cully Bryant

B. Deposition of Dr. Jerome Levy

C. Deposition of Susan Shea, Vocational Expert

D. Compromise Stipulation Agreement Injury \#03-137870

E. Compromise Stipulation Agreement Injury \#00-092641

F. Compromise Stipulation Agreement Injury \#05-036477

G. Temporary Award Injury \#05-036477

FINDINGS OF FACT:

Based on the testimony of Shelby Mays ("employee") and the medical records and reports admitted, I find as follows:

At the time of the hearing, the employee was 63 years old and has lived in Bloomfield, Missouri for several years. She went to school as far as the seventh grade, but had to quit at the age of thirteen in order to support herself. While in school, she took special education classes and her reading and grades were not very good. The employee later received her GED. Prior to working for the employer, the employee worked as a babysitter, housekeeper, clerk, waitress, cook, candy factory worker, and sewing machine operator. She began factory employment when she turned twenty years old. In 1988, she began employment with Arvinmeritor OE LLC ("employer"). When the employee first started, she worked in the muffler department as a spot welder, ran a turntable and packaged mufflers into containers. After some time, the employee transferred to the Y-Pipe department. There she ran machines and did whatever she was told to do. Over the years of employment with the employer, the employee worked in several capacities and departments including running machines, welding, office cleaning and office work.

On August 10, 1990, the employee saw Dr. August Ritter for a work injury to her left hand which included a partial amputation of the ulnar aspect of the distal phalanx of the long finger and had a nail bed avulsion and laceration nail bed, partial avulsion thumb. Following his treatment of the employee, Dr. Ritter rated the employee's impairment at twenty percent (20\%) of the long finger and five percent (5\%) of the thumb (Employee Exhibit A1, Pages 1-2).

The employee injured her right shoulder on July 28, 2000 while working for the employer. Following treatment with medication and physical therapy, Dr. Ritter diagnosed the employee with overuse rotator cuff tendonitis with adhesive capsulitis in her right shoulder. The employee underwent an MRI that did not show a tear but she continued to have problems with her right shoulder. On August 18, 2001, the employee underwent a right shoulder arthroscopy with subacromial decompression by Dr. Ritter. After noting that the employee should avoid repetitive overhead work, Dr. Ritter rated the employee at a seven percent (7\%) permanent partial disability of her right upper extremity at the level of the shoulder (Employee Exhibit A1, Pages 3-10). The employee later settled her claim against the employer for twenty-five (25\%)

permanent partial disability of her right upper extremity at the level of her shoulder (Employee Exhibit E).

Although the employee worked in an office setting for a long period following her right shoulder injury, she eventually returned to the plant floor where she was required to pull, push and lift pipes. On April 17, 2003, the employee's pain in her left shoulder finally increased to the point where she sought treatment for it. Following treatment with physical therapy and medicine, Dr. Ritter noted that the MRI dated June 24, 2003 showed a partial thickness tear, supraspinatus and bicep tendons on her left shoulder. Dr. Ritter performed a left shoulder arthoscopy with subacromial decompression on September 4, 2003. Shortly after the surgery, the employee began having left lateral elbow pain and Dr. Ritter diagnosed the employee with left elbow lateral epicondylitis. Despite the surgery and other treatment, the employee continued to have problems with both of her shoulders including bilateral upper shoulder pain that radiated to the left of her neck, bilateral hand numbness at night, and swelling in her hands and wrists. On January 19, 2004, Dr. Ritter opined that the employee's return to work should be with a long term restriction of no work above shoulder high and no prolonged reaching such as sweeping or raking. Following an FCE, Dr. Ritter noted on March 18, 2004 that the employee was unable to run a hyster and some other jobs, but opined that her present job as a sizer should be medically safe. Further, he opined that she should avoid repetitive above shoulder work on a long time basis and no lifting over 20 pounds. Dr. Ritter placed the employee at maximum medical improvement with regard to her bilateral shoulder tendonitis on August 26, 2004 and gave a rating of five percent (5\%) permanent partial disability of each shoulder (Employee Exhibit A1, Pages 11-20)(Employee Exhibit A2). The employee later settled her claim against the employer for twenty-five ( 25 % ) permanent partial disability of her left upper extremity at the level of her shoulder. Following that settlement, the employee settled her claim against the second injury fund for ( 25 % ) permanent partial disability of each of her upper extremities with a fifteen percent (15\%) load (Employee Exhibit D).

Despite her continued problems with her arms, the employee worked on the floor for the employer until March 3, 2005. At that time, the employee was operating a "sizer machine" and injured her back. The employee felt immediate pain in her back and down her lower extremities. The employee initially treated with Missouri Southern Healthcare. Following the MRI that indicated a bilateral lateral recess stenosis with a bulging annulus at L4-L5 and a moderate central disc protrusion at L5-S1, the employee underwent physical therapy from May 3, 2005 to June 30, 2005 (Employee Exhibit A4). The employee also began pain management on June 14, 2005 with Advanced Pain Centers. A post discogram CT was completed on December 13, 2005 and indicated a radial tear at L5-S1, disc filling an 8 mm central posterior protrusion, annular bulges of the L3-4 and L4-5 discs without a frank tear, and bilateral facet arthrosis at L3 through S

Full decision text continues in the plain-text archive copy.

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