Elaine Hilgar-Milson v. Laidlaw Transit, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-008035

Employee: Elaine Hilgar Milson

Employer: Laidlaw Transit, Inc. (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 June 1, 2010. The award and decision of Administrative Law Judge Suzette Carlisle, issued June 1, 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 $\qquad 23^{\text {rd }} \qquad$ day of November 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Elaine Hilgar Milson

Departments: N/A

Employer: Laidlaw Transit, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: American Home Assurance Company (Settled)

Injury No.: 07-008035

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Hearing Date: February 25, 2010

Checked by:SC

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 29, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis 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 occurred or occupational disease contracted: The Claimant injured her right shoulder when she used her shoulder to push open a school bus door.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right Shoulder
14. Nature and extent of any permanent disability: 30\% PPD against the Employer, and Permanent Total Disability against the Second Injury Fund
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 19,809.70

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 401.91
3. Weekly compensation rate: $\$ 267.94 / \ 267.94
4. Method wages computation: Stipulated

1. Amount of compensation payable:

69.6 weeks of permanent partial disability from Employer (Previously paid) $(\ 18,648.62)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

Effective December 9, 2008, benefits to be paid for Claimant's

lifetime at the weekly rate of $\ 267.94. No weekly differential applied

TOTAL:

TO BE DETERMINED

1. Future requirements awarded: N/A

Said payments to begin 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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Robert Keefe

Employee: Elaine Hilgar Milson

Departments: N/A

Employer: Laidlaw Transit, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: American Home Assurance Company Settled)

A hearing was held at the Missouri Division of Workers' Compensation (DWC), St. Louis office at the request of Elaine Hilgar Milson (Claimant) on February 25, 2010, pursuant to Section 287.450 RSMo (2005). ${ }^{1}$ Claimant seeks an award for Permanent Total Disability (PTD) benefits against the Second Injury Fund (SIF). Jurisdiction properly lies with the DWC. Attorney Robert Keefe represented Claimant. Assistant Attorney General Karin Schute represented the SIF. The record closed after presentation of the evidence.

Prior to the hearing, Laidlaw Transit, Inc. (Employer) and American Home Assurance Company (Insurer) settled their case with Claimant for 30 % of the right shoulder.

Claimant's Exhibits A-S and the SIF Exhibits I and II are admitted. Any notations contained in the Exhibits were present when admitted. Any objections contained in the depositions but not ruled on in this award are overruled. ${ }^{2}$

The parties stipulated that on or about January 29, 2007:

1. Claimant was employed by Employer in St. Louis County; ${ }^{3}$
2. The accident arose out of and in the course of employment;
3. Employer and Claimant operated under the Missouri Workers' Compensation Law;
4. Employer's liability was fully insured by Insurer;
5. Employer had notice of the injury;
6. A Claim for Compensation was timely filed;
7. Claimant's average weekly wage was $\ 401.91;
8. The rates for Temporary Total Disability (TTD), Permanent Partial Disability (PPD), and PTD are $\ 267.94;
9. The Employer paid no TTD benefits;
10. Employer paid medical benefits totaling $\ 19,809.70; and
11. Claimant achieved maximum medical improvement (MMI) on August 7, 2007

[^0]

[^0]: ${ }^{1}$ All references are to the 2005 Revised Statues of Missouri unless otherwise stated.

${ }^{2}$ Claimant's objection is sustained to the SIF's question to Mr. England regarding Claimant's ability to develop PTSD in light of the gun incident, her daughter's attempted suicide, and financial problems. I find the question is outside the scope of Mr. England's vocational expertise. (Exhibit G - Page 17, line 12-25 and page 18, line 1-7).

${ }^{3}$ References in this award to the Employer also include the Insurer.

The parties identified the following issues for disposition:

1. What is the nature and extent of the SIF liability, if any, for PPD benefits?
2. What is the nature and extent of the SIF liability, if any, for PTD benefits?

Based on the entire record, Claimant's testimony, demeanor, medical records, and the applicable law of the State of Missouri, I find Claimant met her burden to show SIF liability for PTD benefits.

All evidence was reviewed but only evidence discussed below is considered to establish the facts based upon competent and substantial evidence contained in the record.

1. Claimant was 39 years old when Dr. Jay Liss found her unable to work. Claimant earned a GED and an Associates' degree in accounting from Sanford Brown College. Claimant has been married three times, divorced twice, and the third marriage will soon end in divorce. She has two children, Tracy age 20 and Tori age 7. Claimant's second husband has custody of Tori. Claimant surrendered custody of Tori to her ex-husband after their divorce, due to Claimant's problems with bi-polar disorder and depression.
2. Claimant worked at least a dozen jobs during her adult life. The jobs include: bartender, greenhouse worker, farm worker, house and office cleaner, office worker, food service worker, billing clerk, laundry service, and driver for laundry service, school bus driver, and supervisor.
3. Most jobs lasted less than a year because of Claimant's attendance problems. Anxiety caused her to become afraid to go to work. Fear would carry over to the next day and create a "snowball effect."

1. Claimant has experienced psychological problems including anxiety, mood, and attention problems since the age of five. She developed a fear of being around people, so she pretended to be sick, to avoid school. In school, Claimant's main problem was the inability to grasp academic concepts because of numerous absences.
2. In 1985, Claimant was diagnosed with a Behavior Disorder. Poor attendance in elementary school escalated in middle school, and later became "non attendance." Records show school interventions included placement with relatives, private therapeutic schooling, and referral to Division of Family Services, and a private psychologist. Finally, Claimant was reassigned to the Special School District. Authorities expected Claimant would eventually return to the

regular classroom. At the same time, Claimant received counseling for anxiety until the counselor "hit a nerve" with Claimant's mother and counseling stopped. Claimant did not return to the regular classroom.

1. As a teenager and young adult, Claimant's anxiety became worse. Claimant developed back pain and muscle relaxers were prescribed. Claimant has taken anxiety medication since age 19 .
2. In July 2005, at age thirty-five, St. Anthony's Highland Center admitted Claimant for her first in-house psychiatric treatment. Complaints included sadness, crying spells, increased appetite and periodic death wishes. She was involved in her second divorce and a custody battle over Tori. At the time of admission, Claimant lived with her boyfriend and soon to be third husband.
3. Claimant received treatment for one month. At her August 2005 discharge, Claimant was diagnosed with: Axis I: Major depression, Axis II: No diagnosis, Axis III: No diagnosis, and Axis IV: 1. Economic problems, 2. Marital problems, and 3. Sick daughter. Claimant's Global Assessment Function (GAF) was 50.
4. In August 2005, Claimant was discharged with less depression and was no longer suicidal. It was noted Claimant had difficulty maintaining employment. Claimant was referred to Rashid Zia, M.D. and therapist Colleen Simmons.
5. In May 2006, Claimant returned to the Hyland Center to receive treatment for suicidal ideations, depression, increased appetite and irritability, decreased sleep, anhedonia, and panic attacks. Treatment included medication and group therapy. For the first time, Claimant was diagnosed with a bipolar condition. Treatment did not help and Claimant did not accept or understand the diagnosis.
6. The Hyland Center referred Claimant to Dr. Ardekani, a psychiatrist, for bi-polar disorder, obsessive compulsive disorder, and depression. Claimant was under the care of Dr. Ardekani in January 2007 when she injured her right shoulder.

1. In 2000, Claimant developed problems with her hands and arms while employed by Industrial Distribution as a billing and data entry clerk. On December 19, 2000, Dr. Crandall performed bi-lateral carpal tunnel releases. Dr. Crandall rated 5\% PPD of each wrist but did not impose work restrictions when he released Claimant from medical care in July 2001.
2. She did not miss work because of her arms. Claimant transferred to customer service, where she talked more and typed less. She settled the case with her employer for 171 / 2 % of the left wrist, 20 % of the right wrist, and 71 / 2 % of the right elbow.
3. Leading up to the 2007 work accident, Claimant continued to have sharp, shooting pains in her wrists, numbness from her finger tips to the first knuckle, and a pins and needles feeling. She drops pens and paper. It is difficult to shop for groceries. It used to take a half hour to clean a room now it takes all day. Also, she has to rest while wiping the kitchen counter. It

is difficult to grasp a steering wheel, manually open a bus door, or sweep. Numbness wakes her at night with a sharp pa