Katherine Hunt v. Daimler-Chrysler aka Chrysler, LLC

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 05-107685

Employee: Katherine Hunt

Employer: Daimler-Chrysler aka Chrysler, LLC

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-captioned workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo (2000). { }^{1}$ We have reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record. We find 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, except as modified herein. Pursuant to $\S 286.090$ RSMo, we issue this final award and decision modifying the February 19, 2010, award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The administrative law judge did not award future medical care because employee has thus far declined medical care that has been offered her. Employee has shown by a reasonable probability that she will need future medical care related to her work injury.

We are aware of cases holding that future medical care may be denied where a claimant has already refused to accept the treatment and refuses to change her lifestyle so as to become a good candidate for treatment in the future. See, Kern v. General Installation, 740 S.W.2d 691 (Mo. App. 1987). This case is distinguishable. Here, there is no indication that employee is not a suitable candidate for treatment. She simply has not yet chosen to participate in some of the recommended procedures, therapies, or treatment.

We reverse the administrative law judge regarding future medical care. Employer shall provide to employee future medical care as may reasonably be required to cure and relieve the effects of her work injury. In all other respects, we affirm the award of the administrative law judge.

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.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2000.

The award and decision of Administrative Law Judge Linda J. Wenman, issued February 19, 2010, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $3^{\text {rd }}$ day of December 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: July 11, 2005
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO
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: While performing her job duties, a forklift hit Employee's part table, pushing the table into Claimant and pinning her to the car door she was building.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left knee and low back
14. Nature and extent of any permanent disability: 15 % PPD referable to the left knee and 17.5 % BAW PPD referable to the lumbar spine from Employer, and 18 weeks of PPD benefits from SIF.
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? \$4,127.26

Employee: Katherine Hunt Injury No.: 05-107685

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: Sufficient for maximum rates
3. Weekly compensation rate: $\$ 696.97 / \ 365.08
4. Method wages computation: Stipulated

1. Amount of compensation payable:

94 weeks of permanent partial disability from Employer $\ 34,317.52

1. Second Injury Fund liability: Yes

18 weeks of permanent partial disability from Second Injury Fund $\ 6,571.44

TOTAL: $\quad \ 40,888.96

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 in favor of the following attorney for necessary legal services rendered to the claimant: Ray Gerritzen

Employee: Katherine Hunt

Departments: N/A

Employer: Daimler-Chrysler aka Chrysler LLC

Additional Party: Second Injury Fund

Insurer: Self-insured

Injury No.: 05-107685

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LJW

On January 31, 2008, and again on March 13, 2009, Temporary Awards were issued by the undersigned Administrative Law Judge, directing Daimler-Chrysler Corporation (Employer) to provide the following: medical treatment referable to Katherine Hunt's (Claimant) lumbar spine; potential temporary total disability payments; and payment of past medical expenses incurred by Claimant related to treatment sought for her work related injury. Upon receipt of the first Temporary Award, Employer reimbursed Claimant for past medical expenses owed, and arranged for Claimant to be examined by Dr. Kitchens, a board certified neurosurgeon. Upon receipt of the second Temporary Award, Employer arranged for Claimant to receive treatment from Dr. Polinsky, a neurosurgeon and Dr. Christopher, a pain management specialist in St. Louis, and upon her move to Huntsville, Alabama, by Dr. Murray, a spine surgeon and Dr. Scherlis, a pain management specialist.

The undersigned Judge has reviewed the two Temporary Awards issued, along with the transcript and evidence presented at both prior hearings. Following this review and the testimony and evidence presented at the hearing for final award, the findings of fact and rulings of law found in the initial temporary awards are adopted in this award, attached to the this award, incorporated by this reference, and will not be repeated. Any additional findings of fact and conclusions of law found necessary to supplement or to comport to the new evidence presented during trial will be included in this award.

A hearing for final award was held regarding the above referenced Workers' Compensation claim by the undersigned Administrative Law Judge on November 19, 2009. This case was tried with companion cases \#06-063573 and \#06-084854. Post-trial briefs were declined by the parties and the case was formally submitted on the date of hearing. Attorney Ray Gerritzen represented Claimant. Employer is self-insured, and represented by Attorney James Kennedy. Assistant Attorney General Karen Schute represented the Second Injury Fund (SIF).

Prior to the start of the hearing, the parties identified the following issues for disposition in this case: medical causation; liability of Employer and SIF for permanent partial disability

(PPD) benefits; and future medical care. Hearing venue is correct, and jurisdiction properly lies with the Missouri Division of Workers' Compensation.

In addition to the Exhibits offered by the parties during the previous two hearings, Claimant offered Exhibits O-Q, and Employer offered Exhibit 6. Claimant's exhibits were admitted into the record, but the objection voiced to Employer's Exhibit 6 was sustained. Any other objections not expressly ruled on in this award are overruled. All markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit.

All evidence presented has been reviewed. Only testimony and evidence necessary to support this award will be reviewed and summarized.

1. On July 11, 2005, Claimant sustained a work related injury to her left knee and lumbar spine due to an accident as outlined in the initial Temporary Award issued on January 31, 2008.
2. In response to the second Temporary Awards issued, Employer authorized Dr. Polinsky, a neurosurgeon to provide additional treatment to Claimant's lumbar spine. Dr. Polinsky referred Claimant to Dr. Christopher, a pain management specialist. Claimant declined to receive treatment from Dr. Christopher after learning Dr. Christopher recommended Claimant undergo lumbar epidural steroid injections.
3. Shortly after declining treatment offered by Dr. Christopher, Claimant moved to Huntsville, AL. Employer arranged for Claimant to be examined by Dr. Murray, a spine surgeon. Dr. Murray obtained a new MRI of Claimant's lumbar spine, and recommended Claimant undergo a myelogram to assess potential surgical intervention. Claimant declined the myelogram and any possibility of lumbar surgery. Dr. Murray then referred Claimant to Dr. Scherlis for pain management treatment.
4. On June 23, 2009, Dr. Scherlis examined Claimant, and recommended Claimant undergo lumbar sacral facet and sacroiliac joint injections, but Dr. Scherlis noted: "she is adamantly opposed to any sort of injection. She is not taking any pain medication. She does not wish to pursue any sort of injection. We would unfortunately have very little to offer her if she is not interested in any sort of therapeutic management. Perhaps physical therapy would be better suited for her if she is not interested in any sort of intervention." Claimant elected to receive six physical therapy visits, or two weeks of therapy, which did not help her.
5. Claimant moved to Huntsville to be closer to family, who provide physical assistance to her. Her physical abilities have not changed since the last hearing, except after she underwent right shoulder surgery, Claimant can now comb her hair and perform actions with her right arm if it is directly in front of her at waist level.
6. Claimant is currently receiving her only medical treatment from her primary physician, Dr. Ervin, who does not directly treat Claimant's work injuries, but treats Claimant's complaints of nausea and weight loss, which Claimant "ascribes to the constant pain" she is in. Dr. Ervin

opined Claimant to be "permanently and totally disabled from performing her prior manufacturing assembly work."

1. Claimant's rating physician, Dr. Poetz, opined Claimant's herniated lumbar disc at L3-4 and associated radiculopathy is the result of Claimant's second forklift related injury on June 30, 2006. Dr. Poetz rated Claimant's lumbar spine at 30 % BAW PPD, and 5\% BAW PPD preexisting. Dr. Poetz further opined Claimant's left knee injury was the result of the July 11, 2005 forklift injury, and rated that injury at 25 % PPD referable to her left knee, and 5 % PPD pre