Peter Carkeek v. Hallmark Cards, Inc.

The June 2006 injury was not Claimant's last injury. Claimant alleged a work-related injury in December 2006. She worked until August 2007 when she stopped working of her own volition. She settled her claim against her employer arising out of the alleged December 2006 injury on January 5, 2010. Claimant not only failed to prove that she was not permanently and totally disabled, the statute does not allow permanent total disability benefits to be awarded against the Second Injury Fund when the case does not involve the last work-related injury. Id.

The administrative law judge's statements quoted above are merely dicta but we write separately to specifically state we do not adopt the above statements of the administrative law judge as we believe they misstate the law.

In all other respects, we affirm and adopt 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.

Given at Jefferson City, State of Missouri, this $\qquad 17^{\text {th }}$ day of December 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Teresa Carkeek

Injury No: 06-125432

Employer: Hallmark Cards, Inc. (previously settled)

Additional Party: Missouri State Treasurer, Custodian of the Second Injury Fund

Insurer: Hallmark Cards, Inc.

Hearing Date: February 1, 2010

Final brief filed: March 9, 2010

Checked by: KJC/cy

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: June 5, 2006
5. State location where accident occurred or occupational disease was contracted: Liberty, Clay 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: Employee, while in the course and scope of her employment with Hallmark Cards, Inc., placed a box on a conveyor belt. Employee alleged that the conveyor belt "caught" the box which "jerked" her arm and caused her left shoulder to pop.
12. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: left upper extremity
2. Nature and extent of any permanent disability: 35 percent of left upper extremity at 232 week level
3. Compensation paid to-date for temporary disability: N/A
4. Value necessary medical aid paid to date by employer/insurer? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Teresa Carkeek

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 744.30
3. Weekly compensation rate: $\$ 496.20 / 365.08$
4. Method wages computation: By agreement

1. Amount of compensation payable

Unpaid medical expenses: None

N/A weeks for permanent partial disability from employer

N/A temporary total or temporary partial disability

N/A weeks for disfigurement

1. Second Injury Fund liability: 27.05 weeks @ $\ 365.08 per week $=\ 9,875.41
2. Future requirements awarded: None

TOTAL: $\ 9,875.41

Said payments to begin as of date of the award 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 line in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Mr. Mark Kelly

Employee: Teresa Carkeek

Injury No: 06-125432

Employer: Hallmark Cards, Inc. (previously settled)

Additional Party: Missouri State Treasurer, Custodian of the Second Injury Fund

Insurer: Hallmark Cards, Inc.

Hearing Date: February 1, 2010

Final brief filed: March 9, 2010

Checked by: KJC/cy

The Employee settled her claim against her Employer, Hallmark Cards, Inc., on January 5, 2010 based on a permanent partial disability of 35 percent of the left shoulder rated at the 232 week level. The remaining parties, the Employee and the State Treasurer as Custodian of the Second Injury Fund, entered into various admissions and stipulations. The only remaining issue involved whether the Second Injury Fund was liable for compensation.

At the hearing, Ms. Teresa Carkeek (hereinafter referred to as Claimant), testified that she was born on March 25, 1952 and that she had a high school education. She stated that she had no post-high school education or vocational training. She stated that she had no computer training.

Claimant testified that her first job was at a fast food restaurant. She stated that she next worked in day care at a fitness facility for about 5 years. She stated that in addition to her day care duties, she scheduled and fired employees. She stated that she was "pretty" much the manager.

Claimant testified that afterwards she worked in the cafeteria for the Liberty School District. She stated that she worked as a cashier, on the line and in the salad department. She stated that she was in charge of the salad bar department for the last two years of her employment with the district.

Claimant testified that her job at Hallmark Cards was retail order processor. She stated that she had to pick up and fill orders. She stated that she had to do a lot of standing, lifting and walking. She stated that she had to pack, tape and ship boxes. She stated that she pushed a buggy to the various stations to pick up products for shipping.

Claimant testified that the boxes generally weighed 10 to 15 pounds. She stated that occasionally a boxed weighed 35 to 60 pounds. She stated that her June 5, 2006 injury occurred after she had placed a 40 to 60 pound box on the conveyor. She stated that the conveyor belt caught the box and it jerked her arm. She stated that she felt a pop in her shoulder.

Claimant described her initial pain as "breathtaking." She stated that she could hardly move for about five minutes. She stated that her pain was on the top portion of her left shoulder and radiated down into her arm. She also stated that her biceps hurt. She stated that most of her pain was in her left shoulder.

Claimant testified that she continued working despite the alleged pain until the middle of July when she took a three-week vacation. She admitted that she had declined her employer's offer to send her to a doctor during that period. She stated that after her vacation she developed problems with deep vein thrombosis (DVT's) and later chest pains. She stated that while hospitalized with the chest pains, it was determined that she had gallbladder and not cardiac problems.

Claimant testified that she had gallbladder surgery in October 2006 and missed one to two weeks from work. She stated that when she returned to work, her coworkers helped her do her job. She stated that she then developed hemorrhoid problems, which the Coumadin made more serious. She stated that she had a hemorrhoidectomy. She stated that she remained off work until November 2006.

Claimant testified that when she returned to work following the hemorrhoidectomy, Hallmark changed her job to straight line selecting, which was essentially a light-duty job. She stated that on December 13, 2006 she sustained another injury at work. She stated that the injury occurred when she slipped on some boxes, packing foam and cables on the floor. She stated that she began to fall forward and at the same time, she was trying to keep from dropping the cards in her hands. She stated that as she fell forward, she jerked her whole body in a forward direction and felt as though an electric shock had gone through her back. She stated that she experienced stiffness and soreness in her back. She admitted that she did not fall to the floor. She admitted that she did not strike her head, neck, back or hip on any object. She merely stumbled in a forward direction.

Claimant admitted that she worked the remainder of the month. She stated that on January 7, 2007, she had an MRI of her left shoulder which she had injured in June 2006. She stated that Dr.Lingenfelter performed arthroscopic surgery on her shoulder on February 20, 2007. She stated that the surgery did not resolve her problems. She also stated that Dr. Lingefelter wanted to treat her neck injury from the alleged December 2006 accident and recommended an MRI, which Hallmark refused to authorize. She stated that Hallmark also refused to authorize an injection in her neck as prescribed by Dr. Griffith in pain management.

Claimant admitted that she returned to work following the arthroscopic shoulder surgery and that she worked light duty during the summer of 2007. That was more than a year after the June 2006 accident. She stated that she worked the light duty for 90 days.

Claimant testified that she was re-examined by Dr. Lingenf