Janet Carter v. Harrah's North Kansas City LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-156872

Employee: Janet K. Carter

Employer: Harrah's North Kansas City LLC

Insurer: Old Republic Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 22, 2010. The award and decision of Administrative Law Judge Robert B. Miner, issued February 22, 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 $13^{\text {th }}$ day of January 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Janet K. Carter

Injury No.: 02-156872

Employer: Harrah's North Kansas City LLC

Insurer: Old Republic Insurance Company

Hearing Date: November 20, 2009

Checked by: RBM

FINDINGS OF FACT AND RULINGS OF LAW

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 20, 2002.
5. State location where accident occurred or occupational disease was contracted: North Kansas City, 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 slipped and fell causing injury to her thoracic spine.
12. Did accident or occupational disease cause death? No.

1. Part(s) of body injured by accident or occupational disease: thoracic spine.
2. Nature and extent of any permanent disability: 5 % of the body as a whole (400 week level).
3. Compensation paid to-date for temporary disability: None.
4. Value necessary medical aid paid to date by employer/insurer? $\ 2,167.00.
5. Value necessary medical aid not furnished by employer/insurer? None.
6. Employee's average weekly wages: $\ 721.96.
7. Weekly compensation rate: $\ 481.30 for temporary total disability and permanent total disability, and $\ 329.42 for permanent partial disability.
8. Method wages computation: By agreement of the parties.

1. Amount of compensation payable:

Unpaid medical expenses: None

No weeks of temporary total disability (or temporary partial disability)

20 weeks of permanent partial disability from Employer (20 x \$329.42=\6,588.40.)

No weeks of disfigurement from Employer

TOTAL FROM EMPLOYER: \ 6,588.40

1. Second Injury Fund liability: N/A. The Second Injury Fund is not a party to this case.
2. 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: William G. Manson.

Employee: Janet K. Carter

Injury No's: 02-156872

03-060420

Employer: Harrah's North Kansas City LLC

03-138347

Insurer: Old Republic Insurance Company

Hearing Date: November 20, 2009

Checked by: RBM

A final hearing was held in Injury Numbers: 02-156872, 03-060420, and 03138347 on November 20, 2009 in Gladstone, Missouri. Employee, Janet K. Carter, appeared in person and by her attorney, William G. Manson. Employer, Harrah's North Kansas City LLC, and Insurer, Old Republic Insurance Company, appeared by their attorney, John R. Fox. The Second Injury Fund appeared by its attorney, Laura Van Fleet. Scott Bradshaw appeared as a representative of Harrah's North Kansas City LLC. The Second Injury Fund is a party in Injury Numbers 03-060420 and 03-138347, but not in Injury Number 02-156872. William G. Manson requested an attorney's fee of 25 % from all amounts awarded. It was agreed that briefs would be due on December 31, 2009.

Attorneys William G. Manson and John R. Fox agreed that Employer/Insurer had made an advance to Janet K. Carter in the amount of \$20,000.00 on June 21, 2006. They further agreed that Employer/Insurer shall be entitled to take a credit of $\ 20,000.00 for this advance against any benefits awarded to Janet K. Carter against Employer/Insurer in any of her three cases.

At the time of the hearing, the parties stipulated to the following:

1. On or about January 29, 2002, May 12, 2003, and June 16, 2003, Janet K. Carter ("Claimant") was an employee of Harrah's North Kansas City LLC ("Employer"), and was working under the provisions of the Missouri Workers' Compensation Law.
2. On or about January 29, 2002, May 12, 2003, and June 16, 2003, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was fully insured by Old Republic Insurance Company ("Insurer").

1. On or about January 29, 2002, May 12, 2003, and June 16, 2003, Claimant sustained injuries by accident or occupational disease in North Kansas City, Clay County, Missouri, arising out of and in the course of her employment.
2. Employer had notice of Claimant's injuries.
3. Claimant's Claims for Compensation were filed within the time allowed by law.
4. In Injury No. 02-156872, the average weekly wage was $\ 721.95 and the rate of compensation for temporary total disability and permanent total disability is $\ 481.30 per week, and the rate of compensation for permanent partial disability is $\ 329.42 per week.
5. No compensation has been paid by Employer/Insurer for temporary disability in Injury No. 02-156872.
6. Employer/Insurer has paid $\ 2,167.00 in medical aid in Injury No. 02-156872.
7. In Injury No's 03-060420 and 03-138347, the average weekly wage was $\ 741.17 and the rate of compensation for temporary total disability and permanent total disability is $\ 494.11 per week, and the rate of compensation for permanent partial disability is $\ 340.12 per week.
8. Employer/Insurer has paid $\ 5,420.05 in temporary disability benefits at the rate of $\ 494.11 per week in Injury No. 03-060420.
9. Employer/Insurer has paid $\ 54,231.82 in medical aid in Injury No. 03-060420.
10. Employer/Insurer has paid $\ 14,721.34 in temporary total disability at the rate of $\ 494.11 per week in Injury No. 03-138347 (the June 16, 2003 case). Temporary total disability benefits were paid by Employer/Insurer through March 10, 2005, which is the agreed date that Employee reached maximum medical improvement in her left shoulder case. Employee is not seeking any temporary total disability benefits for any time prior to March 10, 2005.
11. Employer/Insurer has paid $\ 25,242.76 in medical aid in Injury No. 03-138347.
12. Employer/Insurer shall be entitled to take a credit of $\ 20,000.00 for an advance it made to Claimant in that amount on June 21, 2006 against any benefits awarded to Janet K. Carter against Employer/Insurer in any of her three cases.

The parties agreed that there is a dispute on the following issue in Injury No. 02156872: the nature and extent of permanent disability.

The parties agreed that there are disputes on the following issues in Injury No. 03060420:

1. Employer's liability for permanent disability benefits, including permanent partial disability and permanent total disability.
2. Employer's liability for past temporary total disability benefits from March 11, 2005.
3. Employer's liability for future medical aid.
4. Liability of the Second Injury Fund for permanent disability benefits, including permanent partial disability and permanent total disability.

The parties agreed that there are disputes on the following issues in Injury No. 03138347:

1. Employer's liability for permanent disability benefits, including permanent partial disability and permanent total disability.
2. Liability of the Second Injury Fund for permanent disability benefits, including permanent partial disability and permanent total disability.
3. Employer's liability for future medical aid.

Claimant testified in person.

In addition, Claimant offered the following exhibits which were admitted in evidence without objection:

A—January 29, 2002 Claim for Compensation

B-May 12, 2003 Claim for Compensation

C-June 16, 2003 Claim for Compensation

D—August 31, 2009 deposition of Dr. James Stuckmeyer with deposition exhibits (admitted subject to objections contained in the deposition)

E—September 14, 2009 deposition of Terry Cordray with deposition exhibits (admitted subject to objections contained in the deposition)

F—Medical records of Dr. Blake Donaldson

G—Medical records of Dr. Robert M. Orr

H—Medical records of Intracorp

I-Medical records of Concentra Medical Center

J- Medical records of Northland Imaging

K- Medical records of Dr. Robert M. Drisko

L- Medical records of Dr. Patrick Griffith

M- Medical records of Dr. Geoffrey Blatt

N- Medical records of Research Medical Center

O- Medical records of Dr. Leslie D. Thomas

P-Medical records of Dr. Jeffrey Bredemann

Employer/Insurer offered the following Exhibits that were admitted in evidence without objection:

1-November 9, 2009 deposition of Dr. David Clymer with deposition exhibits (admitted subject to objections contained in the deposition)

2-60 day - Dr. Thomas report, Curriculum Vitae, and records

3-60 day - Dr. Clymer report, Curriculum Vitae, and records

The Second Injury Fund did not offer any exhibits.

Any objections contained in any of the depositions are overruled unless otherwise noted. The Administrative Law Judge did not place any highlighting or other markings on any of the exhibits. The briefs of the attorneys have been considered.

Summary of the Evidence

Claimant testified that she was born on February 26, 1946 and is 63 years old.

Claimant started working at Employer in 1993. She worked in 2002 and 2003 as a card dealer for Employer. She stood and dealt cards repetitively eight hours a day, forty hours a week. She usually worked an eight-hour shift, and usually worked five days per week. Claimant was always a card dealer at Employer except when she worked light duty

folding towels from June 2003 to February 2004. She last worked for Employer in February 2004.

Claimant stood in one spot when she worked at Employer dealing cards. She alternated dealing for an hour and taking a twenty minute break throughout the eight hour day. She did not work overtime. She always stood and did not bend or lift. She walked from the tables to the break room.

Claimant pulled cards from a sleeve with her left hand, put the cards into her right hand, and then delivered the cards to the players with her right hand. She was also trained to deal roulette. She would spin a wheel when she worked roulette. Two employees worked together at the roulette table. One was a dealer and one was a reacher. The reacher brought in and stacked the chips. Claimant also occasionally dealt poker.

Claimant testified that she had not had any injuries or accidents before Jan