Patricia Key v. Aldi, Inc.
Decision date: February 10, 20113 pages
Summary
The Commission modified the ALJ's decision by finding that the employee attained maximum medical improvement (MMI) on January 24, 2005, rather than December 14, 1998, based on evidence of continued treatment and surgeries after the initial MMI date. The employee was found to be permanently and totally disabled due to preexisting disabilities combining with permanent partial disabilities from a February 1996 work-related injury, with the Second Injury Fund liable for ongoing permanent total disability benefits.
Caption
| FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge by Separate Opinion) | |
| Injury No.: 96-442348 | |
| Employee: | Patricia Key |
| Employer: | Aldi, Inc. (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 § 287.480 RSMo. We have reviewed the evidence and briefs, heard the parties’ oral arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying the July 16, 2010, award and decision of the administrative law judge (ALJ). We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.The ALJ found that employee is permanently and totally disabled as a result of her preexisting disabilities combining with her permanent partial disabilities suffered as a result of her February 1996 work-related injury. The ALJ further found that employee attained maximum medical improvement (MMI) on December 14, 1998. We agree with the ALJ’s determination that employee is permanently and totally disabled as a result of her preexisting disabilities combining with the last injury; however, we disagree with the ALJ’s determination that employee attained MMI on December 14, 1998.While Dr. Boland initially placed employee at MMI on December 14, 1998, employee continued to receive extensive treatment following this date, including three additional surgeries. Prior to employee’s May 2, 2003, surgery, Dr. Boland even opined in a letter that the “surgical intervention to treat employee’s structural abnormality is rather extensive, but … necessary in an effort to fix her structural problem and work toward the goal of alleviating back and lower extremity pain, improving her ability to be upright on her feet for longer periods of time with less symptoms.” Further, Dr. Boland opined that the operation would allow for correction of employee’s lordosis, improvement in her flat back syndrome, and treat the pseudoarthrosis at the L4-5 level. Dr. Boland’s opinions regarding this additional surgical intervention are not something a doctor would recommend for a patient that had attained MMI.Employee’s testimony provides additional support for the Second Injury Fund’s assertion that employee had not attained MMI on December 14, 1998. Employee testified that the May 2, 2003, surgery improved her ability to stand up straight, bathe herself, exercise, and walk up and down steps. Employee’s testimony is clear evidence that the 2003 surgery improved her functioning. After the 2003 surgery, Dr. Boland placed employee at MMI on January 24, 2005. |
We find that the weight of the evidence shows that employee had not attained MMI on December 14, 1998. Employee received a significant amount of treatment following that date and was even given a subsequent MMI date by the same treating physician that gave her the previous December 14, 1998, MMI date.
For the foregoing reasons, we modify the ALJ's decision and find that employee attained MMI on January 24, 2005. Therefore, going forward from January 25, 2005, the Second Injury Fund is liable for the difference between the permanent total disability benefits and the permanent partial disability benefits, or $\ 81.91 ( $=\ 339.20 PTD rate $\ 257.29 PPD rate) for 400 weeks ( 100 % PPD to the body as a whole due to employee's lower back disabilities and psychological disorder). Thereafter the Second Injury Fund shall be liable for employee's weekly permanent total disability benefit of $\ 339.20 for the remainder of employee's life, or until modified by law.
The award and decision of Administrative Law Judge Edwin J. Kohner, as modified, is attached and incorporated by reference.
The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 $10^{\text {th }}$ day of February 2011.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
Alice A. Bartlett, Member
DISSENTING OPINION FILED
John J. Hickey, Member
Attest:
Secretary
I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed without modification. Therefore, I adopt the decision of the administrative law judge, in its entirety, as my decision in this matter.
Because the Commission majority has decided otherwise, I respectfully dissent.
John J. Hickey, Member
NOTE: The Award of the Division's Administrative Law Judge is not posted.
Related Decisions
Whitworth v. Integram St. Louis Seating(2011)
July 20, 2011
The Commission affirmed the Administrative Law Judge's award denying compensation to Timothy P. Whitworth, finding that he failed to establish the existence of an accident or occupational disease and failed to prove a causal connection between his work activities and his back condition. The employee's credibility was questioned and his claims against the Second Injury Fund were denied.
Trakas v. Angels On Duty(2011)
July 13, 2011
The Labor and Industrial Relations Commission affirmed the administrative law judge's award of enhanced permanent partial disability benefits against the Second Injury Fund for an employee who suffered a work-related accident on August 2, 2004, that combined with preexisting cervical and lumbar spine conditions. A dissenting opinion argued the employee should have been awarded permanent total disability benefits based on her inability to compete in the open labor market given her combined injuries and preexisting conditions.
Rose v. TransWood, Inc.(2011)
July 11, 2011
The Labor and Industrial Relations Commission affirmed the administrative law judge's award of workers' compensation benefits to Charles Rose for a back injury sustained on March 4, 2005, while working on a cement truck. The employee was awarded permanent partial disability compensation of 12.5% body as a whole, with the Second Injury Fund holding liability for future benefits.
Durbin v. Ford Motor Company(2011)
July 1, 2011#02-148591
The Commission modified the ALJ's award to clarify inconsistent findings regarding permanent partial disability, finding the employee sustained 17.5% permanent partial disability of the body as a whole from a June 16, 1999 assembly line injury at Ford Motor Company. The Commission allowed compensation for the work-related back injury while addressing the conflicting determinations made by the ALJ.
Wentz v. O'Charley's(2011)
June 29, 2011
The Commission affirmed the Administrative Law Judge's award allowing workers' compensation benefits to Greg Wentz for a thoracic spine injury sustained on May 13, 2008, while unloading a delivery truck at O'Charley's. The employee was awarded $1,170.53 in unpaid medical expenses and $4,930.80 for 30 weeks of permanent partial disability (7.5% BAW) referable to the thoracic spine.