Skip to content
Ott Law Firm

Shirly Pioske-Schlueter v. Extended Stay America

Decision date: March 29, 201122 pages

Summary

The Commission affirmed the administrative law judge's award of workers' compensation benefits to Shirley Pioske-Schlueter for injuries sustained in a slip and fall accident on November 9, 2007. The claimant was awarded permanent partial disability benefits for her right leg and low back injuries, with lifetime weekly compensation of $163.80 from the Second Injury Fund beginning February 23, 2009.

Archive Notice

This archive contains published Missouri Labor and Industrial Relations Commission workers' compensation decisions reproduced for research convenience. Official source links remain authoritative where provided. Joseph Ott, Attorney 67889, Ott Law Firm - Constant Victory - Personal Injury and Litigation maintains these public legal archives to support Missouri case research and to help prospective clients connect that research to the firm's courtroom practice.

Related Legal Help

Practical guidance for this decision

Third-Party Injury Check

This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
  • The injury involved a vehicle, unsafe premises, defective equipment, or a non-employer vendor.
  • A serious injury or death may need both benefits review and civil-claim analysis.

Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-110366

Employee: Shirley Pioske-Schlueter

Employer: Extended Stay America (Settled)

Insurer: Zurich American Insurance (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 October 1, 2010. The award and decision of Administrative Law Judge Grant C. Gorman, issued October 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 $29^{\text {th }}$ day of April 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

AWARD

Employee:Shirley Pioske-SchlueterInjury No. 07-110366
Dependents:N/ABefore the
Employer:Extended Stay America (settled)DIVISION OF WORKERS'
Additional Party: Second Injury FundCOMPENSATION
Insurer:Zurich American Insurance (settled)Department of Labor and Industrial
Hearing Date:June 29, 2010Relations of Missouri
Jefferson City, Missouri

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: November 9, 2007
  5. State location where accident occurred or occupational disease was contracted: St. Charles 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: Claimant slipped and fell while performing her job duties.
  12. Did accident or occupational disease cause death? No
  13. Part(s) of body injured by accident or occupational disease: right lower extremity and low back
  14. Nature and extent of any permanent disability: 15 % of the right leg at the 160 week level, 5 % body as a whole at the low back.
  15. Compensation paid to-date for temporary disability: None
  16. Value necessary medical aid paid to date by employer/insurer? $\ 10,569.65

Employee: Shirley Pioske-Schlueter Injury No. 07-110366

  1. Value necessary medical aid not furnished by employer/insurer? None
  2. Employee's average weekly wages: $\ 245.70
  3. Weekly compensation rate: TTD $\$ 163.80 / \mathrm{PPD} \ 163.80
  4. Method wages computation: Stipulation

COMPENSATION PAYABLE

  1. Amount of compensation payable:
  2. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

$\ 163.80 payable weekly by SIF beginning February 23, 2009 and, thereafter, for Claimant's lifetime

TOTAL: UNDETERMINED AT THIS TIME

Said payments to begin as of the date of this 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 lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Thomas J. Gregory

Employee: Shirley Pioske-Schlueter

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Shirley Pioske-Schlueter

Dependents: N/A

Employer: Extended Stay America (settled)

Additional Party Second Injury Fund

Insurer: Zurich American Insurance (settled)

Injury No: 07-110366

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: GCG/ln

PRELIMINARY STATEMENT

The parties appeared before the undersigned Administrative Law Judge on June 29, 2010 for a final hearing to determine the liability of the Second Injury Fund in the matter of Shirley Pioske-Schlueter (Claimant). Attorney Thomas J. Gregory represented Claimant. Assistant Attorney General Barbara Toepke represented the Second Injury Fund. Employer, Extended Stay America, and its Insurer, Zurich American Insurance Co., previously settled with Claimant and did not participate in the hearing. Mr. Gregory requested a fee in the amount of 25 %.

The parties stipulated to the following:

  1. On or about November 9, 2007, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant. The accident occurred in St. Charles County, Missouri.
  2. Claimant was an employee of Employer pursuant to Chapter 287 RSMo.
  3. Venue is proper in St. Charles County.
  4. Employer received proper notice of the claim.
  5. Claimant filed the claim within the time allowed by law.
  6. Claimant earned an average weekly wage of $\ 245.70, resulting in applicable rates of compensation of $\ 163.80 for temporary total disability (TTD), and $\ 163.80 for permanent partial disability (PPD).
  7. Employer did not pay any TTD benefits.
  1. Employer paid medical benefits totaling $\ 10,569.65.

The issues to be determined are:

  1. Liability of the Second Injury Fund; and
  2. Date Claimant reached maximum medical improvement (MMI).

SUMMARY OF THE EVIDENCE

Only evidence necessary to support this Award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to being made part of this record, and were not placed thereon by the Administrative Law Judge.

Claimant offered the following exhibits which were received into evidence without objection:

A. Stipulation for Compromise Settlement in primary claim Injury Number 07-110366

B. List of job duties with employer

C. Office records of Dr. Lewis Meyerson from 3/28/06 to 4/27/08

D. Office records of Dr. Brett Taylor from 12/9/08 to 3/18/09

E. Office record of Dr. Christopher Creighton from 2/18/08

F. Office records of Dr. John McAllister, St. Peters Bone \& Joint Surgery, from 11/13/07 to 4/21/08

G. Office records of Dr. Gary Farley, Northland Orthopedic Group, from 11/13/07 to 11/4/08

H. Office records of Dr. James Strickland from 4/7/08 to 1/26/09

I. Deposition of Dr. David Volarich

J. Deposition of Jeffrey Magrowski, PhD

The Second Injury Fund offered the following exhibit, which was received into evidence without objection:

I. Deposition of James England

LIVE TESTIMONY

The claimant was 73 years old at the time of the hearing, and she would have been 70 years old at the time of her primary injury on November 9, 2007, as her date of birth was 11/20/36. The claimant is a high school graduate and had one year of training in the 1960s to become a licensed practical nurse. She also attended truck driving school in the 1970s and received a commercial driver's license following completion of that course.

From approximately 1960 to 1975, she worked as a licensed practical nurse, which required her to lift and turn patients and administer medications and other forms of medical treatment. From approximately 1976 to 1990, claimant was a tractor trailer driver, and she would haul produce from Texas to Chicago for F \& S Produce out of McAllen, Texas.

The claimant testified that in approximately 1990, she returned to the St. Louis area to take care of her mother, who was ill. She testified that she took care of her mother from 1990 until 1995, when she died. During the time period from 1990 to 1995, she worked a part-time job at Winfield Elementary School, where she would work four hours a day, three days a week giving computer training to young children. The claimant testified that since 1990, all of the jobs she had worked at since that time were part-time jobs. The claimant testified that from approximately 1997 to 1999, she worked at the Holiday Inn in St. Peters, where she would work in banquet set up. She indicated that she would only work when there would be a special event, such as a wedding, a party, etc. In approximately 2000, she moved to Minnesota, where her new husband lived. During their two year marriage, they would spend their winters in Arizona, and during the time they spent in Arizona, she worked part-time as a cashier at a Dollar Tree store.

After her divorce in approximately 2002, the claimant moved back to the St. Louis area from Minnesota, and she began working for the employer in this case, Extended Stay of America in St. Peters. This was also a part-time job, and she was the night clerk on weekends working from 11:00 p.m. to 7:00 a.m. on both Friday and Saturday nights, for a total of 16 hours a week. She indicated that she would occasionally work on weeknights in the same position covering for the weeknight employee who held the same job. The claimant testified with respect to her job duties with the employer and also introduced into evidence Employee's Exhibit B, which was a list of those job duties set out by the employer. The claimant's primary duties were doing the laundry and stocking linen closets with the clean laundry produced by the housekeepers in the morning. In addition, claimant was required to do a lot of dishes, since this was an extended stay hotel with a kitchen in each room. Finally, the job description required the claimant to walk the premises and make sure all doors were locked and make sure all safety devices were working and make sure that everything on the premises was in order during the night. In addition, she was required to check in any late night arrivals at the hotel, although she indicated that there were not usually that many people arriving during her work hours.

The claimant was questioned concerning any medical problems she had prior to her on the job injury on November 9, 2007. She indicated that in 1975, after a work injury, she had low back surgery in St. Louis. She testified at trial, and the medical records corroborate that after a period of recovery, that she did very well with respect to her low back, and she never had pain radiating down either leg after that surgery.

In October of 2006, the claimant sustained a fall while shopping at Wal-Mart and she sustained a right hip fracture that required surgery. Following that fall, she had continuous pain in both her right hip and her low back, mainly on the right side. The claimant testified that she was not taking any pain medication, like Vicodin, before October of 2006, but after her fall while working in October of 2006, she was taking Vicodin on a regular basis up until her fall on November 9, 2007.

The claimant admitted to going to see her primary doctor, Dr. Meyerson, in June of 2007, five months before her primary injury and asked him for a cane to use because of right leg pain, and she also noted that she saw Dr. Meyerson in September of 2007 with right hip and leg pain and told the doctor that she was falling and having trouble getting up, and she had an injection in her right hip on that occasion.

The claimant testified that at the time of her fall in October of 2006 up until the injury on November 9, 2007, she had pain in her low back and right hip and her right leg was weak and it felt like it would give way, and on occasi

Full decision text continues in the plain-text archive copy.

Related Decisions

affirmed

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award allowing workers' compensation benefits to Theresa Thompson for a low back injury sustained on July 20, 2010 while lifting and shelving copper coils. The claimant was entitled to temporary total disability benefits, permanent partial disability compensation, and medical aid totaling over $223,000, with additional underpayment and back pay amounts owed.

back12,259 words

Brown v. Noranda Aluminum, Inc.(2023)

February 3, 2023#16-027102

affirmed

The Labor and Industrial Relations Commission affirmed the administrative law judge's award granting permanent total disability compensation to Donald Brown for his work-related injuries to his back and left elbow. The Commission rejected the Second Injury Fund's argument that an anxiety disability should be considered in the PTD determination, finding that non-qualifying psychiatric disabilities need not be factored into the analysis.

back7,339 words

The Commission modified the ALJ's award to allow compensation for unpaid past medical expenses for employee Rodney Battles, who sustained a work-related back injury on October 5, 2016, requiring two back surgeries. The decision clarifies that an employer's duty to provide statutorily-required medical aid is absolute and unqualified under Missouri workers' compensation law.

back6,444 words

Gourley v. Cox Medical Center(2021)

December 15, 2021#07-031701

affirmed

The Labor and Industrial Relations Commission affirmed the administrative law judge's award allowing workers' compensation benefits for Carol Gourley's injury sustained on January 13, 2007 at Cox Medical Center. One commissioner dissented, arguing the ALJ erred in denying payment for unpaid medical bills ($173,896.25) and temporary total disability benefits ($109,574.64) related to the compensable 2007 injury.

back12,971 words

Comer v. Central Programs, Inc.(2021)

August 11, 2021#16-085212

affirmed

The Commission affirmed the Administrative Law Judge's award of permanent total disability compensation, finding the employee's November 1, 2016 back injury combined with qualifying preexisting disabilities met statutory requirements for Second Injury Fund liability. The employee's preexisting lower left extremity and thoracic disabilities, each exceeding fifty weeks of permanent partial disability, directly aggravated and accelerated the primary work-related back injury resulting in permanent total disability.

back14,532 words