Betty Steinmetz v. Interstate Brands Corporation

We agree with the result reached by the administrative law judge, but the award lacks certain critical findings as to the pertinent and contested facts.

Section 287.460.1 mandates that an award in a contested workers' compensation case be accompanied by findings of fact and conclusions of law. The Missouri Supreme Court has declared that such statutory requirements contemplate an unequivocal affirmative finding as to what the pertinent facts are.

Stegman v. Grand River Reg'l Ambulance Dist., 274 S.W.3d 529, 533 (Mo. App. 2008) (citations omitted).

Medical causation of employee's injuries was a disputed issue at the hearing, but the administrative law judge failed to make findings that unequivocally resolve the issue. Section 287.020.3(1) RSMo defines "injury" in the context of the Missouri Workers' Compensation Law:

In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

"The determination of whether a particular accident is the prevailing factor causing an employee's condition ... is inherently a factual one ..." Leake v. City of Fulton, 316 S.W.3d 528, 532 (Mo. App. 2010). "[T]he question of causation is one for medical testimony, without which a finding for claimant would be based upon mere conjecture and speculation and not on substantial evidence." Elliott v. Kan. City School Dist., 71 S.W.3d 652, 658 (Mo. App. 2002).

Dr. Eli Shuter opined that the accident of April 17, 2006, was the prevailing factor in causing employee's right shoulder and cervical and lumbar spine injuries and her resulting medical conditions and disabilities. The Second Injury Fund offered no evidence contra. We find Dr. Shuter credible.

We find that the accident of April 17, 2006, was the prevailing factor causing employee's right shoulder and cervical and lumbar spine injuries and her resulting medical conditions and permanent partial disabilities.

We supplement the award of the administrative law judge with the foregoing findings and comments. In all other respects, we affirm the award.

The award and decision of Administrative Law Judge Matthew D. Vacca, issued September 16, 2010, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

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 $26^{\text {th }}$ day of May 2011.

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: April 17, 2006
5. State location where accident occurred or occupational disease was contracted: St. Louis 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 alleged employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant tripped over a stool while carrying a box of reports into the file room.
12. Did accident or occupational disease cause death? No Date of death?
13. Part(s) of body injured by accident or occupational disease: Back, neck, right shoulder
14. Nature and extent of any permanent disability: 20 % right shoulder, 71 / 2 % body as a whole
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? \$3,602.44

Employee: Betty Steinmetz Injury No.: 06-127625

1. Value necessary medical aid not furnished by employer/insurer? 0
2. Employee's average weekly wages: $\ 560.00
3. Weekly compensation rate: $\$ 365.00 / \ 365.00
4. Method wages computation: Agreed

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

$\ 365.00 per week for Claimant's lifetime beginning January 19, 2009

1. Future requirements awarded: See Award

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: David Hughes

Employee: Betty Steinmetz

Injury No.: 06-127625

Dependents: N/A

Employer: Interstate Brands Corporation (Settled)

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Additional Party: Second Injury Fund

Jefferson City, Missouri

Insurer: Self-insured

Checked by: MDV

The issues presented for resolution by way of this hearing were accident, causation, the nature and extent of the primary injury and the nature and extent of the Second Injury Fund liability.

1. Claimant was born October 27, 1950. She will soon be 60 years old. She is married with one child of her own and two stepchildren. The stepchildren still live in Claimant's home.
2. Claimant lives in a one-level home with no basement or upstairs.
3. She has lived at \#7 St. Louis Court in Cahokia, Illinois since the 1970s.
4. She is 5'2" tall, 195 pounds. She has lost weight recently.
5. Claimant has a high school education with two years of college including some computer classes acquired following a prior injury. She took her college classes in accounting at the Belleville Area Community College, but did not receive a degree. She left college to pursue a job rather than a degree because of the need to earn a living.
6. Claimant started her working career as a restaurant manager and worked in that capacity for 14 years. She was variously an assistant manager and injured her low back approximately 14 years ago while working for Shoney's. She changed her job duties to more of a clerical position due to the injury. She was no longer able to pursue long hours on her feet. This work injury resulted in a compromise lump sum settlement. Following this accident and the injuries, Claimant received physical therapy and the employer also sent her to take some computer courses so she could work as a route accountant clerk.
7. In 1992, Claimant went to work for Interstate Brands and worked there until the last date of August 2, 2007. In this capacity, she would check invoices from the various routes and restaurants. These had to be matched up and correlated with manual printouts from the

routes themselves. Later in her career, the printouts became computerized and although the technology helped, the weight load due to the computer printouts doubled. Claimant was required physically to keep her head down while working on these various reports.

1. Employees would pack these invoices in boxes and store them in a warehouse. An invoice box weighed as much as a square box of computer paper packed with several packages.
2. Claimant was required to bend, stoop, reach for files on the bottom of the file cabinets, and crawl under the desk looking for plug-ins and various computer interfaces. She performed some light overhead lifting but on a repetitive basis as she placed reports above her head for further processing. Claimant would get up to make copies and do filing as a respite from her all day sitting job.
3. Claimant's physical capabilities while working as a manager in the restaurant industry involved performing physical labor during inventories where cans had to be counted and boxes of bananas, food and other items had to be lifted and moved around in order to be counted.
4. Claimant suffered a spine injury in 1986, underwent extensive physical therapy, diathermy, electrical stimulation, and long courses of rehabilitative physical therapy. Between 1986 and the time of the injury herein, her back gave her constant problems and limited her hand and arm movement, walking especially bothered her and her neck hurt. She continued to receive prescriptions, in