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Leliah Baxter v. General Motors Corporation

Decision date: June 24, 20119 pages

Summary

The Commission affirmed the administrative law judge's award of workers' compensation benefits for Leliah Baxter, who sustained a repetitive strain injury to both wrists while working on a General Motors assembly line on October 8, 2004. The employee was awarded compensation for 30% permanent partial disability of each wrist, plus additional compensation for multiplicity of injury and disfigurement.

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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.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-148655

Employee: Leliah Baxter

Employer: General Motors Corporation

Insurer: Self-Insured

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 February 4, 2011. The award and decision of Administrative Law Judge Kevin Dinwiddie, issued February 4, 2011, 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 $24^{\text {th }}$ day of June 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

AWARD

Employee:Leliah BaxterInjury No. 04-148655
Dependents:N/ABefore the <br> DIVISION OF WORKERS' <br> COMPENSATION
Employer:General Motors CorporationDepartment of Labor and Industrial <br> Relations of Missouri
Additional Party:State Treasurer, as Custodian of the Second Injury FundJefferson City, Missouri
Insurer:Self-insured
Hearing Date:Wednesday, February 24, 2010Checked by: KD/lsn

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: October 8, 2004
  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? Self-insured
  11. Describe work employee was doing and how accident occurred or occupational disease contracted: Repetitive use of the upper extremities while working on the assembly line
  12. Did accident or occupational disease cause death? No Date of death? n/a
  13. Part(s) of body injured by accident or occupational disease: right and left upper extremities at the level of the wrist
  14. Nature and extent of any permanent disability: 30 % permanent partial disability of each upper extremity at the wrist, plus a 15 % for multiplicity of injury and 2 weeks for disfigurement.
  15. Compensation paid to-date for temporary disability: $\ 3,895.92
  16. Value necessary medical aid paid to date by employer/insurer? $\ 17,989.66

Employee: Leliah Baxter Injury No. 04-148655

  1. Value necessary medical aid not furnished by employer/insurer? $\mathrm{n} / \mathrm{a}
  2. Employee's average weekly wages: \ 1,096.09
  3. Weekly compensation rate: $\$ 649.32 / \ 340.12
  4. Method wages computation: stipulation to maximum rates

COMPENSATION PAYABLE

  1. Amount of compensation payable:

From the employer : 30 % ppd of each wrist is 105 weeks, plus 15.75 weeks for 15 % multiplicity of injury to the upper extremities, plus 2 weeks disfigurement. The total due from the employer is for 122.75 weeks at the rate of $\ 340.12, or a total of $\ 41,749.73

  1. Second Injury Fund liability: Yes; see award for calculation of benefit

From the Second Injury Fund, 42.90 weeks of permanent partial disability at the rate of $\ 340.12 per week, or a total of $\ 14,591.15.

TOTAL: $\ 56,340.88

  1. Future requirements awarded: N/A

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:

Andrew J. Gregory

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Leliah Baxter

Departments: N/A

Employer: General Motors Corporation

Additional Party State Treasurer, as Custodian of the Second Injury Fund

Insurer: Self-insured

Injury No: 04-148655

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KD/lsn

The claimant, Ms. Leliah Baxter, appeared at hearing in person and by her counsel, Andrew J. Gregory. The employer, General Motors Corporation, is self-insured, and was represented by its counsel, Loretta Simon. The State Treasurer, as Custodian of the Second Injury Fund, was represented by Caroline Bean. Attorney Bean took her leave from the hearing after preliminary matters were discussed, including the stipulation that in the event the involved work related injury met the statutory threshold, the applicable pre-existing permanent disability is 48 % of the left shoulder and 30 % of the right shoulder, with a load factor of 15 %.

The parties further stipulated at hearing that the issues to be resolved at hearing are limited to nature and extent of permanent partial disability from the work injury, disfigurement, and nature and extent of Second Injury Fund liability.

Ms. Baxter provided testimony on her own behalf. The claimant also submitted the deposition testimony of David Volarich, D.O. The employer submitted the deposition testimony of the treating physician, David S. German, M.D.

EXHIBITS

The following exhibits are in evidence:

Claimant's Exhibits

A. Medical records of David S. German, M.D.

B. Certified medical records of Douglas Pogue

C. Stipulations for Compromise Settlement in Injury Number 04-042948 and medical records

D. Stipulations for Compromise Settlement in Injury Number 02-012327 and medical records

E. Deposition of David Volarich, D.O., taken on 4/22/2009

Employer/Insurer's Exhibits

I. Deposition of David S. German, M.D., taken on 4/29/2009

FINDINGS OF FACT

The claimant's birth date of 7/26/49 makes her 60 years of age as of the date of hearing in this matter. The claimant is an employee of General Motors, with whom she has been employed since 1985. Claimant last worked at General Motors on August 10, 2009, and testified that she intended to return to that employment.

Claimant worked both at the Hazelwood and Wentzville facilities, with her latest return to the assembly plant in Wentzville occurring in 2004. Claimant recalls that she was an assembler, and floated at first before being placed on the battery plate install job. To do this job the claimant would start 4 or 5 bolts by hand, and then tighten each with a torque gun. Claimant would also install a water bottle and a horn, each installed by shooting a screw with a torque wrench. By August of 2004 the claimant was suffering from various symptoms in her hands, with tightness and pain in the hands. Claimant relates that the hands would become hot, as if with a fever, with numbness, tingling, and swelling of the hands.

Claimant treated at plant medical with pain medication and ice, and when symptoms continued she had a nerve conduction study that was positive for carpal tunnel syndrome. Claimant postponed consideration of further treatment at her wrists because she was dealing with a separate left shoulder condition, for which she had an operation on 1/7/05. Dr. Rotman, the surgeon with respect to the left shoulder, performed extensive debridement of glenoid and humeral cartilage in the shoulder joint, and also performed a biceps tendon release and reattachment to the bone.

This surgery to the left shoulder was a follow up of surgeries had by Ms. Baxter to her right shoulder in 1999 and to her left shoulder in 2002. The right shoulder surgery was for a full thickness tear of the rotator cuff; the surgery to the left shoulder in 2002 was for what was found to be a nickel size tear of the rotator cuff.

The claimant returned to work following her second left shoulder surgery. Her hand complaints continued unabated, leading to a second nerve conduction study and a second finding of carpal tunnel syndrome bilaterally.

Ms. Baxter was referred to Dr. German, who elicited complaints more severe in the right hand, and a carpal tunnel release was performed by Dr. German on 9/08/2006. In his medical note dated October 6, 2006 (See Claimant's Exhibit A), Dr. German notes that after surgery "symptoms have completely resolved", and makes a request to provide the claimant with a left carpal tunnel release in January of 2007.

In his note dated December 11, 2006, claimant is noted to have "some residual swelling in her right carpal tunnel release" with no symptoms and minimal to no discomfort. A surgery to the left carpal tunnel is noted as having been scheduled.

On 1/19/2007 Dr. German performed a release of the left carpal tunnel. As for the median nerve, Dr. German in his operative note states "The nerve was noted to be hyperemic and flattened but no restriction and with fascicles..."

In his medical note dated 1/26/2007, Dr. German relates that sutures were removed that date and that the claimant had excellent healing. He went so far as to state "A rating may be performed if desired". Temporary total disability benefits were paid for 6 weeks, or into early March of 2007. Ms. Baxter met with Dr. German for a follow up on 2/23/07. The claimant was found to have no numbness or tingling and normal range of motion. Dr. German concluded that the claimant could return to work at any time; was to see the claimant on an as needed basis; and again offered a rating if needed.

Claimant returned to work on the radio install job after her carpal tunnel surgeries. Ms. Baxter testified that she performed the radio install job initially in August of 2005, which means that the radio install job was the job she was performing prior to her right carpal tunnel surgery had just over one year later. On the radio install job the claimant was obliged to shoot eight screws with a torque gun, and would also manually plug in the antenna wire. Claimant would insert a dummy "radio delete" on those jobs that did not require a radio.

The claimant acknowledges that after her carpal tunnel surgeries and upon her return to the radio install job, the use of the torque gun would make her hands go numb, and they would also swell and tingle. Claimant relates that despite these symptoms, the carpal tunnel surgeries helped with her symptoms to the extent that she was able to sleep at night after the surgeries. Claimant continued to self medicate after the surgeries by applying ice packs to her hands after work and during her work breaks, and also sought ice treatment from time to time at the plant dispensary.

Dr. German did not see the claimant from 2/23/07 until approximately one year later, on 1/09/2008, for purposes of a final evaluation. Given the claimant's complaints of numbness and tingling in her hands and her diminished grip strength, Dr. German declined to find the claimant at maximum medical improvement, and proposed the claimant wear a brace for one month at night, with possible repeat nerve conduction study if symptoms did not resolve. Dr. German also posited some other metabolic cause, perhaps some rheumatologic disease as the cause of her complaints.

In his note dated August 8, 2008, Dr. German relates that he had not seen the claimant since January of 2008, despite making numerous attempts to contact the claimant to see if her symptoms had improved.

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

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