Alma Holzer v. St. Louis Cardinals

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-125024

Employee: Alma Holzer

Dependent: John Holzer

Employer: St. Louis Cardinals (settled)

Insurer: Ace American (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 February 28, 2011. The award and decision of Administrative Law Judge Kathleen M. Hart, issued February 28, 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 $\qquad 8^{\text {th }} \qquad$ day of November 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Alma Holzer

Injury No.: 06-125024

Dependents: John Holzer

Employer: St. Louis Cardinals (previously settled)

Additional Party: Second Injury Fund (only)

Insurer: Ace American (previously settled)

Hearing Date: November 22, 2010, and December 7, 2010

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

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: June 30, 2006
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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 injured her left upper extremity when she was hit in the elbow by a door at work.
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: left upper extremity
14. Nature and extent of any permanent disability: 48 % left elbow previously paid by Employer/Insurer, and permanent and total disability benefits from the SIF beginning March 15, 2009, due to a combination of the primary injury and the pre-existing injuries and disabilities.
15. Compensation paid to-date for temporary disability: $\ 23,639.60
16. Value necessary medical aid paid to date by employer/insurer? $\ 47.051 .40

Employee: Alma Holzer Injury No.: 06-125024

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 590.99 / \ 365.08
4. Method wages computation: Stipulation

1. Amount of compensation payable:

100.8 weeks of permanent partial disability from Employer

(previously paid)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential $\ 225.91 payable by SIF for 100.8 weeks beginning

March 15, 2009, and, thereafter, $\ 590.00 as long as provided by law

TOTAL:

TO BE DETERMINED

1. Future requirements awarded:

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:

Richard Dowd

Employee: Alma Holzer

Dependents: John Holzer

Employer: St. Louis Cardinals (previously settled)

Additional Party: Second Injury Fund (SIF)

Insurer: Ace American (previously settled)

Injury No.: 06-125024

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter November 22, 2010, and December 7, 2010. Alma Holzer (Claimant) was represented by attorney Richard Dowd. The SIF was represented by Assistant Attorney General Karin Schute. Employer/Insurer and Claimant settled their case prior to hearing.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

The parties stipulated to the following:

1. Claimant was injured by accident June 30, 2006, while in the course and scope of her employment for Employer.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law.
3. Employer's liability was fully insured by Ace American Insurance Company.
4. Employer had notice of the injury and a claim for compensation was timely filed.
5. Claimant's average weekly wage was sufficient to yield a TTD/PTD rate of $\ 590.99 and a PPD rate of $\ 365.08.
6. Claimant has been paid TTD benefits of $\ 23,639.60 representing 40 weeks of TTD. Employer paid $\ 47,051.40 in medical benefits.
7. Employer/Insurer and Claimant settled the primary injury for 48 % of the left elbow on April 16, 2010.

The parties stipulated the sole issue for trial is Second Injury Fund liability.

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 64 year-old married female who is a high school graduate and has no other formal education. After high school, Claimant worked as a secretary for a short time until she married and stayed home to raise her children. Claimant began working for Employer in the ticket office in 1981. She is right handed, and her work involved continuous keyboarding. Claimant's job was seasonal, and she worked full-time from February through October.
2. In the late 1990's, Claimant developed low back pain with radiation into her legs. She had a laminectomy and discectomy at the L4-5 level. The surgery relieved her left sided sciatic pain, but she continued to have constant low back pain. In June 1999, Claimant sought treatment for her low back again. An MRI showed bulging discs from L1 through L4, a herniated disc at L3-4, and a possible recurrent herniation at L4-5. A Myelogram showed diffuse bulging throughout her low back and post op changes at L4-5.
3. Claimant continued to have burning and stabbing pain in her back and into her leg. Conservative treatment did not relieve her symptoms, and Claimant was referred for pain management in 2001. She was diagnosed with scoliosis from L2-L4. She had a series of injections. By December 2002, Dr. Mollman noted surgery was an option, and would involve a fusion from L2 through L5. This would leave only one motion segment in her low back. Claimant was reluctant to proceed with this extensive surgery, so Dr. Mollman recommended more therapy and conservative treatment. She was treated with pain management and injections on a regular basis for the next several years.
4. Claimant testified the injections occasionally helped. She testified she was told repeatedly the only way to help her back was with a fusion. She periodically left work early to get injections. Employer accommodated her back problem by letting her work at a desk instead of at the ticket windows. The ticket counter was high, had high chairs and the window was far from the chair. Claimant is petite, and had to stand and lean into the windows to hear and talk to the customers. That caused an increase in her back and leg pain. Working at the desk instead of the windows relieved the pressure on her back. Claimant put a box under her desk, and rested her legs on top of the box to ease her pain. Employer also let Claimant get up and walk around when her back hurt. She was not able to walk around when she worked the ticket window.
5. Claimant continued to have constant pain in her low back going into her left leg. She stopped going to dances, playing ball with her children, working in the garden and other outdoor activities because of back pain. She significantly cut down on travel because of

low back pain. Her pain increased with walking, standing, and sitting. Changing positions, elevating her legs, and periodic injections decreased some of her pain.

1. In 2001 Claimant developed right shoulder pain. Her shoulder was injected, and she was diagnosed with tendonitis. The doctor noted Claimant had a ganglion cyst on her right wrist. By 2003, her right wrist complaints increased, and studies showed she had carpal tunnel syndrome. She had a right carpal tunnel release in February 2004, but her complaints continued. She developed triggering and numbness in her right thumb, and she continued to have pain and numbness in her hand. In April 2005, she had a trigger thumb release, recurrent carpal tunnel release, and release of the digital nerves at her thumb.
2. Claimant settled her right wrist injury for 20 % of her hand. She continued to have pain with gripping, and was not able to work as fast. She is unable to grip the steering wheel enough to drive for more than short distances. Attempts to use her right hand to relieve her left arm problems increased her right arm complaints.
3. On June 30, 2006, Claimant injured her left elbow at work. She was returning to the ticket window room when a co-worker slammed the door open and it hit Claimant in the elbow. She felt immediate pain in her elbow, but tried to keep working. The pain in her arm increased, and her fingers started curling up. She began treatment with Dr. Cole, and he performed a decompression and ulnar nerve transposition in August 2006. Claimant had extensive physical therapy, but continued to have atrophy, weakness in her hand, grip strength loss, and an inability to fully extend her fingers. A 2007 EMG showed profound slowing of the ulnar nerve, and the doctor noted Claimant had muscle wasting, significant weakness and hand deformity.
4. Claimant was referred to Dr. Hagan in June 2007. He diagnosed persistent ulnar nerve injury. In August 2007, he performed an excision of a neuroma, nerve transposition, redo decompression of the ulnar nerve, pronator release, transposition of the ulnar nerve, and decompression of the median nerve. Claimant had extensive physical therapy and pain management.
5. When Claimant returned to work, she could only keyboard with two of the fingers on her left hand. She had to use her right hand to accommodate for the loss of use in her left hand. Her left fourth and fifth fingers curled inward, and she was not able to work as fast as she had before this injury. Claimant advised Employer she was having problems keyboarding because of her fingers, and she was having problems with her back.
6. In September 2008, Employer sent Claimant for a functional capacity evaluation (FCE). The therapist opined Claimant was able to work full time in a medium capacity job. Claimant testified after the FCE, she had pain, stiffness, and soreness the next day. Claimant does not believe she could do the activities she did during the FCE on a continuous basis eight hours a day. She testified the doctors have restricted her to lifting lighter weights than what the therapi