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Monika Chrismer v. First Student

Decision date: February 8, 201210 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award finding that claimant Monika Chrismer's bursitis/tendonitis in her right upper extremity, caused by manipulating a bus door on December 1, 2009, was a compensable occupational disease. The award is temporary or partial, with proceedings kept open for further determination of future medical expenses and Second Injury Fund liability.

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

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Caption

TEMPORARY OR PARTIAL AWARD

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-100519

Employee: Monika Chrismer

Employer: First Student

Insurer: New Hampshire Insurance Co.

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480$ RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, the Commission affirms and adopts the award and decision of the administrative law judge dated October 11, 2011.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

The award and decision of Administrative Law Judge Lee B. Schaefer, issued October 11, 2011, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 8^{\text {th }} \qquad$ day of February 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

TEMPORARY OR PARTIAL AWARD

Employee: Monika Chrismer

Departments: N/A

Employer: First Student

Additional Party: Second Injury Fund

Insurer: New Hampshire Insurance

Hearing Date: April 19, 2011

Injury No.: 09-100519

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LBS

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: December 1, 2009
  5. State location where accident occurred or occupational disease contracted: St. Louis County
  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 happened or occupational disease contracted: Claimant developed bursitis/tendonitis in her right upper extremity as a result of manipulating bus door.
  12. Did accident or occupational disease cause death? No Date of death? N/A
  13. Parts of body injured by accident or occupational disease: Right upper extremity
  14. Compensation paid to-date for temporary disability: -0 -
  15. Value necessary medical aid paid to date by employer/insurer? $\ 345.25
  16. Value necessary medical aid not furnished by employer/insurer? -0 -

Employee: Monika Chrismer

  1. Employee's average weekly wages: $\ 571.18
  2. Weekly compensation rate: $\$ 380.79 / \ 380.79
  3. Method wages computation: Agreed

COMPENSATION PAYABLE

  1. Amount of compensation payable:

Future medical expenses:

  1. Second Injury Fund liability: Not determined

TOTAL:

  1. Future requirements awarded:

See Award

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % which is awarded above as costs of recovery of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Dean Christianson

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Monika Chrismer

Injury No.: 09-100519

Dependents: N/A

Employer: First Student

Additional Party: Second Injury Fund

Insurer: New Hampshire Insurance

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LBS

FINDINGS OF FACT

An evidentiary hearing was held before Administrative Law Judge Matthew Vacca in the above-referenced matter on April 19, 2011. Monika Chrismer ("Claimant"), appeared in person and was represented by her counsel, Dean Christianson. First Student ("Employer"), and its insurer, New Hampshire Insurance, were represented by counsel, Jeff Wright. The Second Injury Fund was left open, and therefore, was not present at the time of the Hearing. Judge Vacca did not enter an award in this matter prior to leaving the Division of Workers' Compensation.

The attorneys for the parties appeared at the St. Louis Division of Workers' Compensation on June 19, 2011, to discuss the disposition of this case. Counsel agreed on the record that the Award in this matter could be written by Administrative Law Judge Lee Schaefer. The parties also agreed that Judge Schaefer would have until October 6, 2011 to issue her Award in this matter.

STIPLULATIONS

The parties stipulated to the following facts:

  1. Employee and Employer were operating under and subject to the provisions on the Missouri Workers' Compensation Law;
  2. On December 1, 2009 Claimant was making an average weekly wage of $\ 571.18, for a temporary total disability rate of $\ 380.79, and a permanent partial disability rate of $\ 380.79;
  3. Employer has paid no temporary total disability;
  4. Employer has paid $\ 345.25 in medical benefits;
  5. Venue for the Hearing in this matter is proper at the St. Louis Office of the Missouri Division of Workers' Compensation.

ISSUES

The issues to be resolved by the Hearing are:

  1. Whether Claimant's right shoulder complaints and conditions are medically casually related to her employer with Employer?
  2. Whether Claimant is entitled to future medical treatment?

EXHIBITS

Claimant offered the following Exhibits into evidence:

Exhibit A: Medical Report of Dr. Lichtenfeld

Exhibit B: Medical records of Concentra treatment to Claimant's right shoulder

Exhibit C: Medical records from St. Anthony's Medical Center

Exhibit D: Medical records from Dr. Broyles

Exhibit E A letter dated April 23, 2010, from Claimant's counsel to Employer's counsel making a demand for treatment to Claimant's right shoulder and arm.

Employer offered the following Exhibit into evidence:

Exhibit 1: Deposition of Dr. James Emanuel

Testimony at Hearing

Based upon a review of the Transcript of Hearing, and the Exhibits introduced into evidence, I make the following Findings of Fact:

Claimant is a 46-year-old bus driver who has been employed by First Student and its predecessors for sixteen years. Claimant continued to work for Employer on the date of the hearing. Claimant works five days a week from mid-August through the end of May; she is off of work for Christmas Break and Spring Break. She normally begins work at approximately 6:25 a.m. and works three distinct shifts during the day. She is completes her work day at approximately 4:10 p.m. Her workweek is five days per week.

Claimant's job duties include preparing her bus for the day, picking up students in the morning and dropping them off at school, and then reversing the procedure in the afternoon. Claimant also drives a shift in the middle of the day in which she picks up kindergarten students and drops them off. Claimant is assigned to the same bus, unless there is a maintenance issue or it is broken down, in which cases she would switch buses. She has been driving the same bus since 2008; it is an 84 passenger bus with power steering and an automatic transmission.

When she picks up or drops off students, Claimant is required to perform several actions with her right arm. First, Claimant applies the airbrake, which requires pulling the brake lever with her right arm; the airbrake often vibrates as it is being applied. Next, Claimant must open the door to allow students to enter or exit. Claimant's bus has a manual door opener which requires her to lift the lever up, and then pull, to open the door. Claimant testified that the door in her current bus is harder to open than the prior bus door. Claimant's prior bus had a door opening mechanism that was "looser", making it easier to operate.

Once the students are in their seats, or clear of the bus, Claimant releases the airbrake, engages the transmission, and proceeds to her next stop. The pain in Claimant's right shoulder makes it difficult for her to engage the transmission. Claimant sometimes hears a pop in her right shoulder when she engages the transmission. In a usual day, Claimant estimated that she has 84 morning stops, 84 afternoon stops, and 22 stops at lunchtime when she drives the kindergarten children.

Claimant's shoulder problems began in the Fall of 2009. Claimant's shoulder feels as though there is "gas" stuck in her shoulder; sometimes she feels pain radiating down to her elbow. Although Claimant could not give an exact date that her problems began, she knows her shoulder began hurting when she began driving the newer bus. As time went on, the symptoms in Claimant's shoulder worsened.

During the period of time she worked for First Student, Claimant also had a job in which she helped care for an Alzheimer's patient. She would help with cleaning, cooking and ambulating; this work did involve the use of her arms.

On December 9, 2009, Claimant was examined by Dr. Broyles, who had previously been her husband's physician. Dr. Broyles gave Claimant pain medicine and told her that her shoulder condition was related to repetitious activity at work. Following her visit to Dr. Broyles, Claimant told Employer about her shoulder complaints and that she believed her complaints were related to her work. Employer referred Claimant to Concentra where she was seen on one occasion. Claimant did not receive any treatment at Concentra and has had no further treatment to her shoulder since that visit.

At the time of the Hearing, Claimant had tingling in her arm from the shoulder to the elbow. She has difficulty sleeping because of discomfort in her shoulder and treats her condition with heat and ice. She also has headaches due to her shoulder and she takes Tylenol.

Medical Evidence

Claimant was seen in the Emergency Room of St. Anthony's Medical Center on July 31, 2009 following a fall off of a horse. (Claimant's Exhibit C) Claimant complained of pain in the back of her head, her forehead and her low back. Claimant underwent X-rays and CT scans of her head, spine and pelvis; all of which were negative. Claimant was diagnosed as suffering from a head injury and a cervical strain.

Claimant was seen by Dr. Damon Broyles, a family practitioner, on August 3, 2009. (Claimant's Exhibit D) Claimant reported that she had been thrown from a horse and continued

to experience pain over her right buttock and neurologic symptoms such as dizziness, nausea and headaches. Dr. Broyles diagnosed her as suffering from a headache and contusion to the buttock. The doctor further noted that Claimant's symptoms appeared to be improving.

Claimant returned to see Dr. Broyles on September 9, 2009. It was noted that Claimant continued to limp and have bad hip pain. Claimant reported that her neurologic symptoms had improved. The doctor recommended an MRI scan of the lumbar spine to rule out a disc herniation. The MRI was performed on September 11, 2009 and revealed a bulging disc at L4-5 without focal disc herniation.

When Claimant returned to Dr. Broyles on December 9, 2009, she complained of bladder control issues, vertigo and right sh

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

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