Glenda Joplin v. Gates Rubber Company

(Modifying Award and Decision of Administrative Law Judge by Separate Opinion)

Injury No.: 04-146797

Employee: Glenda Joplin

Employer: Gates Rubber Company

Insurer: Insurance Company of the State of Pennsylvania

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 $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs, heard oral argument, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we issue this final award and decision modifying the March 21, 2011, award and decision of the administrative law judge (ALJ). We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

We agree with the ALJ's conclusion that employee's primary injury combined with his preexisting disabilities to cause a greater overall disability than the independent sum of her separate disabilities. However, we find that the ALJ erred in excluding employee's preexisting 5\% permanent partial disability (PPD) of the body as a whole referable to her psychiatric condition from the Second Injury Fund liability calculation. We find that said disability should be included and that the 10 % load factor should be applied to the combined total of 193.7 weeks (121.2 weeks $^{2} attributable to the primary injury +72.5 weeks ^{3}$ attributable to the preexisting disabilities), instead of 173.7 weeks. In light of this correction, we find that the Second Injury Fund is liable for 19.37 weeks of compensation, or $\$ 6,722.36 .{ }^{4}$

In addition to the aforementioned, we also find that the ALJ erred in concluding that employee shall have the right to choose the medical provider that will provide her future medical care.

In pertinent part, § 287.140.1 states that 'the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.' ... As a general rule, the employer is given control over the selection of the employee's medical providers. Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85 (Mo. App. 1995). This principle, however, is subject to an important caveat. If the employer is on notice that the employee needs treatment and fails or refuses to provide it, the employee may select his or her own medical provider and hold the employer liable for the costs thereof. Jones v. Dan D. Services, L.L.C., 91 S.W.3d 214, 220-21 (Mo. App. 2002); Sheehan v. Springfield Seed and Floral, Inc., 733 S.W.2d 795, 798 (Mo. App. 1987); Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 880 (Mo. App. 1984).

Martin v. Town \& Country Supermarkets, 220 S.W.3d 836, 848 (Mo. App. 2007).

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2003 unless otherwise indicated.

${ }^{2} 121.2$ weeks =(35 % PPD of the right shoulder $=81.2$ weeks, plus 10 % PPD of the body as a whole $=40 weeks ).

{ }^{3} 72.5$ weeks =(15 % PPD of each wrist $=52.5$ weeks, plus 5 % PPD of the body as a whole $=20 weeks ).

{ }^{4} \$ 6,722.36=19.37 weeks x \ 347.05 PPD rate.

The ALJ's decision to allow employee the right to choose her medical provider is not supported by the record. We find that employer has not waived its right to direct employee's future medical treatment. Therefore, while we agree with the ALJ's award of future medical care, we find that employer shall be in control of the selection of employee's medical providers.

Lastly, we find that the ALJ erred in denying employee temporary total disability (TTD) benefits for the period of August 3, 2005, the day following her last day of work for employer, to December 14, 2006, the date Dr. Haupt opined employee had achieved maximum medical improvement.

Employee testified that the chronic unbearable pain in her right shoulder and, to some extent the less severe pain in her left shoulder, caused her to be unable to work since she stopped working for employer in August 2005. Employee testified that there has not been a single day that she feels she could have successfully worked since August 2, 2005. Employee testified that she wanted to keep working, but her right shoulder pain simply would not let her.

Dr. Haupt treated employee's right shoulder and noted that her second procedure complicated her presentation. Dr. Haupt recommended further surgery and noted that her described pain did not seem disproportionate to his findings.

Based on our review of the evidence, we find that employee was temporarily and totally disabled from August 3, 2005, through December 13, 2006. Therefore, we find employer liable for employee's TTD benefits for the 71-1/7 week period from August 3, 2005, through December 14, 2006, at the rate of $\ 487.15 per week for a total of $\ 34,657.24.

The award and decision of Administrative Law Judge Matthew W. Murphy, issued March 21, 2011, as modified herein, is attached and incorporated by 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 $8^{\text {th }}$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Improve: Glenda Joplin

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of future medical care, we find that employer shall be in control of the selection of employee's medical providers.

In addition to the aforementioned, we also want to address an argument raised by the Second Injury Fund.

The Second Injury Fund argues that employee's left shoulder injury does not qualify as "a subsequent compensable injury" for purposes of triggering Second Injury Fund liability under § 287.220.1 RSMo, which provides, as follows:

> If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, ...receives a subsequent compensable injury resulting in additional permanent partial disability ...so that the degree or percentage of disability, ...caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for.

(Emphasis added).

We summarize our understanding of the Second Injury Fund's legal reasoning: "Injury" as defined in § 287.020.3 RSMo excludes occupational diseases. A repetitive motion injury is an occupational disease by virtue of § 287.067 RSMo. Thus, a repetitive motion injury is not an "injury." A repetitive motion injury can never be a compensable "injury" that can trigger Second Injury Fund liability under § 287.220.1.

We summarize the Second Injury Fund's argument as applied to the facts of this claim: Employee's left shoulder injury is a repetitive motion injury. Employee's left shoulder injury is an occupational disease. Employee's left shoulder injury is not an injury, as defined by § 287.020.3. Employee's left shoulder injury is not a "subsequent compensable injury." Employee has failed to prove she suffered a subsequent compensable injury, so the Second Injury Fund is not implicated in this matter.

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