Bonnie Tinker v. Hussmann Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-078270

Employee: Bonnie Tinker

Employer: Hussmann Corporation (Settled)

Insurer: Insurance Company of Northern America (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 § 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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated October 27, 2011. The award and decision of Administrative Law Judge Suzette Carlisle, issued October 27, 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 $\qquad 30th \qquad$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

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: August 25, 2008
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 employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant developed right carpal tunnel syndrome from repetitive use of vibratory and pneumatic tools used at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right wrist and hand
14. Nature and extent of any permanent disability: 25 % PPD of the right wrist (Settled)
15. Compensation paid to-date for temporary disability: $\ 9,809.92
16. Value necessary medical aid paid to date by employer/insurer? $\ 7,798.00

Employee: Bonnie Tinker

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,048.60
3. Weekly compensation rate: $\$ 700.00 / \ 404.66
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Weeks of permanent partial disability from Employer

(Previously settled)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

Weekly differential of $\ 295.34, payable by SIF for 43.75 weeks beginning

January 8, 2009, and, thereafter, for Claimant's lifetime

TOTAL:

INDETERMINATE

1. Future requirements awarded: None

Said payments to begin 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 15 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Robert W. Meyers

Employee: Bonnie Tinker

Injury No.: 08-078270

Dependents: N/A

Employer: Hussmann Corporation (Settled)

Additional Party: Second Injury Fund

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Indemnity Insurance Company of North America

C/o Gallagher Bassett Services (Settled)

Checked by: SC

The parties appeared for a hearing before the undersigned administrative law judge at the Missouri Division of Workers' Compensation (DWC), on July 26, 2011. Bonnie Tinker (Claimant) requested a final award to determine the liability of the Second Injury Fund (SIF) for either permanent partial disability (PPD) or permanent total disability (PTD) benefits. Attorney Robert W. Meyers represented Claimant. Assistant Attorney General Kristin M. Frazier represented the SIF. Venue is proper and jurisdiction properly lies with the DWC. The record closed after presentation of the evidence.

Prior to the hearing, Hussmann Corporation (Employer) ${ }^{1}$ and Indemnity Insurance Company of North America (Insurer) settled their claims with Claimant for 25\% PPD of the right wrist.

The parties stipulated that on or about August 25, 2008:

1. Claimant was employed by Employer and sustained an occupational disease, which arose out of and in the course of employment in St. Louis County, located in Missouri;
2. Employer and Claimant operated under the Missouri Workers' Compensation Law; ${ }^{2}$
3. Employer's liability was fully insured;
4. The Employer had notice of the injury;
5. A Claim for Compensation was timely filed;
6. Claimant's average weekly was $\ 1,048.60 which resulted in a rate for temporary total disability (TTD) and PTD of $\ 700.00, and a rate of $\ 404.66 for PPD ;
7. The Employer paid TTD benefits totaling $\ 9,809.92 which represents 14 weeks;
8. Employer paid medical benefits totaling $\ 7,798.00; and
9. Claimant reached maximum medical improvement (MMI) on January 8, 2009

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[^0]: ${ }^{1} All references in this award to the Employer also refer to the Insurer.

{ }^{2}$ All references in this award are to the 20005 Revised Statues of Missouri unless otherwise stated.

The parties submitted the following issues for disposition:

1. What is the nature and extent of the SIF's liability, for PPD benefits, if any?
2. What is the nature and extent of the SIF's liability for PTD benefits, if any?

Claimant's Exhibits A through H were received into evidence without objection. No additional exhibits were offered by the SIF.

All evidence was reviewed but only evidence needed to support this award will be summarized below. Any objections contained in the depositions or made during the hearing but not expressly ruled on in this award are now overruled. To the extent marks and highlights are contained in the exhibits, those were made prior to becoming a part of this record and were not placed there by the undersigned administrative law judge.

1. At the time of the hearing, Claimant was 72 years old, and single with no dependents. Claimant graduated from high school in the spring of 1956. In the summer of 1956, Claimant worked for International Shoe Company cutting liners for shoes.
2. Claimant worked for Owens Illinois as a factory worker from 1957 until the company closed in 1983. During layoffs, Claimant worked for a garment factory and installed zippers.
3. In 1975, Claimant injured her left knee at work. Dr. Grande diagnosed torn cartilage, and provided conservative treatment. Claimant used vacation time to rest her knee. Her current pain level is five out of ten with no activity, and seven out of ten with activity. The medical records are not in evidence.
4. In 1978, Claimant fell on the stairs and twisted her back. She was placed in traction, and later Dr. Vonges performed back surgery. She missed work for six months. After recovery, Claimant continued to have muscle spasms into her leg when sitting for long periods or with certain movements. Claimant removed carpet from her home because her back hurt when she vacuumed. Her current pain level is four out of ten with no activity, and seven to nine out of ten with activity. Claimant stopped taking fishing trips because long rides hurt her back. No medical records are in evidence.
5. Claimant did not work from the fall of 1983 to the spring of 1985. Anchor Glass hired Claimant as a factory worker in 1985 where she worked until 1995. Claimant checked specifications, packed bottles, turned bottles to check for thickness, shape, and packaging, and to relieve co-employees for breaks. Residual complaints include back pain when rising from a soft chair, where she can sit for 90 minutes.
6. In the 1990's Claimant fractured her right foot when she fell at work. Her foot was casted during a layoff from work. Claimant wears orthotics for the fifth metatarsal. She

also wears lace-up shoes for support. Prior to 2008 Claimant could not stand on flooring that shifts because it was hard on her feet and back. No medical records are in evidence.

1. In 2004, Claimant had problems with her bilateral knees, but no surgery. Dr. Harmon diagnosed degenerative arthritis, and both knees were injected with cortisone, which did not help. Synvisc injections alleviated pain for four years. Claimant uses knee sleeves. Dr. Harmon discussed possible knee replacements. Claimant last received treatment for her knees in 2005.
2. To limit stair climbing, Claimant throws laundry down the stairs and remains in the basement until the clothes are dry. Prior to August 2008, her knees felt like they would lock or give way. Claimant can kneel or squat but has difficulty getting up. Current left knee pain is a level five out of ten with no activity, and seven out of ten with activity. Right knee pain is three out of ten with no activity, and five out of ten with activity.
3. On September 21, 2001, Michael Figura, M.D., performed a left foot fasciotomy, and a right foot bunionectomy with osteotomies, shortening of the second metatarsal, and right foot arthroplasty with internal fixation. Occasionally, her feet continue to swell.
4. On October 25, 2006, Dave Kinscherff, D.P.M., surgically repaired Claimant's right heel for plantar fasciitis and heel spurs. She missed three months from work. Before surgery, a co-employee drove Claimant to the front gate on a cart, because it was difficult to walk four blocks to the parking lot. Current right foot pain is three out of ten with no activity, and four out of ten with activity. Left foot pain is two out of ten with no activity, and three out of ten with activity.
5. Claimant worked for Employer from July 1, 1996 until August 1, 2009, with occasional layoffs. Claimant worked ten hours per day, five days a week, and eight hours on Saturday.
6. Claimant started in the Coiling Tube Department. She took rolls of copper, strapped them onto a hoist, placed them onto a machine, and set specifications. After the copper was cut by a machine, it fell into a tub, and she placed the pieces into a cart, rechecked specifications, and rolled them to another department. The work required pushing, pulling and carrying. Claimant is right handed.
7. Claimant transferred to the Phone Line Department where she lifted sheet metal from a conveyor belt with the help of a co-employee, moved it to another conveyor, used tools to install studs and railings, and placed another sheet on top.
8. In the Assembly Department, Claimant climbed into refrigerators, measured pressure, and installed parts. Claimant used her hands to pinch, grip, lift, stretch, and press. She developed tendinitis when she leaned across the conveyor belt to work.

1. Between 1975 and 2008, Claimant took Tylenol for pain because stronger medication caused stomach problems. She last tested for stomach problems in the 1970's. To relieve pain, Claimant used elastic knee supports, orthotics, and an ace bandage for arch support.
2. Leading up to August 2008, Claimant did not miss work and did not receive medical care for her injuries. During layoffs Claimant worked for Manpower in a Capri Sun factory.
3. In 2007, Claimant developed numbness and tingling in her right hand. Cynthia D. Byler, D.O., provided conservative treatment. A September 5, 2008 nerve conduction study revealed "severe end-stage median neuropathy across the right carpal tunnel." In 2008 she was diagnosed with right carpal tunnel syndrome (CTS) and right long finger trigger caused by repetitive work activities.
4. On October 23, 2008, Robert Hagan, M.D., surgically repaired Claimant's carpal tunnel syndrome and released the A-1 pulley of the right long finger. On January 8, 2009, Dr. Hagan rated 4 % PPD of the right wrist; opined Claimant had reached MMI, and released her to return to work. However, Claimant did not return to work until March 2009 due to a work layoff.
5. The level of current wrist pain is six to seven out of ten. Claimant has weakness when squeezing the handle of a gas pump. She has palm and thumb pain, wrist weakness, decreased pinch strength, and difficulty turning keys and locks. Recently a crock pot broke when Claimant lost her grip on it. Claimant has decreased numbness, tingling, and sensation. She stopped working with crafts and gardening because of her hands. Claimant's brother-in-law provides assistance around the house. Claimant's right long finger problems have resolved.
6. In March 2009, Claimant returned to work full duty in a different position. However, she had difficulty gripping power tools, and increased back and foot pain. Lifting heavy parts hurt her back and hand. She frequently dropped screws, and had difficulty walking a half block to deliver the parts. In addition, production requirements increased. At home, Claimant used a small power tool but commercial machines became difficult to use. For these reasons, Claimant worked until July 4, 2009, took a three week vacation and retired August 1, 2009.
7. On a typical day, Claimant feeds the cats, takes medication, and performs one activity per day. She avoids doctor's appointments on days when other work is needed. She uses the riding lawn mower one day; grocery shops another day, and does laundry on a different day. Multiple trips from the basement and moving the hose around the yard increase pain. She has side rails on her truck to help her climb into it. If she drives more than 90 minutes her back stiffens, becomes painful, muscle spasm radiate into her back. Claimant cannot drive when she has leg spasms. She uses paper plates because it is hard to lean across the sink to turn on water to wash dishes. Claimant can only take showers.
8. Since 2007, Claimant has difficulty sleeping due to back pain and muscle spasms, and knee and hand pain prompted by activity. Occasionally, she sleeps during the day because she cannot sleep at night.

1. Prior to 2008, Claimant compensated for lower body problems with her upper body. Her back, knees, and feet give her problems turning. After 2008, she stopped riding her bicycle and performed less yard work. Claimant no longer sews due to finger numbness, and she cannot thread a needle due to lack of mobility. She uses a dolly to lift heavy items, like cat litter because it is too hard to lift with her back, knees, and hands.
2. Claimant does not believe she can work because of cumulative pain which builds day to day with long work hours and heavy lifting.

1. David T. Volarich, D.O., examined Claimant on October 27, 2009 at the request of her attorney. Dr. Volarich opined Claimant's repetitive work activities were the "substantial contributing factors, as well as the prevailing or primary factors" that caused severe right hand CTS and triggering of the right long finger.
2. During examination, Dr. Volarich found significant right hand atrophy, decreased grip strength, and sensory loss. He rated 50 % PPD of the right wrist, and 35 % PPD of the right long finger.
3. For preexisting conditions, Dr. Volarich found decreased range of motion of the right knee, low back, and left ankle, and rated 40 % of the body for the lumbar spine, { }^{3} 65 % of the right knee, 65 % of the left knee, 25 % of the left foot, and 40 % of the right foot.
4. Dr. Volarich further opined the combined disabilities create substantially more disability than their simple sum, and a loading factor should apply.
5. Dr. Volarich opined Claimant is unable to work full time in her former employment or any capacity. Dr. Volarich determined Claimant is permanently and totally disabled due to a combination of the work injury and preexisting medical conditions based on her advanced age (70), limited education and work experience, inability to return to work since August 1, 2009, and receipt of social security benefits.
6. Based on right CTS and trigger finger, Dr. Volarich concluded Claimant could work on a limited basis with the following restrictions:

a. Use of proper ergonomics, avoid awkward positions of the right upper extremity;

b. Minimize repetitive gripping, pinching, squeezing, pushing, pulling, twisting;

c. Avoid impact and vibratory trauma, and wear appropriate protective gear;

d. Limit weight to one pound in the right upper extremity;

e. Handle weight to tolerance with the dependent right arm, not greater than five pounds; and

f. Continue strengthening and stretching

1. For the spine, Dr. Volarich recommended:

a. Bend and twist to tolerance;

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[^0]: ${ }^{3}$ During physical examination, Dr. Volarich observed a 12 centimeter scar on the midline of Claimant's back from the prior back surgery.

b. Handle weights to tolerance with proper lifting;

c. Handle weight overhead and away from the body, and carry weight over distances and uneven terrain to tolerance;

d. Maintain fixed positions sitting and standing to tolerance;

e. Change positions as needed and rest when needed; and

f. Stretch as needed

1. For the lower extremities, Dr. Volarich recommended:

a. Limit repetitive stooping squatting, crawling, kneeling,;

b. Use caution on uneven terrain, slopes, steps, and ladders when carrying weight;

c. Weight bear to tolerance when walking; and

d. Use Glucosamine and stretch

1. Mr. James M. England, Jr., a rehabilitation counselor, testified at the request of Claimant's attorney. Mr. England interviewed Claimant on July 8, 2010.
2. Mr. England administered the Wide Range Achievement Test Revision 3 where Claimant scored at the high school level in reading and math. Mr. England concluded Claimant's academic background did not prohibit employment.
3. Mr. England noted Claimant had difficulty sleeping because of pain to her back, knees, and right hand, and multiple leg spasms. Also, Claimant limits daily activities because of decreased stamina. Occasionally, she will lie down during the day to relieve back pain.
4. Mr. England opined Claimant did not have transferable skills and was not a candidate for retraining.
5. Based on Dr. Volarich's upper extremity restrictions, and Claimant's limitations, Mr. England concluded Claimant could not return to her past employment. Dr. Volarich's upper extremity restrictions limit Claimant to sedentary work. However, most sedentary jobs require repetitive use of the dominant hand. Therefore, Mr. England concluded Claimant could not sustain sedentary work.
6. Also, Mr. England concluded Claimant's combined limitations render her unable to perform regular employment of any kind. Mr. England concluded Claimant could not compete in the open labor market, and no labor employer would reasonably be expected to employ Claimant or expect her to perform work in her present physical condition.

After giving careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented, and the applicable law of the State of Missouri, I find Claimant met her burden to show SIF liability for PTD benefits for the reasons stated below.

Claimant seeks PTD benefits from the SIF. The SIF contends that the claim is not compensable because Claimant sustained an occupational disease, not an injury, as required by Sections 287.020.3 and 287.220.1.

An employee has the burden to prove by a preponderance of credible evidence all material elements of the claim. Meilves v. Morris, 422 S.W.2d 335, 339 (Mo. 1968). In the case of permanent disability against the SIF, Section 287.220 RSMo. requires the fact finder make the findings below:

1) The employee has permanent disability from the last injury alone which is compensable, and

2) There was a pre-existing permanent disability that was serious enough to constitute a hindrance or obstacle to employment or re-employment which combines with the disability from the compensable work-related injury to create greater overall disability to the employee's body as a whole than the simple sum of the disability from the work injury and the pre-existing disability, and for PTD benefits to be awarded;

3) There must be a determination that all of the injuries and conditions combined, including the last injury, resulted in the employee being permanently and totally disabled.

However, if a claimant's last injury rendered her permanently and totally disabled, the SIF has no liability and the employer is responsible for the entire amount. Hughey v. Chrysler Corp. 34 S.W.3d 845, 847 (Mo. App. 2000). Therefore, the inquiry begins with the Employer's liability.

Section 287.202.3 is inapplicable because it only applies to injuries sustained by accident. Here, the parties stipulated that Claimant sustained an occupational disease, which arose out of and in the course of employment. Section 287.067.1 states: "An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability." (Emphasis added) State ex rel. KCP \& L Greater Missouri Operations Co. v. Cook 2011 WL 4031146, (Mo.App. 2011). Therefore, I find Claimant sustained an occupational disease injury.

I find Dr. Volarich's opinion is credible that Claimant sustained PPD from right carpal tunnel syndrome. Examination revealed right hand atrophy, decreased grip strength, and sensory loss. I find Claimant to be generally credible. Claimant testified she has right palm pain, difficulty turning keys and locks, weakness, inability to hold items, and decreased sensation. Based upon credible testimony by Dr. Volarich and Claimant, and medical records, I find Claimant sustained 25\% PPD of the right wrist for CTS; which did not take Claimant out of the workforce.

After determining Claimant's disability from the last injury alone, the [fact finder] then determines "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." Section 287.220.1, RSMo (emphasis added). Thus, the Second Injury Fund is not liable for any progression of claimant's preexisting disabilities not caused by claimant's last injury. Garcia v. St. Louis County, 916 S.W.2d 263, 266 (Mo. Ct. App. 1995) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 230 (Mo. banc 2003). ${ }^{4}$

I find Dr. Volarich's opinion is credible that Claimant's low back, bilateral knees and feet were a hindrance or obstacle to employment before August 25, 2008. Claimant testified she wanted to work until January 2010, but the cumulative effect of pain from lifting heavy objects and working long hours caused her to retire in August 2009. Prior to 2008, Claimant saved her vacation time and used it when she did not feel well. Claimant's back, knees, and feet make it difficult to turn. Claimant uses a dolly to lift cat litter due to back, knee and foot pain. Based upon credible testimony by Dr. Volarich and Claimant, and medical reports, I find Claimant's preexisting medical conditions are a hindrance or obstacle to her employment or reemployment.

Section 287.020.7 RSMo (2000) defines "total disability"...as the inability to return to any employment and not merely [the] inability to return to the employment in which the employee was engaged at the time of the accident. Any employment means any reasonable or normal employment or occupation; it is not necessary that the employee be completely inactive or inert in order to meet this statutory definition. Kowalski v. M-G Metals and Sales, Inc. 631 S.W.2d 919, 922 (Mo. App. 1982) (Citations omitted).

The test for permanent total disability in Missouri is a claimant's ability to compete in the open labor market. The central question is whether any employer in the usual course of business could reasonably be expected to employ claimant in [her] present physical condition. Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 178 (Mo.App. 1995).

I find credible the uncontroverted opinions of Dr. Volarich and Mr. England that Claimant is PTD due to a combination right carpal tunnel syndrome and preexisting disability to her bilateral knees, feet, and low back. Dr. Volarich imposed a number of work restrictions on Claimant's right hand, spine, and lower extremities. He concluded Claimant could not return to her former employment, but she could work on a limited basis with restrictions. However, at 70 years of age, with limited education and work experience, Dr. Volarich found Claimant to be PTD due to her combined disabilities.

Mr. England based his PTD opinion on Dr. Volarich's restrictions and Claimant's reported limitations. Claimant reported difficulty sleeping, the need to rest during the day, and reduced stamina. Mr. England concluded Claimant was unable to perform sedentary work because of her medical conditions and Dr. Volarich's restrictions. He found Claimant to be unable to compete in the open labor market based on her combined disabilities.

Prior to the development of CTS, Claimant relied on upper body strength to compensate for lower body deficiencies. Now, she has decreased strength in her dominate right hand, and she

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[^0]: ${ }^{4}$ Several cases herein were overruled by Hampton on grounds other than those for which the cases are cited. No further reference will be made to Hampton.

limits daily activities because of reduced stamina. Claimant retired because of the "cumulative" effect of pain in her lower extremities, back, and dominant right hand.

During testimony, I observed Claimant limp when she walked, and she appeared stiff. At one point she stood up to relieve discomfort.

Based upon credible testimony by Dr. Volarich, Mr. England, and Claimant, and medical reports and opinions, I find no employer in the ordinary course of business would hire Claimant in her present physical condition and expect her to perform the work. I find Claimant is permanent and totally disabled due to the combination of the last injury and preexisting medical conditions.

In cases of permanent total ...disabilit[y], payment is due at the start of the disability. Thus, payment should have begun when the disability started. Kramer v. Labor \& Indus. Relations Commission, 799 S.W.2d 142, 145 (Mo.App. 1990).

The parties stipulated Claimant reached MMI on January 8, 2009. Therefore, I find Claimant reached MMI as of January 8, 2009, and compensation should have started on that date. I previously found Claimant sustained 25 % PPD of the right wrist as a result of the August 25, 2008 injury. Therefore, I find the SIF is liable for $\ 295.34 per week ( $\ 700.00 PTD rate less $\ 404.66 PPD rate) for 43.75 weeks commencing retroactively on January 8, 2009 and thereafter (beginning November 12, 2009) the sum of $\ 700.00 per week for the remainder of Claimant's life. Laturno v. Carnahan, 640 S.W.2d 470, 472 (Mo.App.1982).

Claimant is permanently and totally disabled due to a combination of the last injury and preexisting disabilities. The SIF is liable for a weekly differential beginning January 8, 2009, continuing retroactively through November 11, 2009. Thereafter, the SIF is liable for permanent total disability benefits for the remainder of Claimant's lifetime. The issue of permanent partial disability is moot. Claimant's attorney is entitled to a 25 % lien for services rendered.

Date: $\qquad Made by: \qquad$

Suzette Carlisle

Administrative Law Judge

Division of Workers' Compensation