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, Cl