Betty Craig v. Christopher and Banks Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-086240

Employee: Betty L. Craig

Employer: Christopher and Banks Corporation

Insurer: Wausau Business Insurance Company

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 (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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 4, 2011. The award and decision of Administrative Law Judge David L. Zerrer, issued October 4, 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 $\qquad 16^{\text {th }} \qquad$ day of April 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Betty L. Craig

Injury No. 09-086240

Dependents:

Employer: Christopher and Banks Corporation

Additional Party: Passed for further proceedings

Insurer: Wausau Business Insurance Company

Hearing Date: June 21, 2011

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

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: October 28, 2009
5. State location where accident occurred or occupational disease was contracted: Columbia, Boone 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 fell from ladder
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: Knee; lower extremity
14. Nature and extent of any permanent disability: 15 % of the left knee at the 160 -week level
15. Compensation paid to-date for temporary disability: $\ 11,123.82
16. Value necessary medical aid paid to date by employer/insurer? $\ 4,602.50

Employee: Betty L. Craig Injury No. 09-086240

1. Value necessary medical aid not furnished by employer/insurer? $\ 57,386.24
2. Employee's average weekly wages: $\ 758.45
3. Weekly compensation rate: $\$ 505.63 / \ 422.97
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 57,386.24

-0- weeks of temporary total disability (or temporary partial disability)

24 weeks of permanent partial disability from Employer $\ 10,151.28

-0- weeks of disfigurement from Employer

1. Second Injury Fund liability: Yes No Open X

Passed for further proceedings

TOTAL: $\ 67,537.52

1. Future requirements awarded: Open

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: Thad Mulholland

Employee: Betty L. Craig

Employee: Betty L. Craig

Departments:

Employer: Christopher and Banks Corporation

Additional Party: Passed for further proceedings

Insurer: Wausau Business Insurance Company

Injury No: 09-086240

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

On the $21^{\text {st }}$ day of June, 2011, the parties appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and by her attorney, Thad Mulholland. The Employer appeared by its attorney, Brad McChesney. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, is a party to this claim; however, the parties have agreed that the Second Injury Fund is excused from participating in this hearing. The record was ordered to be left open until 5:00 p.m., July 15, 2011.

The parties have entered into a stipulation as to certain facts which are not at issue in this claim as follows, to wit: On or about the $28^{\text {th }}$ day of October, 2009, Christopher and Banks Corporation was an employer operating subject to the Missouri Workers' Compensation Law; the Employer's liability was fully insured by Wausau Business Insurance Company; on the alleged injury date of October 28, 2009, Betty L. Craig was an employee of the Employer; the Claimant was working subject to the Missouri Workers' Compensation Law; the parties agree that on or about October 28, 2009, Claimant sustained an accident which arose out of the course of and scope of employment; the employment occurred in Boone County, Missouri, and the parties agree that Boone County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed accident

Employee: Betty L. Craig

Injury No. 09-086240

Claimant's average weekly wage was $\ 758.45, sufficient to allow the following compensation rates: $\ 505.63 for temporary total disability and permanent total disability, and $\ 422.97 for permanent partial disability; temporary disability benefits have been paid in the amount of $\ 11,123.82, prior to the date of this hearing; the Employer has paid medical benefits in the amount of $\ 4,602.50, prior to the date of this hearing; Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award.

Whether the accident caused the injuries and disabilities for which benefits are now being claimed?

Whether the Employer is obligated to pay for past medical expenses?

Whether the Claimant has sustained injuries that will require future medical care in order to cure and relieve the Claimant of the effects of the injuries?

The nature and extent of any permanent disabilities?

A legal file was established for this hearing which consisted of the following documents, to wit: Report of Injury; Claim for Compensation, filed with the Division November 5, 2009; Answer of the Employer to the Claim for Compensation, filed with the Division December 7, 2009; Request for Hearing, filed with the Division March 15, 2011.

Claimant offered, and there was admitted without objection, (except for objections made on a timely basis at the time of the deposition) Exhibits A through G.

Employee: Betty L. Craig

Injury No. 09-086240

Betty L. Craig, claimant herein, testified in her own behalf. Claimant is 63 years of age at the date of hearing, born June 10, 1948. She has been married 24 years and lives with her husband. Claimant testified that she is currently employed by Helzberg Diamonds as a sales associate. Claimant started working with the current employer March 14, 2011. She works on the sales floor showing merchandise and spending most of the day on her feet. Claimant testified that she is allowed to sit on a tall stool from time to time as an accommodation from the employer.

Claimant testified that when she stands for a long time her left knee has pain and becomes stiff. Claimant stated that sitting on the stool relieves the pain and stiffness in her knee. Claimant testified that she feels a dull continuous pain in her knee if she stands too long. She also indicated that her knee swells up and retains fluid when she stands for a long period of time.

Claimant testified that prior to her current position, she worked for J.C. Penney Stores from August 2010 until March 2011, when she went to work for the current employer. At J.C. Penney, Claimant worked first in the custom decorating department where she spent most of her time sitting at a desk or table. Claimant worked about 20 hours per week, but the department where Claimant was working closed, and she was transferred to fine jewelry where she worked for about one month working eight to twelve hours per week. Claimant testified that she has worked in retail sales since about 2000 and from about 2000 until the date of her accident.

Claimant testified that on October 28, 2009, she was a store manager for the Employer and that part of her duties as store manager was to be responsible for sales, staffing, merchandizing, and customer service. Claimant testified that on October 28, 2009, she was standing on a ladder changing the positioning of some clothing on display. Claimant was working alone in the store changing displays which were as high as 15 feet above the floor.

**Employee:** Betty L. Craig

**Injury No.:** 09-086240

Claimant testified that she was attempting to come down from the ladder when she missed a step and fell to the floor. Claimant does not know exactly what step she missed, but she thought about the third step. Claimant stated that she fell against a window hitting her back and head. Claimant remained on the floor until the ambulance and paramedics arrived. Claimant got up from the floor with the assistance of the paramedics, and she walked to the back storeroom.

Claimant then proceeded to her own vehicle. While walking on the parking lot to her car, Claimant reported that her left knee started swelling. Claimant drove herself to her private physician's office and was referred on to the emergency room. Claimant presented to the University of Missouri Medical Center emergency room where x-rays were taken and no fractures found. Claimant was placed in a temporary splint and referred on to Dr. Aggarwal for additional treatment. Claimant testified that she first saw Dr. Aggarwal on October 30, 2009, at which time an MRI was ordered. Dr. Aggarwal diagnosed three fractures in Claimant's knee.

Claimant testified that she received no treatment between November 2009 and January 2010. Claimant stated that she was scheduled once for knee surgery on November 24, 2009; however, that surgery was cancelled because Employer wanted to get another opinion on the need for knee replacement. Thereafter, Employer denied authorization for the recommended knee replacement surgery, and Claimant proceeded on her own to have the knee replacement surgery.

Claimant testified that she ultimately received knee replacement surgery in January 2010. In March 2010, Claimant received a surgical manipulation of the left knee to free up scar tissue. Claimant further testified that after surgery, she received physical therapy from January 2010 until March 2010. Dr. Aggarwal released Claimant to return to work on April 14, 2010.

**Employee:** Betty L. Craig

**Injury No.:** 09-086240

Claimant testified that she continues to have reduced range of motion in her left knee and that it gets stiff and sore from time to time. Claimant rates her pain in the knee at 5 out of 10 at the highest and 1 out of 10 at the lowest. Claimant does not run anymore, but she does bicycle on a regular basis. Claimant testified that she recently rode a bicyc