Sandra Roberts v. Schaefer's Power Panels

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-136882

Employee: Sandra Roberts

Employer: Schaefer's Power Panels

Insurer: American Home Assurance c/o Chartis Claims, Inc.

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. 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 July 29, 2011. The award and decision of Administrative Law Judge Maureen Tilley, issued July 29, 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 $\qquad 19th \qquad$ day of April 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Sandra Roberts

Injury No. 04-136882

Employer: Schaefer's Power Panels

Additional Party: Second Injury Fund

Insurer: American Home Assurance c/o Chartis Claims Inc.

Hearing Date: May 23, 2011

Checked by: MT/rf

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 21, 2004.
5. State location where accident occurred or occupational disease contracted: Stoddard 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/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.

On May 23, 2011, Sandra Roberts ("employee") appeared in person and by her attorney, Mr. Jack H. Knowlan, Jr., for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Mr. Matt Leonard. The Second Injury Fund was represented at the hearing by Assistant Attorney General Jon Lintner. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the Findings of Fact and Rulings of Law, are set forth below as follows:

1. On or about December 21, 2004, Schaefer's Power Panels ("employer") was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was fully insured by American Home Assurance c/o Chartis Claims, Inc.
2. On or about December 21, 2004, Sandra Roberts was an employee of Schaefer's Power Panels, and was working under the provisions of the Missouri Workers' Compensation Act.
3. On or about December 21, 2004, the employee sustained an accident that arose out of and in the course of her employment.
4. The employer had notice of the employee's accident and resulting injury.
5. The employee's claim for compensation was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 298.58. Her rate of compensation is $\ 199.05.
7. The employer paid medical expenses in the amount of $\ 164,141.26.
8. The employer-insurer paid temporary total disability benefits in the amount of $\ 33,827.99.
9. The employee reached MMI as of October 27, 2008.

1. Medical causation: The employer-insurer stipulated that the employee's disc herniation at L4-5 was medically causally related to her accident, but disputed medical causation as to the employee's annular tears at L3-4 and L5-S1. The employer-insurer did not stipulate that any of the employee's post-accident depression and other emotional problems were causally related to the employee's December 21, 2004 accident. The Second Injury Fund did not dispute medical causation.
2. Additional or Future Medical Aid: The employee did not request an award for previously incurred medical expenses or medical travel expenses, but she did request an award for future medical aid. The request for future medical aid includes two different injuries or medical conditions. The employee is asking for future medical aid for her low back injury. She is also requesting additional treatment for depression and other psychological conditions that the employee believes are related to her accident and the resulting injury to her low back.

1. Temporary Total Disability: The employee has requested an award against the employerinsurer for additional temporary total disability from May 16, 2008 through the date she was determined to be at MMI on October 27, 2008. This time period is equal to 165 days or $234 / 7 ths weeks, and the total temporary total disability claimed is equal to \ 4,691.89.
2. Permanent Total Disability: The employee has requested an award for permanent total disability benefits against either the employer-insurer or the Second Injury Fund.
3. Permanent Partial Disability: If it is determined that the last injury alone did not cause the employee to be permanently and total disabled, but the employee is totally disabled due to a combination of her last injury and her pre-existing injuries, the employee has requested an award against the employer-insurer for permanent partial disability. If it is determined that Employee is not permanently and totally disabled, in the alternative, the employee is requesting an award against both the employer-insurer and the Second Injury Fund for permanent partial disability.

The following exhibits were offered and admitted into evidence:

A. Claim for compensation

B. Temporary Award

C. Medical report and deposition of Dr. Raymond F. Cohen

D. Medical report and deposition of Dr. Wayne A. Stillings

E. Medical report and deposition of Mr. James M. England

F. Medical records of MSH Family Medical Care

G. Medical records of Dr. David Boardman

H. Medical records of Cape Radiology Group

I. Medical records of Saint Francis Medical Center

J. Medical records of Dr. Peter Mirkin

K. Medical records of River City Imaging

L. Medical records of Health South Rehabilitation

M. Medical records of St. Anthony's Medical Center

N. Medical records of Dr. Matthew Gornet

O. Medical records of Dr. K.P.S. Kamath

P. Medical records of Bluff Radiology Group

Q. Medical records of Missouri Southern Healthcare

R. Medical records of Kneibert Clinic / Kneibert Clinic Mental Health

S. Medical records of Poplar Bluff Regional Medical Center

T. Medical records of Barnes Jewish West County Hospital

U. Medical records of Imaging Partners of Missouri

V. Medical records of CT Partners of Chesterfield

1. Deposition of Dr. Russell C. Cantrell
2. Deposition of Dr. Melissa Harbit
3. Deposition of Mr. Bob Hammond

Second Injury Fund's Exhibits: None offered.

Additional Note: The administrative law judge took administrative notice of the Division of Workers' Compensation file. The Second Injury Fund objected, and the objection was overruled.

- The employee was born and raised in San Francisco, California, but has lived in Missouri since 2001.

- She was born on May 14, 1956, and was 55 years old at the time of the hearing.

- The employee was not married at the time of the hearing. She had been married six times before, and had been living with Randy McTurnan for approximately seven years. The employee explained her multiple marriages by stating that she had some problems when she was younger and made some poor choices.

- The employee described her relationship with Mr. McTurnan as good. She indicated that they might get married, but were not in any hurry.

- The employee has three grown children that are financially independent. She lost two other children. One was born premature and only lived a few months, and the other child was "still born". She indicated that the loss of these children caused her to become depressed and to have significant emotional problems.

- The employee dropped out of school in the $11^{\text {th }}$ grade because she was pregnant, but she had enough credits to graduate with a GED.

- The employee's grades in school were generally good, but there were certain time periods when her grades got worse. She attributed this to physical, emotional and sexual abuse by the man that she thought was her father.

- The employee had an opportunity to take some college courses when she was older. She took early childhood education classes in 1997 and 1998. She did not receive a degree because she did not like taking the mathematics courses. The employee did not have any difficulty understanding the material and taking the tests for the early childhood classes. She considered herself to be fairly intelligent. Her grades in college were good, except she did not do well in algebra.

- The employee also had some health and emotional problems during the time she was taking the college courses. She was diagnosed with Grave's disease and had to have her thyroid removed. The employee had significant emotional problems until they got her medication adjusted.

- Other than truck driving school, the employee did not have any vocational training.

- The employee served in the military for a brief period of time. She was in basic training in the Air Force when she learned that her husband was having an affair with her brother's wife. The employee was very upset and angry because of this news, and the Air Force sent her home with an honorable discharge.

- The employee does not have much experience with computers. She never had to work with computers or do keyboarding for any of her jobs.

- The employee is able to read and write. She considers herself to be a good reader and enjoys reading novels. She is not good at math.

- The employee worked walking dogs and cleaning houses as a child. As a teenager, she worked for a business that owned a record store, a