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Trina Hamilton v. Schnucks Market, Inc.

Decision date: May 22, 20128 pages

Summary

The Commission affirmed the Administrative Law Judge's award allowing workers' compensation benefits for Trina Hamilton's occupational disease involving bilateral upper extremities caused by repetitive use of upper extremities. The Second Injury Fund was found liable for permanent total disability benefits of $14.69 weekly differential plus $368.74 for the claimant's lifetime.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-137801

Employee: Trina Hamilton

Employer: Schnucks Market, Inc. (Settled)

Insurer: Self-Insured (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 November 15, 2011. The award and decision of Administrative Law Judge Margaret D. Landolt, issued November 15, 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 $\qquad 22^{\text {nd }} \qquad$ day of May 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

AWARD

Employee: Trina Hamilton

Departments: N/A

Employer: Schnucks Market Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Self-Insured (Settled)

Hearing Date: August 15, 2011

Injury No.: 05-137801

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: MDL

FINDINGS OF FACT AND RULINGS OF LAW

  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: November 21, 2005
  5. State location where accident occurred or occupational disease was contracted: St. Louis, 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: Employee used her upper extremities in a repetitive fashion
  12. Did accident or occupational disease cause death? No
  13. Part(s) of body injured by accident or occupational disease: Bilateral upper extremities
  14. Nature and extent of any permanent disability: 30 % of each elbow previously settled with Employer
  15. Compensation paid to-date for temporary disability: N/A
  16. Value necessary medical aid paid to date by employer/insurer? N/A
  1. Value necessary medical aid not furnished by employer/insurer? N/A
  2. Employee's average weekly wages: $\ 533.11
  3. Weekly compensation rate: $\$ 368.74 / \ 354.05
  4. Method wages computation: By stipulation

COMPENSATION PAYABLE

  1. Amount of compensation payable:

SETTLED

  1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential (\14.69) payable by SIF for weeks beginning August 27, 2007

and, thereafter, \ 368.74 for Claimant's lifetime

TOTAL:

UNDETERMINED

  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 22.5 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. Robert Meyers

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Trina Hamilton

Dependents: N/A

Employer: Schnucks Market, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Self-Insured (Settled)

Injury No.: 05-137801

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

PRELIMINARIES

A hearing was held on August 15, 2011 at the Division of Workers' Compensation in the City of St. Louis, Missouri. Trina Hamilton ("Claimant") was represented by Mr. Robert Meyers. Schnucks Market, Inc. ("Employer") which is self-insured, previously settled its liability with Claimant, and this matter proceeded to a hearing against the Second Injury Fund ("SIF") which was represented by Assistant Attorney General Kristin Frazier. Mr. Meyers requested a fee of 22.5 % of Claimant's award.

The parties stipulated that on or about November 21, 2005, Claimant sustained an occupational disease arising out of and in the course of employment; Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri; Employer received proper notice of the injury; the claim was timely filed; Claimant was earning an average weekly wage of $\ 533.11 resulting in weekly rates of $\ 368.74 for Permanent Total Disability ("PTD") benefits and $\ 354.05 for Permanent Partial Disability ("PPD") benefits; and in the event Claimant is found to be permanently and totally disabled, PTD benefits should commence on August 27, 2007. The only issue for resolution by hearing is whether the SIF is liable for PTD or PPD benefits.

SUMMARY OF EVIDENCE

Claimant is a 55 year old right handed woman with a high school education who worked for Employer as a cake decorator from 1989 until 2007. The job of cake decorator involves repetitive use of the upper extremities.

Beginning in 1992, Claimant began having difficulties with her upper extremities. In 1992 she was diagnosed with bilateral carpal tunnel syndrome, and underwent bilateral carpal tunnel releases. Dr. Ollinger performed the surgeries, and released her to full duty in 1993. Claimant returned to work as a cake decorator for Employer. The surgeries helped to temporarily subdue her pain. Claimant settled her claim with Employer for 17\% PPD of the right hand, 15 % of the left hand, and a 15 % load.

In 1995, Claimant began to experience problems with trigger fingers in her right hand. She was found to have triggering of the right index, long, and ring fingers. She came under the care of Dr. Crandall in 1995. He diagnosed the problem as work related, and in February 1996, performed trigger finger releases on her right index, long, and ring fingers. Following surgery, Claimant underwent physical therapy, and returned to work full duty. Although the trigger finger releases helped relieve her pain, she continued to have clicking and difficulty bending her fingers. She settled her claim with Employer for 15 % of the right hand

In 1996, Claimant developed trigger finger in her left hand. In January 1999, Dr. Crandall performed surgery on her left hand for trigger finger releases of the left index, ring, and small fingers. Dr. Crandall released Claimant to full duty in February 1999. The surgeries helped relieve some of the pain in her left hand. Claimant settled her claim with Employer for 15 % PPD of the left hand.

In 1997, Claimant injured her right shoulder when she was thrown from a trailer. Dr. Bradbury performed a glenohumeral arthroscopy and debridement of synovitis subscapularis tendon, and subacromial arthroscopy with initial attempted subacromial decompression, and subsequent open subacromial decompression. The post operative diagnosis was right shoulder impingement syndrome. Following her right shoulder surgery she continued to treat with Dr. Bradbury through 1999. She had extensive physical therapy both before and after her surgery, and cortisone injections. She also treated at the Barnes Hospital pain clinic. She also received treatment from her primary care doctor. Ultimately she received additional orthopedic care from Dr. VanRyn who performed a right shoulder arthroscopy distal clavicle excision in July 2001. The post-operative diagnosis was right shoulder AC joint arthralgia.

Leading up to 2005, Claimant experienced multiple symptoms in her hands as a result of her carpal tunnel syndrome and trigger fingers. Her hands were weak, she had difficulty gripping, and she dropped things. She experienced numbness and tingling at night, and her hands swelled. She had difficulty with her fine motor skills.

Claimant also had difficulty with her right shoulder leading up to 2005. She had reduced range of motion and difficulty lifting above her head. She had difficulty washing her hair, or lifting anything off a shelf. She had pain sleeping at night, and turning over on her side. Leading up to 2005 she had difficulty driving a car, and holding a telephone. She had restrictions in doing her job, and tasks around the house. She had difficulty sweeping, mopping, dusting, gripping, cooking, doing dishes, doing laundry, and baking. She had difficulty with her personal care such as bathing, and washing her hair.

In 2005, Claimant developed additional problems with her hands and her elbows. She saw Dr. Ollinger in January 2005 who found a work related ganglion cyst of the left long finger, as well as work related flexor synovitis of the right long and ring fingers. Claimant saw Dr. Sciortino who diagnosed right trigger thumb and treated it with a cortisone injection.

In February 2006, Dr. Glogovac performed surgery on Claimant's right hand for release of right index and small trigger fingers and right trigger thumb release. In June 2006, Dr. Glogovac operated on her left hand for left trigger thumb release, and released Claimant to return to work in June 2006.

In February 2006, Claimant was examined by Dr. Ollinger, and he diagnosed work related bilateral epicondylitis and cubital tunnel syndrome. Following a course of conservative treatment, in December 2006, Dr. Ollinger operated on the right elbow for ulnar nerve transposition and debridement of the right lateral epicondyle. In February 2007, Dr. Ollinger operated on the left elbow for ulnar nerve transposition and debridement of the left lateral epicondyle. In April 2007, he also operated to remove her ganglion cyst of the left long finger. On August 27, 2007, Dr. Ollinger released Claimant to full duty work, but by that time she was no longer employed.

Claimant settled her claim with Employer for 30\% of each elbow with a 10\% load.

Claimant testified the surgeries she underwent for her 2005 injuries reduced the clicking and sticking in her fingers, but she has problems with gripping, and an increase in her arthritis. The radiation and tingling from her elbows was reduced but she has substantial loss of strength and continued problems. She takes over the counter medications such as Tylenol, Ibuprofen, and Alleve, and has problems sleeping. She gets three to four hours of sleep a night. She has modified her activities. Sweeping, dusting, cooking, opening doors, and picking anything heavy up aggravate her symptoms. Her husband does the majority of the housework, including laundry. She gave up volleyball, and bowling after her first hand and shoulder surgeries, and gave up dancing after her elbow surgeries. Any movement including walking hurts her elbows. She has numbness and tingling in her fingers and thumbs at night, and off and on during the day. She returned to work for a month or two after was released to work by Dr. Ollinger. She was still working light duty, but she was unable to keep up with the pace of the job. Her arms hurt, even though she was working light duty.

The combination of her 2005 injuries and her preexisting injuries has reduced her overall strength. She is only able to drive about 25 to 30 miles without getting fatigued, and then her fingers start to hurt and stick. She has to stop and get out and move her fingers around. She can lift three to five pounds with her r

Full decision text continues in the plain-text archive copy.

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