Cheryl Whitfield v. Ferguson-Florissant School District

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-119197

Employee: Cheryl Whitfield

Employer: Ferguson-Florissant School District (Settled)

Insurer: Missouri United School Insurance

c/o Gallagher Bassett Services, Inc. (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 February 27, 2012. The award and decision of Administrative Law Judge John K. Ottenad, issued February 27, 2012, 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 $15^{\text {th }}$ day of August 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

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: December 10, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 worked as an elementary school teacher for Employer and injured her left wrist, when a student smashed her left hand into the table as she was helping him with a writing assignment.
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: Left Wrist and Body as a Whole—Psychiatric
14. Nature and extent of any permanent disability: 5 % of the Left Wrist and 35 % of the Body as a Whole-Psychiatric
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 930.15

Employee: Cheryl Whitfield

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient to result in the maximum applicable rates of compensation
3. Weekly compensation rate: $\ 742.72 for TTD/ $\ 389.04 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Employer previously settled its risk of liability in this case

1. Second Injury Fund liability:

$\ 353.68 per week for 148.75 weeks from 07/30/08 until 06/07/11

$\ 52,609.90

\$742.72 per week for Claimant's lifetime starting 06/08/11, subject to review and modification by law

TOTAL: $\mathbf{\$ 5 2 , 6 0 9 . 9 0}$ THROUGH 06/07/11 PLUS CONTINUING WEEKLY BENEFITS AS DESCRIBED

1. Future requirements awarded: As awarded

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: Robert J. Keefe.

On August 30, 2011, the employee, Cheryl Whitfield, appeared in person and by her attorney, Mr. Robert J. Keefe, for a hearing for a final award on her claim against the Second Injury Fund. The employer, Ferguson-Florissant School District, and its insurer, Missouri United School Insurance C/O Gallagher Bassett Services, were not present or represented at the hearing since they had previously settled their risk of liability in this case. The Second Injury Fund was represented at the hearing by Assistant Attorney General Kristin M. Frazier.

Along with this Claim [Injury Number 07-119197, with a date of injury of December 10, 2007, alleging injury to the left wrist], Claimant also tried her three other open companion claims at the same time. Injury Number 06-099118, with a date of injury of October 11, 2006, alleges injury to the left wrist. Injury Number 07-034087, with a date of injury of April 10, 2007, alleges injury to the right wrist and left wrist. Injury Number 07-102006, with a date of injury of October 12, 2007, alleges injury to the right ankle. Separate awards have been issued for each of these other cases.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about December 10, 2007, Cheryl Whitfield (Claimant) sustained an accidental injury arising out of and in the course of her employment.

2) Claimant was an employee of Ferguson-Florissant School District (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage sufficient to result in the maximum applicable rates of compensation of $\ 742.72 for total disability benefits and $\ 389.04 for permanent partial disability (PPD) benefits.

7) Employer paid no temporary total disability (TTD) benefits.

8) Employer paid medical benefits totaling $\ 930.15.

1) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to her accident at work on December 10, 2007?

2) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury?

3) What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A. Stipulations for Compromise Settlement between Claimant and Employer for Injury Numbers 02-005713, 06-093405, 06-099118, 07-034087, 07-102006 and 07-119197

B. Deposition of Dr. David Volarich, with attachments, dated April 16, 2010

C. Deposition of Mr. James England, Jr., with attachments, dated April 20, 2010

D. Deposition of Dr. Jay Liss, with attachments, dated March 24, 2011

E. Certified medical treatment records of Dr. Joyce Boehmer

F. Medical treatment records of Dr. Kent Campbell, Metro Imaging and Dr. Sandra Tate for the January 30, 2002 work injury

G. Medical treatment records of DePaul Health Center dated May 16, 2005

H. Certified medical treatment records of Florissant Open MRI

I. Certified medical treatment records of Excel Imaging

J. Certified medical treatment records of PRORehab

K. Surgical note dated February 23, 2007 from Timberlake Surgery Center for Claimant's left wrist surgery performed by Dr. David Brown on February 23, 2007

L. Certified medical treatment records of The Orthopedic Center of St. Louis (Dr. David Brown)

I. Accident reports filed with Employer regarding the December 10, 2007 injury

II. HealthSouth physical therapy records dated July 16, 18, 20 and 23, 2007

III. Medical treatment records of Concentra Medical Centers dated October 3, 2006 through April 15, 2008

IV. Certified medical treatment records of NEI of St. Louis (Dr. David Peeples)

Notes: 1) Unless otherwise specifically noted below, any objections contained in the exhibits are overruled and the testimony is fully admitted into evidence in this case.

2) Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on August 30, 2011.

Based on a comprehensive review of the substantial and competent evidence, including Claimant's testimony, the expert medical opinions and depositions, the vocational expert opinion and deposition, the medical records, the other records, and the Stipulations for Compromise Settlement between Claimant and Employer for various injuries including this case, as well as based on my personal observations of Claimant at hearing, I find:

1) Claimant is a 58-year-old, currently unemployed individual, who worked for Ferguson-Florissant School District (Employer) as an elementary school teacher (K-4) at or around the time of this injury. Claimant testified that she had worked for Employer from 1998-2008, but worked as an elementary school teacher for various districts, all total, from 1975 to 2008 ( 33 years of teaching). Claimant admitted that she always wanted to be a teacher because her mother was a teacher. Claimant currently receives a monthly payment from the school district from a disability pension.

2) Claimant testified that she graduated from high school. Claimant then graduated from Harris-Stowe Teacher's College in 1975 with a BS in Elementary Education. She eventually obtained her Masters in Education degree, with an emphasis in social science and elementary education, in 2001 from Webster University.

3) Claimant testified that she has had asthma as long as she can remember. She has treated at various times over the years with inhalers, breathing tents and machines, and medications. She indicated that she has also been hospitalized because of the asthma. She said that over the years she missed time from work as a result of this condition. She said that she would sometimes use all of her sick or leave days per year because of having to miss work on account of the asthma. She noted that certain things like perfume, dust, pollen or animals would trigger an asthma attack,

sometimes even during the school day. Claimant noted that stress also triggered her asthma, and could set off a coughing spell.

4) Medical treatment records from Claimant's family physician, Dr. Joyce Boehmer (Exhibit E) document the extensive visits and treatment Claimant has received from Dr. Boehmer from at least 1999 through 2008. The records contain a number of visits to DePaul Health Center for severe persistent asthma, abdominal pain, heart palpitations, and left and right facial numbness, to name a few of the conditions. The records confirm that early on in this treatment, Claimant was given Singulair and a rescue inhaler for the asthma. On May 31, 2006, she was