Rosario Grado v. Securitas Security Services

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-076787

Employee: Rosario Grado

Employer: Securitas Security Services (Settled)

Insurer: Indemnity Insurance Company of North America c/o Broadspire (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 2, 2012. The award and decision of Administrative Law Judge Emily Fowler, issued February 2, 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 $31^{\text {st }}$ day of October 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Rosario Grado

Injury No: 08-076787

Dependents: N/A

Employer: Securitas Security Services

Additional Party: Second Injury Fund

Insurer: Indemnity Insurance Co. of North America c/o Broadspire

Hearing Date: October 24, 2011

Checked by: $\mathrm{ESF} / \mathrm{lh}$

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 1, 2008
5. State location where accident occurred or occupational disease was contracted: Kansas City, Wyandotte County, Kansas
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 lifted a gate causing permanent injury to her low back and body as a whole.
12. Did accident or occupational disease cause death? No Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Rosario Grado

Injury No. 08-076787

1. Part(s) of body injured by accident or occupational disease: Back and Body as a whole
2. Nature and extent of any permanent disability: 12.5% permanent partial disability as previously settled with the Employer; Permanent and total disability as to the Second Injury Fund
3. Compensation paid to-date for temporary disability: $21,045.96
4. Value necessary medical aid paid to date by employer/insurer? $33,188.18
5. Value necessary medical aid not furnished by employer/insurer? 0
6. Employee's average weekly wages: 740.28
7. Weekly compensation rate: $493.52/404.66
8. Method wages computation: Comparable employee - Mo. Rev. Stat. §287.250.1(5)
9. Amount of compensation payable:

The Employee and employer previously settled the primary claim for 12.5% permanent partial disability.

1. Second Injury Fund liability:

Permanent total disability benefits from Second Injury Fund: weekly differential of $88.86 payable by SIF for 50 weeks beginning 07/20/2010 totaling 4,443.00 and 493.52 thereafter, for Claimant's lifetime.

1. Future requirements awarded: None

Said payments subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a twenty-five percent (25\%) lien in favor of Keith V. Yarwood, Attorney, as attorney's fees pursuant to Mo.Rev.Stat. §287.260.1.

Employee: Rosario Grado

Injury No: 08-076787

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Securitas Security Services

Additional Party: Second Injury Fund

Insurer: Indemnity Insurance Co. of North America c/o Broadspire

Hearing Date: October 24, 2011

Checked by: $\mathrm{ESF} / \mathrm{lh}$

On October 24, 2011, the Employee and the Second Injury Fund appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to § 287.110. The Employee, Rosario Grado, appeared through her attorney, Keith Yarwood. Ms. Grado had previously settled her claim with the employer under Kansas law. The Second Injury Fund appeared through Assistant Attorney General Eric Lowe.

The parties stipulated to the following:

1) that the Employer, Securitas Security Services, was an employer operating under and subject to the provisions of Missouri Workers’ Compensation Law on August 8, 2008, and was fully insured through Indemnity Insurance Company of America;

2) that Rosario Grado was its employee and working in Kansas City, Wyandotte County, Kansas;

3) that Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law;

4) that the Employer has paid temporary total disability compensation in the amount of $\ 21,045.96 and medical care costing $\ 33,188.18;

5) that the Employer and Employee settled the primary claim for 12.5 percent permanent partial disability to the body as a whole;

The issues to be resolved by this hearing are as follows:

1) Whether this Court has Missouri jurisdiction;

2) Whether the Employee sustained an accident or occupational disease while in the course and scope of her employment and whether it resulted in injury;

3) What was employee's average weekly wage and thereby her compensation rate;

4) Whether the employee suffered any disabilities prior to her alleged injury on August 1,2008, and, if so, the nature and extent of such disabilities;

5) Whether the Second Injury Fund is liable to the Employee for any disability compensation.

Ms. Grado testified on her own behalf and presented the following exhibits, all of which were admitted into evidence without objection with the exception of Exhibit H:

Exhibit A - Deposition of Dr. Stanley Butts, Ph.D.;

Exhibit B - Deposition of Dr. John Ciccarelli, M.D.;

Exhibit C - Deposition of Dr. William Hopkins, M.D.;

Exhibit D - Deposition of Vocational Specialist Michael Dreiling;

Exhibit E - Wage Statement;

Exhibit F - Settlement in the Injury No. 87-012884;

Exhibit G - Post-Injury W-2 Forms;

Exhibit H - Kansas Statutes 44-510d, e and f.

Although the Second Injury Fund did not call any witnesses, it did present the following exhibits, all of which were admitted into evidence without objection with the exception of Exhibit 1:

Exhibit 1 - Kansas Settlement;

Exhibit 2 - Deposition of Vocational Specialist Michelle Sprecker;

Exhibit 3 - Deposition of Rosario Grado;

Exhibit 4 - Deposition of Dr. Patrick Hughes, M.D.;

Exhibit 5 - Report of Dr. Allen Parmet, M.D.

Based on the above exhibits and the testimony of Ms. Grado, I make the following findings: Ms. Grado is a 53-year old female who lives alone in Kansas City, Missouri. Securitas hired her as a security guard at its offices located at 3101 Broadway, Kansas City, Missouri in January of 2007, and on August 1, 2008, she met with an accident that resulted in permanent injury while working at the gate at the General Motors plant located in Kansas City, Wyandotte County, Kansas. At the time, she was earning an average weekly wage of $\ 720.84 which entitles her to a permanent partial disability rate of $\ 404.66 and a permanent total disability rate of $\ 480.56 (Exhibit E).

I further find that she had significant pre-existing disabilities which included a work-related back injury while working as a Kansas City Police Officer in 1987 that resulted in a permanent partial disability of 25 % to the body as a whole (Exhibit F), and she suffered from pre-existing psychiatric disabilities that included Major Depressive Disorder, Post-Traumatic Stress Disorder, Attention Deficit Disorder and a Dissociative Disorder (Exhibit A and Exhibit 4).

Prior to working for Securitas, Ms. Grado had also worked as a patient liaison at

Truman Medical Center, a grocery store cashier, several positions at Stations Casino, which included working in the wardrobe department, buffet attendant, steward and dishwasher. She also worked for Barton Security as a security officer; as a tanning salon supervisor; and a roofing repair estimator and as a fabric store clerk.

On August 1, 2008, Ms. Grado worked as a security guard at the General Motors Plant gate. The gate was originally motorized, but the motor no longer worked. She was required to physically open and close a gate large enough to span two lanes designed for truck traffic. On August 1, 2008, she was in the process of lifting the gate when she felt a severe pain in her low back. She was referred to Concentra where she underwent physical therapy for seven months without relief. She was then referred to Dr. David Ebelke, M.D., an orthopaedic surgeon, who administered two epidural injections and performed an EMG of her right leg which showed radiculopathy. He also ordered a myelogram, a CT scan and a bone scan. She was finally referred to Dr. John Ciccarelli who identified two disc herniations: one at the L3-L4 level and another at the L4-L5 level. Dr. Ciccarelli performed back surgery on Ms. Grado, which consisted of partial hemilaminectomies with recessed decompression at the L3 and L4 and diskectomies at the L3-4 and the L4-5. He then referred her to physical therapy for twelve visits and released her from treatment on July 20, 2010.

Ms. Grado did return to Securitas for a brief period after her release and eventually was terminated due to an altercation with a co-employee. Ms. Grado found work as a deli worker, but was fired after a couple of weeks when she suffered a dissociative event on the job. She last worked in June of 2010.

Ms. Grado settled her claim in Kansas against the employer based on 12.5\% General Work Disability. (Exhibit 1). General work disability is not based on a claimant's permanent partial disability or impairment, but the average between the "wage loss" and "task loss" after the injury.

"Wage loss" is the percentage the claimant's wage decreases after the injury as compared to her average weekly wage before the injury. "Task loss" is the percentage of tasks the claimant is no longer able to perform after the injury as compared to tasks she performed while working in the 15 years prior to the injury. General work disability is not a benefit granted under Missouri law and is granted under Kansas law when it results in a higher award than would result when considering the claimant's impairment rating. (See, Exhibit H, K.S.A. 44-510e).

The first issue the parties have asked this court to address is whether it has jurisdiction. Section 287.110.2 states in part, "[t]his chapter shall apply to ... all injuries received and occupational diseases contracted outside of this state under contract of employment made in this state, unless the contract of employment in any case shall otherwise provide...."

Under Missouri law, a contract is deemed to have been made where the parties perform the last act necessary to complete the contract. Gash v. Black \& Veatch, 976 S.W.2d 31,32 (Mo.App. 1998). The uncontroverted evidence is that Ms. Grado accepted her position at Securitas while standing in the Securitas offices located at 3101 Broadway in Kansas City, Jackson County, Missouri. This Court has jurisdiction to decide this case.

The next issue is whethe