Linda Taylor v. Elite Laundry Dry Cleaners

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-122532

Employee: Linda Taylor

Employer: Elite Laundry Dry Cleaners (Settled)

Insurer: Hartford Underwriters Insurance (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 April 18, 2012. The award and decision of Administrative Law Judge Margaret D. Landolt, issued April 18, 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 $\qquad 26^{\text {th }} \qquad$ day of November 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

James Avery, Member

Attest:

Employee: Linda Taylor

Injury No.: 08-122532

Dependents: N/A

Before the

Employer: Elite Laundry Dry Cleaners (Settled)

Division of Workers' Compensation

Department of Labor and Industrial

Relationships of Missouri

Jefferson City, Missouri

Industrial Party: Second Injury Fund

Insurer: Hartford Underwriters Insurance (Settled)

Hearing Date: January 24, 2012

Checked by: MDL

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 18, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis 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: Employee fell through a doorway
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left ankle and right elbow
14. Nature and extent of any permanent disability: 20 % PPD of the left ankle and 15 % PPD of the right 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: Unknown
3. Weekly compensation rate: $\$ 483.36 / \ 404.66
4. Method wages computation: By stipulation

1. Amount of compensation payable:

SETTLED

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential (\78.70) payable by SIF for 62.5 weeks beginning May 3, 2011

and, \ 404.66 per week thereafter, for Claimant's lifetime

TOTAL:

INDETERMINATE

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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. David Plufka

Employee: Linda Taylor

Departments: N/A

Employer: Elite Laundry Dry Cleaners (Settled)

Additional Party: Second Injury Fund

Insurer: Hartford Underwriters Insurance (Settled)

Injury No.: 08-122532

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on January 24, 2012 at the Division of Workers' Compensation in the city of St. Louis, Missouri. Linda Taylor ("Claimant") was represented by Mr. David Plufka. Elite Laundry Dry Cleaners ("Employer") and its insurer Hartford Underwriters Insurance previously settled their 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. Plufka requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about August 18, 2008, Claimant sustained an accidental injury 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; the applicable Permanent Total Disability ("PTD) rate is $\ 483.36; the applicable Permanent Partial Disability ("PPD") rate is $\ 404.66; and in the event Claimant is found to be permanently and totally disabled, PTD benefits shall commence on May 3, 2011.

The only issue for resolution by hearing is whether the SIF is liable for benefits.

Claimant is a 52 year old, currently unemployed individual, who last worked for Employer on January 28, 2010. Claimant began working for Employer in early 2000 as a floor manager. Her job duties included forwarding payroll information, trouble shooting equipment, interacting with employees, and running the day to day operation of the plant.

In 1986, Claimant injured her low back at work when she lifted a 50 pound sack of flour. She was diagnosed with spondylolisthesis at L5, scoliosis of the spine, and a possible herniated disc. A CT Scan showed evidence of a large disc herniation at L4-5. Claimant was treated conservatively for this injury, and although surgery was offered, she declined.

Leading up to 2008, Claimant continued to receive treatment for her low back by a number of doctors including Dr. Heidi Prather. Claimant underwent injections and physical therapy, and took medication. Claimant identified two off work slips from the Washington University Department of Orthopedic Surgery from August and December of 2006 in which Dr. Prather restricted Ms. Taylor to lifting no more than 25 pounds, no twisting and bending, no overheard lifting, limit sitting and standing to 30 minutes, and to avoid overhead work and outstretch motion. Leading up to and beyond 2008, Claimant's pain ranged from a 3 to a 7 on a one to 10 scale of severity. Claimant experienced burning pain, and numbness and tingling down her left leg. She was unable to stand, sit or walk for long periods. She had reduced range of motion and difficulty bending and squatting. She slept on a special bed.

Claimant settled her workers compensation claim for over 30\% PPD of the body as a whole.

In 1997, Claimant injured her left shoulder at work while lifting boxes of file folders. She was referred to an orthopedic specialist who diagnosed a labral tear, and performed surgery. Following surgery she went through rehabilitation with slow progress which led to a second surgery in January 1998 where she had an acromioplasty and open repair of a torn left rotator cuff. After her injury, Claimant had reduced range of motion, and could not work overhead. She left her job because of ongoing complaints, and an inability to lift as the job required.

Claimant settled the claim with her employer for 35\% PPD of her left shoulder. In addition, she settled her claim with SIF for 27.5 % PPD of the body as a whole for her low back.

In June 2006, Claimant was diagnosed with interstitial cystitis, and in June 2008, she was diagnosed with irritable bowel syndrome. Although she received treatment for these conditions, the irritable bowel syndrome and cystitis condition caused her to urgently need to go to the bathroom which required her to remain close to the bathroom at all times.

Prior to 2008, Claimant also suffered numbness and tingling in her hands. Claimant has received no treatment for this injury, but complained of dropping items and suffering numbness and tingling in her hands which woke her up at night.

In the years leading up to 2008, Claimant's ability to continue doing her job supervising the operations for Employer diminished. She was less able, as years went on, to make the rounds on the floor, because she was limited by back pain and her inability to be on her feet for the time it took to walk around the plant. In addition, the machines at the plant frequently broke down, and Claimant was unable to perform repairs because she was unable to get into the positions required underneath or over the top of the machines, and she could not reach, lift, pull and handle sufficient weights to make a number of these repairs. When that happened, Claimant stopped production, and asked her husband to come to the plant to make the repairs.

Claimant's medications for back and arm pain affected her comfort levels on the job, and her ability to concentrate. The condition of her back, neck and left arm continued to deteriorate and gradually got worse from 1999 to just before the work injury in August, 2008. This affected the pace at which she was able to perform her job duties, causing her to rely increasingly on coworkers to accomplish her duties.

On August 18, 2008, Claimant injured her left leg and right arm when she fell through a doorway. Initially, she was treated conservatively for her ankle, and attempted to work within restrictions while she underwent physical therapy, and took medicine. During most of 2009, Claimant relied more and more on an assistant to carry out her job duties. She spent most of her days in the office with her leg propped up and elevated, and sometimes she used ice to reduce swelling. When the pain in her back and ankle was too severe, Claimant worked from home.

Because of persistent complaints of pain and instability, Dr. Aubuchon recommended in late January 2010 that Claimant undergo an open tarsal release, and an arthroscopic synovectomy. On the eve of her ankle surgery in late January, 2010, Claimant was informed by Employer that the business was going to close over the next several months. Instead, the business closed within the next couple of weeks, and because she was just recovering from surgery, Claimant, though asked, was unable to help with the physical closing of the plant because of physical limitations caused by her ankle surgery.

Dr. Aubuchon continued treating Claimant until May 3, 2011, when he released her with permanent restrictions of no climbing, no ladders, and avoid uneven surfaces. When Claimant was released by Dr. Aubuchon in May 2011, Employer had been closed for more than a year. After she was released from treatment, she experienced pain every day in her left ankle, felt an increase in pain with any activity, took daily medication for pain, and experienced reduced range of motion in her left leg.

In addition to her left leg, Claimant injured her right elbow in the accident. She received treatment from Dr. Randolph who diagnosed her with a nondisplaced radial head fracture. The elbow healed with conservative treatment and did not require surgery. Nevertheless, Claimant experiences pain and weakness in her right arm which she attributes to the elbow injury. She is unable to fully extend her arm, and feels pain in her elbow with activity.

Claimant settled her workers' compensation claim with Employer for 20\% PPD of the left ankle, and 15 % PPD of the right elbow.

Following her release by Dr. Aubuchon, Claimant contacted over 100 employers who were advertising jobs. In no instance did