Elizabeth Garlock v. Haines Finishing Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-038800

Employee: Elizabeth Garlock

Employer: Haines Finishing Company

Insurer: Westport Insurance Corporation

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 May 21, 2012. The award and decision of Chief Administrative Law Judge Grant C. Gorman, issued May 21, 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 $19^{\text {th }}$ day of December 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: April 28, 2003
5. State location where accident occurred or occupational disease was contracted: Franklin 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: Claimant injured her low back while lifting in the course and scope of employment.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Lumbar Spine \& Psychiatric Injury
14. Nature and extent of any permanent disability: 31 % of the body as a whole.
15. Compensation paid to-date for temporary disability: $\ 7,475.13
16. Value necessary medical aid paid to date by employer/insurer? $\ 34,281.37
17. Value necessary medical aid not furnished by employer/insurer? None

Employee: Elizabeth Garlock Injury No. 03-038800

1. Employee's average weekly wages: $\ 688.51
2. Weekly compensation rate: $\ 459.00 Total Disability/\$340.12 PPD
3. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: None

0 weeks of temporary total disability

124 weeks of permanent partial disability from Employer \42,174.88

Mileage reimbursement \ 680.19

1. Second Injury Fund liability: Yes

66.28 weeks of permanent partial disability from Second Injury Fund \22,543.15

TOTAL: \ 65,398.22

1. Future requirements awarded: None

Said payments to begin as of the date of this award 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:

Mark Rudder

Employee: Elizabeth Garlock

Employee: Elizabeth Garlock

Injury No: 03-038800

Dependents: None

Employer: Haines Finishing Company

Additional Party Second Injury Fund

Insurer: Westport Insurance Corporation

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: GCG/ln

Hearing in this case was held before the undersigned Administrative Law Judge on January 11, 2012, in Franklin County, Missouri. Elizabeth Garlcok (Claimant) was represented by Mark Rudder. Haines Finishing Company (Employer) and its Insurer, Westport Insurance Corporation, were represented by Nanci Martin. The Second Injury Fund was represented by Assistant Attorney General Jennifer Sommers. Mr. Rudder requested a fee in the amount of 25 %. The parties submitted post-trial briefs.

The parties stipulated to the following:

1. On or about April 28, 2003, Claimant sustained an occupational disease arising out of and in the course of employment that resulted in injury to Claimant. The injury occurred in Franklin County, Missouri.
2. Claimant was an employee of Employer pursuant to Chapter 287 RSMo.
3. Venue is proper in Franklin County.
4. Employer received proper notice of the claim.
5. Claimant filed the claim within the time allowed by law.
6. Claimant earned an average weekly wage of $\ 688.51 resulting in applicable rates of compensation of $\ 459.00 for temporary total disability (TTD) and permanent total disability (PTD) benefits, and $\ 340.12 for permanent partial disability (PPD) benefits.
7. Employer has paid to date $\ 34,281.37 in medical expenses for care and treatment provided to Claimant.
8. Employer paid $\ 7,475.13 in TTD benefits to Claimant from May 8, 2003 through June 18, 2003 and from July 15, 2003 through September 21, 2003, for a total of $162 / 7$ weeks.

The issues to be determined are:

1. Nature and extent of disability;
2. Whether Employer owes additional TTD;
3. Past medical;
4. Future medical;
5. Liability of the Second Injury Fund;
6. Date Claimant reached maximum medical improvement (MMI); and
7. Whether Claimant is owed mileage reimbursement.

Only evidence necessary to support this Award will be summarized. Any objections not expressly ruled on during the hearing or in this Award are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to being made part of this record, and were not placed thereon by the Administrative Law Judge.

Claimant offered the following exhibits, which were received into evidence without objection: Exhibits A through XXX. On February 13, 2012, at the time Claimant's brief was filed, Claimant also filed a motion to submit an additional exhibit. The exhibit was received via email at the Administrative Law Judge's individual email address, and printed by the Court and marked as Exhibit YYY. The admission of Exhibit YYY into the record is denied.

Employer offered the following exhibits, which were received into evidence without objection: Exhibits 2 through 8.

The Second Injury Fund did not offer any exhibits.

Based on the competent and substantial evidence presented, including the testimony of Claimant, my personal observations, expert medical and vocational testimony, and all other exhibits received into evidence, I find:

1. Claimant sustained a compensable injury to her low back while working for Haines Finishing Company on April 28, 2003, resulting in a 31 % permanent partial disability of the body as a whole (BAW); specifically, 30 % permanent partial disability of the BAW for the low back, and 1 % permanent partial disability of the BAW for psychiatric injury. 31 % PPD of the BAW totals 124 weeks of compensation, or $\ 42,174.88.

1. Claimant reached MMI on December 8, 2003 for the primary work injury of April 28, 2003.
2. Claimant has failed meet her burden of proof that she is permanently and totally disabled as a result of the last injury alone.
3. Prior to the April 28, 2003 work injury, Claimant suffered an injury to her right eye resulting in permanent disability of 90 % of the right eye which was a hindrance or obstacle to employment.
4. Prior to the April 28, 2003 work injury, Claimant suffered an injury to her right shoulder, resulting in permanent disability of 20 % of the right shoulder which was a hindrance or obstacle to employment.
5. Prior to the April 28, 2003 work injury, Claimant suffered an injury to her right wrist, resulting in permanent disability of 20 % of the right wrist which was a hindrance or obstacle to employment.
6. As a result of the work-related injury of April 28, 2003 Claimant is entitled to receive $\ 680.19 for mileage reimbursement from Employer.
7. Claimant has failed to prove she is entitled to payment for past medical expenses.
8. Claimant has failed to prove Employer is liable for future medical benefits.
9. Claimant has failed to meet her burden of proof that she is permanently and totally disabled due to a combination of the last injury and her pre-existing injuries and conditions for a PTD award against the SIF.
10. Claimant has met her burden of proof that she is entitled to an award of PPD benefits against the SIF.
11. The credible evidence establishes the last injury, combined with the pre-existing permanent partial disabilities, causes 20 % greater overall disability than the independent sum of the disabilities.
12. Second Injury Fund liability is calculated as follows: 124 weeks for last injury + 207.4 weeks for pre-existing injuries $=331.4 weeks \times 20 \%=66.28 weeks of overall greater disability. 66.28 weeks \times \$ 340.12=\ 22,543.15.

ANALYSIS

Claimant suffered a compensable work injury to her lumbar spine on April 28, 2003 while lifting a box. Claimant received authorized treatment, including a microdiscectomy at L45 performed by Dr. Heim on July 15, 2003. She testified she returned to work in September of 2003, and worked until February 24, 2004, at which time she voluntarily left her employment at Haines Finishing Company. Claimant testified she left because she could not continue to perform her work duties due to the pain in her low back and right leg. She underwent another low back surgery on September 8, 2006, performed by Dr. Rogers. The second surgery was a fusion at the levels of L4-5 and L5-S1. Claimant also suffered a staph infection at the surgical site from the September 8, 2006 surgery.

Ultimately, the outcome of this case depends on the determination of the date at which Claimant reached MMI for the April 28, 2003 work injury. There is little disagreement that Claimant is currently permanently and totally disabled. However, if the fusion surgery performed by Dr. Rogers in 2006 is not causally related to the primary work injury, then the PTD opinions in evidence are of little value, as they are based on restrictions relevant to that surgery. It should be noted the exception to this is the psychiatric opinion provided by Dr. Stillings, which opines Claimant is PTD from pre-existing psychiatric conditions alone, and the work injury resulted in 1 % PPD for psychiatric injury.

After the 2003 surgery performed by Dr. Heim, a neurosurgeon, Claimant continued to make complaints of back pain with right sided radicular symptoms. Based on these complaints, there were post surgical MRI's performed in late August and in December 2003, and a myelogram/CT performed on April 23, 2004. After providing treatment and seeing the two MRI's, Dr. Heim released Claimant at MMI on December 8, 2003 with no restrictions.

Dr. Bernardi, a neurosurgeon, reviewed the medical records, imaging studies, and examined Claimant on January 6, 2004 on behalf of Employer. Based on his exam and review he found Claimant to be at MMI and rated her PPD at 10 % of