Carol Ballard v. Woods Supermarkets, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-071776

Employee: Carol Ballard

Employer: Woods Supermarkets, Inc.

Insurer: Missouri Grocers Association Trust

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 July 23, 2012. The award and decision of Administrative Law Judge Margaret Ellis Holden, issued July 23, 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 $1^{\text {st }}$ day of February 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Carol Ballard

Injury No. 08-071776

Dependents: N/A

Employer: Woods Supermarkets Inc.

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Missouri Grocers Association Trust

Hearing Date: $\quad 4 / 30 / 12$

Checked by: MEH

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: $8 / 19 / 08$
5. State location where accident occurred or occupational disease was contracted: DALLAS COUNTY, MO
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 SLIPPED ON GREASE AND FELL.
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: BODY AS A WHOLE
14. Nature and extent of any permanent disability: PERMANENT AND TOTAL DISABILITY
15. Compensation paid to-date for temporary disability: $\ 27,779.32
16. Value necessary medical aid paid to date by employer/insurer? $\ 76,039.29

1. Value necessary medical aid not furnished by employer/insurer? NONE
2. Employee's average weekly wages: $\ 511.69
3. Weekly compensation rate: $\ 341.13
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses:N/A

0 weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning 2/22/10, for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund:

weekly differential ( 0 ) payable by SIF for 0 weeks, beginning N/A

and, thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded: MEDICAL TREATMENT

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:

JOHN WISE

Employee: Carol Ballard

Injury No. 08-071776

Dependents: N/A

Employer: Woods Supermarkets Inc.

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Missouri Grocers Association Trust

Hearing Date: 4/30/12

Checked by: MEH

The parties appeared before the undersigned administrative law judge on April 30, 2012, for a final hearing. The claimant appeared in person represented by John Wise. The employer and insurer appeared represented by Paula Green. The Second Injury Fund appeared represented by Barbara Bean. Memorandums of law were filed by May 21, 2012.

The parties stipulated to the following facts: On or about August 19, 2008, Woods Supermarkets Inc., was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by Missouri Grocers Association Trust. On the alleged injury date of August 19, 2008, Carol Ballard was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. On or about August 19, 2008, the claimant sustained an accident which arose out of and in the course and scope of employment. The accident occurred in Dallas County, Missouri. The claimant notified the employer of her injury as required by Section 287.420 RSMo. The claimant's claim for compensation was filed within the time prescribed by Section 287.430 RSMo. At the time of the alleged accident, the claimant's average weekly wage was $\ 511.69, which is sufficient to allow a compensation rate of $\ 341.13 for temporary total and permanent partial disability compensation. Temporary disability benefits have been paid to the claimant in the amount of $\ 27,779.32. The

employer and insurer have paid medical benefits in the amount of $\ 76,039.29. The attorney fee being sought is 25 %.

1. Whether the claimant has sustained injuries that will require future medical care in order to cure and relieve the claimant of the effects of the injuries.
2. The nature and extent of permanent disabilities.
3. The liability of the Second Injury Fund for permanent total disability or enhanced permanent partial disability.

The claimant is 62 years old. She completed the $10^{\text {th }}$ grade and did not obtain a GED. Nor did she have any further formal education or training. Her work history includes being a waitress in the early 1960's and a receptionist at an auto dealer and a title company. After moving to Missouri in 1980 she worked as a cook in several restaurants.

In 1990 she went to work for Consumers Market in Bolivar, Missouri. When she started she was a baker, then was promoted to bakery manager, and was bakery merchandiser when she left in 1999. While working at Consumers she had right carpal tunnel surgery and DeQuervain's release. This resulted in a loss of grip strength causing weakness in her right hand and wrist that prevented her from doing as much cake decorating and heavy lifting of pans with her right hand.

In the 1990's she injured her left thumb when putting away frozen dough. She had several surgeries to the left thumb and wrist. This involved a DeQuervain's release of the left distal forearm and arthroplasty of the left thumb metacarpal joint. After the surgery she described ongoing pain, stiffness, and weakness in her left thumb and hand. Because of the problems in both her hands she had difficulty pinching, gripping, and doing fine work for cake decorating.

Claimant also described problems which developed in both her knees starting in about 2000 when she began to experience pain. In 2002 she had arthroscopies of both knees. Her pain continued to worsen and she had continuing problems kneeling, squatting, walking up stairs, and standing for long periods of time. She ultimately had total knee replacements performed on both of her knees, the left in January 2007 and the right in May 2007. She still continued to have problems with pain and had to take medication. She also continued to have trouble squatting, kneeling, and climbing stairs prior to August 19, 2008. In June and July of 2008 she was receiving medical treatment and physical therapy for her knees. Claimant had to cut her hours from 60 to 40 after her knee replacements.

Claimant went to work for Woods Supermarket in Bolivar on September 9, 2003. She worked as a deli manager, full-time baker, and fill-in cake decorator. On August 19, 2008, a buzzer went off on a fryer and she was walking toward the fryer to turn it off. When doing so she slipped on some oil and fell. When she fell her feet went out in front of her and she attempted to reach back and catch herself. When she hit the floor the back of her head hit the floor. She had immediate pain in her left arm, her back, and her head. She was taken to Citizens Memorial Hospital by ambulance.

As a result of the accident, claimant was diagnosed with comminuted distal left radius fracture, disc herniation at L4-5 and L5-S1, and strain/sprain of her cervical and thoracic spine.

The claimant was treated by Dr. Paul Olive for her back. He performed surgery consisting of right L5-S1 laminotomy and discectomy and left L4-5 laminotomy and discectomy on January 22, 2009. After surgery she had extensive physical therapy.

When she fell on August 19, 2008, she also fractured her left wrist. Dr. Grillot performed a total of three surgeries on her left arm. On September 25, 2008, he performed an initial surgery

Issued by DIVISION OF WORKERS' COMPENSATION Carol Ballard Injury No. 08-071776

to place in a plate and bone graft. He also performed two more surgeries to remove the hardware, the last one on May 8, 2009. She also had physical therapy for the left wrist injury.

Dr. Grillot found claimant to be at maximum medical improvement and released her on May 25, 2010. His diagnosis was "left distal radial fracture, ulnar impaction syndrome, and irritation of the ulnar nerve" as a result of her work injury.

The claimant also began having neck issues. She described burning pain between her shoulder blades. She was treated with physical therapy and a TENS unit.

On February 22, 2010, Dr. Jeffrey Woodward performed an independent medical examination at the request of the employer and insurer. Dr. Woodward examined her back. He testified that his impression was "work-related fall with associated L4-5 and L5-S1 discectomy surgery with very good initial pain relief and then return of pain with no apparent intervening physical injury event. The patient was noted to have residual lumbosacral spine pain primarily on the right side of the low back associated with right thigh neuropathic pain but without any objective neurologic deficits on exam." He found her at maximum medical improvement and concluded she could work full-time modified work duties with continuous lifting, pushing and pulling zero to 15 pounds maximum. He rated her with 12% of the body as a whole permanent partial disability at the 400-week level for the work injury and 6% of the body as a whole at the 400-week level for preexisting degenerative spine abnormalities noted on the imaging reports. He said that the restrictions were caused in the same proportion as his ratings.

Dr. Woodward stated that postoperative epidural spine scarring due to the surgery claimant had could be a source of her pain. He also said that Dr. Ciccarelli noted in a July 2009 MRI possible small right L5-S1 disc protrusion that could contribute to claimant's ongoing pain.

On March 2, 2010, and January 17, 2011, Dr. Brent Koprivica performed independent medical examinations at the request of the claimant. He addressed her preexisting bilateral hands

and bilateral knee conditions. He also addressed the work-related injury of August 2008. Arising from this injury, h