Deborah Allen v. Chrysler, LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-124935

Employee: Deborah Allen

Employer: Chrysler, LLC (Settled)

Insurer: Old Carco, LLC (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 October 18, 2012. The award and decision of Administrative Law Judge Suzette Carlisle, issued October 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 $4^{\text {th }}$ 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:

Hearing Date: July 27, 2012

Checked by: SC

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: May 1, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 both hands, fingers and her right shoulder from repetitive motion activities at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Bilateral hands, fingers, and right shoulder
14. Nature and extent of any permanent disability: 15 % PPD of each wrist, 17.5 % PPD of the right ring finger, and 7.5 % PPD of the right shoulder (Settled)
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 5,600.09

1. Value necessary medical aid not furnished by employer/insurer?
2. Employee's average weekly wages: $\ 718.87
3. Weekly compensation rate: $\ 376.55-permanent partial disability ("PPD")
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Employer settled prior to hearing.

1. Second Injury Fund liability:

11.25 weeks of permanent partial disability from Second Injury Fund $\ 4,236.19

TOTAL:

$\ 4,236.19

1. Future requirements awarded: None.

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: Brent Cantor

Employee: Deborah Allen

Injury No.: 07-124935

Dependents: N/A

Employer: Chrysler, LLC (Settled)

Additional Party: Second Injury Fund

Insurer: Sedgwick Claims Management Services

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC

The parties appeared before the undersigned administrative law judge on July 27, 2012 for a final hearing to determine the liability of the Second Injury Fund at the request of Deborah Allen ("Claimant"). Attorney Brent Cantor represented Claimant. Assistant Attorney General Rodney Campbell represented the Second Injury Fund ("SIF"). The Employer, Chrysler, and its Insurer, Sedgwick Claims Management, previously settled with Claimant for 15\% PPD of each wrist, 17.5 % of the right ring finger, and 7.5 % PPD of the right shoulder, and did not participate in the hearing.

The parties stipulated to that on or about May 1, 2007:

1. Claimant worked for Employer and sustained an injury by occupational disease which arose out of and in the course of her employment in St. Louis County;
2. Claimant and Employer operated under the Missouri Workers' Compensation Law;
3. Employer's liability was fully insured;
4. Employer had notice of the injury;
5. A claim for compensation was timely filed;
6. Claimant's average weekly wage was $\ 718.87 and her rate for PPD benefits is $\ 376.55; and
7. If the Court finds the case compensable, Claimant sustained 15 % PPD of each wrist for the primary injury, and 15 % PPD of the cervical spine as a preexisting disability, and a 10 % loading factor should be applied.

The issues to be determined are:

1. Is SIF liability triggered when the primary injury is an occupational disease injury?
2. If so, what is the nature and extent of SIF liability for PPD benefits, if any?

All evidence was reviewed but only evidence which supports the award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled.

Claimant's Exhibits A through K and SIF's Exhibit I were received into evidence without objection. 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.

1. Claimant testified live and her testimony was credible. Claimant worked for Employer for 14 years, and used high and low impact guns. She installed rods inside car doors. As a team leader, Claimant worked overhead, used wrenches, and installed weather stripping. She worked long hours and stocked parts. Claimant developed bilateral carpal tunnel syndrome, trigger finger, and shoulder problems.
2. On May 1, 2007, Claimant sustained an occupational disease injury which arose out of and in the course of employment that resulted in injury to Claimant's bilateral wrists.
3. Dr. Rotman surgically repaired Claimant's left wrist on November 9, 2007 (Exhibit H), and the right wrist, ring finger, and shoulder on November 21, 2007 (Claimant's Exhibit I).
4. Claimant and Employer settled the workers' compensation claim arising out of the accident for 15 % PPD of the right wrist, { }^{1} 17.5 % PPD of the right ring finger, 15 % PPD of the left wrist, and 7.5 % PPD of the right shoulder.
5. Claimant continues to have hand weakness, fatigue, and decreased grip strength, aggravated with repetitive activity. She has right shoulder pain, and decreased range of motion, aggravated with overhead activity. She also has pain if the shoulder "hangs" down without support. It is difficult to comb or braid her hair. During the hearing, Claimant changed chairs to accommodate her right arm.
6. Currently Claimant is employed part-time for a different employer, where she assists clients with shopping and similar activities.

[^0]

[^0]: ${ }^{1}$ The right wrist and shoulder were reduced due to 17.5 % PPD of right ring finger and 75 % PPD of the right shoulder.

1. Prior to the date of injury, Claimant had the following disabling injuries or conditions:

a. An MRI dated August 25, 2004 revealed severe right rotator cuff tendinopathy, osteoarthritis, and joint effusion. Dr. Rotman injected Claimant's right AC joint and subacromial space to relieve shoulder pain in September and October 2004. Claimant settled the case for 10 % of the right shoulder (SIF Exhibit I).

b. In 1998 Clamant injured her neck while she installed car speakers when she reached above head level and her neck popped. She takes at least three Oxycodone pills per day, and up to six if she moves her neck the wrong way. Claimant has limited range of motion of her cervical spine. She installed circle mirrors on her car to improve her field of vision. Claimant settled the workers' compensation claim arising out of the injury for 15 % PPD of the cervical spine. The injury was disabling and constituted a hindrance and obstacle to employment.

1. Shawn L. Berkin, D.O., examined Claimant, took a history, and issued a report. He found Claimant sustained an accident arising out of and in the course of employment that resulted in injury. He provided the following ratings of permanent partial disability:

a. With respect to the primary injury: 35 % of the right shoulder, 35 % of both the right and left wrists, and 20 % of the right ring finger.

b. With respect to the preexisting disabilities, which constituted a hindrance and obstacle to employment:

i. 20 % of the body for the cervical spine.

ii. 20 % of the body for seizures.

c. Dr. Berkin opined Claimant's preexisting disabilities were a hindrance or obstacle to employment or reemployment in May 2007, and created more disability than the simple sum of the primary and preexisting disabilities.

Claimant has established a right to recover from the Second Injury Fund. A claimant in a worker's compensation proceeding has the burden of proving all elements of his claim to a reasonable probability. Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 911 (Mo.App. E.D.2008). In order for a claimant to recover against the SIF, he must prove that he sustained a compensable injury, referred to as "the last injury," which resulted in permanent

partial disability. Section 287.220.1 RSMo. A claimant must also prove that he had a pre-existing permanent partial disability, whether from a compensable injury or otherwise, that: (1) existed at the time the last injury was sustained; (2) was of such seriousness as to constitute a hindrance or obstacle to his employment or reemployment should he become unemployed; and (3) equals a minimum of 50 weeks of compensation for injuries to the body as a whole or 15 % for major extremities. Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund, 272 S.W.3d 267, 272 (Mo.App. 2008) (Citations omitted). In order for a claimant to be entitled to recover permanent partial disability benefits from the Second Injury Fund, he must prove that the last injury, combined with his pre-existing permanent partial disabilities, causes greater overall disability than the independent sum of the disabilities. Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund, 138 S.W.3d 714, 717-18 (Mo. banc 2004). Claimant has met the burden imposed by law.

Although it has stipulated to the basic elements of the case, the SIF asserts a legal defense that could absolve it of any liability in cases such as this. SIF argues that when the legislature changed the construction of the Missouri Workers' Compensation Law from "liberal" to "strict", it eliminated SIFs liability when the primary claim is an occupational disease. Strict construction means that a statute can be given no broader application than is warranted by its plain and unambiguous terms. Robinson v. Hooker, 323 S.W.3d 418, 423 (Mo.App. W.D.2010). A strict construction of a statute presumes nothing that is not expressed. I