Sheran Robinson v. Hannibal Council on Alcohol & Drug Abuse

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-106888

Employee: Sheran Robinson

Employer: Hannibal Council on Alcohol \& Drug Abuse

Insurer: Cincinnati Insurance Co.

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 August 8,, 2012. The award and decision of Administrative Law Judge L. Timothy Wilson, issued August 8, 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:

Employee: Sheran Robinson

Injury No. 04-106888

Dependents: N/A

Employer: Hannibal Council on Alcohol \& Drug Abuse

Insurer: Cincinnati Insurance Co.

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

Hearing Date: June 1, 2012

Checked by: LTW

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: October 8, 2004
5. State location where accident occurred or occupational disease was contracted: Howell County, Missouri (The parties agree to venue lying in Greene 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: While engaged in employment with the Employer, Employee opened the top drawer of a filing cabinet. In doing so, the filing cabinet fell on top of Employee causing the filing cabinet to strike Employee and to cause Employee to fall and strike a window air-heating unit. As a consequence of this work incident Employee sustained injuries to her neck, back and left upper extremity.
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: Neck, back, left upper extremity and BAW
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to-date for temporary disability: $\ 14,869.39
16. Value necessary medical aid paid to date by employer/insurer? $\ 32,249.25

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 448.00
3. Weekly compensation rate: $\ 298.67 (TTD / PTD / PPD)
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

N/A

Weeks of temporary total disability (or temporary partial disability):

N/A

Weeks of permanent partial disability from Employer / Insurer:

N/A

Weeks of disfigurement from Employer / Insurer:

N/A

Permanent total disability benefits from Employer Hannibal Council on Alcohol \& Drug Abuse / Insurer Cincinnati Insurance Co. in the amount of $\ 298.67 per week, beginning September 26, 2005, for Employee's lifetime.

1. Second Injury Fund liability: No

TOTAL: \$298.67 PER WEEK, FOR EMPLOYEE'S LIFETIME

1. Future requirements awarded:

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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Larry Pitts, Esq.

Employee: Sheran Robinson

Injury No. 04-106888

Dependents: N/A

Employer: Hannibal Council on Alcohol \& Drug Abuse

Insurer: Cincinnati Insurance Co.

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

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on June 1, 2012. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about June 19, 2012.

The employee appeared personally and through her attorney, Larry J. Pitts, Esq. The employer and insurer appeared through their attorney, Brandon Potter, Esq. The Second Injury Fund appeared through its attorney, Cara Harris, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about October 8, 2004, Hannibal Council on Alcohol \& Drug Abuse was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Cincinnati Insurance Co.

(2) On the injury date of October 8, 2004, Sheran Robinson was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about October 8, 2004, the employee, Sheran Robinson, sustained an accident, which arose out of and in the course of her employment with the employer, Hannibal Council on Alcohol \& Drug Abuse.

(4) The above-referenced employment and accident occurred in Howell County, Missouri. The parties agreed to venue lying in Springfield, MO, Greene County, Missouri. Venue is proper.

(5) The employee notified the employer of her injury as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the claimed accident of October 8, 2004, the employee's average weekly wage was $\ 448.00, which is sufficient to allow a compensation rate of $\ 298.67 for temporary total disability compensation / permanent total disability compensation, and permanent partial disability compensation.

(8) Temporary disability benefits have been provided to the employee in the amount of $\ 14,869.39, representing approximately 50.42 weeks in disability benefits. ( $\ 14,677.33 was payable as temporary total disability compensation and $\ 192.06 was payable as temporary partial disability compensation.)

(9) The employer and insurer have provided medical treatment to the employee, having paid $\ 32,249.25 in medical expenses.

(10) The employee reached maximum medical improvement on or about September 26, 2005, relative to the work injury of October 8, 2004.

The sole issues to be resolved by hearing include:

(1) Whether the employee sustained any permanent disability as a consequence of the accident of October 8, 2004; and, if so, what is the nature and extent of the disability?

(2) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation, if any?

The employee testified at the hearing in support of her claim. In addition, the employee offered for admission the following exhibits:

Exhibit A. Report of Injury (Injury No. 04-106888)

Exhibit B Claim for Compensation (Injury No. 04-106888)

Exhibit C Medical Records (Volume I)

Tab 1 Medical Records from Cox Hospital South

Tab 2 Medical Records from Springfield Neurological \& Spine Institute

Tab 3 Medical Records from West Plains Open MRI

Tab 4 ....Medical Records from Southern Missouri Community Health Center

Tab 5 Medical Records from Ozarks Medical Center

Tab 6 Medical Records from South Howell County Ambulance

Tab 7 Medical Records from J. Scott Swango, M.D.

Tab 8 Medical Records from Physical Therapy Specialists Clinic, Inc.

Tab 9 Medical Records from Ozark Medical Center

Exhibit D Medical Records (Volume II)

Tab 1 Medical Records Ozarks Medical Center

Tab 2 Medical Records from Jeffrey Silverman, M.D.

Tab 3 ....Medical Records from Southern Missouri Community Health Center

Tab 4 Medical Records from Jeffrey Dryden, D.O.

Tab 5 Medical Records from Robert Shaw, M.D.

Exhibit E Deposition of Sheran Robinson

Exhibit F Deposition of Shane Bennoch, M.D.

(Inclusive of Deposition Exhibits)

Exhibit G Deposition of Phillip Eldred, CRC

(Inclusive of Deposition Exhibits)

The exhibits were received and admitted into evidence. Exhibit G was received and admitted into evidence inclusive of the attached deposition exhibits identified as Employee A, Employee B and Employee D; Employer 1 and Employer 3; and Fund 2. The receipt of Exhibit G includes the attached deposition exhibit labeled Employee C; however this exhibit was not admitted as substantive evidence. Rather, it was received solely for the purpose of identifying the records that were reviewed by Mr. Eldred.)

The employer and insurer did not present any witnesses at the hearing of this case. However, the employer and insurer offered for admission the following exhibits:

Exhibit 1 Deposition of Norbert Thomas Belz, M.D.

(Inclusive of Deposition Exhibits)

Exhibit 2 Deposition of James England, CRC,

(Inclusive of Deposition Exhibits)

The exhibits were received and admitted into evidence.

The Second Injury Fund did not present any witnesses or offer any additional exhibits at the hearing of this case.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

- Notice of Hearing

- Notice of Commencement / Termination of Compensation

- Answer of Second Injury Fund to Claim for Compensation

- Answer of Employer/Insurer to Claim for Compensation

- Claim for Compensation

- Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The employee, Sheran Robinson, is 64 years of age, having been born on July 20, 1947. Ms. Robinson resides in Pomona, Missouri, which is about 8 miles north-west of West Plains, MO.

Ms. Robinson attended but did not graduate from West Plains High School; she left high school in the $12^{\text {th }}$ grade due to pregnancy. She obtained a GED in 1974. She attended college, majoring in general studies, graduating with a 2 year Associate degree from MSU-West Plains Campus. She had one year of nursing school from MSU and also attended the South Central Career Center for EMT and Paramedic training. She passed her EMT test and was licensed, but failed a portion of the paramedic written test and did not receive licensure as a paramedic.

Ms. Robinson is currently divorced with no children under the age of 18 . She is 5 feet 2 inches tall, right hand dominant, and weighed 197 pounds on the date of trial.

Her vocational history began as a stay at home mother and homemaker from 1965 to 1979. She had three natural children plus one adopted son.

Subsequently, following a divorce, from 1979 to 1989, she obtained employment with ShowBiz Pizza, working in Arkansas, Texas, and Georgia as an assistant manager and then g