Donna Todd v. Wal-Mart Associates, Incorporated

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-099965

Employee: Donna E. Todd

Employer: Wal-Mart Associates, Incorporated (Settled)

Insurer: American Home Assurance Company (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 August 27, 2012. The award and decision of Administrative Law Judge Gary L. Robbins, issued August 27, 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 $26^{\text {th }}$ day of March 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: | Donna E. Todd | Injury No. 05-099965 |

Employer: | Wal Mart Associates Incorporated |

Additional Party: | Second Injury Fund |

Insurer: | American Home Assurance Company |

Appearances: | Chris N. Weiss, attorney for employee. |

Hearing Date: | June 4, 2012 | Checked by: GLR/rf |

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 4, 2005.
5. State location where accident occurred or occupational disease contracted: Cape Girardeau 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.

1. Describe work employee was doing and how accident happened or occupational disease contracted: The employee was pulling a pallet jack when she slipped and fell backwards striking her left arm, tailbone and back.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Left wrist, tailbone and midback.
4. Nature and extent of any permanent disability: The employee settled her case with the employer-insurer by Stipulation For Compromise Settlement for 60% permanent partial disability of her body as a whole in regard to her thoracic spine, 15% permanent partial disability of her body as a whole for her coccyx injury, and 30% permanent partial disability of her left wrist/$112,394.63
5. Compensation paid to date for temporary total disability: Not disclosed at trial.
6. Value necessary medical aid paid to date by employer-insurer: Not disclosed at trial.
7. Value necessary medical aid not furnished by employer-insurer: 0.
8. Employee's average weekly wage: 433.42.
9. Weekly compensation rate: The employee’s rate for all purposes is $288.95 per week.
10. Method wages computation: By agreement.
11. Amount of compensation payable: See Award.
12. Second Injury Fund liability: See Award.
13. Future requirements awarded: None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Chris N. Weiss.

On June 4, 2012, the employee, Donna E. Todd, appeared in person and with her attorney, Chris N. Weiss for a hearing for a final award. The employer-insurer was not present as they already settled their portion of the case with the employee. Assistant Attorney General Jonathan J. Lintner represented the Second Injury Fund. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

1. Wal Mart Associates Incorporated was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by American Home Assurance Company.
2. On October 4, 2005 Donna E. Todd was an employee of Wal Mart Associates Incorporated and was working under the Workers' Compensation Act.
3. On October 4, 2005 the employee sustained an accident arising out of and in the course of her employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage is $\ 433.42. Her rate for all purposes is $\ 288.95 per week.
7. The employee injury was medically causally related to the accident or occupational disease.
8. The amount of medical aid that the employer-insurer paid is unknown.
9. The amount of temporary disability benefits that the employer-insurer paid is unknown.
10. The employee has no claim for previously incurred medical bills.
11. The employee has no claim for mileage or future medical care.
12. The employee has no claim for any temporary disability benefits.
13. The employee has no claim for permanent partial or permanent total disability against the employer-insurer.

Liability of the Second Injury Fund for permanent partial or permanent total disability.

The following exhibits were offered and admitted into evidence:

A. Medical records of Cape Neurological Surgeons/Kee B. Park, M.D.

B. Medical records from St. Francis Medical Center.

C. Medical records of Orthopaedic Associates/R. August Ritter, M.D.

D. Medical records from the Hand Center.

E. Medical records of Cape Neurological Surgeons/Kee B. Park, M.D.

F. Medical records of Sonjay J. Fonn, D.O.

G. Medical records of Jackson Primary Care/Deanna Siemer.

H. Deposition of Raymond E. Cohen, D.O.

I. Deposition of Jeffrey F. Magrowski, Ph.D.

J. Medical records of Cape Neurological Surgeons/Franklin Hayward, II, D.O.

K. Stipulation for Compromise Settlement

Second Injury Fund Exhibits

None.

Donna E. Todd, the employee, was the only person to testify live at trial. All other evidence was presented in the form of written reports, medical records or by deposition testimony.

Donna Todd was sixty-three years of age at the time of the hearing. She is now a single person and has two children who are grown and not dependent upon her. She attended school in Rector, Arkansas and attended through the ninth grade. She did not receive any further education or training following that.

The employee began work following her divorce in 1984. She worked a variety of retail positions with various companies and then began work for Wal Mart in Cape Girardeau in 1990 and eventually moved to the Jackson area. At Wal-Mart she worked as a cashier, worked at the service desk, stocked shelves and worked security. Her normal week was full time at forty hours per week with some overtime. She testified that $\ 433.42 was correct for her average weekly wage. Her duties included stocking shelves, breaking packs and sometimes doing security work.

Ms. Todd testified that in 1990 she injured her back while working at Wal Mart. She sought chiropractic treatment for many years and finally was referred to Dr. Park in Cape Girardeau and underwent a two-level low back fusion involving the placement of a metal bar with six screws in her low back on August 1, 2001. Even though she felt this surgery was due to a work related injury there was no settlement involving that injury. Following the surgery, Dr. Park gave her some restrictions including avoiding ladders, not driving long distances because of numbness in her leg, not lifting over ten to fifteen pounds and avoid being a cashier because of the twisting and turning at the waist area. She returned to work at Wal Mart and first worked with electronics during the night shift because of the lighter lifting. She also would stand at the door as a greeter. She sought and received help in lifting heavier items at Wal Mart. She testified that she would get injections for her low back occasionally at lunch and return to work. She took Advil and Tylenol Extra for her low back pain. She testified that she did return to full time work but did not receive as much overtime because of her back condition. She testified that her family doctor,

Dr. Siemer, or her nurse practitioner gave her hydrocodone and Lidocaine patches for her low back pain. She testified that following the low back surgery she could not go out in the yard and play with the kids, go to games or go to graduations. She testified that her right leg was approximately one-half inch shorter after the surgery and that this affected her when she walked. She stated that the low back continued to hurt with a burning sensation and that she would develop numbness into her right thigh.

In general, Ms. Todd testified that the low back injury was a significant injury in that she had restrictions at work, it affected her family duties, she continued to take over-the-counter pain medications following her surgery and it affected her level of income in that she was not able to work as many hours overtime at her job.

On October 4, 2005, the employee was pulling a pallet of cookbooks to put on a pallet jack. The box tore and she fell backwards striking her tailbone, back and left wrist. She was referred to Dr. Ritter of Orthopaedic Associates and underwent surgery on her wrist. No surgery was provided for the broken tailbone. She was referred to Dr. Park for treatment of the mid-back. Surgery on that was delayed because she needed to recover from a broken arm and also suffered a stroke on March 15, 2007 brought on by a prescription for Percocet that was given to her by the pain clinic. Dr. Park performed surgery on May 14, 2007 on the mid-back and did a three-level fusion involving rods and bolts. The employee testified that there was not any improvement following the surgery because there was "not enough room" for the rod along her spine. She was told by the doctors that they had to wait one year after that surgery for another back surgery and on May 20, 2008, Dr. Fonn removed the hardware. There was still not much improvement and she sought treatment for pain with the pain clinic and received Lidocaine patches, prescription pain medications and a dorsal column stimulator for pain that was first implanted, removed and then re-implanted. The employee estimated that she had approximately eight separate surgeries on her back over the years. She tried to return to her job at Wal Mart after the back surgery where she was placed at the service desk. She had to have a chair to sit when doing that work. She was given two months off work and given Percocet as a pain medication and was unable to return to work. She applied for and received Social Security disability without the services of an attorney and without a hearing.

The employee testified that her wrist bothers her in cold weather, it hurts up into the forearm and th