Alice McAnally v. Walmart

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-021698

Employee: Alice Carrol McAnally

Employer: Walmart (Settled)

Insurer: Insurance Company of the State of Pennsylvania (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 December 28, 2012. The award and decision of Administrative Law Judge Emily Fowler, issued December 28, 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 $7^{\text {th }}$ day of August 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Alice Carrol McAnally

Injury No: 09-021698

Employer: Walmart (Settled)

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

Hearing Date: October 19, 2012

Checked by: ESF/cy

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: March 31, 2009
5. Location where accident occurred or occupational disease was contracted: Excelsior Springs, Clay County, Missouri
6. Was the above employee in the employ of the above employer at time of alleged accident or occupational disease? Yes
7. Did the employer receive proper notice? Yes
8. Did the accident or occupational disease arise out of and in the course of employment? Yes
9. Was the claim for compensation filed within time required by Law? Yes
10. Was the employer insured by the above insurer? Yes
11. Describe the work employee was doing and how the accident occurred or the occupational disease contracted: Employee was lifting a 25 pound ham out of a cooler with her right arm and felt a pop in her shoulder.
12. Did the accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: right shoulder
2. Nature and extent of any permanent disability: Permanent Total Disability
3. Compensation paid to-date for temporary disability: $\ 0
4. Value of necessary medical aid paid to date by employer? $\ 2,225.25
5. Value of necessary medical aid not furnished by employer? $\ 0
6. Employee's average weekly wages: $\ 350.00
7. Weekly compensation rate: $\$ 233.33 / \ 233.33
8. Method of wages computation: By agreement

1. Amount of Compensation payable from the Employer: N/A
2. Second Injury Fund Liability: None

Permanent total disability benefits from the Second Injury Fund, beginning on September 29, 2010. The Second Injury Fund is entitled to a full credit for 34 6/7 weeks. Thereafter, the Second Injury Fund is ordered to pay $\ 233.33 per week for Claimant's lifetime, pursuant to the Missouri Workers' Compensation Laws.

1. Future requirements awarded:

Said payments to begin September 29, 2010, 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: Mark E. Kelly

A hearing was held on October 19, 2012, before the Honorable Emily Fowler. Employee appeared in person and was represented by Mark E. Kelly and the Second Injury Fund was represented by Kim Fournier. There was no appearance on behalf of the Employer and Insurer as the claim between the Employer and the Employee has previously been settled.

The parties stipulated to the following:

1) that the Employer, Walmart, was an employer operating under and subject to the provisions of Missouri Workers’ Compensation Law on or about March 31, 2009, and was fully insured by Insurance Company of the State of PA; 2) that Alice Carrol McAnally was its employee and working subject to the law in Excelsior Springs, Clay County, Missouri; 3) that Employee notified the Employer of her injuries as required by law and her claim was filed within the time allowed by law; 4) that Employee’s average weekly wage was $\ 350.00 resulting in a compensation rate of $\ 233.33 for temporary total disability and $\ 233.33 for permanent partial disability compensation; 5) that the Employer has paid temporary total disability compensation in the amount of $\ 0 and medical care costing $\ 2,225.25;

The issues to be resolved by this hearing are as follows:

1. whether Employee sustained an accident arising out of and in the course and scope of her employment;

1. whether the Employee's prior disability was a hindrance or obstacle to her ability to maintain employment or to be employed should she become unemployed;
2. whether the Second Injury Fund is liable to the Employee for any disability

Employee testified on her own behalf and presented the following exhibits, all of which were admitted into evidence without objection:

A. Stipulation for Compromise Settlement with Employer

B. Deposition of P. Brent Koprivica, M.D.

C. Medical Records of Northland Bone \& Joint

D. Medical Record of Bartlett Family Healthcare

E. Medical Records of H. Andrew Pickett, M.D.

F. Medical Records of Arnold L. Katz, M.D.

G. Medical Records of Excelsior Springs Hospital

H. Medical Records of St. Joseph East

I. Medical Records of Kansas Medical Center-Department of Otolaryngology Head and Neck Surgery

J. Medical Records of NEA Baptist

K. Medical Records of NEA Clinic

L. Medical Records of Liberty Hospital

M. Deposition of Terry Cordray

Second Injury Fund presented the following exhibits, all of which were admitted into evidence without objection:

1. Deposition of Alice Carrol McAnally taken on August 30, 2011

Employee was initially seen by Dr. Dan Bartlett at the direction of her employer on April 1, 2009. Employee reported she was lifting a 25 pound box of meat the prior night when she heard a pop and felt immediate pain in her right shoulder. She reported no prior history of shoulder problems. Dr. Bartlett reported there was no warmth or erythema in the shoulder area but there was reduced range of motion, both passive and active. He also reported there was severe pain with attempted abduction, passive or active. He was concerned there was a rotator cuff tear and recommended a shoulder immobilizer with no use of her arm until cleared by an orthopedic surgeon. He provided work restrictions and prescribed Motrin 800 mg .

Employee saw her family physician, Dr. Andrew Pickett, on May 18, 2009, and he reported she was suffering severe pain to her right shoulder and it hurt her shoulder to move. Dr. Pickett performed a physical examination and noted her right shoulder was tender over the AC joint and over the long head of the biceps. His diagnosis was bicipital tendonitis to the right shoulder. He provided a trigger point injection of Lydocaine and Depomedrol. Employee continued to have pain in her shoulder and returned to Dr. Pickett on June 15, 2009. He reported her right shoulder pain had been hurting apparently down into her arm.

Employee subsequently saw by Dr. Arnold Katz on June 24, 2009, at Liberty Hospital. She was there for what he characterized as a follow up rheumatology clinic visit. His notes reflect he had seen Employee in January 2009. His records of the June 24, 2009, visit reflect she was off work because of a right shoulder injury which happened when she reached into a freezer unit to pull out a 20 pound ham and immediately heard a pop in her right shoulder. She had significant associated pain. He noted on physical examination that the abduction of her right shoulder was limited to $90^{\circ}$ and was associated with significant pain. His diagnosis of the shoulder was adhesive capsulitis with injury happening at work. He also noted she was suffering osteoarthritis in her hands and spine as well as psoriatic arthritis which was stable. He gave her Methotrexate along with folic acid.

Due to an apparent dispute with the workers' compensation carrier, Employee did not receive additional treatment for her shoulder until she was seen by Dr. Eric Lingenfelter at Northland Bone \& Joint on April 5, 2010. He noted she was seen for a re-evaluation regarding her shoulder. She reported that approximately a year prior she was getting into a shelf where there was a ham which weighed approximately 25 pounds. She stated that the location prevented her from using both hands and she had to reach in there with her right arm and she was lifting and pulling it out when she felt a pop. Employee reported she still suffered significant pain in her shoulder which caused her difficulty at night. Dr. Lingenfelter also noted she had been suffering from colon cancer and had received a colon resection. He reported x-rays showed osteoporosis and anterior lateral spur as well as some acromioclavicular joint degenerative changes. His diagnosis was right shoulder pain with suspicion of rotator cuff pathology and impingement syndrome. He reported a year of pain and no response to non-operative measure was an absolute indication for an MRI to evaluate the status of her rotator cuff. An MRI was subsequently performed on April 9, 2010, which showed degenerative changes of the glenoid fossa and a small partial tear of the articular surface of the supraspinatus tendon. It was also noted she had moderate severe degenerative joint

changes of the acromioclavicular joint.

Employee returned to Dr. Lingenfelter on August 4, 2010. She reported she was still suffering intermittent pain and informed Dr. Lingenfelter of her colon resection and five surgeries which was significant as to her consideration of surgical repair of the rotator cuff. Dr. Lingenfelter noted on physical examination she had pain over the acromioclavicular joint and positive Neer impingement test and Hawkins test. His assessment was right shoulder pain. He injected her shoulder and ordered her to follow up on a p.r.n. basis. He noted she was not working at this point and did not display anything to suggest that she needed surgery nor did she want to undergo the procedure.

Prior to this injury, Employee had a long history of other medical conditions. Employee treated at the Northeast Arkansas Clinic (NEA) in Jonesboro, Arkansas. In 2003 she was diagnosed with rheumatoid arthritis and was on Methotrexate. She reported she had morning stiffness with problems in her hands, knees, and feet. She also received Remaicade infusions in 2003. She also suffered lower GI bleeding for which she received treatment in June 2003. Her medical history at that point reflected coronary artery disease, five strokes, COPD, and GERD. It was noted she had received a bilateral mastectomy but had no breast cancer. It was also noted by history that she had undergone an intracoronary artery stent in June 2002 at St. Joseph's East Hospital, Lexin