Lisa Earley v. Dillard's

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-039200

Employee: Lisa Earley

Employer: Dillard's

Insurer: United State Fidelity \& Guarantee

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Denied)

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 12, 2012. The award and decision of Administrative Law Judge Suzette Carlisle, issued July 12, 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 $\qquad 16^{\text {th }}$ 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:

Hearing Date: April 13, 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: April 2, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis 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: Claimant injured her low back when she pulled a rounder of clothing on wet carpet.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Lumbar spine
14. Nature and extent of any permanent disability: 40 % PPD of the lumbar spine, 35 % PPD of the left knee
15. Compensation paid to-date for temporary disability: $\ 8,570.36
16. Value necessary medical aid paid to date by employer/insurer? $\ 39,038.95

Issued by DIVISION OF WORKERS' COMPENSATION

1. Value necessary medical aid not furnished by employer/insurer: 235,137.59
2. Employee's average weekly wages: 422.50
3. Weekly compensation rate: $294.99
4. Method wages computation: Stipulated

1. Amount of compensation payable:

1. Second Injury Fund liability: No

1. Future requirements awarded: None

Said payments to begin 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: Daniel Gauthier

^{1} The total number of weeks of permanent partial disability is 216; with 160 weeks assigned to the lumbar spine, and 56 weeks to the left knee.

Employee: Lisa Earley

Dependents: N/A

Employer: Dillard's

Additional : Second Injury Fund (Denied)

Insurer: United States Fidelity \& Guarantee c/o ESIS

Injury No.: 04-039200

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

A hearing was held at the Missouri Division of Workers’ Compensation (DWC), St. Louis office at the request of Lisa Earley (Claimant), on April 13, 2012, pursuant to Chapter 287 RSMo (2000). ${ }^{2}$ Claimant seeks a final award for permanent partial disability (PPD) or permanent total disability (PTD) benefits against the Employer or Second Injury Fund (SIF). Attorney Daniel Gauthier represented Claimant. Dillard's (Employer) and United States Fidelity \& Guarantee (Insurer) appear represented by Attorney Lisa Henderson. ${ }^{3}$ SIF is represented by Assistant Attorney General Da-Niel Cunningham. Venue is proper and jurisdiction lies with DWC. The record closed after presentation of the evidence on April 13, 2012. The court reporter was Kathy Rethemeyer.

At the hearing, Claimant tried two injury numbers, 01-129066 and 04-039200. Some evidence will be discussed in both awards, however separate awards were issued.

The parties stipulated to the following, that on or about April 2, 2004:

1. Claimant sustained an accident which arose out of and in the course of employment in St. Louis County;
2. Employer and Claimant 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 $\ 422.50 resulting in a benefit rate of $\ 294.99 for temporary total disability (TTD), PPD and PTD; and
7. Employer paid $\ 8,570.36 in TTD benefits and $\ 39,038.95 in medical benefits.

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[^0]: ${ }^{2}$ All statutory references in this award are to the 2000 Revised Statues of Missouri unless otherwise stated.

${ }^{3}$ All references in this award to the Employer also include the Insurer.

WC-32-R1 (6-81)

Injury No.: 04-039200

Claimant's Exhibits A through Q which were admitted into evidence without objection. The exhibits refer to both injury numbers 01-129066 and 04-039200. Employer's Exhibits 1 through 3 were admitted without objection. SIF offered no additional exhibits. The marks and highlights contained in the exhibits were made prior to becoming part of this record and were not placed there by the undersigned administrative law judge.

1. Whether medical treatment for Claimant's low back after August 5, 2005 was medically causally related to the April 2, 2004 work injury, ${ }^{4}$ and was reasonable and necessary to cure and relieve the effects of the April 2, 2004 injury? Yes
2. Whether any medical treatment for Claimant's left knee was medically causally related to the April 2, 2004 injury? If so, was the treatment reasonable and necessary to cure and relieve the effects of the April 2, 2004 work injury? Yes
3. Whether medical expenses for the left knee and medical expenses for the low back after August 5, 2005 totaling $\ 235,137.59 were reasonable and necessary to cure and relieve the effects of the April 2, 2004 work injury? Yes
4. Is Claimant entitled to future medical treatment for the work injury? No
5. Is the Employer responsible for TTD benefits from January 5, 2009 to August 17, 2009 totaling $\ 9,439.68 ? Yes
6. What is the nature and extent of Employer's liability for either PPD or PTD benefits, if any? 40 % PPD of the lumbar spine, and 35 % PPD of the left knee
7. What is the nature and extent of the SIF liability for either PPD or PTD benefits, if any? None
8. What date did the Claimant reach maximum medical improvement (MMI)? December 24, 2009

All evidence was reviewed but only evidence which supports this award is discussed below. Any objections not ruled upon in this award are now overruled.

1. Claimant testified at the hearing and her testimony was credible. Claimant is a high school graduate. When Dr. Mirkin released Claimant from care in 2009 she was 49 years old. Claimant can operate a computer, type, use email, look up information on the

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[^0]: ${ }^{4}$ The record refers to the date of injury as "September 2004" however the parties stipulated the accident occurred April 2, 2004.

computer, operate a keyboard, and play cards on the computer. She has maintained books for her business. Also, she has a Facebook account.

1. In the 1970s, Claimant worked as a legal secretary where she typed 85 words per minute, filed, made photocopies, answered the telephone, and operated a Dictaphone. She performed secretarial duties for two law firms and at Forest Park Community College. Claimant left the workforce for a time to care for her family.
2. Claimant passed two tests to obtain a license to sell real estate. As an agent, she operated a computer, drove clients to view properties, wrote contracts, closed deals, and sold houses. She was co-owner of a real estate business. Claimant worked for RE/MAX from 1986 to 1994. She stopped being an agent for pay but continued to help family and friends with real estate purchases. Claimant renewed her real estate license every two years until it expired in February 2012. She did not renew it because of increased costs and test requirements.
3. In 1993, Claimant moved to a different state and sold her mother's home. Her real estate licenses were renewed every two years until February 2012 when she allowed them to expire because of increased fees and a required written test. She last worked as a real estate agent in 1994.
4. Prior to April 2, 2004, Claimant had the following medical conditions or disabilities:

a. In 2001, Dr. Cantrell diagnosed a left shoulder strain and recommended trigger point injections, which Claimant refused. After her release, Claimant did not miss time from work for this injury. Complaints include shooting pain with overhead activity, and hand numbness. Claimant avoids overhead activity, and recently aggravated the left shoulder washing windows. Claimant received no additional medical care after the doctor released her.

b. On October 2, 2001, Claimant injured her right ankle in a motor vehicle accident when she left a doctor's appointment for her left shoulder. Claimant has problems when she wears high heeled shoes. She did not miss work for her ankle after she was released from medical care. Claimant had no work restrictions for the right ankle after her release. The case settled with the Employer for 10\% PPD of the right ankle.

1. Before April 2004, Claimant worked, swam, walked frequently, exercised up to five days a week, and did not receive medical treatment or take prescription medication. She continued to work after both injuries with no medical restrictions.
2. Claimant worked for Employer as a salesclerk for eight years. Her job duties included customer service, inventory, cleaning dressing rooms, carrying large quantities of merchandise, bending, pulling, tugging and jerking on various items.

1. On April 2, 2004, a flood occurred in the store. Claimant pulled a fixture which contained merchandise on wet carpet. The fixture weighed 300 to 400 pounds. Claimant began to feel low back pain.
2. Claimant reported the accident to her supervisor, and finished her work for the day however she began to walk with a limp. Before April 2, 2004, Claimant had no low back pain or treatment.
3. Initially, Claimant treated with a chiropractor and later with SSM for left buttock pain which radiated down her left leg and into her ankle. An MRI of the lumbar spine was performed in June 2004. The pain increased and Dr. Gray took Claima