Annette Smith v. B F & B Enterprises d/b/a TDL Personnel Service

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-031458

Employee: Annette Smith

Employer: B F \& B Enterprises

d/b/a TDL Personnel Service (Settled)

Insurer: Missouri Retailers Insurance (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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 22, 2013, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued February 22, 2013, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $20^{\mathrm{TH}}$ 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:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: Alleged March 16, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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? No
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 alleged she injured her right knee while climbing a ladder at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right knee
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 0

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient for the rate listed in number 19 below.
3. Weekly compensation rate: $\ 163.31
4. Method wages computation: Stipulated

1. Amount of compensation payable: Settled prior to hearing
2. Second Injury Fund liability:

TOTAL:

None

None

1. Future requirements awarded: N/A

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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Kurt Hoener

The parties appeared before the undersigned administrative law judge on November 26, 2012 for a hearing for a final award to determine the Second Injury Fund's ("SIF's") liability for benefits at the request of Annette Smith ("Claimant"). Attorney Kurt Hoener represented Claimant. Assistant Attorney General E. Joye Hudson represented SIF. The court reporter was Kathy Rethemeyer. The record closed after presentation of the evidence. Venue is proper and jurisdiction properly lies with the Division of Workers' Compensation. Memorandums of law were received from the parties by December 11, 2012.

Prior to the start of the hearing, BF\&B Enterprises ("Employer") and their Insurer, Missouri Retailers Insurance, settled their claims with Claimant for 15\% permanent partial disability ("PPD") of the right knee and did not participate in the proceeding.

Claimant submitted two claims for disposition, injury numbers 07-031458 and 07023867. Both awards contain similar facts but separate awards were written.

The parties stipulated that on or about March 16, 2007:

1. Claimant was employed by Employer in St. Louis, Missouri.
2. Claimant and Employer operated pursuant to Chapter 287 RSMo. ${ }^{1}$
3. Employer's liability was fully insured.
4. Claimant filed the claim within the time allowed by law.
5. Employer received proper notice of the claim.
6. Claimant's average weekly wage was sufficient for a rate of $\ 163.31 for PPD and permanent total disability ("PTD").
7. Employer paid no TTD or medical benefits.
8. Claimant achieved maximum medical improvement ("MMI") on July 3, 2008.

The parties identified the following issues for disposition:

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[^0]: ${ }^{1}$ All references in this award are to the 2005 Revised Statutes of Missouri unless otherwise stated. All references to the Employer also include the Insurer unless otherwise stated.

1. Did Claimant's repetitive job duties cause her right knee injury?
2. If so, is SIF liable for occupational disease injuries?
3. What is the nature and extent of SIF liability for PPD or PTD benefits, if any?

Claimant's Exhibits A through P and SIF's Exhibit I were offered and received into evidence without objection. Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, they were made prior to being made part of this record, and were not placed there by the undersigned administrative law judge.

All evidence was reviewed but only evidence that supports this award is discussed below.

1. At the time of the hearing, Claimant was 50 years old and single. She obtained a GED and completed office skills training at Harris Stowe State University in 2004.
2. Claimant's past employment includes kitchen manager at Calico's, manager at Church's Chicken, she also worked at McDonald's, and during several periods for the U.S. Post Office. Each job required Claimant to stand on her feet all day.

1. In the early 1980's Claimant sustained burns to both arms. She did not receive medical treatment in the five years leading up to March 2007.
2. Before March 2007, Claimant sustained a lumbar injury in a car accident. Leading up to March 2007 Claimant's back flared up occasionally, but was not a constant problem. Occasionally she had difficulty standing or sitting. The biggest problem occurred in December 2006 when she bent to pick up items and had pain for four days. Claimant has not received medical care for her back in the last five years before March 2007.
3. In 1999 Claimant developed swelling and water on her right knee, and in 2000 she received medication from Grace Hill to remove it. Medical records show left knee complaints in May 2002 and two right knee complaints in July 2002, a day apart. First Claimant developed right knee pain at work when she bent to pick up an item. At home that night she needed help to get up from the toilet because of right knee and leg pain. Her knee problems improved before March 2007.
4. In 2000 Claimant developed varicose veins. Claimant had leg swelling and pain. Medical treatment included stockings and home exercise. Her leg problems flared up at least once a month. To relieve symptoms, Claimant took a bath, applied heat and ice, and relaxed.
5. Claimant had an anxiety attack in May 2002 due to stress, and was prescribed Xanax for a short period. Claimant had no other problems with depression prior to March 2007.

1. Employer hired Claimant in August 2006. Claimant placed orders, cut and sized belts, handled returns, and packed boxes.
2. In the spring of 2007 Claimant was assigned to rearrange merchandise in the warehouse. Employer assigned her to move cases of belts up and down ladders. Claimant worked alone and some belts hung as high as the ceiling. She removed belts, and replaced them with different belts. Claimant climbed the ladder all day except during two15 minute breaks and a 30 minute lunch.
3. At the end of February 2007, Claimant developed knee pain and swelling, which she reported to her supervisor Tim at the beginning of March 2007. Tim promised to reassign Claimant but did not. Claimant continued to climb the ladder and the knee pain increased. ${ }^{2}$
4. On March 16, 2007 Claimant's right knee buckled when she stepped off the ladder; and her knee began to hurt and swell. She was removed from the job on March 22, 2007. Claimant's knee remained symptomatic after her transfer, but Employer did not provide medical treatment.
5. Claimant last worked for Employer on March 22, 2007 after she sustained a second injury. She has not worked anywhere since that time.
6. In April 2007 Grace Hill Clinic provided Claimant with medication for bilateral knee swelling, and difficulty walking, and referred Claimant to a specialist.
7. On May 18, 2007, St. Louis University Emergency Department, provided medication for leg buckling, pain, and swelling, and referred Claimant to a specialist.
8. St. Louis Connect Care treated Claimant on July 18, 2007, took x-rays and prescribed medication. Claimant returned in August 2007 after her knee buckled and she injured her shoulder.
9. Claimant did not have insurance, so the clinic entered her name into a lottery to receive free medical treatment, and her name was pulled. Claimant testified knee treatment was delayed because she waited for Connect Care to approve payment for surgery.
10. In May 2008 Dr. Kieffer performed right knee surgery at Anheuser Busch Institute. Claimant treated between May 27, 2008 and July 3, 2008.
11. Dr. Kieffer released Claimant from medical care in September 2008, but she did not return her to work because she could not stand or sit long enough to work. He expected the problems to continue.
12. Recently Dr. Mitchell, with Anheuser Institute, provided injections once a week for four weeks, in both knees.

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[^0]: ${ }^{2}$ Claimant also testified the knee pain remained the same between February and March 2007.

1. Claimant settled the case for 15 % of the right knee.
2. Claimant has constant right knee pain and spasms that wake her when her legs touch. Her legs feel frostbitten. She keeps her legs apart, one on a pillow, and takes a pill to return to sleep. She sleeps up to four hours per night. She cannot sit or stand longer than 15 minutes, and she has occasional buckling. Claimant has decreased strength and range of motion. Claimant limits her activity during the day. She can clean house for 10 minutes, then breaks for 30 to 35 minutes. Walking and steps increase pain and swelling. Claimant elevates her leg with a pillow and applies ice.
3. Claimant testified she cannot work because she can only move for 15 or 20 minutes then she has to sit down because of problems with her knees.
4. To relieve