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Mary Slinkard v. Campbell Mattress Co., Inc.

Decision date: September 5, 201315 pages

Summary

The Labor and Industrial Relations Commission affirmed the administrative law judge's award of workers' compensation benefits to Mary Slinkard for a right shoulder and neck injury sustained on September 3, 2009, while carrying mattress tops at Campbell Mattress Company. The Second Injury Fund was found liable for permanent total disability benefits, and the employee received $11,550.06 in temporary total disability compensation plus $105,346.50 in medical aid.

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This workers' comp decision may point to a separate injury claim.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-105905

Employee: Mary Slinkard

Employer: Campbell Mattress Co., Inc. (Settled)

Insurer: Technology Insurance 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 February 14, 2013. The award and decision of Administrative Law Judge Maureen Tilley, issued February 14, 2013, 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 $\qquad 5^{\text {th }}$ day of September 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

FINAL AWARD

Employee: Mary Slinkard

Injury No. 09-105905

Dependents: N/A

Employer: Campbell Mattress Co Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Technology Insurance Company

Hearing Date: December 5, 2012

Checked by: MT/rmm

SUMMARY OF FINDINGS

  1. Are any benefits awarded herein? Yes.
  2. Was injury or occupational disease compensable under Section 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? September 3, 2009.
  5. State location where accident occurred or occupational disease contracted: Cape Girardeau County, Missouri.
  6. Was above employee in the employment of above employer at the 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 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 happened or occupational disease contracted: Employee was carrying mattress tops at Campbell Mattress Company when she felt a pop either in her neck and shoulder and was injured.
Employee: Mary SlinkardInjury No. 09-105905
12.Did accident or occupational disease cause death?No.
13.Parts of body injured by accident or occupational disease?Right shoulder and neck.
14.Nature and extent of any permanent disability: See Award.
15.Compensation paid to date for temporary total disability:$11,550.06 representing 36 weeks and 6 days.
16.Value of necessary medical aid paid to date by employer-insurer:$105,346.50.
17.Value of necessary medical aid not furnished by employer-insurer: N/A.
18.Employee’s average weekly wage:$470.01.
19.Weekly compensation rate:$313.34 for both permanent partial disability and permanent total disability purposes.
20.Method of wage computation: By agreement.
21.Amount of compensation payable:See findings.
22.Second Injury Fund Liability: Liable for permanent-total disability benefits.
23.Future requirements awarded: N/A.
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 Weiss.

FINDINGS OF FACT AND RULINGS OF LAW

On December 5, 2012, Mary Slinkard appeared in person for hearing on her claim against the Second Injury Fund. Employee was joined by her attorney, Chris N. Weiss. The Employer was not present because of settlement of the primary claim with the Employer/Insurer. The Second Injury Fund was represented by Jonathan J. Lintner. At the time of the hearing the parties agreed on certain undisputed facts and identified the issue that was in dispute. These undisputed facts and issue together with the findings of fact and rulings of law are set forth below as follows:

UNDISPUTED FACTS:

  1. On or about September 3, 2009, Campbell Mattress Company, Inc. was the Employer of Employee and operating under and subject to the provisions of Missouri Workers' Compensation Act and its liability were insured by Technology Insurance Company.
  2. On or about September 3, 2009, Employee was an employee of Campbell Mattress Company, Inc. and was working under and subject to the provisions of the Workers' Compensation Act.
  3. On or about September 3, 2009, the Employee sustained an accident or occupational disease arising out of and in the course of his employment.
  4. The Employer received notice pursuant to law.
  5. The Employee's claim was filed within the time allowed by law.
  6. The average weekly wage of the Employee was $\ 470.01 and the rate for temporary total disability and permanent total disability was $\ 313.34 and the rate for permanent partial disability was $\ 313.34.
  7. Medical causation: Employee's injury was medically causally related to accident or occupational disease.
  8. The Employer-Insurer paid $\ 105,346.50 in medical aid.
  9. The Employer-Insurer paid $\ 11,550.06 representing 13 weeks and 6 days in temporary total disability benefits.
  10. The parties have agreed that the date of maximum medical improvement was October 9, 2010.

ISSUE:

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

EXHIBITS:

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Maryland Heights Orthopaedic Arthroscopic Associates, P.C. - medical records 1996.

B. Dr. Anthony Keele of Cape Family Practice - Medical records (1/5/2007-3/3/2010).

C. Cape Family Practice letter dated 10/11/11.

D. Orthopaedic Associates medical records - Brian Schafer (1/3/2001-10/9/2012).

E. Physician's Alliance Surgery Center - 5/17/10 Right Shoulder - Operative Report

F. Brain \& NeuroSpine Clinic medical records.

G. Select Physical Therapy - Functional Capacity Evaluation of 09/14/10.

H. Deposition of Dr. Shawn Berkin.

I. Deposition of Dr. Jeffrey Magrowski.

J. Stipulation for Compromise Settlement \#95-168057 (right arm 10\%).

K. Stipulation for Compromise Settlement \#06-136224 (7.7\% right shoulder).

L. Stipulation for Compromise Settlement \#08-124489 (12.5\% left elbow).

M. Stipulation for Compromise Settlement \#09-105905 (25\% right shoulder and 25\% neck).

N. Statement of David Propst.

O. Community Counseling Center records.

The Second Injury Fund did not offer any exhibits into evidence.

Employee's Testimony:

The Employee testified that she currently resides in Cape Girardeau, Missouri. She is a single person and has two grown children neither of which lives at home. She was born on October 1, 1954, and was 58 years of age at the time of the hearing. She attended Chaffee High School through the eleventh grade and quit because she was pregnant. She later completed her GED in approximately 1975 in the State of Arkansas. She has not received any vocational training or college courses.

She went to work when her children were approximately the ages of four and six. She first worked as a waitress in 1975 through 1976 for about one year in the State of Arkansas. She moved back to Missouri in about 1976 and went to work at the Thorngate factory in Cape Girardeau in about 1978. She was a full-time seamstress. From 1978 to 1984, she went to work at Bohannes, which is a cleaning service. There she worked as a tailor. From 1985 through

1988, she worked at the Venture store in retail, as the assistant customer service manager. From 1988 to 1990, she moved to the State of Texas. From 1990 through 1994, she was back in Cape Girardeau, Missouri and worked at the Rapco plant in Fruitland, Missouri in cable production. In approximately 1994 or 1995, she worked at Custom Design Interiors in their sewing department. She worked there for approximately six months. From 1994 through 1996, she again worked at Major Custom Cable doing cable production work including soldering. From 1996 through 1998, she worked at Quantum, which is another cable producer. In 2001, she began working at Campbell Mattress in Cape Girardeau and worked there until October 2010. During that time she performed all the factory's positions in manufacturing mattresses. In October 2010, she took a job at the Radio Shack in sales with the assistance of the manager who was her friend, David Propst. She had known David Propst as they are both leaders of her grandson's Boy Scout troop. She worked there almost full time but because of difficulties in performing the duties of her job, was shifted to seasonal work and let go on December 24th. During the time between her job with Campbell Mattress and Radio Shack she was off work and received temporary total disability benefits of approximately 36 weeks.

Mary testified that she is addicted to drugs and alcohol and that began in 1988 when she lived in the State of Texas. There she became addicted to alcohol. In later more recent years, she became addicted to pain killers following her surgeries.

In 1995, while working at Custom Design Interiors, she developed carpal tunnel syndrome in her right wrist and underwent surgery by Dr. Steven Benz. She settled that claim for 10 % of the right wrist at the 175 week level.

In 2006, she injured her right shoulder and was referred by Campbell Mattress to Dr. Schafer. He did injections to the shoulder and prescribed physical therapy. She testified that Campbell Mattress did not want to turn this into Workers' Compensation and they paid the bills directly and not through Workers' Compensation. She settled that claim for 7.2 % of the right shoulder.

In March 2008, she developed problems with her left elbow and was referred by her employer, Campbell Mattress, to Dr. Keele in Cape Girardeau. He did approximately seven to eight injections to her left elbow. Campbell Mattress again directly paid the medical bills. She settled that claim in November 2011 for 121 / 2 % permanent partial disability at the level of the elbow. She testified that following the treatment she continued to have problems with the elbow including loss of strength, numbness in her fingers, range of motion and being painful with use. She also testified that following the left elbow treatment she continued to have problems in performing the duties of her job at Campbell Mattress. She was placed on five different jobs, each successive job being of lighter duty. The last job that she had was doing "border surging". She said that this is the least physical job and was made even less physical by the fact that someone else would load her material for her. She described the border surging job as running a sewing machine to sew up the material along the edge of the mattress. Mary was fully trained on all the different jobs at Campbell Mattress and could train others. Only one other female had more seniority than her at Campbell Mattress.

Mary testified that she did not do any overtime work, or at least as much as the other workers, because of her arm problems.

On the date of the accident of September 3, 2009, she was not doing her border surging job because someone else had not reported to work that day. She was assigned to a more physical job that day and originally was receiving help from a co-employee in carryin

Full decision text continues in the plain-text archive copy.

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