Jacqueline Brown v. Massman Construction Co.

With regard to the FCE performed on March 20, 2012, the evaluator noted employee continued to suffer high pain levels as well as swelling that now spread into the forearm. The evaluator found mild improvement in employee's range of motion at the wrist, but noted that all motions were painful. Employee continued to have problems with fine dexterity movements such as pinching tasks and fingering small objects. The evaluator indicated that employee was functioning at the medium level, but again, this was assuming a work schedule of four hours per day/four days per week.

Turning to the records generated during employee's physical therapy, we note that during the final session on June 14, 2012, employee experienced frequent cramping of her right upper extremity, complained of pain at a level of 7 out of 10, engaged in guarding of the right upper extremity due to pain, and experienced swelling of the forearm, wrists, and fingers. Grip testing caused severe pain, as did making a fist. Employee continued to complain that her pain limited her to 4 hours of sleep per night and interfered with her activities of daily living, including her ability to manage her own personal hygiene.

These FCE and physical therapy records suggest (and we so find) that employee was fully cooperative and credible. Nothing in these records supports a finding that employee is capable of full-time work activity at any level. Employee's obvious discomfort, objective evidence of injury (such as swelling) and physical limitations would almost certainly dissuade any employer from considering employee for employment.

The test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.

Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011)(citation omitted).

We find that employee reached maximum medical improvement on July 19, 2012, when the treating physician, Dr. McAllister, released her from his care. We find that employee is permanently and totally disabled as a result of the last injury considered in isolation. Employer is liable for permanent total disability benefits.

Because we have determined that employee is permanently and totally disabled as a result of the last injury considered in isolation, there is no Second Injury Fund liability in this matter. See ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007).

We note that the administrative law judge states, in the first paragraph on page 3 of his award, "Employer and its insurer previously settled their risk of liability." This appears to be a clerical error; accordingly, we correct it by deleting the quoted sentence from the award.

We modify the award of the administrative law judge as to the issue of nature and extent of permanent disability resulting from the work injury. Beginning July 19, 2012,

Employer is liable for weekly payments of permanent total disability benefits at the stipulated rate of $\ 811.73. The weekly payments shall continue thereafter for employee's lifetime, or until modified by law.

Per stipulation of the parties, employer is entitled to a credit of $\ 4,000.00 for an advance payment against permanency it made to employee in October 2012, as well as a credit for its overpayment of temporary total disability benefits in the amount of $\ 10,166.58, for a total credit of $\ 14,166.58.

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.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued May 30, 2013, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $20^{\text {th }}$ day of September 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: August 22, 2011 (stipulated)
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? 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 sustained shoulder injury while lifting walk boards for scaffolding erection.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: right hand
14. Nature and extent of any permanent disability: 40 % PPD of right upper extremity ( 200 week level) plus 20 % PPD of the body referable to CRPS, plus 20 % multiplicity factor.
15. Compensation paid to-date for temporary disability: $\ 58,058.65
16. Value necessary medical aid paid to date by employer/insurer? $\ 50,321.62

1. Value necessary medical aid not furnished by employer/insurer? $\ 1737.49
2. Employee's average weekly wages: Unknown
3. Weekly compensation rate: $\$ 811.73 / \ 425.19
4. Method wages computation: Stipulation.

1. Amount of compensation payable:

Reimbursement of medical expenses

$\ 1,737.49

192 weeks PPD from Employer

$\ 81,636.48

1. Second Injury Fund liability: None

TOTAL:

$\ 83,373.97

1. Future requirements awarded: Yes (see narrative award)

Said payments to begin immediately 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:

James Krispin

Employee: Jacqueline D. Brown

Department: N/A

Employer: Massman Construction Co.

Additional Party: Second Injury Fund

Insurer: Travelers Indemnity Co. of America

Hearing Date: February 25, 2013

Injury No.: 11-072556

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves severe right wrist fractures resulting to Claimant with the reported accident date of August 22, 2011 with allegations of synergistic disability against the Second Injury Fund ("SIF"). Employer and its insurer previously settled their risk of liability. Both parties are represented by counsel. There are several issues for trial. Claimant seeks permanent total disability benefits.

1. Claimant testified that she worked for Employer as an operating engineer who maintained equipment on a barge. She routinely worked 10-12 hours days, up to 60 hours per week, at full duty. She has been employed as an operating engineer for various companies since 1994.
2. Claimant testified that she was working on a barge on the reported accident date and, in the course of her work, she tripped on an air hose and fell, severely injuring her right wrist. She is right hand dominant.
3. Claimant underwent two surgeries to her wrist and never returned to the heavy work she had with Employer.
4. Claimant stated that although she had preexisting medical conditions, she had worked full duty with no hindrance to her employment leading up to this right arm injury. She testified that she had never turned down work, that her work was all heavy labor, and she had never requested help or accommodation at work for these medical conditions which predated the accident, including anxiety, diverticulitis and Barrett's esophagus, and low back injuries.
5. After her fall, Claimant was diagnosed with an impacted intra-articular distal radius fracture and ulnar styloid avulsion fracture. Surgery was recommended.

1. Dr. David Karges performed a closed reduction of the right distal radius on 08/22/11. On 08/29/11, Dr. John McAllister performed surgery (ORIF) on the right wrist.
2. Claimant saw Dr. William Frisella with ongoing pain complaints, and Dr. Frisella recommended pain medi