Jo Ann Slusarczyk v. Ameristar Casino

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 11-002219

Employee: Jo Ann Slusarczyk

Employer: Ameristar Casino

Insurer: Hartford Fire Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

We affirm and adopt the administrative law judge's finding that employee presented credible testimony regarding her job duties at the hearing. We specifically find employee's testimony regarding her job duties more credible than the Functional Job Analysis submitted by employer. Given our findings, it appears that the relevant opinion from employer's treating and evaluating physician Dr. Walker is his initial determination, based on employee's description of her job duties, that employee's bilateral upper extremity complaints are work-related.

Where employer's own expert found causation based on a version of employee's work duties that we have credited, it follows that there is no relevant expert medical evidence supporting employer's position that this claim is not compensable. We adopt the administrative law judge's conclusion that employee sustained an occupational disease arising out of and in the course of her employment.

In its brief, employer argues that employee's own opinion as to whether she can work is irrelevant and should be disregarded. We disagree. To the contrary, the courts have long held that "[a] claimant is capable of forming an opinion as to whether she is able to work, and her testimony alone is sufficient evidence on which to base an award of temporary total disability." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. banc 2003). See also Patterson v. Engineering Evaluation Inspections, 913 S.W.2d 344, 347 (Mo. App. 1995) and Riggs v. Daniel International, 771 S.W.2d 850, 851-52 (Mo. App. 1989). We find credible employee's testimony that she is not capable of working given the physical condition of her bilateral upper extremities.

Employer's attempt to accommodate employee and employee's voluntary resignation are certainly relevant factors, but are not, as employer suggests, dispositive of the issue. Rather, the question turns on "whether the employee is able to compete in the

Open labor market given the employee's present physical condition." *Cooper v. Medical Ctr. of Independence*, 955 S.W.2d 570, 575 (Mo. App. 1997). We agree with and adopt the administrative law judge's conclusion that employee is not able to compete in the open labor market given the present physical condition of her bilateral upper extremities. Accordingly, employer is liable for temporary total disability benefits.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Emily S. Fowler, issued May 2, 2013, is attached and incorporated by this reference.

We approve and affirm 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.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

Given at Jefferson City, State of Missouri, this 26th 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:

Secretary

Employee: Jo Ann Slusarczyk

Injury No. 11-002219

Dependents: N/A

Employer: Ameristar Casino

Insurer: Hartford Fire Insurance Company

Additional Party: N/A

Hearing Date: April 19, 2013

Checked by: ESF/pd

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: January 14, 2011
5. State location where accident occurred or occupational disease was contracted: Kansas City, Clay 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: Employee, while working in the course and scope of her employment for the Employer, was required to repeatedly use her arms and hands to open and close machines, handle paper products, move chairs and other hand intensive job duties, all cumulatively causing the injuries of which she complains.
12. Did accident or occupational disease cause death? No. Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: bilateral upper extremities
2. Nature and extent of any permanent disability: To be determined
3. Compensation paid to date for temporary disability: $\-0-
4. Value necessary medical aid paid to date by employer/insurer? \$5,299.66
5. Value necessary medical aid not furnished by employer/insurer? N/A
6. Employee's average weekly wages: $\ 540.22
7. Weekly compensation rate: $\$ 360.26 / \ 360.26
8. Method wages computation: By agreement

1. Amount of compensation payable: Temporary total disability payments in the amount of $\ 360.26 per week commencing February 18, 2011 and continuing until Employee is released from medical care at maximum medical improvement.
2. Second Injury Fund: N/A
3. Future requirements awarded: Employer shall provide to Employee all medical care necessary to cure and relieve the effects of her injuries to her bilateral upper extremities.

The compensation awarded to the Employee shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Jason Pottenger, Employee's attorney, for necessary legal services rendered.

On April 19, 2013, the parties appeared for a hardship hearing pursuant to Section 287.510. The Employee, Jo Ann Slusarczyk, appeared in person and was represented by Mr. Jason Pottenger. The Employer and Insurer appeared through Mr. Tom Walsh.

The parties stipulated to the following:

1) that the Employer, Ameristar Casino, was an employer operating under and subject to the provisions of Missouri Workers’ Compensation Law on January 14, 2011 and its liability was fully insured by Hartford Fire Insurance Company; 2) that Jo An Slusarczyk was its employee; 3) that the Employee was working subject to the law in Kansas City, Clay County, Missouri; 4) that Missouri has jurisdiction over these proceedings; 5) that Employee notified the Employer of her injuries as required by law and her claim was filed within the time allowed by law; 6) that Employee’s average weekly wage was $\ 540.22, resulting in a compensation rate of $\ 360.26 for temporary total and permanent partial disability compensation; and 7) that the Employer has not paid any temporary total disability compensation but has paid $\ 5,299.66 for medical care costing;

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

1) whether the Employee sustained an occupational disease arising out of and during the course of her employment; 2) whether the Employee is entitled to temporary total disability benefits from February 18, 2011 to present and ongoing should the Court determine she requires additional medical care; and 3) whether the Employer must provide Employee with additional medical care.

The Employee, Jo Ann Slusarczyk, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

Claimant's Exhibit A - Deposition of Dr. Koprivica dated 9/27/12

Claimant's Exhibit B - Medical Records

The Employer offered no live testimony but offered the following exhibits, all of which were admitted into evidence without objection:

Employer/Insurer's Exhibit 1 - Deposition of Dr. Walker, dated 7/12/12

Employer/Insurer's Exhibit 2 - Functional Job Analysis from ARC

Based on the above exhibits and the testimony of the Claimant, this Court makes the following findings:

Employee is a 62-year-old female who began work at Ameristar Casino on November 5, 2005. She has always held the job of slot service specialist. Her last date that she was employed was February, 18, 2011. She described her job duties as set out in Employer/Insurer's Exhibit No. 2 which is a Functional Job Analysis by Athletic \& Rehabilitation Center (ARC). Pursuant to the job analysis she was required to stand and walk on a continuous basis, frequently bent forward, frequently crouched, kneeled and squatted, occasionally reached overhead, continuously reached forward, was required to use hand coordination with her preferred hand more than ten times an hour while feeding cards and money into the slots, also to hand out money more than three times an hour, to recalibrate the screens at least 10 seconds at a time. She was required to have hand dexterity with her preferred hand to turn the key when opening a machine, and usually ten machines were opened per hour, turning the key twice per machine to open and close the machine and also to recode the card slots which were quite often hard to open and shut. This was done approximately ten machines per hour. She was required to frequently push up to 10 pounds at a time. This she described as pushing in chairs. It was recommended to use her foot to push the chair in and this was done to approximate 108 chairs per hour. She testified that occasionally she had to pick up chairs and move them quite a distance. Also, quite often the chairs would not scoot forward when she had to move them in place and, therefore, she had to, as she put it, "manhandle" the chairs into place.

She was required to continuously stand and walk on carpeted floors to stock paper supplies from storage shelves. She noted that she had to open taped boxes of tickets usually using a pen to rip them open and then rip them the rest of the way with her hands. She would have to bend forward frequently to stock ticket paper from a cart and place it in pull-out shelves. She again had to use hand coordination with her preferred hand on an occasional basis to stock packets, usually six to ten boxes, two times per week. Again, she was also required to push up to 10 pounds when she would push the carts of boxes of ticket paper. She noted that it was difficult to push the carts on carpet and she would have to lift floor to waist occasionally approximately 30 pounds, generally six to ten 30 -pound boxes twice a week. It is noted in Employer's exhibit 2 that, in summary, "the slot service specialist physical job demands a maximum lift of 30 pounds

from floor to waist occasionally and a maximum push of 10 pounds frequently. Stand/walk is continuous. Forward bend and forward reach is frequently. Frequent hand coordination with preferred hand. Hand dexterity with preferred hand. Cr