| FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge) |
| Employee: | Tina Collins |
| Employer: | Aztar Corporation |
| Insurer: | Commerce & Industry Insurance Company |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| This workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties’ briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below. |
| Preliminaries |
| The parties asked the administrative law judge to resolve the following issues: (1) whether employee sustained a motor vehicle accident on May 13, 2002, that was compensable as part of this claim; (2) whether employee sustained a fall on October 30, 2009, that is compensable as part of this claim; (3) whether employee provided notice to employer of the alleged motor vehicle accident of May 13, 2002; (4) whether employee provided notice to employer of the alleged fall of October 30, 2009; (5) average weekly wage and rate of compensation; (6) medical causation of employee’s claimed psychiatric and/or psychological injury; (7) medical causation as to the alleged May 13, 2002, motor vehicle accident; (8) medical causation as to the alleged October 30, 2009, fall; (9) employer’s claim for a credit for overpayment of temporary total disability benefits; (10) past medical expenses in the amount of $44,757.29; (11) mileage or other medical expenses; (12) future medical aid; (13) nature and extent of disability; (14) Second Injury Fund liability; and (15) whether employer is entitled to a subrogation credit for a third-party settlement in the amount of $3,743.00. |
| The administrative law judge rendered the following findings and conclusions: (1) employee’s alleged injuries to the low back, neck, upper back, and shoulders from the motor vehicle accident on May 13, 2002, are not medically causally related to the December 15, 2001, accident; (2) the October 30, 2009, accident is not compensable as part of employee’s claim and her injuries resulting from that accident are not medically causally related to the December 15, 2001, accident; (3) employee’s average weekly wage was $282.88 and employee’s rate of compensation is $188.59 per week; (4) employer is entitled to a credit for overpaid temporary total disability in the amount of $50.89; (5) employee’s December 15, 2001, work accident aggravated employee’s preexisting dysthymic disorder; (6) employee’s claim for previously incurred medical bills is denied; (7) employee is not in need of additional psychiatric treatment to cure |
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and relieve her from the effects of her December 15, 2001, work-related injury; (8) employee is in need of additional treatment to cure and relieve her from the effects of her December 15, 2001, work-related injury to her back and SI joint; (9) employee is not entitled to any additional temporary total disability benefits; (10) employee is permanently and totally disabled due to subsequent accidents and substantial worsening of her condition after December 15, 2001; (11) as a result of the work injury, employee suffered a 25% permanent partial disability of the body as a whole referable to the lumbosacral spine and a 2.5% permanent partial disability of the body as a whole referable to aggravation of her preexisting psychiatric condition; and (12) the Second Injury Fund is liable for 21.25 weeks of permanent partial disability benefits.
Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred in finding that employee's permanent total disability was neither from the last accident alone nor from a combination of the employee's preexisting psychiatric conditions and the injuries resulting from the accident at work on December 15, 2001.
**Findings of Fact**
The administrative law judge's award sets forth the stipulations of the parties and the administrative law judge's findings of fact as to the issues disputed at the hearing. We adopt and incorporate those findings to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact pertinent to our modifications herein.
**Post-injury return to work**
Employee performed light duty work for employer after the December 2001 work injury until her unrelenting low back pain prompted Dr. Landry to take her off work beginning January 28, 2002. On April 17, 2002, Dr. Byrd permitted employee to return to work with a 10-pound lift restriction, as well as restrictions against repetitive bending, twisting, or stooping, and the requirement that employee be permitted to change positions frequently. When employee returned to work, employer assigned her to a stationary post watching the crew entrance and vault where employee could sit or stand as she felt necessary. Employee held the crew entrance and vault post for about a year, then started driving the shuttle bus, which was an easier task for her to perform, because she was able to get out and walk around occasionally, which she couldn't do while watching the crew entrance or vault.
Employer's witness Rhonda Gooch, a human resources manager, testified that the vault and crew entrance post and the shuttle driver position were not special jobs that employer created for employee, implying that these were not really "light duty" positions. But the record reveals that before her work injury, employee rotated amongst various patrols or posts, some of which involved prolonged standing and walking, performed bicycle patrols lasting 8 hours, and was also responsible for pushing casino patrons in wheelchairs. There is no indication that employee was expected to perform any of these tasks after her injury.
The medical records suggest employee continued to suffer considerable back pain after returning to work, for which she received a total of eight injections from Dr. Chiu from May through July 2002. Employee was also using a TENS unit and taking an array of pain medications and muscle relaxers including Neurontin, Ultracet, and Flexeril. On July 11, 2002, Dr. Byrd noted employee had missed the last two days of work owing to severe back pain. On August 28, 2002, Dr. Gibbs determined that employee was at maximum medical improvement, and released employee to continue working with a 25pound lift restriction.
From October 2002 through January 2003, employee saw a chiropractor, Dr. Burnett, for severe low back pain. On February 21, 2003, Dr. Burns recorded a history of severe low back pain, diagnosed chronic pain syndrome referable to the work injury, and recommended employee continue her heavy regimen of medications, which then included the narcotic hydrocodone. As of July 2003, when employee stopped working for employer, employee was still treating with Dr. Burns, who imposed ongoing restrictions that he referred to as "modified" or "light" duty which included no running or climbing, no lifting more than 25 pounds, and no climbing any more than three steps. Dr. Burns's most recent records from November 2004 reveal that he never lifted the light duty restriction.
Given the medical record and the fact that employee no longer rotated patrols but instead performed dedicated tasks such as guarding the crew entrance and vault or driving the shuttle bus, we find that employee never returned to full duty work for employer following the work injury.