Eleanora Breese v. SBC Services, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-072330

Employee: Eleanora Breese

Employer: SBC Services, Inc. (Settled)

Insurer: Insurance Company of the State of PA (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 June 18, 2013. The award and decision of Administrative Law Judge Suzette Carlisle, issued June 18, 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 $\qquad 14^{\text {th }}$ day of February 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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: April 29, 2004
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 developed bilateral carpal tunnel syndrome from repetitive data entry work over a number of years.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Bilateral hands/wrists
14. Nature and extent of any permanent disability: 17.5 % PPD of each wrist (Settled prior to hearing)
15. Compensation paid to-date for temporary disability: $\ 4,747.62
16. Value necessary medical aid paid to date by employer/insurer? $\ 15,519.30

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: $\$ 496.02 / \ 347.05 per week
4. Method wages computation: Stipulated

1. Amount of compensation payable:

weeks of permanent partial disability from Employer (Settled prior to hearing)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly payment of $\ 496.02 payable by SIF beginning May 11, 2006,

and continuing for Claimant's lifetime

TOTAL: INDETERMINATE

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 20 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mark E. Moreland

Employee: Eleanora Breese

Departments: $\quad \mathrm{N} / \mathrm{A}$

Employer: SBC Services, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Insurance Company of the State of PA c/o Sedgwick Claims Management (Settled)

Injury No.: 04-072330

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC

The parties appeared before the undersigned administrative law judge on March 14, 2013 for a final hearing to determine the liability of SBC Services, Inc., ("Employer") and Insurance Company of the State of PA ("Insurer"), at the request of Eleanora Breese ("Claimant"). Attorney Mark Moreland represented Claimant. The Employer settled with Claimant prior to the hearing and did not participate in the hearing. Assistant Attorney General Tim Maurer represented the Second Injury Fund ("SIF"). Jurisdiction lies with the Division of Workers' Compensation. The record closed after presentation of the evidence. The court reporter was Jennifer Jett.

The parties stipulated that on or about April 29, $2004^{1}$ :

1. Claimant sustained an injury by occupational disease in St. Louis City.
2. Venue is proper.
3. Claimant was employed by Employer.
4. Employer and Claimant operated under the Missouri Workers' Compensation Law ${ }^{2}$.
5. Employer received timely notice of the injury.
6. A Claim for Compensation was timely filed.
7. Employer's liability was fully insured.
8. Employer paid temporary total disability ("TTD") in the amount of \$4,747.62 for 9 4/7 weeks, and medical benefits totaling $\ 15,519.30.
9. Claimant achieved maximum medical improvement ("MMI") on October 1, 2004.
10. Claimant's compensation rate is $\ 496.02 for TTD and permanent total disability ("PTD"), and $\ 347.05 for permanent partial disability (PPD")

The sole issue for disposition is the nature and extent of SIF liability for either PPD or PTD benefits, if any.

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[^0]: ${ }^{1}$ The transcript states the date of injury as May 24, 2004, however, AICS listed the injury date as April 29, 2004.

${ }^{2}$ All references in this award are to the 2005 Revised Statutes of Missouri unless otherwise stated.

Claimant's Exhibits A through H and SIF's roman numeral I were received into evidence without objection. Any objections contained in the depositions but 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 becoming 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.

At the time of the hearing, Claimant was a 62-year-old high school graduate, who lived alone, and she has one adult son. After high school, Claimant worked briefly as an insurance agent and as a supervisor for a concession stand at a movie theater.

In Claimant's twenties, she developed fibromyalgia. Prior to 2004, her symptoms included joint and muscle pain, and difficulty with focus and memory. To alleviate pain, Claimant took muscle relaxers, pain medication, and physical therapy. Claimant began to use a cane in the 1990s due to decreased mobility from fibromyalgia.

In December 1999 Claimant sustained a "TIA." ${ }^{3}$ A second one occurred early in 2006, when Claimant was hospitalized. Another "TIA" occurred when she was sleeping. The second TIA affected Claimant's speech, so she emailed at work to compensate; however, the impact on Claimant's speech was temporary. Claimant takes Plavix to prevent strokes.

Claimant had left foot surgery three times before 2004 to remove heel spurs. She also had plantar fasciitis. The conditions have not worsened since 2004. Also, she was diagnosed with asthma and took medication as needed. Once, she left work due to chemical exposure.

In 2000, Claimant's supervisor helped her to get a scooter, which she continues to use. Prior to 2004 Claimant used the scooter to get around at work. Claimant received a handicapped parking space, bought a van and installed a lift for the scooter.

Prior to the carpal tunnel injury in 2004, Claimant occasionally needed help to unload the scooter and other aids from the van because of leg complaints. Also, co-employees obtained lunch for Claimant. Workers wheeled Claimant to meetings in a chair before she obtained the scooter.

Prior to 2004, co-employees filed paperwork, faxed documents, and assisted Claimant as needed. Her office was rearranged to accommodate the scooter, and a place to recharge it. An assistant was assigned to Claimant prior to hand surgery. Different co-employees assisted after hand surgery. In early 2004 Claimant took two hydrocodone pills per night for pain.

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[^0]: ${ }^{3}$ The record contains evidence the TIA may have been related to a stroke.

Claimant worked for Employer from 1981 to May 10, 2006. Twenty-three years were spent as a Senior Records Clerk A. Claimant worked eight hours a day, and spent 90 percent of the day inputting data into the computer. Claimant worked overtime as needed. Claimant learned three computer systems because of divestiture and downsizing. The systems were not integrated.

In the early 2000s Claimant began to experience numbness and pain in both hands. To alleviate symptoms, Claimant wore wrist splints at work, and Employer provided a specialized keyboard with a place to rest her hands.

Claimant's symptoms continued and she received medical treatment from Dr. Naseer, who diagnosed bilateral carpal tunnel syndrome. Dr. Hehmann performed a carpal tunnel release in April 2004 on the right wrist. In June 2004 Dr. Hehmann surgically repaired the left wrist. Dr. Hehmann prescribed medication and physical therapy, and kept Claimant off work for a period of time.

Stephen M. Benz, M.D., examined Claimant on August 3, 2004, diagnosed work-related carpal tunnel syndrome, and released her to work full duty, with no restrictions.

Surgery eliminated pain and numbness but Claimant continued to have decreased grip strength. Her ability to type decreased, as well as her ability to perform repetitive typing during the day. Claimant had difficulty opening bottles, doors, and jars, and holding a knife to slice food. Claimant was never disciplined because of her limitations.

In July 2004 Claimant returned to work and became trapped in the ladies' room because she could not open the door. She attempted to pull the door but her hand slipped off and pain radiated up her right arm. Claimant sat in the stall until someone opened the door. To prevent being locked in the bathroom, Claimant rode her scooter to the $14^{\text {th }}$ floor and operated push button equipment. Prior to 2004 Claimant was able to use the bathroom in her work area.

After carpal tunnel surgery, two people drove Claimant to work until November 2004 when she was released to drive. During that time she received assistance getting her scooter in and out of the van. At the end of the day, co-employees helped Claimant load the scooter into the van and assisted with scooter problems.

After Claimant started driving, her supervisor Mr. Steve Seloff met her every morning and evening to help unload and reload the scooter. Claimant only needed Mr. Seloff's assistance with the scooter after hand surgery. Also, after hand surgery, Claimant received a designated parking spot at work so she could ride the scooter across the bridge.

Claimant continued to work because the company needed the knowledge she possessed about four data systems used by the company, which they planned to consolidate. Also, she enjoyed working with her co-employees