Walter Kramer v. 50 Plus Pharmacy, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-124172

Employee: Walter Kramer

Employer: $\quad 50$ Plus Pharmacy, Inc. (Settled)

Insurer: Pharmacists Mutual Insurance Co. (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 July 30, 2013. The award and decision of Administrative Law Judge Lawrence G. Rebman, issued July 30, 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 $\qquad 26^{\text {th }}$ 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:

Employee: Walter Kramer

Injury No. 08-124172

Employer: $\quad 50$ Plus Pharmacy, Inc. (Settled)

Insurer: Pharmacists Mutual Insurance Co. (Settled)

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: May 13, 2013

Checked by: LGR/lh

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: On or about April 17, 2008
5. State location where accident occurred or occupational disease was contracted: Independence, Jackson 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: While Employee was carrying totes up a flight of stairs at work, he suddenly and unexpectedly lost his balance and fell down the stairs injuring his right and left

shoulders.

1. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Right Shoulder, Left Shoulder
2. Nature and extent of any permanent disability: 16 % to each shoulder
3. Compensation paid to-date for temporary disability: $\ 1,650.08
4. Value necessary medical aid paid to date by employer/insurer? \$9,344.25
5. Value necessary medical aid not furnished by employer/insurer? None
6. Employee's average weekly wages: $\ 240.00
7. Weekly compensation rate: $\ 160.00
8. Method wages computation: Stipulation of the parties

Employee shall receive weekly permanent total disability benefits at a rate of $\ 160.00 from August 14, 2008, less a credit of 75 weeks for which the employer paid permanent partial disability benefits at the rate of $\ 160.00.

Said payments are payable and subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a twenty-five percent (25\%) lien in favor of Brianne Thomas, Attorney, for reasonable and necessary attorney's fees pursuant to $\S 287.260 .1$.

Employee: Walter Kramer

Injury No. 08-124172

Employer: $\quad 50$ Plus Pharmacy, Inc. (Settled)

Insurer: Pharmacists Mutual Insurance Co. (Settled)

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: May 13, 2013 Checked by: LGR/lh

At the hearing on May 13, 2013, the employee and Second Injury Fund stipulated to the following:

1. That on or about April 17, 2008, 50 Plus Pharmacy, Inc., was an Employer operating under the provisions of the Missouri workers' compensation law and that their liability under said law was fully insured by Pharmacists Mutual Insurance, Co.;
2. That on or about April 17, 2008, Walter Kramer was an employee of 50 Plus Pharmacy, Inc., and was working under the provisions of the Missouri workers' compensation law;
3. That the Employer had notice of the injury;
4. That the Claim for Compensation was filed within the time prescribed by law;
5. That the Claimant's average weekly wage was $\ 240.00 and the applicable compensation rate for permanent total disability is $\ 160.00;
6. That temporary total disability benefits have been paid by the Employer in the amount of $\ 1,650.08 for 11.57 weeks;
7. That medical aid has been furnished by the Employer in the amount of $\ 9,344.25;
8. That the Claim between the Employer and Employee was settled previously and that such stipulation was approved by the Hon. Lisa Meiners on May 22, 2012. The settlement between the Employee and the Employer provided that the Employer was to pay the Employee $\ 12,000.00 for permanent partial disability

representing 16 % at the 232 -week level referable to both shoulders.

The only issues to be determined by this hearing are:

1. whether the employee suffered an accident; and
2. whether the Second Injury Fund is liable to the Claimant for permanent total disability benefits under $\S 287.220 .1$ RSMo (2012).

Claimant alleges that he is permanently and totally disabled as a result of the combination of the disability from his April 17, 2008 injury to his bilateral shoulders, as well as numerous pre-existing permanent disabilities he had at the time of his 2008 work injury. At the hearing, the Second Injury Fund contested liability.

The following exhibits were admitted into evidence on behalf of the Claimant subject to the objections made at the depositions of the witnesses:

Exhibit A - Amended Claim for Compensation 08-124172

Exhibit B - Employer's Answer to Claim for Compensation

Exhibit C - Second Injury Fund's Answer to Claim for Compensation

Exhibit D - Settlement Stipulation for Injury Number 08-124172

Exhibit E - Withdrawn

Exhibit F - Deposition of P. Brent Koprivica, M.D., with the following exhibits:

1) Dr. Koprivica's C.V.

2) Dr. Koprivica's Report of April 27, 2011

3) Claimant's Medical Records

4) Chart Note from April 21, 2009

5) Chart Note from June 16, 2009

Exhibit G - Deposition of Terry Cordray, vocational expert, with the following exhibits:

1) Mr. Cordray's C.V.

2) Mr. Cordray's Report of July 20, 2011

The Fund offered the following exhibit, which was admitted into evidence:

Exhibit 1 - Deposition of Walter Kramer

The Fund offered no other evidence, aside from its cross-examination of the Claimant.

Claimant was present at the hearing and his testimony was credible. It is noted that Mr. Kramer testified that he could not remember exact dates or his specific problems at the time of the hearing. He testified on more than one occasion he has trouble remembering things and he gets confused. He said he has trouble with his balance and that he gets dizzy. He testified he would agree with the medical records.

Mr. Kramer is 83 years old at the time of the hearing, having been born on February 15, 1930. He graduated high school in 1948, but completed no further academic or vocational training. He served in the military from 1951 to 1953 as quarter master supply sergeant in Korea. After the service he went to work in the grocery business. He worked for a number of grocery stores in various capacities. He performed duties as a cashier, sacker and stocker. While working in his grocery business, he did not work with computers. Mr. Kramer retired from the grocery business at age 62. He returned to his father's farm, farming and selling produce. He performed the farming activities until approximately 1997. Mr. Kramer's vocational history indicates that he did not have any experience working in an office, answering phones, working on a computer or typing.

In 1997, the Claimant began working for 50 Plus Pharmacy. He worked Monday through Friday, 10:00 am through 6:00 pm, earning $\ 8.00 an hour. The Claimant delivered prescriptions to customers' homes, including nursing homes and individual homes in Independence. He did not have to lift more than five pounds when delivering prescriptions to a person's home. He regularly lifted totes weighing twenty pounds when making deliveries to nursing homes. Making deliveries required climbing up stairs, carrying prescriptions, as well as getting into, and out of, the delivery vehicle. While at the store, the Mr. Kramer's job duties included sweeping the floor, stocking shelves and emptying trash bins.

Mr. Kramer's right hand has significant problems dating back to 2003. On November 2, 2005, he underwent a cervical reconstruction and disk fusion due to angular kyphosis of his cervical spine which caused his cervical spine to slope forward and results in the claimant's head permanently bending forward as if looking down.

In 2006, Mr. Kramer was injured when he fell on ice while delivering prescriptions for the Employer. He received a CT scan to check for head injuries. The doctors discovered Claimant had normal pressure hydrocephalus or fluid on the brain, which was not a result of the fall. After the fall on the ice, Claimant changed his work hours to part time of four hours a day. His duties changed to only deliveries and no heavy lifting. Claimant did not claim any permanent work injuries from the fall.

From 2005 until the accident in 2008, the Claimant continued to work for 50 Plus Pharmacy despite his pre-existing hand and neck condition which caused his head to permanently tilt down and his hands to be numb and his pre-existing hydrocephalus which caused the Claimant to experience balance problems and dizziness.

On April 17, 2008, while working at 50 Plus Pharmacy, the Claimant was carrying three totes up a flight of stairs. According to the Claimant, each tote weighed approximately 20 pounds. He held one tote under his arm, and stacked the other two totes in his hands. As he climbed, the Claimant lost his balance because he was overloaded and fell backwards down the stairs to the floor. In his deposition, Claimant denied that he fell because he was dizzy. As a result of the fall, Mr. Kramer injured both shoulders and hit his head. He was taken by ambulance to Centerpoint Medical Center. The Claimant timely reported his shoulder injuries to his employer. Based on the testimony of the Claimant, both at the hearing and in his deposition, I find that the Claimant sustained an accident while in the course and scope of his employment at 50 Plus Pharmacy.

After falling down the stairs, the Claimant obtained treatment that day at Centerpoint Medical Center. X-rays revealed a right scapula fracture. The next day, the Claimant saw Dr. Wayne Letizia, his personal physician. Dr. Letizia referred the Claimant to Dr. Gregory Hummel, an orthopedic specialist. The Claimant visited Dr. Hummel on April 24, 2008. During the visit, Dr. Hummel discovered that the Claimant injured his left scapula as well. At Dr. Hummel's direction, the Claimant underwent x-rays that day, which revealed a non-displaced fracture of the left scapula. Dr. Hummel treated the Claimant from April 24, 2008 to August 14, 2008. Though Dr. Hummel referred him to Select Physical Therapy for attempted rehabilitation, the Claimant testified that therapy did not help his condition. Dr. Hummel eventually released the Claimant to return to work on August 14,