Tracy Whorton v. Silgan Container

In light of the foregoing analysis, we discern no need to discuss or consider the continued applicability (if any) of the mutual benefit doctrine under the 2005 amendments to the Missouri Workers' Compensation Law; accordingly, we hereby disclaim the administrative law judge's analysis and comments on that topic.

Section 287.190 RSMo provides for the payment of permanent partial disability benefits in connection with a compensable work injury. The administrative law judge credited and adopted the ratings from employee's expert, Dr. Stuckmeyer, as to the extent of permanent partial disability employee suffered as a result of her work injury. Employer complains that these ratings are too high.

It is well-settled in Missouri that the issue of the nature and extent of permanent disability resulting from a compensable work injury is within the "unique province" of the fact-finder to decide. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007). After careful consideration, we will defer to the findings of the administrative law judge on this issue, because in his brief and at oral argument before the Commission, employer's counsel declined to provide a compelling reason to disturb these (or any other) findings, instead choosing to level personal attacks at the administrative law judge, assert factual propositions not shown to be supported by the record, and advance legal arguments that, as counsel conceded at oral argument, find no support in the language of Chapter 287 or relevant case law.

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

The award and decision of Administrative Law Judge Lawrence G. Rebman, issued December 6, 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.

Given at Jefferson City, State of Missouri, this $1^{\text {st }}$ day of August 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

SEPARATE OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

(Concurring in Part and Dissenting in Part)

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I agree with the decision by the majority, but I would increase employee's award of compensation in this matter consistent with Dr. Stuckmeyer's credible opinion that the multiplicity of employee's injuries justifies the application of a 10\% augmentation, or multiplicity factor.

This employee suffered an array of debilitating injuries when she fell in employer's icy parking lot, including a right trimalleolar ankle fracture, a chronic lumbosacral strain and right sacroiliac dysfunction with radicular symptoms into the right lower extremity, and a likely meniscal tear in her right knee. As employee credibly testified, and the administrative law judge detailed in his award, employee's recovery following these multiple serious injuries was substantially hindered when employer's insurer failed to authorize treatments recommended by the doctors it selected to care for employee, even going so far at one point as to require the providers to stop physical therapy for employee's back right in the middle of a session.

I pause to note that employer's counsel affirmatively misstated the record in this matter when, at oral argument, he asserted that employee did not have right knee complaints until "years" after the work injury. To the contrary, the January 28, 2008, and February 1, 2008, records from Dr. Smith reflect that employee complained of low back, hip, and right knee pain after her first attempts to bear weight on her right lower extremity. See Transcript, pages 212, 177. I find counsel's lack of candor toward this tribunal to be emblematic of employer's overall approach to this case. It appears that employer's insurer unilaterally decided, without any medical opinion to back it up, that this was merely an ankle fracture case, and that employee was not going to get any other treatment, despite the existence in the earliest medical records of substantial back, hip, and right knee complaints.

As a result of the failure on the part of employer and insurer to recognize their "absolute and unqualified" duty under the law to provide medical treatment, see Martin v. Town \& Country Supermarkets, 220 S.W.3d 836, 844 (Mo. App. 2007), employee suffered a needlessly prolonged recovery period, and as detailed by Dr. Stuckmeyer, has been left with enhanced permanent partial disability. For this reason, I would apply a 10\% multiplicity factor and increase employee's compensation for permanent partial disability to $\ 81,309.36.

Because the majority did not award a 10\% multiplicity factor to account for employee's multiple injuries, I respectfully dissent from that aspect of the Commission's decision; otherwise, I concur in the result.

Employee: Tracy Whorton

Injury No: 07-125897

Employer: Silgan Container

Insurer: Zurich American Ins. Co.

Hearing Date: October 3, 2013

Briefs Filed: November 4, 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: December 27, 2007
5. State location where accident occurred or occupational disease was contracted: St. Joseph, Buchannan 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 went to get her gloves from the car and fell on ice in the parking lot of her employer.
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: lower back, left hip.

Issued by Division of Workers' Compensation

Employee: Tracy Whorton

Injury No.: 07-125897

1. Nature and extent of any permanent disability:

40 % permanent partial disability to her right ankle at the 155 week level or 62 weeks of disability;

30 % permanent partial disability to Ms. Whorton's right knee at the 160 week level or 48 weeks of disability; and,

20 % permanent partial disability to the body as a whole at the 400 week level or 80 weeks of disability.

1. Compensation paid to-date for temporary total disability: $\ 9,005.29
2. Value necessary medical aid paid to date by employer/insurer? \$31,913.56
3. Value necessary medical aid not furnished by employer/insurer? Unknown
4. Employee's average weekly wages: $\ 705.07
5. Weekly compensation rate: $\$ 470.07 / \ 389.04
6. Method wages computation: Stipulation of the parties
7. Employer-Insurer amount of compensation payable:
8. Future requirements awarded: Ms. Whorton is awarded future medical for the removal of the hardware in her right ankle.

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

Employee: Tracy Whorton

Injury No: 07-125897

Employer: Silgan Container

Insurer: Zurich American Ins. Co.

Hearing Date: October 3, 2013

Briefs Filed: November 4, 2013

Checked by: LGR/lh

On October 3, 2013, Ms. Tracy Whorton and Employer-Insurer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. Ms. Tracy Whorton, appeared in person and with counsel, Katheen McNamara. The Employer-Insurer appeared by their counsel, Thomas D. Billam.

The parties stipulated that:

1. On or about December 27, 2007, ("the injury date"), Silgan Container. ("Silgan" or "Employer") was an employer operating subject to Missouri's Workers' Compensation law with its liability fully insured by Zurich American Insurance Company;
2. Ms. Whorton was its employee working subject to the law in St. Joseph, Buchannan County, Missouri, and that for purposes of hearing, the venue was proper in St. Joseph, Buchannan County, Missouri.
3. Ms. Whorton notified Silgan of her injury and filed her claim within the time allowed by law;
4. Silgan provided Ms. Whorton with medical care costing \$31,913.56; and
5. Silgan provided St.