Jane Cook-Noyes v. Wal-Mart Associates

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 01-044035

Employee: Jane Cook Noyes

Employer: Wal-Mart Associates (Settled)

Insurer: American Home Assurance (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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 22, 2014. The award and decision of Administrative Law Judge David L. Zerrer, issued October 22, 2014, 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 $9^{\text {th }}$ day of April 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Jane Cook

Additional Party: Second Injury Fund

Insurer:

Hearing Date: August 12, 2014

Injury No. 01-044035

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

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 3, 2001
5. State location where accident occurred or occupational disease was contracted: Macon, Macon 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: Claimant was bending down to remove items from drawer when felt pain in back
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: Back; body as a whole
14. Nature and extent of any permanent disability: 35 % body as a whole
15. Compensation paid to-date for temporary disability: $\ 1,854.99
16. Value necessary medical aid paid to date by employer/insurer? $\ 13,435.58

Employee: Jane Cook Injury No. 01-044035

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 304.34
3. Weekly compensation rate: $\ 202.89
4. Method wages computation: Stipulation

1. Amount of compensation payable:

All issues of primary claim settled previously

1. Second Injury Fund liability: Yes X No Open

Permanent total disability benefits from Second Injury Fund:

$\ 202.89 per week beginning May 29, 2008, and, thereafter, for Claimant's lifetime

TOTAL: $\ 65,678.39

1. Future requirements awarded: None

Said payments to begin immediately 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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Truman Allen

Employee: Jane Cook

Employee: Jane Cook

Dependents:

Employer: Wal-Mart Associates

Additional Party: Second Injury Fund

Insurer:

Checked by: DLZ

On the $12^{\text {th }}$ day of August, 2014, the parties appeared before the undersigned Administrative Law Judge for final hearing on Claimant's claim against the Second Injury Fund. Claimant appeared in person and by her attorney, Truman Allen. The Employer, having previously compromised and settled all issues in the primary claim, comes not and does not appear at this hearing. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General Maggie Ahrens. The award being sought is a final award against the Second Injury Fund. The record was ordered to be left open until 5:00 p.m. September 5, 2014.

The parties entered into a stipulation with regard to certain facts which are not at issue in this claim as follows, to wit: On or about the $3^{\text {rd }}$ day of April, 2001, Wal-Mart Associates was an employer operating subject to the Missouri Workers' Compensation Law; on the alleged injury date of April 3, 2001, Jane Cook was an employee of the Employer; the Claimant was working subject to the Missouri Workers' Compensation Law; the parties agree that on or about April 3, 2001, Claimant sustained an accident, which arose out of the course of and scope of employment; the employment occurred in Macon County, Missouri, and the parties agree that Macon County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the Claimant's claim was filed within the

Employee: Jane Cook

Injury No. 01-044035

time prescribed by Section 287.430; at the time of the claimed accident, Claimant's average weekly wage was $\ 304.34, sufficient to allow a compensation rate of $\ 202.89 for temporary total disability, permanent partial disability, and permanent total disability; temporary disability benefits have been paid in the amount of $\ 1,854.99; Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award.

The liability of the Second Injury Fund for permanent total disability/enhanced permanent partial disability?

A legal file was established for this hearing, which consisted of the following documents, to wit: Report of Injury; Claim for Compensation, filed with the Division May 30, 2002; Amended Claim for Compensation, filed with the Division August 22, 2007; Answer of Second Injury Fund to Claim for Compensation, filed with the Division June 14, 2002; Answer of Second Injury Fund to Amended Claim for Compensation, filed with the Division August 31, 2007; Stipulation for Compromise Settlement of the primary claim, approved by the Division March 12, 2008; Request for Final Hearing, filed with the Division April 18, 2014.

Claimant offered, and there was admitted without objection, Exhibits 1 through 23. The Second Injury Fund offered and there was admitted without objection, Exhibit A and Exhibit B.

Jane Cook, claimant herein, testified in her own behalf. Claimant testified that she has also been known from time to time as Jane Cook-Noyes and Jane Noyes. She was born

Employee: Jane Cook

April 9, 1945, and is 69 years of age at the date of this hearing. Claimant has a high school diploma and no other special or military training.

Claimant testified that she has worked in the past as a waitress, as well as a cook at a nursing home. Claimant had been employed by the Employer for 18-1/2 years prior to the date of injury. She indicated that she was the manager of the jewelry department for about the last 15 years prior to the injury. Claimant testified that her job duties included pricing items for sale, dealing with and serving customers, and arranging displays. Claimant stated that she had the same duties as other workers in her department, except that Claimant made out work schedules, did price changes in the computer, prepared claim forms for broken jewelry, and prepared orders for the repair of customers' jewelry.

Claimant testified that on April 3, 2001, she was preparing for inventory in the jewelry department where she worked. She indicated that she was looking under drawers of a jewelry showcase in order to assure that no items had fallen under or behind the drawers which were located on the bottom of the showcase. Claimant stated that she was putting a drawer back into the showcase when she felt a pull in her back. Claimant finished her workday but was in severe pain by the end of the day.

Claimant testified that she used a chiropractor for nearly all of her medical treatment prior to April 3, 2001. She testified that she went to her chiropractor on her own for treatment on several occasions and was sent by the Employer to Dr. Deline for additional treatment. Dr. Deline ordered an MRI and prescribed physical therapy. Dr. Deline referred Claimant to Dr. Silvers, a neurologist, who referred Claimant to Dr. Alander, an orthopedist. Claimant stated that she was diagnosed with disc bulges and that she was administered several injections in her back along with more physical therapy.

Claimant testified that in January 2003 she was sent to Dr. Robson for an independent medical evaluation. Dr. Robson recommended surgery, which was authorized by Employer, and Claimant had surgery on her low back in March 2005 with Dr. Robson. Dr. Robson placed Claimant at maximum medical improvement on September 20, 2005. She indicated that Dr. Robson gave her restrictions of no lifting more than 10-15 pounds. Claimant also stated that Dr. Robson's medical records may state a restriction of 25 pounds, but Claimant understood that her restriction on lifting was 10-15 pounds with no front carrying.

Claimant testified that between 2003 and 2005 she received treatment for a damaged cervical disc. She also testified that in 1988 Claimant had surgery on her cervical region at the C6-7 level. Claimant stated that Dr. Raskas, the surgeon for the 2005 neck surgery, indicated that the chronic pain suffered by Claimant in the cervical region was related to her work for the Employer over a period of time.

Claimant testified that she had umbilical hernia surgery in October 2000. After the initial surgery, the wound became infected and a second surgery was performed. Claimant further testified that in February 2001 she was diagnosed with a recurrent hernia and another surgery was recommended, which took place after the date of Claimant's injury.

Claimant testified that after Claimant's unrelated cervical surgery release in 2005 she was ready to return to work when Employer authorized her surgery on the low back (the primary injury in this claim). Claimant also testified that from June 2004 through September 2004, she voluntarily cut her working hours in order to take care of her husband who was dying. She stated that when she returned to work in September 2004, she was made a door greeter instead of jewelry department supervisor. Claimant also indicated that later she was changed again to be a check-out person. Claimant stated that after May 2006 her work schedule was cut to two days

Employee: Jane Cook Injury No. 01-044035

per week, usually Thursday and Saturday. Claimant stated that by that time she could not work two days in a row because her arms, shoulders, and neck would be too painful. Claimant testified that she worked part time until January 2007.

Claimant testified that since about 2007, because of her low back pain, she cannot garden, mow, or do other outside chores. She indicated that her low back pain is a chronic 3-4 level on a scale of 1-10. She also stated that she has intermittent pain in her legs if lifting, bending, or twisting, and that her worst pain is a 10 on occasions, especially when weather is bad or a long day at the church. She stated that when her back pain is high, she takes Ibuprofen, hot and cold packs, and sits and rests.

Claimant testified that her cervical pain was improved with the surge