Patricia Hulsey v. Chrysler, LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 07-132641

Employee: Patricia Hulsey

Employer: Chrysler, LLC (Settled)

Insurer: Old Carco, LLC (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 May 15, 2015, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued May 15, 2015, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $25^{\text {th }}$ day of September 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Patricia Hulsey

Injury No.: 07-132641

Dependents: N/A

Employer: Chrysler, LLC (Settled)

Additional Party: Second Injury Fund

Insurer: OLD CARCO, LLC C/O

Sedgwick Claims Management Services (Settled)

Hearing Dates: January 7, 2015 and February 3, 2015

Record Closed on February 6, 2015

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: (Alleged) May 31, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? N/A
8. Did accident or occupational disease arise out of and in the course of the employment? No
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 employed working on the assembly line for Employer and allegedly injured her right foot/heel and ankle as a result of the work she performed for 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: (Alleged) Right Foot/Heel and Ankle
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Patricia Hulsey

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: N/A for TTD \& N/A for PPD
4. Method wages computation: N/A

1. Amount of compensation payable:

Claim Denied $\ 0.00

1. Second Injury Fund liability:

Claim Denied $\ 0.00

TOTAL: $\mathbf{\$ 0 . 0 0}$

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: Mr. W. Edwin Roussin

Employee: Patricia Hulsey

Injury No.: 07-132641

Dependents: N/A

Employer: Chrysler, LLC (Settled)

Additional Party: Second Injury Fund

Insurer: OLD CARCO, LLC C/O

Sedgwick Claims Management Services (Settled)

On January 7, 2015, the employee, Patricia Hulsey, appeared in person and by her attorney, Mr. W. Edwin Roussin, for a hearing for a final award on her Claim against the Second Injury Fund. The employer, Chrysler, LLC, and its insurer, OLD CARCO, LLC C/O Sedgwick Claims Management Services, were not present or represented at the hearing since they had previously settled their risk of liability in this case. The Second Injury Fund was represented by Assistant Attorney General Kevin A. Nelson.

Following the conclusion of the hearing on January 7, 2015, the parties discovered an apparent error in one of the Exhibits that had been admitted into evidence. In an exchange of e-mail correspondence between the parties, it was understood that if the parties chose to correct the error, they had 30 days from the date the hearing began, during which time the record could be reopened and the evidentiary issue addressed. The parties again appeared at the Division in St. Louis on February 3, 2015 to admit an additional Exhibit to cure the apparent evidentiary error.

To allow the parties time to cure the evidentiary issue and to prepare and file their proposed awards or briefs in this matter, the record did not technically close until February 6, 2015. Although we did not go back on the record or take any further evidence in this matter after February 3, 2015, the record was, then, closed on that date and the briefs were submitted by the parties by February 9, 2015.

Along with this Claim [Injury Number 07-132641, with a date of injury of May 31, 2007, alleging injury to the right foot and ankle], Claimant also tried her other open companion claims at the same time. Injury Number 06-135235, with a date of injury of July 31, 2006, alleges injury to the left foot and ankle. Injury Number 07-132751, with a date of injury of December 31, 2007, alleges injury to the low back. Separate awards have been issued for each of these cases.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about May 31, 2007, Patricia Hulsey (Claimant) allegedly sustained an occupational disease injury.

2) Claimant was an employee of Chrysler, LLC (Employer).

3) Venue is proper in the City of St. Louis.

4) The Claim was filed within the time prescribed by the law.

5) Employer paid no benefits in this case prior to their settlement with Claimant.

1) Did Claimant sustain an occupational disease?

2) Did the alleged occupational disease arise out of and in the course of Claimant's employment for Employer?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to her alleged occupational disease at work for Employer leading up to May 31, 2007?

4) Did Employer receive proper notice of the injury?

5) What is Claimant's appropriate average weekly wage and rates of compensation for the payment of benefits in this work injury Claim?

6) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this work injury on May 31, 2007?

7) What is the liability, if any, of the Second Injury Fund?

The following exhibits were admitted into evidence:

1. Deposition of Dr. Robert Poetz, without attachments, taken on March 11, 2014
2. Deposition of Mr. Timothy Lalk, with attached report, taken on December 9, 2013
3. Deposition of Claimant taken on April 26, 2010
4. Medical report of Dr. Robert Poetz dated October 21, 2009
5. Vocational rehabilitation report of Mr. Timothy Lalk dated May 23, 2011

1. Medical report of Dr. Daniel Kitchens dated May 4, 2011

6-A. Supplemental report of Dr. Daniel Kitchens dated September 2, 2014

1. Medical report of Dr. John Krause dated September 27, 2010
2. Certified medical treatment records of Crestwood Medical Center
3. Additional certified medical treatment records of Crestwood Medical Center
4. Certified medical treatment records of Primary Care-Wildwood (Dr. Leo Warren)
5. Certified medical treatment records of Dr. Dennis Popp
6. Certified medical treatment records of Midwest Pain Center
7. Certified medical treatment records of General Surgery Associates, P.C.
8. Certified medical treatment records of Alabama Infectious Disease Center, P.C.
9. Certified medical treatment records of Dr. Richard Hull
10. Certified medical treatment records of St. Louis Foot \& Ankle
11. Certified medical treatment records of Rheumatology Associates of North Alabama, P.C.
12. Certified medical treatment records of Rheumatology Associates of North Alabama, P.C.
13. Certified medical treatment records of The Orthopaedic Center
14. Certified medical treatment records of Chesterfield Orthopedics, P.C.
15. Certified medical treatment records of Dr. Frederick Peet
16. Deposition of Dr. John Krause, with attachments, dated November 26, 2014
17. Claim for Compensation in Injury Number 06-135235
18. Claim for Compensation in Injury Number 07-132641
19. Claim for Compensation in Injury Number 07-132751
20. Stipulation for Compromise Settlement in Injury Number 06-135235 between Claimant and Employer
21. Stipulation for Compromise Settlement in Injury Number 07-132641 between Claimant and Employer
22. Stipulation for Compromise Settlement in Injury Number 07-132751 between Claimant and Employer

I. Report of Injury filed by Employer for Injury Number 06-135235

II. Report of Injury filed by Employer for Injury Number 07-132641

III. Report of Injury filed by Employer for Injury Number 07-132751

IV. Deposition of Dr. Daniel Kitchens, with attachments, dated October 1, 2014

Notes: 1) Some of the records submitted at hearing contain handwritten remarks or other marks on the Exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on January 7, 2015 or February 3, 2015.

2) Some of the deposition exhibits were admitted into evidence with objections contained in the record. Unless otherwise noted differently below, all of those objections are OVERRULED and the testimony fully admitted into evidence in this case.

3) The parties requested that I take judicial and/or administrative notice of the contents of the Missouri Division of Workers' Compensation files for these three claims. Without

objection, the record will reflect that I have taken judicial and/or administrative notice of those file contents, pursuant to their request.

Based on a comprehensive review of the evidence, including Claimant's testimony, the medical treatment records, the medical and vocational opinions and testimony, the other documentary evidence, and the Stipulation for Compromise Settlement between Claimant and Employer in this case, as well as based on my personal observations of Claimant at hearing, I find:

1) Claimant is a 57-year-old, currently unemployed individual, who testified that she was working for Chrysler, LLC (Employer) in St. Louis in July 2006 prior to her left foot/ankle surgery. She has not worked anywhere since 2008 (not even applied anywhere) and has been receiving Social Security disability benefits and retirement benefits, as well.

2) When Claimant exactly stopped working for Employer and when, if at all, she returned to work in between her alleged work injuries is somewhat confusing based on her conflicting testimony at hearing. Originally, she testified that she retired from Employer in December 2007, but then noted that she last worked on April 19, 2008, when she returned to St. Louis for an appointment with the plant doctor, even though she was residing in Alabama by then. Later, she testified that she was fired on April 17, 2008, when she stopped receiving "workmans' comp" (even though she never actually received any Workers'