Janet Anhalt v. Penmac Personnel Services, Inc.

(Reversing Award and Decision of Administrative Law Judge)

Injury No. 09-006127

Employee: Janet Anhalt

Employer: Penmac Personnel Services, Inc.

Insurer: Ace American Insurance Co.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission reverses the award and decision of the administrative law judge.

The parties asked the administrative law judge to resolve the following issues: (1) medical causation; (2) injury arising out of and in the course of employment; (3) nature and extent of permanent disability; (4) temporary total disability; and (5) past medical expenses.

The administrative law judge determined that employee's injury did not arise out of and in the course of employment, and found all other issues to be moot.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred in finding that her injury did not arise out of and in the course of employment.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Employee worked for employer as a field associate performing temporary or seasonal services for employer's clients. Employee worked for one of these clients, ReckittBenckiser, on a number of occasions. Reckitt-Benckiser operated a food plant. Employee's typical work duty for Reckitt-Benckiser was inspecting french-fried onions.

Employer and Reckitt-Benckiser jointly developed a training/orientation program for the field associates who would be working on Reckitt-Benckiser's premises. The goal in jointly developing this training was to fully incorporate Reckitt-Benckiser's needs and expectations into the program, so that the field associates could seamlessly integrate into Reckitt-Benckiser's workplace. Employer administered the orientation program before the field associates went to work for Reckitt-Benckiser.

Employees of employer who worked on Reckitt-Benckiser's premises were required to check in at a guard station before proceeding into the plant. There was a separate time clock installed on Reckitt-Benckiser's premises for the use of employer's employees. While working on Reckitt-Benckiser's premises, the field associates (including employee) were subject to the supervision of Preston White, an employee of employer. Mr. White coordinated when the field associates would work, what tasks they would perform, and also took any calls related to attendance. In addition, all Reckitt-Benckiser employees had the

authority to direct the work of the field associates if they saw them doing something unsafe or inappropriate.

Reckitt-Benckiser did not pay the field associates directly. Instead, the contract between employer and Reckitt-Benckiser provided that Reckitt-Benckiser paid an hourly rate plus a premium to employer for every hour of work the field associates performed. Employer kept the premium while disbursing the remainder of the payment from Reckitt-Benckiser to the field associates. In addition, Reckitt-Benckiser paid employer a one-time fee for the costs involved in the interview/screening of each field associate.

The agreement between employer and Reckitt-Benckiser provided that there would be no charge to Reckitt-Benckiser for unsatisfactory work on the part of a field associate, provided Reckitt-Benckiser timely notified employer of the unsatisfactory performance.

In the early morning hours of January 30, 2009, employee finished her shift and clocked out, and was traversing Reckitt-Benckiser's parking lot ${ }^{1}$ on her way to her personal vehicle when she slipped on a patch of ice and fell. Employee landed on her outstretched right hand and experienced immediate pain.

Employee received emergency care at St. John's Hospital, where physicians diagnosed a right distal radius fracture with dorsal angulation and displacement, and an ulnar styloid fracture with displacement. Treating physicians provided employee with a wrist splint and pain medications, and discharged her with orders to follow-up with Dr. William Goodman for a surgical consultation. Later that same day, Dr. Goodman performed a closed reduction of the right distal radius fracture, with application of an external wrist fixator.

On March 12, 2009, Dr. Goodman removed the external fixator from employee's right wrist, and recommended employee undergo physical therapy. Following removal of the external fixator, employee was left with some scarring of the right forearm. Specifically, employee has four small round scars corresponding to the pins of the external fixator.

During the course of physical therapy, employee noticed she was having problems performing internal rotation of her right shoulder. Dr. Goodman recommended a right shoulder MRI, which revealed mild tendinopathy of the tendons on the greater tuberosity without a full-thickness tear of the rotator cuff or labral pathology; mild to moderate subacromial/subdeltoid bursitis; and thickening and mild signal abnormality about the axillary recess. Dr. Goodman recommended corticosteroid injections, and instructed employee to continue with physical therapy.

As of March 24, 2009, Dr. Goodman believed employee could return to light duty work provided employer would accommodate the restriction that employee not use her right upper extremity; but if employer could not accommodate that restriction, employee should remain off work. Employee testified that she ultimately returned to work on May 8, 2009, but did not indicate that employer was unable to accommodate Dr. Goodman's restrictions of March 24, 2009, or that she otherwise felt unable to work until May 8, 2009. Rather, from employee's testimony that she expected to be temporarily laid off from her assignment

[^0]

[^0]: ${ }^{1}$ The parties stipulated that Reckitt-Benckiser owned and controlled this parking lot.

with Reckitt-Benckiser during this time period, it appears that May 8, 2009, may have simply been the date that Reckitt-Benckiser asked her to return to work.

Because the evidence is lacking as to this point, we find that employee returned to work on May 8, 2009, but we decline to make any finding that employee was medically restricted from returning to work between March 24, 2009, and May 8, 2009.

Employee presented the expert medical opinion of Dr. Robert Paul, who examined employee, reviewed medical records, and authored a report dated January 2, 2012. Dr. Paul believes the prevailing factor causing employee's right arm fracture and disability was the fall of January 30, 2009. Dr. Paul also believes employee developed right shoulder impingement and adhesive capsulitis syndrome as a result of the subsequent surgery and immobilization of the right upper extremity.

Dr. Paul reviewed employee's medical records and bills and opined that the treatment and charges employee incurred in connection with the January 30, 2009, injury were reasonable and necessary. With regard to employee's ability to work following the injury, Dr. Paul believes employee was temporarily and totally disabled from January 30, 2009, until April 28, 2009, unless employer was able to provide her with modified duty consistent with Dr. Goodman's restriction of no working with the right upper extremity.

Dr. Paul assigned permanent restrictions resulting from the work injury as follows: no overhead work with the right shoulder, no lifting over 10 pounds with the right arm from waist to shoulder height, no repetitive use of the right arm for tasks away from the body or in extended position, and no repetitive work with the right wrist/hand. With regard to permanent partial disability, Dr. Paul rated employee's right wrist injury at 25 % of the 175week level, and the right shoulder injury at 10 % of the 232 -week level.

There is no competing expert medical opinion on this record. We find the opinions from Dr. Paul to be persuasive, with the following caveats.

First, as we have noted above, employee did not provide any testimony to clarify whether employer permitted her to return to work for any period of light or restricted duty, and testified only that she ultimately returned to work on May 8, 2009. Where Dr. Paul provided a conditional temporary total disability opinion that essentially deferred to the restrictions from Dr. Goodman, and where Dr. Goodman opined that employee could return to light duty work as of March 24, 2009, with the restriction that she not use her right upper extremity, this leaves us with a gap in the evidence regarding employee's inability to work following the work injury. While it strikes us as rather unlikely that employer would be able to provide an assignment for employee that would permit her to honor Dr. Goodman's restriction that she not use her right upper extremity at all, where there is no evidence whatsoever on the question, we would be forced to speculate in employee's favor to reach such a finding. Accordingly, we find that employee's inability to work ended on March 24, 2009, when Dr. Goodman opined employee could return to light duty work.

Second, we note that employee persuasively testified that her right shoulder complaints completely resolved. As a result, we do not find persuasive Dr. Paul's rating of permanent

disability in connection with the right shoulder conditions employee developed as a result of the immobilization of her right upper extremity following Dr. Goodman's surgery.

Finally, we note that employee also downplayed the effects of her right wrist fracture and testified that the surgery gave her a good result and that she has no problems performing her job. In light of this testimony, Dr. Paul's 25 % rating of the right wrist strikes us as somewhat excessive. On the other hand, the mere fact that employee does not experience any problems performing her current job does not preclude the possibility that other types of work may prove difficult. Accordingly, we credit Dr. Paul's uncontested expert opinion that employee sustained permanent disability as a result of her right wrist fracture. We find that the extent of this disability is 15 % permanent partial disability of the right wrist.

Section 287.020.3(1) RSMo sets forth the standard of medical causation applicable to this claim, and provides, in relevant part, as follows:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

We have credited, in part, the opinions from Dr. Paul with regard to the issue of medical causation. We conclude that the accident of January 30, 2009, was the prevailing factor causing employee to suffer the following medical conditions and disability: a right distal radius fracture with dorsal angulation and displacement, and ulnar styloid fracture with displacement requiring surgical correction and resulting in a 15 % permanent partial disability of the right wrist; and a right shoulder impingement and adhesive capsulitis syndrome that resolved with no permanent disability.

We turn now to the issue whether employee's injuries arose out of and in the course of her employment. At the outset, we must determine the nature of such "employment," where employee's work involved performing services under the simultaneous direction and control of both employer and its client Reckitt-Benckiser. Specifically, we must determine whether employee suffered her injuries while in the service of employer and/or Reckitt-Benckiser. ${ }^{2}$

[^0]

[^0]: ${ }^{2}$ We note that employer's counsel, at oral argument in this matter, suggested that any