Arkeather Spratt v. U S Airways, Incorporated

wholly on employee's subjective report to him that her low back condition was unchanged from June 2007 to the present. Consequently, the persuasive value of Dr. Musich's rating of "preexisting" low back disability turns to a considerable degree upon an evaluation of employee's own credibility in describing her complaints. We note that the administrative law judge expressly found employee's testimony lacking credibility as to this issue.

After careful consideration, we discern no reason to question Dr. Musich's findings on examination, or his opinion with respect to the level of low back permanent partial disability from which employee was suffering at the time he evaluated her-but again, this evaluation occurred more than four years after the work injury. It was employee's burden to demonstrate that she suffered from a level of permanent partial disability referable to her low back that met the statutory thresholds as of the date of injury on March 13, 2010. Lammert v. Vess Bevs., Inc., 968 S.W.2d 720, 725 (Mo. App. 1998). In the absence of additional medical records referable to employee's low back condition, and because we discern no compelling reason to disturb the administrative law judge's findings with regard to employee's credibility, we find employee failed to meet that burden.

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

The award and decision of Administrative Law Judge Suzette Carlisle, issued February 18, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 15^{\text {th }} \qquad$ day of April 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Department of Labor and Industrial

Injury No.: 10-017935

Before the

Division of Workers'

Compensation

Insurer: New Hampshire Insurance Company (Settled)

Hearing Date: December 1, 2015

Checked by: SC

1. Are any benefits awarded herein? No
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: March 13, 2010
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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: For the primary injury, Claimant injured her left shoulder when she lifted heavy luggage at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left shoulder
14. Nature and extent of any permanent disability: 20 % of the left shoulder (Settled)
15. Compensation paid to-date for temporary disability: $\ 10,186.06
16. Value necessary medical aid paid to date by employer/insurer? $\ 20,479.82

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 469.10
3. Weekly compensation rate: $\ 312.73
4. Method wages computation: Stipulated

1. Amount of compensation payable: (Settled prior to hearing)
2. Second Injury Fund liability: No

TOTAL: NONE

1. Future requirements awarded: N/A

Said payments to begin 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Louise Ryterski

Employee: Arkeather Spratt

Departments: N/A

Employer: US Airways Group, Inc. (Settled)

Additional Second Injury Fund

Insurer: New Hampshire Insurance Company (Settled)

Injury No.: 10-017935

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On December 1, 2015, the parties appeared for a hearing at the Missouri Division of Workers' Compensation Office in St. Louis at the request of Arkeather Spratt ("Claimant"), to decide whether the Second Injury Fund ("SIF") should pay Claimant permanent partial disability ("PPD") benefits. Prior to the hearing, US Airways ("Employer") and New Hampshire Insurance Company ("Insurer"), settled their claim with Claimant for 20\% PPD of the left shoulder and did not participate in the proceeding.

Attorney Louise Ryterski appeared for Claimant. Assistant Attorney General Joye Hudson appeared for the Second Injury Fund ("SIF").

Court Reporter Jennifer Jett transcribed the proceedings. The record closed after presentation of the evidence. The parties submitted proposed awards.

The parties stipulated that on March 13, 2010:

1. Claimant was employed by Employer;
2. Claimant sustained an accident that arose out of and in the course of employment in

St. Louis City;

1. Employer and Claimant operated under the Missouri Workers' Compensation Law;
2. Employer's liability was fully insured by New Hampshire Insurance Company;
3. Employer had notice of the injury;

1. A claim for compensation was filed in a timely manner;
2. Claimant's average weekly wage was $\ 469.10 with a rate of $\ 312.73 for temporary total disability benefits ("TTD"), and permanent partial disability benefits ("PPD");
3. Employer paid $\ 10,186.06 in temporary total disability benefits for 32 weeks; and
4. Employer paid medical benefits totaling $\ 20,479.82.

The parties identified one issue for disposition: The nature and extent of SIF liability for PPD benefits, if any.

Claimant's Exhibits 1 through 7 were offered and received into evidence without objection. SIF offered no exhibits. Any objections made during the hearing or contained in the depositions, but not ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, they were made prior to becoming a part of this record and were not placed there by the undersigned administrative law judge.

All evidence was reviewed but only evidence that supports this award is discussed below.

On May 22, 2007, Claimant lifted a bag from a conveyor belt at work and felt a pop in her low back. Initial treated occurred at Barnes-Jewish Hospital West. Three follow-up visits took place at Concentra where medication, five physical therapy visits, and medication were prescribed for a low-back strain. Claimant was placed on restricted duty, but missed work because Employer did not have a limited duty assignment. Claimant did not report the injury to her employer.

Medical records dated June 13, 2007, show Claimant reported improvement and requested an early release to return to full duty. At the hearing, Claimant testified she asked to return to full duty to restore her income. Claimant received no further treatment for her low back. In 2009, Claimant transferred to a desk job, and sitting increased pain and stiffness in her back.

Leading up to March 2010, Claimant continued to have back pain with cleaning, bending and moving about the airplane. Co-employees permitted Claimant to lift carryon baggage, clean the plane and get ice while they handled heavier items. Claimant missed two days from work every other week because of back pain. Claimant had no physician-imposed restrictions. To relieve back and shoulder pain, Claimant takes ibuprofen.

In October 2006, Employer hired Claimant as a full-time ramp agent. Initially, Claimant worked frequent overtime. For each flight, a minimum of 100 bags were handled by two employees, one at the bottom of the bag area, the other in the belly of the plane. Claimant was assigned to the baggage area, and was required to lift 50 pounds or more. Claimant took two to three breaks per day, including lunch. The length of breaks varied depending on air traffic and weather.

On March 13, 2010, Claimant lifted a bag that weighed over 50 pounds, but it was not marked "heavy" as required. Claimant dropped the bag and it jerked her left shoulder. Her left shoulder popped and she immediately knew something was wrong. She reported the incident to her manager.

Claimant treated at St. John's Emergency Department and was diagnosed with a sprain/strain of the left shoulder. Concentra placed Claimant on restricted duty and prescribed

medication. An MRI revealed partial tears of the supraspinatus, infraspinatus, and subscapularis tendons, and subacromial subdeltoid bursitis, and dependent bicipital tendinopathy.

Dr. Kostman unsuccessfully injected the shoulder twice. In March 2011, Dr. Kostman surgically repaired a lef