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Gracie Stevenson v. Laclede Gas Company

Decision date: October 21, 2016Injury #04-14842316 pages

Summary

The Commission affirmed the administrative law judge's award of workers' compensation benefits to Gracie Stevenson for a cervical spine injury sustained on June 18, 2004 when she tripped on debris while standing in a pickup truck bed. The claimant was awarded 40% permanent partial disability of the body as a whole, totaling $55,528.00 in compensation.

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Third-Party Injury Check

This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-148423

Employee: Gracie Stevenson

Employer: Laclede Gas Company

Insurer: Self-Insured

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 6, 2015. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued October 6, 2015, 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 $\qquad 21^{\text {st }} \qquad$ day of October 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

AWARD

Employee:Gracie StevensonInjury No.: 04-148423
Dependents:N/ABefore the
Division of Workers' Compensation
Employer:Laclede GasDepartment of Labor and <br> Industrial Relations
Additional PartyN/AOf Missouri
Insurer:SelfJefferson City, Missouri
Hearing Date:June 25, 2015Checked by: KOB

FINDINGS OF FACT AND RULINGS OF LAW

  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: on or about June 18, 2004 (see footnote 3)
  5. State location where accident occurred or occupational disease was contracted: St. Louis
  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: While standing in the bed of a pickup truck, Claimant tripped on debris and fell.
  12. Did accident or occupational disease cause death? No
  13. Part(s) of body injured by accident or occupational disease: Cervical spine/body as a whole
  14. Nature and extent of any permanent disability: 40 % PPD of the body as a whole
  15. Compensation paid to-date for temporary disability: $\ 0.00
  16. Value necessary medical aid paid to date by employer/insurer? $\ 1,600.00
  1. Value necessary medical aid not furnished by employer/insurer? N/A
  2. Employee's average weekly wages: of $\ 905.73
  3. Weekly compensation rate: $\$ 603.82 / \ 347.05
  4. Method wages computation: By agreement

COMPENSATION PAYABLE

  1. Amount of compensation payable:

160 weeks of permanent partial disability from Employer: $\ 55,528.00

  1. Second Injury Fund liability: No

TOTAL:

$\mathbf{\$ 5 5 , 5 2 8 . 0 0}$

  1. Future requirements awarded: N/A

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: B. Michael Korte

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Gracie Stevenson

Imprint No.: 04-148423

Dependents: N/A

Employer: Laclede Gas

Additional Party N/A

Insurer: Self

Hearing Date: June 25, 2015

Before the

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Jefferson City, Missouri

Checked by: KOB

PRELIMINARIES

The matter of Gracie Stevenson ("Claimant") proceeded to hearing on June 25, 2015. Attorney B. Michael Korte represented ${ }^{1}$ Claimant. Attorney Mark Anson represented Laclede Gas Company ("Employer"), which is self-insured. Three separate claims ${ }^{2}$ were tried concurrently: the instant claim ("2004 Case"), Injury No. 05-055801 ("2005 Case"), and Injury No. 06-078015 ("2006 Case"). Claimant seeks to recover permanent total disability (PTD") compensation.

With respect to the 2004 Case, the parties stipulated Claimant was an employee of Employer subject to the Missouri Workers' Compensation Act ("Act") when, on or about June $18^{3}$, 2004 in St. Louis City, she suffered an accident arising out of and in the course of employment. At the relevant time, Claimant earned an average weekly wage of $\ 905.73, with corresponding rates of compensation of $\ 603.82 for PTD and temporary total disability ("TTD") benefits, and $\ 347.05 for permanent partial disability ("PPD") benefits. Claimant provided proper notice and filed a timely claim. Employer paid $\$ 1,600.00^{4}$ in medical, but no TTD.

The issues to be determined are: 1) was work a substantial factor ${ }^{5}$ in causing Claimant's injury; and 2) what is the nature and extent of Claimant's permanent disability? There is no claim against the Second Injury Fund in the 2004 Case.

[^0]

[^0]: ${ }^{1}$ Administrative notice is taken of the fact Attorney Korte did not enter the case until May 5, 2011, and did not file the original claim

${ }^{2}$ Although it is not involved in the 2004 Case, the Second Injury Fund is a party to the 2005 Case and the 2006 Case, and Assistant Attorney General E. Joye Hudson participated in the hearing on behalf of the Second Injury Fund.

${ }^{3}$ There is significant confusion in the record as to the exact date of Claimant's 2004 injury. The parties stipulated to June 18, the DWC records/claim indicates June 16, and various doctors cite a June 14 date of injury. Because no party has placed the precise date of the accident at issue, I will assume all references to a June 2004 event are to the same day/event, regardless of the date.

${ }^{4}$ In a post-trail communication to the Court, with notice to opposing counsels, Employer provided the specific amounts of TTD and medical Employer paid under each Injury Number.

${ }^{5}$ Prior to the August 29, 2005 changes in the Workers' Compensation Law, an employee's work only had to be a "substantial factor" and not the "prevailing factor." § 287.020.3(2)(a). The 2005 changes also required the Commission and the courts to construe the law "strictly" rather than liberally in favor of coverage the way it had been before the revisions. § 287.800 .

The Exhibits were admitted for all three Cases as follows, with Claimant's exhibits marked with numerals and Employer's marked with letters:

  1. CV of Dr. Poetz
  2. January 10, 2012 Dr. Poetz report
  3. July 8, 2013 Dr. Poetz deposition
  4. CV of Gary Weimholt
  5. December 2, 2013 Mr. Weimholt report
  6. February 19, 2015 Mr. Weimholt deposition
  7. records of St. Louis Spine Care Alliance
  8. abridged records of St. Louis Orthopedic Institute
  9. abridged records of Wash. U. Department of Neurological Surgery
  10. abridged records of St. Louis Primary Care (her primary care physician ("PCP"))
  11. abridged records of Concentra
  12. abridged records of Christian Hospital
  13. records of Barnes Jewish Hospital
  14. records of ProRehab, P.C.
  15. record of Mallinkrodt Institute of Radiology
  16. abridged certified records of ProRehab, P.C.
  17. City of St. Louis Emergency Medical Services bill

A. Deposition of Dr. Rende

B. Medical documentation portion of Claimant's Laclede Gas HR file

C. Laclede Gas employee sick absence policy

D. Certified records from two personal injury lawsuits

E. Union contract provisions on termination

The Second Injury Fund offered no additional exhibits.

Claimant's Testimony and Medical Records

Claimant is a 55 year old woman who worked for Employer primarily as a Gas Supply Control Laborer for over 20 years. She graduated from Soldan High School in 1980 and was Homecoming Queen. As a highly talented athlete, she had the opportunity to attend college, but she was unable to successfully complete the classes - she was diagnosed as dyslexic and reads at a $3^{\text {rd }} grade level. { }^{6}$ After a year away at college, Claimant received instruction in cement mason work from Job Corps and earned her CDL license. However, she did not pass on the first attempt and needed a reader to complete the test. Claimant has always needed help; even when her daughter was a child she helped Claimant with reading. Claimant can do simple arithmetic but has no knowledge of or skills involving computers.

Claimant started working for Employer in 1983 as a laborer, and remained so employed until December 29, 2006. The job of Gas Supply Control Laborer is a very physical position.

[^0]

[^0]: ${ }^{6}$ Testing administered in this case revealed Claimant's reading is in the "deficient range" and her math is "low average." See Exhibit 5.

Among other duties, Claimant was required to dig ditches by hand, lift 100 pound material bags, move railroad ties and perform other heavy duties. She worked high above ground and several feet below ground, on man lifts, scaffolding, and pulley-operated swing seats. She operated jack hammers, used hand tools of all sizes, and painted.

Before June 2004, Claimant was able to perform all the tasks assigned to her. She was also active away from work, playing basketball and softball, riding her bike and skating. She was able to do this despite a history of hypertension, right shoulder dislocations with two surgical repairs, a sprained right wrist and lower extremity injuries which completely resolved. In 1988, Claimant strained her back while lifting a 100-lb sandbag. She received conservative treatment and continues to experience back pain.

In 2000, Claimant developed the gradual onset of neck pain. After an "altercation" with the police, the pain worsened and Claimant sought evaluation and treatment for a cervical strain. The x-ray revealed slight reversal of normal cervical curvature, and the physical therapy notes indicates the symptoms limited her activities of daily living.

On or about June 16, 2004, the accident which is the basis of this claim occurred. On that day, while at work as a laborer for Employer, Claimant was standing in the bed of a truck trimming tree branches. Her feet became caught up in the debris, and she fell out of the truck, landing on her neck on concrete pavement. She immediately felt pain in her neck, shoulder and wrist.

After her supervisor was notified, Claimant was taken to the company doctor, where she was advised that she had a sprained wrist. She received approximately six weeks of physical therapy and was placed on light duty work. These records were not in evidence. She developed symptoms in her bilateral upper extremities and it was believed that she had carpal tunnel syndrome ("CTS") versus an injury to her neck.

Claimant presented to her PCP on August 17, 2004, with complaints of stiffness in her neck and numbness in her right arm and the fingers of both hands. Claimant was diagnosed with possible right CTS and trapezius/neck pain. She was treated with a wrist splint and medication. An EMG nerve conduction study obtained on August 31, 2004, revealed left sensory motor CTS, right sensory CTS and evidence of entrapment of the ulnar nerves at the Guyon's canal bilaterally.

Dr. Robert Tucker performed independent medical evaluation regarding Claimant's bilateral upper extremity complaints on October 21, 2004. He felt Claimant's history was consistent with CTS, recommended she wear wrist splints at night and returned her full duties. On December 8, 2004, Dr. Tucker noted, "[t]he patient continues to complain

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