Mary Claxton v. Waterloo Industries

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 12-104078

**Employee:** Mary Claxton

**Employer:** Waterloo Industries

**Insurer:** Ace American Insurance Co.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The matter proceeded to hearing on March 9, 2017. The parties asked the administrative law judge to determine the following issues:

1. Whether employee's work accident was the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
2. Whether, and to what extent employer is liable for any permanent partial disability or permanent total disability benefits; and
3. Whether, and to what extent employer is liable for future medical benefits pursuant to 287.140.

The administrative law judge determined as follows:

1. Employee sustained an injury to her left shoulder and lower back as a result of the work accident;

- Employee's sarcoidosis and resulting treatment (including brain surgery) and employee's hip condition were not causally related to her work-related accident;

1. Employee sustained a 35% permanent partial disability of the body as a whole attributable to her lower back injury and 5% permanent partial disability of the upper left extremity, as a result of the December 17, 2012, work accident; and
2. Employer is not liable for any future medical treatment benefits.

Employer filed a timely application for review with the Commission alleging the administrative law judge erred in concluding employee is entitled to permanent partial disability benefits consistent with a finding of 35% to the low back.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issue of the disability rating assigned to permanent partial disability of the lower back, decreasing that portion of the award to 15%.

1 On page 17 of the Award, the administrative law judge ruled that employee is not entitled to any temporary total disability benefits. This was not identified at the hearing as an issue. The parties do not ask us to address any issue of temporary total disability on appeal. For this reason, we do not address it here.

Injury No.: 12-104078

Employee: Mary Claxton

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The parties did not dispute that employee sustained an accident in the workplace. On appeal, the parties do not ask us to review the administrative law judge's finding that the accident was the prevailing factor in causing the left shoulder injury and disability.

The parties do dispute the extent of permanent partial disability referable to the low back. The administrative law judge rendered an award of permanent partial disability benefits suggesting he believed the accident caused some injury to employee's lower back, but did not render any affirmative findings with regard to the particular medical condition(s) he believed to have resulted from the accident.

Dr. Koprivica diagnosed a "chronic lumbosacral strain/sprain type of injury with ongoing chronic axial back pain," related to the accident at work. (Exhibit 1, Transcript Vol. 2, pages 394-430) Dr. Zimmerman diagnosed "symptomatic lumbar spondylosis at L4-L5 and L5-S1 with chronic lumbar paraspinous myofasciitis" as a result of the accident. (Exhibit I, Tr. Vol. 2, p. 387) Both doctors opined that the low back injury and any resulting disability were caused by the work-related accident.

It is well-documented in the medical records that employee reported back pain shortly after the work-related accident and she fairly consistently reported low back pain to various providers. She received treatment for this, including a referral to an orthopedist for evaluation and physical therapy. Employer's expert, Dr. Koprivica, (and others) noted employee's limitations on movement. Dr. Koprivica noted after his March 18, 2016 examination that the range of motion (flexion/extension) of employee's low back was significantly less than the norm for both forward and backward bending at the waist. (Tr. Vol 2, p. 423-424)

We find the accident was the prevailing factor causing employee to suffer the resulting medical condition of a low back strain, and associated disability.

The administrative law judge assigned a disability rating of 35% of the body attributable to employee's lower back injury. His determination appears to be based in part, on the opinion of Dr. Zimmerman, who examined employee on March 26, 2015. Dr. Zimmerman rated disability at 35% of the body as a whole, due to symptomatic lumbar spondylosis. He further opined that employee had sustained permanent partial disability of the right lower extremity at the hip level and rated it at 50%. The overall permanent partial disability of the body as a whole, considering both factors of assessment was 61%.

As noted by the administrative law judge, one factor influencing Dr. Zimmerman's opinion was the employee's report at the time of examination that she had injured her right hip as a result of the December 17, 2012, accident. As further noted by the judge, "The weight of the credible evidence is that employee fell on her left side and injured her left shoulder and lower back." (Award at p.15) The administrative law judge found, and we agree, that employee has not met her burden to show any other injury, aside from the lower back and

TI3661-1667

Injury No.: 12-104078

Employee: Mary Claxton

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left shoulder. Therefore, we limit our consideration of Dr. Zimmerman's opinion to his assessment that the accident resulted in a 35% disability to the lower back.

We agree with employer that a 35% disability rating to the low back is excessive. The administrative law judge's reasoning in limiting the nature of the injuries flowing from the December 17, 2012, accident is more consistent with the opinion of Dr. Koprivica. In his report following a March 18, 2016 examination, the doctor acknowledged that some permanent disability was present to the lower back as a result of the accident. He rated that disability at 5%.² Dr. Koprivica found that employee has developed some chronic soft tissue pain in the left shoulder and lumbosacral spine. (Tr. Vol 2, p. 429) Aside from this, he opined no other injuries or conditions alleged by employee, were attributable to the accident. (Tr. Vol 2, p. 426)

The degree of disability is not strictly a medical question.³ Employee has consistently maintained that she continues to have a level of pain affecting her ability to perform daily activities.⁴ While employee's testimony and recollection of events is noticeably flawed⁵ at times, we do not doubt that she experiences pain, and that some of that pain is attributable to the injury to her back resulting from the accident. Dr. Koprivica finds employee credible in her overall presentation, while noting some memory issues. (Tr. Vol 2, p. 398,420,425) However, employee's assertion that she still experiences pain from these injuries at a level of ten out of ten is unsupported by any objective findings.

Considering all the credible evidence before us, we find the disability relative to employee's low back should be rated at 15%. This takes into consideration the doctors' opinions, medical records showing employee reported back pain fairly consistently as late as 2016 and the observation of medical providers, (including Dr. Koprivica), of decreased range of motion in the lumbar spine. The permanent partial disability benefits (PPD) for the low back are calculated at 60 weeks. The stipulated PPD rate is $376.83. The PPD attributable to the left shoulder is calculated at 11.6 weeks, for a total of 71.6 weeks, equal to $26,981.03.

Conclusion

We modify the award of the administrative law judge as to the issue of permanent partial disability. The disability rating for employee's lumbosacral injury is 15% permanent partial disability. In all other respects, we adopt the administrative law judge's award.

² He further found a 5% disability rating (at most) relative to the left shoulder injury.

³ ABB Power T & D Co. v. Kempker, 236 S.W. 3d 43, 52 (Mo. App. 2007)

⁴ Because "there is no objective test for pain [.] the extent to which a claimant experiences pain is a credibility determination for the Commission to decide." Ballard v. Woods Supermarkets, 422 S.W. 3d 473, 478-79 (Mo. App. 2014)

⁵ Employee's intervening brain condition for which she was hospitalized January 24, 2013 through February 2, 2013, may play a part in memory issues. The brain condition was not related to the accident on December 17, 2012. Dr. Koprivica also noted in his March 18, 2016 report, that there are "likely neurocognitive residuals associated with her noted development of central nervous system sarcoidosis and the residuals associated with obtaining the biopsy." (Tr. Vol 2, p 398, 410, 420) This reference relates to the craniotomy with excision biopsy of the meninges on January 29, 2013.

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Employee is entitled to, and employer is hereby ordered to pay $26,981.03, in permanent partial disability benefits; (60 weeks for the low back, plus 11.6 weeks for the left shoulder).

The Award and Decision of Administrative Law Judge Joel Anderson, issued on June 7, 2017, is attached hereto and its findings and conclusions are incorporated herein, to the extent they are not inconsistent with our modifications.

The Commission approves and affirms the administrative law judge's allowance of an 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 18th day of April 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Mary E. Claxton

Injury No. 12-104078

Dependents:

Employer: Waterloo Industries

Additional Party:

Insurer: Ace American Insurance Company

Hearing Date: March 9, 2017

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JEA

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: December 17, 2012
5. State location where accident occurred or occupational disease was contracted: Sedalia, Pettis 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: Stacking tool boxes on a skid
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: shoulder, back
14. Nature and extent of any permanent disability: 35 percent of the body; five percent upper left extremity
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? $\ 5,938.99

1. Value