Linda Ford v. Pauwels Transformers

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 06-061036

**Employee:** Linda Ford

**Employer:** Pauwels Transformers (Settled)

**Insurer:** Zenith Insurance Company (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 December 26, 2017. The award and decision of Administrative Law Judge Lorne J. Baker, issued December 26, 2017, 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 **10th** day of October 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**SEPARATE CONCURRING OPINION FILED**

Robert W. Cornejo, Chairman

*Reid K. Forrester, Member*

*Curtis E. Chick, Jr., Member*

**Attest:**

*Secretary*

Employee: Linda Ford

I did not participate in the August 8, 2018, oral argument in this matter, held prior to my appointment to the Commission. However, I have reviewed the evidence, read the briefs of the parties, listened to an audio recording of the oral argument, and considered the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the administrative law judge's decision in this case should be affirmed.

Robert W. Cornejo, Chairman

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

AWARD

Employee: Linda Ford

Jury No.: 06-061036

Dependents: N/A

Employer: Pauwels Transformers (Settled)

Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Additional Party: SIF

Insurer: Zenith Insurance Company (Settled)

Hearing Date: September 20, 2017

Checked by: LJB

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: June 6, 2006

1. State location where accident occurred or occupational disease was contracted: Franklin County, MO

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant sustained injury to her left and right wrists due to overuse from her work with Employer.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: left and right wrists

1. Nature and extent of any permanent disability: 17% PPD of the right wrist and 17% PPD of the left wrist with a 10% loading factor

1. Compensation paid to-date for temporary disability: $0

1. Value necessary medical aid paid to date by employer/insurer? $17,020.37

WC-3J-81 (6-81)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 512.28

1. Weekly compensation rate: 341.52/$341.52

1. Method wages computation: By agreement

**COMPENSATION PAYABLE**

1. Amount of compensation payable: Previously settled

1. Second Injury Fund liability: The Second Injury Fund is liable for 20.55 weeks (205.45 weeks x 10%), or 7,018.24.

TOTAL: 7,018.24.

1. Future requirements awarded: None

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 an attorneys' lien in the amount of 25% of all payments. 75% of the total attorneys' fees awarded are hereunder in favor of Attorney Jeffrey Gault for necessary legal services rendered to the claimant and 25% of the total attorneys' fees awarded are hereunder in favor of the Attorney Mark Rudder for necessary legal services rendered to the claimant.

WC-32-R1 (6-91)

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

Employee: Linda Ford

Dependents: N/A

Employer: Pauwels Transformers

Additional Party: SIF

Insurer: Zenith Insurance Company

Injury No.: 06-061036

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LJB

The matter of Linda Ford ("Claimant") proceeded to hearing on September 20, 2017, to determine the benefits due Claimant under the Missouri Workers' Compensation Act ("Act"). Attorney Jeffrey Gault represented Claimant. Assistant Attorney General Caroline Bean represented liability of the Second Injury Fund ("SIF"). Claimant and Pauwels Transformers ("Employer") entered into a settlement agreement regarding the primary injury prior to the hearing.

The parties stipulated on or about June 6, 2006, Claimant sustained an occupational injury, arising out of and in the course of employment that resulted in injury to Claimant. The injury occurred in Franklin County, Missouri. The parties stipulated Claimant was an employee of Employer and to the applicable rates of compensation of $341.52 for both total disability benefits and permanent partial disability ("PPD") benefits. The parties further stipulated venue is proper in the City of St. Louis, Employer received proper notice, and Claimant filed the claim within the time required by law. Employer paid $0 in temporary total disability ("TTD") benefits and paid medical benefits totaling $17,020.37. The parties stipulated maximum medical improvement ("MMI") was reached on April 23, 2007. The only issue for determination is the liability of the SIF.

At the hearing, Claimant testified in person, and offered twenty exhibits, including the depositions of Dr. Dwight Woiteshek and James Israel. The Second Injury Fund offered seven exhibits, including the depositions of Claimant and Gary Weimholt. All exhibits were offered without objection and admitted into evidence.

For purposes of judicial economy, this matter was tried in conjunction with a prior claim, Injury No. 05-061902.

WC-32-R1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

Claimant is an unemployed, 53-year-old single woman with one adult child and no dependents. She resides in St. Clair, Missouri with her sister. She is a high school graduate and was honorably discharged after serving three years in the United States Army.

Following her stint in the military, Claimant worked as a security guard and in a fast food restaurant for about one year in Missouri. She then moved to Savannah, Georgia, where she worked as a waitress for three years. Claimant moved back to Washington, Missouri, where she started waitressing at Bartholomew's restaurant in 1991 and worked part-time at a McDonald's in the kitchen for several months. Beginning in 1995, she was a surface mount technician performing assembly line work for Trans Tech Incorporated ("TTI"), a company which manufactures circuit boards for vending machines. She continued to work at Bartholomew's part-time but stopped in 1997 when the restaurant closed. She did not have any physical problems or injuries from or during her work with those employers. She was laid off from TTI in 2001 and next found work with Employer in August 2001. She stopped working with Employer in February 2007 and was approved for Social Security Disability the same year.

Claimant started working for Employer in the winding department as a machine operator performing assembly line work. She worked eight hours a day, forty hours a week with occasional overtime. The work was very hand intensive and required constant standing. She later switched into the electrical wiring department, which was also hand intensive. The job required cutting wires, cleaning out copper, and making connections using air pressure guns. In addition, she assisted in moving the units up and down the assembly line which required pushing and pulling. She sometimes picked up reels of wire to move them to different work areas.

On May 5, 2005, Claimant was working in the electrical wiring department with very large wind forms on a mechanical line. She was helping push a heavy wind form transformer that was stuck on the assembly line when she felt like "something pulled or popped in (her) lower back." She felt immediate pain in her lower back but continued to work her shift. She reported the injury to her supervisor but felt she would be fine and didn't need to go to the doctor. However, by the next day her back was in such pain she could hardly stand. She was scheduled to go out of town but stayed home instead, due to her back pain.

Claimant was sent by Employer to Unity Corporate Health ("Unity") on May 10, 2005, where she was initially diagnosed with a left lower back strain and mid-back strain, placed on light duty. She continued to follow up at Unity, undergo physical therapy, and take medication. An MRI of the lumbar spine without contrast was performed on May 31, 2005 and revealed a radial tear to the left of her L4-5 midline and a mild central disk protrusion at L5-S1, with asymmetric disk bulging on the right at the L5-S1 neural foramina. The MRI was compared to Claimant's previous 2003 MRI exam, and both the L4-5 and L5-S1 areas of abnormality were deemed somewhat slightly worsened. Dr. Keefe at Unity diagnosed her with a lumbar disc herniation with left sciatic pain and recommended a referral to a back surgeon.

Claimant came under the care of Dr. Peter Mirkin, an orthopedic spine surgeon. His initial impression was Claimant had degenerative disc disease and small disc protrusions. He recommended aggressive therapy and epidural steroids and placed her on sedentary work duty.

1 This accidental low back injury is the subject of Injury No. 05-061902.

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 06-061036

When she returned on July 15, 2005, Claimant told Dr. Mirkin she could not live with the pain anymore. Dr. Mirkin recommended an anterior/posterior lumbar decompression and fusion² which he performed on October 20, 2005.

On November 30, 2005, Dr. Mirkin returned her back to work light duty. According to Claimant, Employer assigned her office work where she scanned papers into the computer. She worked in the office until January, but not full-time. She testified she then worked eight-hour days but light duty on the floor making wires. This job allowed her to work in a seated position and move around to make herself comfortable. She described taking a wire and putting "insulation on them, crimp connectors on them."

However, Dr. Mirkin noted at her February 1, 2006 appointment she had resumed heavy tobacco use and recommended she cease smoking immediately. She returned on March 1, 2006, in persistent pain but continuing to smoke tobacco on a regular basis and at her March 29, 2006, appointment she returned smelling of tobacc