Debbie Gray v. Rolla Area Chamber of Commerce

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 05-081024**

**Employee:** Debbie Gray

**Employer:** Rolla Area Chamber of Commerce (settled)

**Insurer:** Missouri Employers Mutual 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 April 16, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Amy L. Young, issued April 16, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **5th** day of September 2019.

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**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**Curtis E. Chick, Jr., Member**

**Attest:**

**Secretary**

**Employee:** Debbie Gray

**Injury No. 05-081024**

**Dependents:** N/A

**Employer:** Rolla Area Chamber of Commerce (settled)

**Additional Party:** Second Injury Fund

**Insurer:** Missouri Employers Mutual Insurance (settled)

**Appearances:**

- Chris Slusher, attorney for the employee.

- Adam Herrmann, Assistant Attorney General for the Second Injury Fund.

**Hearing Date:** January 28, 2019

**Checked by:** ALY/kg

1. Are any benefits awarded herein? No.

1. Was the injury or occupational disease compensable under Chapter 287? No.

1. Was there an accident or incident of occupational disease under the Law? No.

1. Date of accident or onset of occupational disease? Alleged March 10, 2005.

1. State location where accident occurred or occupational disease contracted: Rolla, Phelps County, Mo.

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

1. Did the employer receive proper notice? N/A

1. Did accident or occupational disease arise out of and in the course of the employment? No.

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

1. Was the employer insured by above insurer? Yes.

1. Describe work the employee was doing and how accident happened or occupational disease contracted: Employee alleged that in March of 2005 she was loading four boxes of magazines into the trunk of her boss's car and the wheel of the dolly she was using got caught on a paver and started to tip toward the car. She alleged that she threw her right leg around the dolly, did a 180 onto a tree, and then flipped onto the back of her boss's car.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Alleged cervical spine.
4. Nature and extent of any permanent disability: None awarded.
5. Compensation paid to date for temporary total disability: $\ 0.00
6. Value necessary medical aid paid to date by the employer-insurer: $\ 0.00
7. Value necessary medical aid not furnished by the employer-insurer: N/A
8. Employee's average weekly wage: $\ 440.00
9. Weekly compensation rate: $\ 293.33
10. Method wages computation: By Stipulation
11. Amount of compensation payable: None.
12. Second Injury Fund liability: None.
13. Future requirements awarded: None.

On January 28, 2019, the employee, Debbie Gray, appeared in person and with her attorney, Chris Slusher, for a Hearing for a final award. The claim against employer-insurer was settled prior to the Hearing. Assistant Attorney General Adam Herrmann appeared on behalf of the Second Injury Fund. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Rolla Area Chamber of Commerce was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Missouri Employer's Mutual Insurance.
2. On March 10, 2005, Debbie Gray was an employee of Rolla Area Chamber of Commerce and was working under the Workers' Compensation Act.
3. The employee's claim was filed within the time allowed by law.
4. The employee's average weekly wage was $\ 440.00, resulting in a compensation rate of $\ 293.33 for temporary total disability benefits and permanent partial disability benefits.
5. The employer-insurer paid $\ 0.00 in medical aid.
6. The employer-insurer paid $\ 0.00 in temporary disability benefits.

1. Whether on or about March 10, 2005, the employee sustained an accident or occupational disease arising out of and in the course of her employment.
2. Whether the employer had notice of the employee's accident.
3. Whether the employee's injury was medically causally related to the accident/occupational disease.
4. Nature and Extent of Disability

a. Whether the employee is entitled to permanent partial versus permanent total disability benefits from the Second Injury Fund;

b. Whether the employee is entitled to past due permanent and total disability benefits.

1. The date of Maximum Medical Improvement.

The following exhibits were offered and admitted into evidence without objection:

Employee Exhibits:

1. Deposition of Dr. Brent Koprivica

Employee: Debbie Gray

Injury No. 05-081024

1. Curriculum Vitae of Dr. Brent Koprivica

1. Report of Dr. Brent Koprivica dated August 15, 2006

1. Report of Dr. Brent Koprivica dated June 7, 2011

1. Deposition of Dr. Craig Meyer

1. Curriculum Vitae of Dr. Craig Meyer

1. Deposition of Dr. Heidi Prather

1. Curriculum Vitae of Dr. Heidi Prather

1. Stipulation for March 10, 2005 injury-40% BAW

1. Medical Records of St. Mary's Belle Clinic

1. Medical Records of South County Anesthesia

1. Medical Records of Pain Relief Center

1. Medical Records of Microsurgery and Brain Institute

1. Medical Records of Microsurgery and Brain Institute

1. Medical Records of Microsurgery and Brain Institute

1. Medical Records of Capital Region Clinic

1. Medical Records of Microsurgery and Brain Institute

1. Medical Records of Capital Region Clinic

1. Medical Records of Barnes Jewish Hospital

1. Medical Records of Advanced Pain Center

1. Medical Records of Neurosurgical Specialists of West County

1. Work Excuses

1. Photographs

The Second Injury Fund Exhibits:

I. Deposition of Debbie Gray dated January 20, 2006

II. Deposition of Debbie Gray dated April 2, 2010

III. Claim for Compensation for Injury No. 05-081024

Judicial notice was taken of the file maintained by the Division of Workers' Compensation.

STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW:

STATEMENT OF THE FINDINGS OF FACT:

Background

Employee was born on November 29, 1956 making her 62 years old at the time of Hearing. She is a high school graduate with one semester of college.

Employee began her employment at Rolla Area Chamber of Commerce (hereafter "Employer") in approximately April of 2004. She was employed on a full time basis as an Administrative Assistant. Her immediate supervisor was Linda Kuenzie. Employee had some low back problems at the time she was hired by Employer. She was able to perform her job duties except that there were periods of time she was receiving treatment for her low back and working subject

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Employee: Debbie Gray

Injury No. 05-081024

to physical restrictions. Employee was terminated by the Employer in May of 2005 for absenteeism. Employee has not applied for any other jobs since her termination.

Before working for Employer, Employee's work history consisted primarily of administrative assistant, secretarial, and management positions. Immediately prior to being hired by Employer, she worked for Capital Region Medical Center in Jefferson City, Missouri as an administrative assistant. She chose to leave and accept a position at Employer because of the long commute to Jefferson City from her home in Belle, Missouri. Before working for Capital Region Medical Center, she had taken approximately five years off from work and founded a soccer program. She wrote grants and purchased ten acres to create the soccer program. She was able to get the program into the local high school for kids, raised money, and developed a soccer complex. Her role in the soccer organization required her to be physically active. She was licensed to coach and referee. She mowed the 10 acres of soccer fields, stocked the concession area, ran soccer camps and was generally a jack of all trades. Before that, she worked at Maries County RII in middle school as a paraprofessional with special needs children. Before her employment with Maries County RII she worked for Central Ozark Private Industry and her job was to write grants and promote businesses in Rolla. The company created jobs for people who had been in trouble. She held this job for only a short time as her husband passed away and she could not keep the job.

Medical Treatment that pre-dated March 10, 2005

Employee began treating at St Mary's Belle Clinic as early as April 30, 1998. At that time she complained of right shoulder pain and was diagnosed with a trapezius strain. She was also noted to be experiencing stress with marital problems for which she was taking Zoloft. On August 10, 1998 she complained of back pain that was thought to be associated with a urinary tract infection. She was still taking Zoloft.

Employee was seen at Capital Region Owensville Clinic on April 13, 2004 with complaints of pain to the back of her neck and rib from a cough. She also complained of pain down the right leg. Employee underwent a CT scan of the abdomen and pelvis on May 4, 2004 due to complaints of right lower quadrant pain, bloating and sharp shooting pain into the right leg. The impression was hypertrophic degenerative arthritic disease. There was a handwritten note on the CT that stated "may be some discomfort from spine." She underwent an MRI of the lumbar spine at Mid-Missouri Medical Foundation, Inc. on May 18, 2004 that showed a bulging disc at L3-4, L4-5, and L5-S1 with suggestion of protrusion towards the right L4-5 neural foraminal canal and the right L5-S1 neural foraminal canal with disc material.

Employee was evaluated at Microsurgery and Brain Research Institute on June 29, 2004 with complaints of back pain that began approximately four years ago. She reported the pain radiated to the right groin, right hip and buttock and down her right leg into the right foot. It was recommended that she proceed with a trial of lumbar epidural steroid injections and a right sacroiliac joint injection. She was given a script for Flexeril.

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Employee: Debbie Gray

Injury No. 05-081024

Employee was first seen at South County Pain Management on July 26, 2004 for complaints of low back pain radiating into the right leg that reportedly began "two to three years ago." She rated the intensity of pain as 6/10 on average. She reported that it was "hurting her to the point where she can no longer perform daily activities and she is 'hurting all of the time.'" Employee underwent selective nerve root blocks at L4 and L5 as well as a right sacroiliac joint injection. She was instructed to be off work until July 29, 2004. She was prescribed Vicodin. On August 13, 2004 she returned and reported temporary relief following the injections. She was scheduled to undergo additional injections, but the procedure was cancelled due to complaints of nausea and feeling faint. She did undergo additional injections including nerve r