Gina Beaman v. Lowe's Home Centers, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No. 12-067652

**Employee:** Gina Beaman

**Employer:** Lowe's Home Centers, Inc.

**Insurer:** Self-insured

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge awarding compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge (ALJ) with this supplemental opinion.

Preliminarily, we note that employee's application for review alleged error in the administrative law judge's award only as to issues that involved injury to employee's left hand and wrist. Specifically, in response to the section on the application for review form that stated, "The Administrative Law Judge's award, decision or order is erroneous for the following specific reasons:" employee wrote the following in an attached document, in pertinent part:

(a) The administrative law judge erred in that she failed to award PPD benefits for the left hand and wrist because the doctors for both the employer and employee found disability of the left hand and wrist due to the work activities.

(b) The ALJ erred in that she failed to award unpaid medical expenses for medical treatment to claimants [sic] left hand and wrist.

(c) The ALJ erred in that she failed to award unpaid medical mileage incurred while obtaining treatment to the left hand and wrist.

(d) The ALJ erred in that she failed to award TTD benefits for the period of time while the claimant was recovering from surgery to the left hand and wrist.

(e) The ALJ erred in that she failed to double the compensation ordered and unpaid following a temporary award.

Injury No. 12-067652

Employee: Gina Beaman

- 2 -

Employee's appeal brief to the Commission argues the Commission "should further find that a 15% loading factor should be added as there is a synergistic effect due to the involvement of [employee's] bilateral opposing extremities." Because employee's application for review fails to reference any issues relating to employee's right hand or wrist, we find that employee failed to preserve the issue of alleged additional disability due to involvement of bilateral opposing extremities for our review.

**Medical Causation**

The administrative law judge's award states, "An Administrative Law Judge's opinion cannot trump that of a board certified orthopedic surgeon like Dr. Wyrsch who found no causal relationship between a condition in Claimant's left hand and her work for Lowe's." This finding incorrectly suggests that an independent medical evaluation, report, or office note of Dr. Wyrsch addressing the issue of medical causation of employee's left hand condition is a part of the record.

We supplement the administrative law judge's award and decision to clarify that Dr. Wyrsch's opinion regarding medical causation of disability to employee's left hand condition is referenced in Dr. Robert E. Paul's March 30, 2017, independent medical report, admitted into evidence as Claimant's Exhibit 2. Dr. Paul's report recounted that during an April 20, 2015, consult, in response to employee's complaints of left hand pain and swelling around the middle finger, Dr. Wyrsch opined, "I do not believe this is a work related condition but rather an inflammatory arthritis or perhaps just simple osteoarthritis with wear and tear."

As the administrative law judge's Findings of Fact correctly note, "The parties agree that Dr. Wyrsch... determined that Claimant's condition was not work-related and, relying on that opinion, Employer would not authorize further treatment for the left hand."

We affirm with the administrative law judge's conclusion of law that Dr. Evan Crandall's medical opinion, based solely on employee's perception, that pushing and pulling materials at employee's work resulted in 2% disability of the left upper extremity at the wrist level, does not constitute a medical causation opinion based on reasonable medical certainty. We further agree with the administrative law judge's finding that Dr. Paul's evaluation of disability to employee's left hand was based solely on a separately claimed 2014 injury and therefore does not furnish the basis for a finding of medical causation relating to employee's left hand in this case.

1 Petitioner/Employee's Brief, p. 13.

2 Award, p. 10.

3 Transcript, 74.

4 Id., 79.

5 Award, p. 7.

6 Transcript, 83. We take administrative notice of Division records showing that, on or about March 13, 2015, employee filed a separate claim, assigned injury number 14-102585, alleging an injury to employee's left upper extremity, including the left hand, when, "While in the course and scope of employment, employee was lifting carpet pad and felt immediate pain in her left hand."

MNKOI 0000811657

- 3 -

Based on the foregoing, we affirm the administrative law judge's finding the "Claimant failed to meet her burden of proof with respect to the treatment and any disability as it relates to the left upper extremity in this case."7

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

The award and decision of Administrative Law Judge Victorine R. Mahon, issued February 5, 2019, is attached and incorporated by this reference.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Given at Jefferson City, State of Missouri, this **14th** day of November 2019.


LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

7 Award, p. 10.

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: September 1, 2012.
5. State location where accident occurred or occupational disease was contracted: Taney 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: Employee was pulling floor covering and other products.
12. Did accident or occupational disease cause death? No. Date of death? Not applicable.
13. Part(s) of body injured by accident or occupational disease: Right upper extremity.
14. Nature and extent of any permanent disability: 25 percent at the 175 -week level to the right upper extremity plus 5 weeks for disfigurement.

1. Compensation paid to-date for temporary disability: $601.97.

1. Value necessary medical aid paid to date by employer/insurer? $45,203.89.

1. Value necessary medical aid not furnished by employer/insurer? None.

1. Employee's average weekly wages: 543.70.

1. Weekly compensation rate: 362.46.

1. Method of wage computation: By stipulation.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

- For permanent partial disability

- 25% x 175-week level = 43.75 weeks

- 43.75 weeks x $362.46 = 15,857.63

- For disfigurement

- 5 weeks x 362.46 = $1,812.30

**TOTAL:** $17,669.93

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: The Ryan E. Murphy Law Firm.

The undersigned Administrative Law Judge conducted a Final Hearing involving the claim of Gina Beaman (Claimant), who appeared personally and with her attorney, Ryan Murphy. Lowe’s Home Centers, Inc. (Employer) and its Third Party Administrator, Sedgwick CMS, appeared by their attorney, John S. Dolence. Jon Rettmann was present as the corporate representative. The parties reached stipulations of fact and narrowed the issues as follows:

1. On or about September 1, 2012, Lowe’s Home Centers, Inc., was an employer operating under and subject to The Missouri Workers’ Compensation Law, and during this time was an authorized self-insurer.
2. On that same date, Gina Beaman, the claimant herein, was an employee of Employer, and was working under and subject to The Missouri Workers’ Compensation Law.
3. On or about September 1, 2012, Claimant sustained an injurious occupational exposure arising out of and in the course of her employment with the employer.
4. The above-referenced employment and accident occurred in Taney County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper. Jurisdiction is admitted.
5. Claimant notified Employer of an injury as required by § 287.420 RSMo.
6. The Claim for Compensation was filed within the time prescribed by § 287.430 RSMo.
7. At the time of the alleged injury of September 1, 2012, Claimant’s average weekly wage was 543.70, which is sufficient to allow a compensation rate of 362.46 for all purposes.
8. Employer paid Claimant $601.97 in temporary total disability, representing 1.67 weeks for the periods of 2/1/2013 – 2/3/2013, and 9/6/2013 – 9/13/2013.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gina Beaman

Injury No.: 12-067652

(9) Employer provided Claimant with medical treatment in the amount of $45,203.89.

1. What is the nature and extent of any disability sustained as a result of the alleged injurious occupational exposure on or about September 1, 2012?

1. What, if any, compensation is Claimant to receive for disfigurement?

1. Is Employer obligated to pay for certain past medical care and expenses?

1. Should the unpaid compensation following the Temporary/Partial Award be doubled?

1. Is Employer obligated to pay mileage reimbursement?

1. Shall Employer provide future medical care in order to cure and relieve the effects of the injuries?

1. Is Employer obligated to pay additional temporary total disability? Claimant seeks 4.1 weeks of temporary total disability compensation for the period of November 9, 2015, to Dec