Mary Kay Hazeltine v. General Motors LLC

(After Mandate from the Missouri Court of Appeals for the Eastern District)

**Injury No.:** 12-043608

**Employee:** Mary Kay Hazeltine

**Employer:** General Motors LLC (settled)

**Insurer:** Self-Insured (settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

On October 22, 2019, the Missouri Court of Appeals, Eastern District, issued an opinion reversing the January 24, 2019, award and decision of the Labor and Industrial Relations Commission (Commission). *Mary Kay Hazeltine v. Treasurer of the State*, ED107630 (October 22, 2019, trans. denied February 4, 2020). By mandate dated February 6, 2020, the Court confirmed its decision to reverse the Commission's award and decision and remanded this matter to the Commission for further proceedings consistent with the Court's opinion.

In their decision, the Court specifically directed "We reverse the Commission's decision that the [Second Injury] Fund is not liable for Claimant's permanent and total disability, and we remand with instructions for the Commission to enter an award consistent with the findings in this opinion." Therefore, pursuant to this express directive and the mandate from the Court, we issue the following award.

The Second Injury Fund is liable to employee for permanent total disability benefits beginning May 3, 2013, at the differential rate of $386.54 for 70.76 weeks, and thereafter at the stipulated weekly permanent total disability benefit rate of $811.73. The weekly payments shall continue for employee's lifetime, or until modified by law.

The award and decision of Administrative Law Judge Lee B. Schaefer, issued May 23, 2018, is attached solely for reference.

For necessary legal services rendered to employee, Daniel R. Keefe, Attorney at Law, is allowed a fee of 25% of the compensation awarded, which shall constitute a lien on said compensation.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this **5th** day of March 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

- **Name:** LABOR AND INDUSTRIAL RELATIONS COMMISSION

**Board:** Robert W. Cornejo, Chairman

**Secretary:** Reid K. Forrester, Member

**Chairman:** Shalonn K. Curls, Member

**Secretary:**

1. Are any benefits awarded herein? No
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: June 15, 2012
5. State location where accident occurred or occupational disease contracted: St. Charles County
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 happened or occupational disease contracted: A hanging toolbox struck Claimant on the head and left houlder.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Body as whole referable to the head, BAW referable to psychiatric, and left shoulder
14. Compensation paid to-date for temporary disability: None
15. Value necessary medical aid paid to date by employer/insurer? $15,743.27
16. Value necessary medical aid not furnished by employer/insurer? None

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-043608

1. Employee's average weekly wages: Sufficient for maximum rates for PTD and PPD
2. Weekly compensation rate: $\$ 811.73 / \ 425.19
3. Method wages computation: By agreement

1. Second Injury Fund liability:

None

1. Future requirements awarded:

None

An evidentiary hearing was held before Administrative Law Judge Lee Schaefer in the above-referenced matter on March 6, 2018. Mary Kay Hazeltine ("Claimant") was present and represented by her counsel, Daniel Keefe. The Second Injury Fund ("Fund") was represented by its counsel, Assistant Attorney General, Jennifer Sommers. Claimant previously settled with General Motors LLC ("Employer") and its insurer, General Motors LLC c/o Sedgwick Claims Management Services ("Insurer").

The parties stipulated to the following facts:

1. On or about June 15, 2012, Claimant sustained an accidental injury arising out of and in the course and scope of her employment;
2. Claimant and Employer were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
3. Claimant was an employee of Employer;
4. Employer received proper notice of Claimant's injury;
5. Claimant filed her Claim for Compensation within the time prescribed by law;
6. On June 15, 2012, Claimant was making an average weekly wage of sufficient for the maximum rates for both total disability and a permanent partial disability rate which are $\$ 811.73 / 425.19$;
7. Employer did not pay any temporary total disability (TTD);
8. Employer paid $\ 15,743.27 for medical treatment related to Claimant's injury;
9. Venue for the hearing in this matter is proper at the St. Louis Office of the Missouri Division of Workers' Compensation;
10. Claimant reached maximum medical improvement on May 3, 2013.

The only issue to be resolved at this hearing is:

1. What is the nature and extent of the Second Injury Fund's liability?

Claimant offered and had accepted into evidence, the following Exhibits:

Exhibit 1: Deposition of Dr. David Volarich dated November 16, 2017

Exhibit 2: Deposition of Dr. Jay Liss dated November 6, 2017

Exhibit 3: Deposition of Dr. Adam Sky dated November 21, 2017

Exhibit 4: Deposition of James England dated November 14, 2017

Exhibit 5: Depositions of Claimant dated October 29, 2012 and October 6, 2014

Exhibit 6: Medical records from Dr. Steven Livingstone

Exhibit 7: Medical records from Metro Imaging

Exhibit 8: Medical records from St. Joseph's Hospital West

Exhibit 9: Medical records from St. Peters Bone \& Joint Surgery

Exhibit 10: Medical records from Excel Sports and Physical Therapy

Exhibit 11: Medical records from cENTre (Dr. Michael Conoyer)

Exhibit 12: First Report of Injury

Exhibit 13: Medical records from SSM Health Care

Exhibit 14: Stipulation for Compromise Settlement dated February 8, 2016

Exhibit 15: Division of Workers' Compensation Records - Rehabilitation Benefits

The Second Injury Fund did not offer any Exhibits into evidence.

Note: Some of the records submitted at the hearing contain handwritten remarks or other marks on the exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on March 6, 2018.

Claimant is a 59 year-old woman who worked for Employer for eleven days before she was injured. Employer hired Claimant on June 4, 2012. Claimant filled in wherever she was needed in the plant. Her shifts were 12 hours long, but if she completed her work early, she could leave. An average day was 10 to 12 hours. Claimant had no trouble completing her job duties and working overtime prior to her accident.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-043608

On June 15, 2012, Claimant was working on the line when a tool rack that was suspended from the ceiling hit her on the head and left shoulder. Claimant did not recall being struck, but recalled being told by a co-worker that she had been struck in the head.

Following the accident, Claimant went to the Emergency Room. She could not recall the diagnoses of the Emergency Room doctor, but when prompted by her attorney stated she was diagnosed with a head injury, neck pain, laceration on her head, and a left shoulder strain.

Claimant treated with Drs. Frisella, Larkin and Conoyer following her injury. While Drs. Frisella and Larkin's names were familiar to her, Claimant could not recall what treatment she received from them. Claimant did not recall Dr. Conoyer at all. Claimant could also not recall meeting with her rating doctors: Drs. Sky, Liss, or Volarich.

Claimant attempted to return to work after the accident, but she could not keep up with the job demands. The plant was very noisy, which made Claimant's head hurt and made it hard for her to concentrate.

Following her accident, Claimant had had a "constant headache." She knows she is getting a headache because it is "like a shade coming down over my eyes." When Claimant gets a headache, she has to go to a quiet place and lie down. Bright lights, loud noise, and crowds trigger Claimant's headaches. Claimant also reported that she cannot move her shoulder into certain positions; as a result, she puts her clothes on differently than before the accident. After her attorney specifically asked her about dizziness and a change in her sleep habits, Claimant also reported that after her accident, she developed dizziness and her sleep habits have changed. Claimant now sleeps 12 or more hours a day; she previously slept 5 to 7 hours a day.

Claimant developed memory problems following her accident. Claimant never had memory problems before the work accident, but they have continued to worsen since the accident. Claimant developed bilateral tinnitus following her accident. She also has buzzing in her ears; it sounds like there are bees in her head. The buzzing usually proceeds one of her more severe headaches. Claimant could not recall if she was diagnosed with PTSD. Upon prompting, Claimant also reported mood swings and panic attacks.

Claimant currently takes generic Xanax, Ambien and Flexeril. She has taken generic Xanax for 20 years; it is prescribed by her primary care physician. Her primary care physician also prescribes the Ambien for Claimant. Claimant takes the Flexeril when her low back becomes painful. When her headache becomes severe, she lies down in a quiet, dark place until it lessens.

Claimant graduated from high school in 1977. Claimant then served two years in the Navy; her discharge was honorable. Claimant attended Florissant Valley Community College for two years. She studied black and white photography. Claimant did not get a degree because she could not afford the class on color photography. Claimant worked at both Hussmann and Lear Chrysler in the 1990s. She worked at Hussmann for 4 years and Lear Chrysler for 1 year. She

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-043608

did not work from 1995 until Employer hired her in 2012.

Claimant testified that from 1995 through 2012, she stayed home to help raise her grandchildren. Claimant's second daughter Sandra, who was born in 1984, has four children. On one occasion, the state removed the children from Sandra's custody for a year and placed them with Claimant and her husband. On other occasions, Sandra would leave her children with Claimant for a long periods of time and not return. Claimant's gra