Angelina Summers v. Casey's General Store

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 16-019872

**Employee:** Angelina Summers

**Employer:** Casey's General Store

**Insurer:** EMASCO Insurance Company

**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. The award and decision of Administrative Law Judge Emily S. Fowler, issued July 3, 2019, 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 3rd day of April 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

**SEPARATE OPINION FILED**

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Injury No.: 16-019872

Employee: Angelina Summers

I have reviewed and considered all of the competent and substantial evidence on the whole record. I agree with the majority on the award of future medical benefits and the denial of recovery against the Second Injury Fund. However, 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 decision of the administrative law judge should be modified on the issue of the level of disability.

The employee has the burden of proving all essential elements of her case. *Meilves v. Morris*, 422 S.W.2d 335, 339 (Mo. 1988). I am not persuaded that the employee has proven she is permanently and totally disabled.

While generally, the Commission gives significant deference to an administrative law judge's credibility findings, in a case such as this, where medical expert testimony was not admitted into the record, the Commission is in an equal position to assess the persuasiveness of the medical experts' reports. I would find the employer's authorized treating physician's (Dr. Alexander Bailey), developed over nearly a year of treatment, after utilizing both conservative and surgical approaches, to be of more value in my assessment than the independent medical examination of Dr. James Stuckmeyer. Dr. Bailey's opinions are further supported by Michelle Sprecker, the vocational rehabilitation expert with 25 years of experience in the field of rehabilitation and job placement. Ms. Sprecker's examination of the employee was more thorough than the employee's expert, in that her aptitude testing approach included the Wide Range Achievement Test. Both Dr. Bailey and Ms. Sprecker found employee was capable of employment at some level in a medium duty position; Ms. Sprecker noting transferable skills to various occupations.

Finally, § 287.190.6 RSMo directs us that "where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests of diagnostic procedures." This is to be contrasted with subjective complaints. As noted by Dr. Bailey, the objective testing performed, through radiographic images, including two MRI's, did not confirm abnormalities that could explain employee's continued pain complaints at the level she asserted.

Nevertheless, I do not doubt that employee has some continuing pain, and for that reason I would not disturb the administrative law judge's ruling regarding future medical treatment.

Given the persuasive evidence that employee is capable of employment in the open market, and taking into consideration the ratings of both doctors, I would find employee has suffered a permanent partial disability of 20% of the body as a whole, referable to the low back.

I would modify the administrative law judge's award on the issue of permanent total disability. Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Angelina Summers

Injury No. 16-019872

Dependents: N/A

Employer: Casey's General Store

Insurer: EMASCO Insurance Company

Additional Party: Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Hearing Date: May 22, 2019

Checked by: ESF/pd

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: March 7, 2016
5. State location where accident occurred or occupational disease was contracted: Knob Noster, Johnson 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: While in the course and scope of her employment, Employee slipped and fell causing injury to her back.
12. Did accident or occupational disease cause death? No

Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

1. Part(s) of body injured by accident or occupational disease: Body as a whole, low back

1. Nature and extent of any permanent disability: Permanent total disability as to the employer

1. Compensation paid to date for temporary total disability: $10,464.81

1. Value necessary medical aid paid to date by employer/insurer? $110,333.22

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

1. Employee's average weekly wages: 306.93

1. Weekly compensation rate: 204.62/$204.62

1. Method wages computation: by stipulation

Compensation payable

1. Amount of compensation payable: Employer shall pay to Employee permanent total disability benefits in the amount of $204.62 per week beginning April 7, 2017 for as long as Employee remains permanently totally disabled.

1. Second Injury Fund liability: NA

1. Future requirements awarded: Employer shall provide Employee such medical treatment that will cure or relieve the symptoms of Employee's injury due to her March 7, 2016 accident. This medical care will be in the form of pain management as well as possible future removal or replacement of hardware.

The compensation awarded to the Employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of Keith Yarwood, Attorney for Employee, for necessary legal services rendered.

WC-32-R1 (6-81)

Page 2

Employee: Angelina Summers

Injury No. 16-019872

Dependents: N/A

Employer: Casey's General Store

Insurer: EMASCO Insurance Company

Additional Party: Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Hearing Date: May 22, 2019

Checked by: ESF/pd

On May 22, 2019, the parties appeared for final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Angelina Summers, appeared in person and was represented by her attorney, Mr. Keith Yarwood. The Employer/Insurer appeared through counsel, Mr. Thomas Clinkenbeard. The Second Injury Fund appeared through Assistant Attorney General, Ms. Maureen Shine.

The parties stipulated to the following:

1. That the employer, Casey's General Store, was an employer operating subject to the provisions of the Missouri Workers' Compensation law on, March 7, 2016 and was fully insured by EMASCO Insurance Co:
2. That Angelina Summers was its Employee and she was working subject to the law in Knob Noster, Johnson County, Missouri;
3. That Employee sustained an accident arising out of and in the course of her employment;
4. That Employee notified Employer of her injuries as required by law and her claim was filed within the time allowed by law;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

1. That Employer has paid 10,464.81 in temporary total disability benefits and has paid 110,333.22 for medical care;

1. That Employee's average weekly wage was 306.93, making her compensation rate 204.62 for permeant partial, temporary total and permanent total disability benefits; and

1. That Employee reached maximum medical improvement on April 7, 2017.

ISSUES

The issues to be resolved by this hearing are as follows:

1. Whether Employee suffered any disability and, if so, the nature and extent of such disability.

1. Whether the Second Injury Fund is liable to Employee for any disability compensation.

1. Whether Employer must provide Employee with additional medical care regarding ongoing pain management and/or hardware removal or replacement.

FINDINGS

The Employee, Angelina Summers, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

Claimant's Exhibit 1 - Report of Dr. James Stuckmeyer with 60 day notice

Claimant's Exhibit 2 - Deposition of Mr. Michael Dreiling

The Employer called Ms. Cindy Robinson, an employee and supervisor of Casey's General Store, and offered the following exhibits, all of which were admitted into evidence without objection:

Employer/Insurer's Exhibit A - Medical Records of Dr. Bailey

Employer/Insurer's Exhibit B - Deposition of Michelle Sprecker

The Second Injury Fund did not call any witnesses but offered the following exhibits, all of which were admitted into evidence without objection:

Second Injury Fund Exhibit I - Deposition of Angelina Summers

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Angelina Summers

Injury No: 16-019872

Based on the above exhibits and the testimony of the claimant and one witness, I make the following findings:

Angelina Summers (hereinafter referred to as Employee) was an employee of Casey's General Store in Knob Noster, Missouri on March 7, 2016 when she was injured. Employee has an 11th grade education. She had average grades. She did not start her senior year as she became pregnant. She does not have a GED. She has no other formal academic or vocational training. She has some basic typing skills and basic ability to use a personal computer. Employee began her employment with the employer in August 2014. She was initially hired as a cook and would work anywhere from 38 to 40 hours a week. She was required to lift between 30 and 40 pounds in her job duties.

While she was working in the course and scope of her employment, Employee slipped on water, fell and struck her head on a bread rack and injured her cervical spine on a metal table. She ultimately landed on the floor and as a result sustained injuries to her cervical spine and her lower back. She immediately reported this to her employer. Employee stated that her current problems include continued back pain which is extremely sharp. In the mornings when she first gets up, it is between an 8 and 9 on a scale of 1 to 10. After she takes her medication, she notes it comes down to about a 6 or 7. The intense pain she feels in the morning occurs approximately two to three times a day. She notes that what makes her pain worse is sleeping, lying in bed, showering, driving, walking, and standing. While riding in a c