Theresa Thompson v. CSI Commercial Services, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 10-087819

**Employee:** Theresa Thompson

**Employer:** CSI Commercial Services, Inc.

**Insurer:** Oak River Insurance Company C/O Berkshire Hathaway Homestate Insurance

**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 March 1, 2022. The award and decision of Administrative Law judge Jason A. Tilley, issued March 1, 2022, 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 **14th** day February of 2023.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Rodney J. Campbell, Chairman

**VACANT**

Member

Kathryn Sivan, Member

Attest:

*Jenita S. Hogg*

Secretary

**Claimant:** Theresa M. Thompson

**Dependents:** N/A

**Employer:** CSI Commercial Services, Inc.

**Additional Party:** Second Injury Fund

**Insurer:** Oak River Insurance Company C/O Berkshire Hathaway Homestate Insurance

**Hearing Date:** November 16, 2021

**Injury No.:** 10-087819

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

**Checked by:** JAT

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: On or about July 20, 2010
5. State location where accident occurred or occupational disease contracted: St. Louis County, Missouri
6. Was above Claimant 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 Claimant was doing and how accident happened or occupational disease contracted: Claimant was lifting and shelving copper coils.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Parts of body injured by accident or occupational disease: Low back, body as a whole
14. Compensation paid to-date for temporary disability: 19,043.04
15. Value necessary medical aid paid to date by Employer? 223,372.27
16. Value necessary medical aid not furnished by Employer? 0.00
17. Claimant's average weekly wages: $644.69

WC-35-R1 (6-81)

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Said payments to begin immediately 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 a lien in the amount of 25% of all payments hereunder in favor of the following attorneys for necessary legal services rendered to the Claimant: Candace Burke

Issued by DIVISION OF WORKERS' COMPENSATION

injury No.: 10-087819

Claimant: Theresa M. Thompson

Dependents: N/A

Employer: CSI Commercial Services, Inc.

Additional Party: Second Injury Fund

Insurer: Oak River Insurance Company C/O Berkshire Hathaway Homestate Insurance

Hearing Date: November 16, 2021

injury No.: 10-087819

Before the Division of Workers' Compensation

Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Checked by: JAT

Claimant, Theresa Thompson, (hereinafter "Claimant") requested a hearing for a final award to determine the liability of CSI Commercial Services, Inc. (hereinafter "Employer") for permanent partial disability ("PPD") benefits for an injury alleged on July 20, 2010 while at work and the liability of the Second Injury Fund for PPD benefits or permanent total disability ("PTD") benefits.

On November 16, 2021, Claimant appeared in person and by counsel, Attorney Candace Burke, at the Missouri Division of Workers' Compensation office in St. Louis. Employer was represented by Donald Balfour. The Second Injury Fund appears in person, through its attorney, Kristin Frazier. The Division has jurisdiction to hear this case pursuant to Section 287.110 RSMo. Claimant's counsel requested twenty-five percent (25%) of the amount awarded to Claimant herein as and for his attorney's fees.

These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth as follows:

1. Claimant was operating under and subject to the Provision of Missouri Workers' Compensation Act, and the Employer's Workers' Compensation liability was fully insured by Oak River Insurance Company C/O Berkshire Hathaway Homestate Companies;

1. On or about July 20, 2010, Claimant was employed by CSI Commercial Services, Inc. and was working under the Missouri Workers' Compensation Act;

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-087819

1. On or about July 20, 2010, Claimant sustained an accident arising out of and in the course of her employment. The accident occurred within St. Louis County, State of Missouri;

1. Venue is proper in the City of St. Louis, Missouri;

1. Employer had proper notice of Claimant's accident within the time frame specified under the Missouri Workers' Compensation Act.

1. Claimant's claim was filed within the time required by law.

1. At all relevant times, Claimant earned an average weekly wage of 644.69, resulting in applicable rates of compensation of 429.79 for any temporary total disability benefits and possible permanent total disability benefits and $418.58 for permanent partial disability benefits.

1. The Employer paid medical benefits totaling 223,372.27.

1. Employer paid 19,043.04 of temporary total disability benefits from October 28, 2010, through August 30, 2011. There was an underpayment of $1,482.97 in temporary total disability benefits paid from October 28, 2010, through August 30, 2011.

ISSUES:

1. Whether Claimant is entitled to additional temporary total disability benefits after temporary total disability benefits were terminated on August 30, 2011;

1. Whether Claimant is entitled to any additional past medical treatment that Employer should be responsible for;

1. Future medical treatment;

1. Liability of Employer for permanent partial disability or permanent total disability;

1. Liability of Second Injury Fund for permanent partial disability or permanent total disability.

The parties offered the following exhibits, which were received into evidence:

Claimant's List of Exhibits:

1. Medical Records- Mercy Clinic Family Medicine-Hazelwood

1. Medical Records- SSM Physical Therapy

1. Medical Records- Metro Imaging

1. Medical Records- Mid County Orthopedic Surgery-Dr. Daniel Sohn

WC-22-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-087819

1. Medical Records- Dr. Lukasz Curvlo

1. Medical Records- St. Louis Spine Care Alliance- Dr. D. Robson and Dr. P. Hurford

1. Medical Records- St. Louis Spine and Orthopedic Center

1. Medical Records- Comprehensive Spine Care - Dr. David Robson

1. Medical Records- Professional Imaging

1. Medical Records- The Work Center

1. Medical Records- BJC Medical Group - Dr. Nancy Maebe

1. Medical Records- Dr. James Coyle

1. Medical Records- St. Luke's Hospital

1. Medical Records- Pain Management Services- Dr. Gregory Smith

1. Medical Records- Aquatic Fitness, Inc.

1. Medical Records- SSM Medical Group - Dr. Chad Smith

1. Deposition of Dr. David T. Volarich with Exhibits 1-5

1. Deposition of Ben Hughes with Exhibits 1-3

1. Deposition of Dr. James Coyle taken on 8/19/2016 with Exhibits A-C

1. Report of Injury

Employer's/Insurer's List of Exhibits:

A. Missouri Division of Employment Security Unemployment File

B. Social Security Disability Award

C. Dr. Robson's Medical Records and Reports through September 12, 2012

D. Athletico Work Center FCE prepared for Dr. Robsen

E. Dr. James Coyle Medical Records

F. Aquatic Fitness Records

G. Dr. Coyle Deposition August 9, 2016 with Exhibits A-C

H. Dr. Coyle Deposition May 24, 2018 with Exhibit D

I. Delores Gonzales Deposition February 19, 2021 with Exhibits 1-3

All Objections not previously sustained are overruled as waived. Jurisdiction in the Forum is authorized under Section 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-087819

Claimant testified that she began her employment with the employer as a parts manager in August 2008. Her job duties included inventory, compiling reports and some physical labor emptying vans within the warehouse.

Claimant testified she injured her low back on July 20, 2010, when she was putting copper coils onto shelves overhead and the weight of the copper coils shifted pushing her down and she noted the immediate onset of pain and symptoms in her low back.

Claimant reported her injury to the office manager Shelley. Claimant took a few days off of work. The following week Claimant returned to work but her back pain and lower extremity symptoms continued. She spoke to Brad Earhart, the President of the employer. He told her to go see a doctor.

Claimant initially saw her primary care physician, Dr. Mulford, who diagnosed her with a low back strain and referred her for pain management to Dr. Sohn and some physical therapy. Dr. Sohn gave Claimant a few steroid injections which only gave Claimant temporary relief. Dr. Sohn then told Claimant to go see an orthopedic surgeon.

Claimant testified she spo