In Carter v. Harrah’s North Kansas City LLC, the Commission affirmed a detailed award by Administrative Law Judge Robert B. Minor that found for the Claimant in three separate consolidated cases, but denied the Claimant’s claim for permanent total disability against the Missouri Second Injury Fund. 2001 MOWCLR LEXIS 3 (Mo. Lab.& Ind. Rels. Comm’n Jan. 13, 2011).
On January 29, 2002, Janet Carter was injured when she fell on ice outside of her employer’s place of business. This resulted in an injury to her thoracic spine (mid-back). After this injury, the Employee returned to work but felt that the repetitive nature of her job – a card dealer and a Kansas City casino – was causing a progressive pain in her left shoulder. On May 12, 2003, the claimant fell again, suffering pain on the right side of her back. Unfortunately, this mid-back pain got progressively worse and in early June, 2003, the employee stopped working.
While the employee did have surgery on her left shoulder, and she had a number of non-surgical treatments to her mid-back, the employee never had a back surgery. Rather, she worked with a number of doctors and pain management specialists to control her pain.
Following the hearing, the ALJ found the claimant to be a credible witness. But the judge did note that the claimant did not appear to be in pain during the course of the 3 1/2 hour long hearing. Further, the ALJ specifically noted that the claimant only stood one time during that period.
The claimant offered the reports and depositions of Dr. James Stuckmeyer and vocational rehabilitationist Terry Cordray. Dr. Stuckmeyer found that all three of the employee’s accidents were compensable under the Missouri Worker’s Compensation law. Dr. Stuckmeyer rated the permanent partial disability arising from the January 29, 2002 accident as a 10% disability to the body as a whole. The May 12, 2003 accident was rated as a 15% disability to the body as a whole. In Dr. Stuckmeyer rated claimant’s repetitive injury to her left shoulder as a 25% permanent partial disability at the level of the shoulder.
Mr. Cordray reviewed in the claimant’s medical records and the report of Dr. Stuckmeyer. Additionally, he interviewed the claimant and performed certain vocational tests. From this information, Mr. Cordray concluded that the claimant was permanently and totally disabled as a result of the combination of her work injuries.
The employer offered the report and deposition of Dr. David Clymer. Dr. Clymer disagreed with Dr. Stuckmeyer, finding that the employee only suffered a 7% disability of the left shoulder and a 10% disability of the body as a whole as a result of her back injury. Further, Dr. Clymer felt that the employee should be able to return to some work.
In this detailed conclusions of law, Judge Miner reviewed the burdens borne by an injured worker and the Missouri Worker’s Compensation system. First, the ALJ noted that the extent and percentage of disability sustained by an injured employee is a question of fact to be determined by the Commission. In the fact-finding process, the Commission is not restricted by specific percentages of disability given by testifying experts. The ALJ may consider lay testimony in determining the appropriate percentage of disability suffered by an injured employee. In the quantum of proof in a Missouri Worker’s Compensation case is “reasonable probability.” This is evidence that is founded on reason and experience that inclines a person to believe something is true, but can leave some room for doubt.
First, the ALJ addressed whether or not he believed that the claimant was permanently and totally disabled – he did not. Based on the Claimant’s high level of functioning, employment history, and education, the ALJ believed that the claimant was capable of some sedentary work. Further, no treating doctor ever informed the employee that she was not able to work. The judge found that Mr. Cordray’s opinion about the employee’s permanent total disability was not credible because it was based on the work restrictions given by Dr. Stuckmeyer. The judge felt that these restrictions were excessive.
After resolving the question of permanent partial disability, the judge turned to the employee’s PPD. The ALJ found that the employee had suffered a 5% disability to the body as a whole as a result of the January 29, 2002 back injury; a 20% disability to the body as a whole as a result of the May 12, 2003 back injury; and a 15% disability to the employee’s left shoulder as a result of the repetitive injury that the claimant was last exposed to on June 16, 2003.
The judge noted that the employee was continuing to take pain medication to manage her condition even though she had been declared to be at maximum medical improvement. As such, the ALJ ordered that the employer was to authorize and furnish the employee with the medication and medication monitoring necessary to continue to treat her thoracic spine injury.
In closing, Judge Miner found that the employee’s injuries prior to June 16, 2003 were a hindrance to her employment and that these injuries combined in a synergistic way with the June 16, 2003 repetitive-trauma shoulder injury. The judge rated the synergistic effect as being 10% above the simple sum of the combined disabilities.
