David Garrett v. Earthgrains Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-165272

Employee: David Garrett

Employers: 1) Micro Innovations

2) Earthgrains Company

Insurers: 1) Missouri Employers Mutual Insurance Company

2) Pacific Employers Insurance Company

Date of Accident: February 5, 2001

Place and County of Accident: Greene County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the associate administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the associate administrative law judge dated May 24, 2005. The award and decision of Associate Administrative Law Judge L. Timothy Wilson, issued May 24, 2005, 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 $\qquad 6^{\text {th }} \qquad$ day of October 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: February 5, 2001
5. State location where accident occurred or occupational disease was contracted: Greene 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 performing repetitive work duties of lifting and stacking trays or dough or bread at Earthgrains Company, Claimant developed injuries to both upper extremities.
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: both upper extremities
14. Nature and extent of any permanent disability: 30 % permanent partial disability body as a whole
15. Compensation paid to-date for temporary disability:
16. Value necessary medical aid paid to date by employer/insurer?
17. Value necessary medical aid not furnished by employer/insurer?
18. Employee's average weekly wages: $\ 214.13
19. Weekly compensation rate: $\ 142.75
20. Method wages computation: stipulation

1. Amount of compensation payable:

The claim against the employer, Micro Innovations, and its insurer, Missouri Employers Mutual

Insurance Company, is denied.

The employer, Earthgrains, and its insurer, Pacific Employers Insurance Co., are ordered to provide claimant with the following:

Unpaid medical expenses: $\ 24,943.09

(subject to a lien asserted by the Missouri Dept. of Social Services.)

$163 / 7 weeks of temporary total disability 4,407.62

120 weeks of permanent partial disability 32,194.80

15 weeks of disfigurement from Employer 4,024.35

1. Second Injury Fund liability: No

TOTAL:

\ 65,569.86

1. Future requirements awarded: none

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 attorney for necessary legal services rendered to the claimant: Randall J. Reichard

Employee: David Garrett

Injury No: 00-165272

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: Micro Innovations; Earthgrains Company

Additional Party N/A

Insurer: Missouri Employers Mutual Insurance Company;

Pacific Employers Insurance Company

Checked by: LTW/mp

The above-referenced workers' compensation claim was heard before the undersigned Associate Administrative Law Judge on March 16, 20005. The parties were afforded an opportunity to submit briefs, resulting in the record being completed and submitted to the undersigned on or about April 19, 2005.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about September 28, 2000, and continuing through December 1, 2000, Micro Innovations was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Missouri Employers Mutual Insurance Company.

(2) On the alleged injury date(s) of September 28, 2000, through December 1, 2000, David Garrett was an employee of the employer, Micro Innovations, and was working under and subject to The Missouri Workers' Compensation Law. (The employee alleges that, as a consequence of the aforementioned employment, he sustained an incident of occupational disease.)

(3) The above-referenced employment and alleged incident of occupational disease occurred in Christian County, Missouri. The parties agree to venue lying in Springfield (Greene County), Missouri. Venue is proper.

(4) At the time of the claimed occupational injury, in regard to the employee's employment with Micro Innovations, the employee's aaverage weekly wage was $\ 214.13, which is sufficient to allow a compensation rate of $\ 142.75 for temporary total disability compensation and permanent disability compensation.

(5) Micro Innovations and MEMIC have not provided temporary disability compensation and medical care to the employee.

(6) On or about December 14, 2000, and continuing through February 5, 2001, Earthgrains Baking Company, Inc., ("Earthgrains Company") was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Pacific Employers Insurance Co.

(7) On the alleged injury date(s) of December 14, 2000, and continuing through February 5, 2001, David Garrett was an employee of the employer, Earthgrains Company, and was working under and subject to The Missouri Workers' Compensation Law. (The employee alleges that, as a consequence of the aforementioned employment, he sustained an incident of occupational disease.)

(8) The above-referenced employment and alleged incident of occupational disease occurred in Green County, Missouri. Venue is proper.

(9) At the time of the claimed occupational injury, in regard to the employee's employment with Earthgrains Company, the employee's average weekly wage was $\ 402.43, which is sufficient to allow a compensation rate of $\ 268.29 for temporary total disability compensation and permanent disability compensation.

(10) Earthgrains Company and Pacific Employers Insurance Co. have not provided temporary disability compensation to the employee.

(11) Earthgrains Company and Pacific Employers Insurance Co. have provided the employee with certain medical care, having paid $\ 554.00 in medical expenses.

The sole issues to be resolved by hearing include:

(1) Whether the employee sustained an incident of occupational disease on or about September 28, 2000, through December 1, 2000; and, if so, whether the incident of occupational disease arose out of and in the course of his employment with Micro Innovations?

(2) Whether the employee gave the employer, Micro Innovations, proper notice of the injury, if applicable?

(3) Whether the alleged incident of occupational disease

The exhibits were received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Lega