Stephanie Weaver v. Taco Bell

Employee: Stephanie Weaver

Injury No.: 05-057447

Dependents: N/A

Employer: Taco Bell

Additional Party: Second Injury Fund (Open)

Insurer: ACE American Insurance Co.

C/O Gallagher Bassett Services

Hearing Date: September 28, 2006

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

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: May 27, 2005
5. State location where accident occurred or occupational disease was contracted: St. Louis 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 occurred or occupational disease contracted: Claimant was employed as a food line worker and cleaning captain for Employer, and developed bilateral hand complaints as a result of her repetitive hand-intensive work in those positions.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right and left hands and wrists
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Stephanie Weaver

Injury No.: 05-057447

1. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
2. Employee's average weekly wages: $\ 235.68
3. Weekly compensation rate: $\ 157.13 for TTD/ $\ 157.13 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable:

6 5/7 weeks of temporary total disability (June 3- July 13, 2005, and August 11-16, 2006) \1,055.02

1. Second Injury Fund liability: Open

TOTAL:

\mathbf{\$ 1 , 0 5 5 . 0 2}$

1. Future requirements awarded: continued and on-going medical care for Claimant's right and left wrist bilateral carpal tunnel syndrome to cure and relieve her of the effects of the injury, as explained in the body of the Award.

Each of said payments to begin immediately and to be payable and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % in favor of the following attorney for necessary legal services rendered to the claimant: Jerome L. Lefton.

On September 28, 2006, the employee, Stephanie Weaver, appeared in person and by her attorney, Mr. Jerome L. Lefton, for a hearing for a temporary or partial award on her claim against the employer, Taco Bell, and its insurer, ACE American Insurance Co. C/O Gallagher Bassett Services. The employer, Taco Bell, and its insurer, ACE American Insurance Co. C/O Gallagher Bassett Services, were represented at the hearing by their attorney, Mr. Gregory T. Cook. The Second Injury Fund is a party to this case but was not represented at the hearing since the parties agreed to leave the Second Injury Fund claim open. Although Claimant was seeking a temporary or partial award, Employer requested that this be commuted into a final award if the issues were found in Employer's favor. At the same time this case was heard, evidence was also taken on Claimant's two companion Claims with Injury Numbers of 04-144333 and 05-057454. Separate Awards are being issued for those companion Claims. Additionally, at the outset of these proceedings, Claimant voluntarily dismissed another companion Claim with an Injury Number of 05-057452, per memorandum filed and approved. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of facts and rulings of law, are set forth below as follows:

1. Stephanie Weaver (Claimant) has alleged an occupational disease claim with a date of injury of May 27, 2005.
2. Claimant was an employee of Taco Bell (Employer).
3. Venue is proper in the City of St Louis.
4. Employer received proper notice.
5. The Claim was filed within the time prescribed by the law.
6. At the relevant time, Claimant earned an average weekly wage of 235.68, resulting in applicable rates of compensation of 157.13 for total disability benefits and $157.13 for permanent partial disability (PPD) benefits.
7. Employer has not paid any benefits to date.

1. Did Claimant sustain an occupational disease?
2. Did the occupational disease arise out of and in the course of employment?
3. Are Claimant's injuries and continuing complaints medically causally connected to her alleged injury at work on or about May 27, 2005?
4. Is Claimant entitled to future medical care?
5. Is Claimant entitled to TTD benefits from May 28, 2005 to July 16, 2005 (7 1/7 weeks) and from August 8, 2006 to August 17, 2006 (1 3/7 weeks)?
6. What is the nature and extent of Claimant's permanent partial disability attributable to this injury?
7. Did Employer fail to timely file an Answer to this Claim, and if so, what is the impact of that failure to timely answer this Claim?

The following exhibits were admitted into evidence:

A. Medical treatment records from Christian Hospital dated September 29, 2004

B. Medical treatment records from Christian Hospital dated May 17, 2005

C. Certified medical treatment records from Christian Hospital for EMG test dated May 31, 2005

D. Medical treatment records from Dr. Richard O'Neill dated June 3, 2005 through August 11, 2006

E. Deposition of Dr. Bruce Schlafly, with attachments, dated September 6, 2006

F. Off- work slip from Dr. Richard O'Neill dated August 11, 2006

G. Division of Workers' Compensation records for Injury No. 05-057447

H. Division of Workers' Compensation records for Injury No. 04-144333

I. Division of Workers' Compensation records for Injury No. 04-144333

1. Deposition of Dr. Timothy G. Lang, with attachments, dated August 31, 2006

Notes: 1) Exhibits E and 1 were admitted subject to the objections contained in the records. Unless otherwise specifically noted below, the objections are overruled and the testimony fully admitted into evidence.

2) Employer/Insurer objected to the admission of Exhibit F on relevancy grounds. Having now had the chance to review the record, I am overruling the objection. Exhibit F is admitted into evidence in this case.

3) Pursuant to the request of a party at hearing, I am taking Judicial, or more properly, Administrative Notice of the Division of Workers' Compensation files in Injury Numbers 05-057447, 05057454 , and 04-144333.

4) Some of the records submitted at hearing contain handwritten comments or other marks. 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 September 28, 2006.

Based on a comprehensive review of the substantial and competent evidence, including Claimant's testimony, the expert medical opinions and depositions, and the medical treatment records, as well as my personal observations of Claimant at hearing, I find:

1) Claimant is a 43-year old female who has worked for Employer since March 13, 2004. She started as a food line worker and then in April or May 2004 was assigned duties as the cleaning captain, in addition to her line work. As of the date of hearing, she continues to work for Employer.

2) Claimant's job as a food line worker included duties as a steamer, stuffer and expediter. As a steamer, she would use scoops and utensils to place meat and other items in the food that had been ordered. She said she was constantly gripping, as well as hitting the scoops on the back of the pans to level the contents off. She estimated that this job required 10+ use of the hands, on a scale of 1 to 10 , with 10 being the most hand intensive. As a stuffer, she was putting the lettuce and tomatoes on the food items, so she was not really gripping like she would as a steamer. She estimated this job was a 5 on the hand intensive job scale described above. As an expediter, she would wrap the food up, and place it in a bag, or give it to the customer. She said this job was hand intensive because of the folding involved. There was not as much gripping though as a steamer. She still rated this job as a 10+ on the hand intensive job scale because of the folding. In addition to the duties associated with these jobs, she would set the line up and stock the top and bottom lines with the food. She said she could be doing any of these jobs for a continuous 6 hour day without any breaks. She testified she averaged 25 to 30 hours per week and worked 4 days per week at the

start, but then moved up to 5 days per week later in her employment.

3) In April or May 2004, Claimant was given the job as a cleaning captain in addition to her work on the food line. She said she did her cleaning captain duties from 7:30 a.m. to 12 noon, and then worked on the food line from 12 noon to 2:00 p.m. Her job as a cleaning captain inc