Raifa Tahirovic v. Vanguard Packaging

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 May 4, 2004.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson 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: The Employee suffered an accident, series of accidents, or occupational disease as a result of repetitive bending and lifting while operating various machines at the manufacturing facility of the Employer.
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: low back, body as a whole.
14. Nature and extent of any permanent disability: N/A.
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? -0 -
17. Value necessary medical aid not furnished by employer/insurer? \22,636.65.
18. Employee's average weekly wages: \ 568.17.
19. Weekly compensation rate: $\$ 378.80 / \ 347.05.
20. Method wages computation: By Stipulation.

1. Amount of compensation payable by the Employer: N/A
2. Second Injury Fund liability: N/A

TOTAL:

1. Future requirements awarded: All the medical care needed to cure and relieve the Employee from the effects of the injury. Temporary total disability benefits for the period August 2, 2004 to August 6, 2004 (5/7 ${ }^{\text {ths }}$ of a week) and October 6, 2004 to January 5, 2005 (13 1/7ths weeks) at the rate of $\ 378.80 for a total of $\ 5,249.06

Said payments to begin as of the date award 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. Jerry Kenter.

Employee: Rafia Tahirovic

Injury No. 04-088417

Dependents: N/A

Employer: Vanguard Packaging

Insurers: Royal \& Sun Alliance Insurance Company

Additional Party: N/A

Hearing Date: December 8, 2006

Checked by: MSS/lh

On December 8, 2006, the Employee and Employer appeared for a temporary Hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$ Rs.Mo.

The Employee, Raifa Tahirovic, appeared in person and with counsel, Jerry Kenter. The Employer and Self-Insurer appeared through counsel, Joe McMillan.

For the reasons noted below, I find the Employee is entitled to additional medical care as a result of the injury she sustained on or about May 4, 2004 arising out of and in the course of her employment with Vanguard Packaging. I find that she is entitled to 13 6/7ths weeks of temporary total disability benefits from August 2, 2004 to August 6, 2004 and October 6, 2004 to January 5, 2005.

The parties stipulated that:

On or about May 4, 2004 the parties were operating subject to the Missouri Workers' Compensation Law.

The employee had an average weekly wage of $\ 568.17 resulting in a compensation rate of $\$ 378.80 / 347.05$ per week for temporary total and permanent partial disability benefits respectively.

No Temporary total disability benefits were paid and no medical benefits were paid by the Employer and Insurer.

The parties requested the Division determine:

1. Whether the Employee sustained an accident, series of accidents, or occupational disease arising out and in the course of her employment on or about May 4, 2004.
2. Whether notice was required to be given to the Employer or, in the alternative, if it was required, whether adequate notice was given to the Employer for the injury sustained by the Employee.
3. Whether the accident, series of accidents, or occupational disease caused the injuries of which the Employee is complaining.

1. Whether the Employer is liable for past medical expenses in the amount of $\ 22,636.65
2. Whether the Employee is entitled to future medical benefits from the Employer and Self-Insurer.
3. Whether the employer is liable for temporary total disability benefits.

The following witnesses testified in this case:

FOR THE EMPLOYEE:

1. Rafia Tahirovic
2. Jack Mathis
3. Fata Keljic
4. Jasmina Sclimouk
5. Gregory Walker, M.D. (By deposition)

FOR THE EMPLOYER/INSURER:

1. Joe Pope
2. Tammy Sprout
3. Jeffrey MacMillan, M.D. (By deposition)

The following Exhibits were entered into evidence without objection:

A. A copy of the website of the Employer

B. Medical Records of the following:

Clay Platte Family Medicine

Diagnostic Imaging for Women

Frank Feigenbaum, M.D.

Physical Therapy and Rehab Center

Research Medical Center

North Kansas City Hospital

Jeffrey MacMillan, M.D.

C. Rating Report of Gregory Walker, M.D. dated 10/28/05

D. Report of Injury

E. Deposition of Dr Walker

F. Off Work Slips

G. Write Ups

H. Employee's Application for group disability benefits

I. Medical Bills

The Court reserved a ruling on the admission of the Employee's Exhibit "I", the medical bills and at this time rules them admissible.

Deposition of Rafia Tahirovic

Deposition of Dr. Jeffrey MacMillan Personnel File

Print-out of hours worked by the Employee

The Claimant in this matter cannot read or speak English. The Claimant provided her testimony through and interpreter. When presented with Exhibit I by her counsel and asked to identify the medical bills, she was somewhat hesitant and confused. The Claimant was asked if the visits to the various providers listed on the bills were as a result of her back injury and that the bills represented the results of those visits. The medical records for which the bills were claimed were all admitted and set forth in Exhibit B. The Court has examined the medical bills and the medical records and determined that all the bills are for the treatment dealing with the low back condition. Therefore, I find that Exhibit I is admissible under the Court's interpretation of the burden of proof necessary in Martin v. Mid America Farm Lines, Incorporated, 769 SW2d 105 (MoBanc 1989).

Claimant claims low back injury from excessive repetitive bending at work. The first witness called was Jack Mathis, who identified himself as the chairman of the board of Vanguard Packaging, Incorporated. Mr. Mathis testified he had been with the company for over 30 years but denied current direct involvement. Mr. Mathis did identify Claimant's

Exhibit A as a copy of the company's website and a description of what the company does. Mr. Mathis indicated that the company made cardboard displays and fabricated cardboard boxes and indicated they had approximately 100 employees and numerous machines. The Claimant refused to be specific as to how many machines the company had or how the machines were operated. Mr. Mathis did insist that there were no quotas for the machine operators.

The Claimant, two of her daughters and her son all worked at Vanguard Packaging in May of 2004. The Claimant produced Fata Keljic, one of her daughters, as a witness. Fata testified she worked at Vanguard from 1998 to 2002. She indicated that there were various quotas from different machines involved. Ms. Keljic indicated she had worked as both a lead person and a machine operator and indicated the worker would bend over several thousand times a day during a 10 hour period. Ms. Keljic described the machines as requiring continuous bending and that an operator would grasp as much cardboard box material as possible in one armload and feed the machine product. Ms. Keljic testified they were 15 to 17 machines and indicated the operators made approximately 15,000 boxes per day. Upon cross-examination she indicated the quotas were very easy to attain.

The Claimant's other daughter, Jasmina Sclimouk, was the next witness to testify. At the time of the hearing she was 19 years of age. She also testified that her mother could not read or write English and indicated that there are several dialects of the Bosnian language and just because a person knew one dialect did not necessarily mean they knew others.

There were allegations the Claimant injured her back helping her daughter move to St. Louis, and Ms. Sclimouk was asked about her move to St. Louis. She said she was looking for an apartment for herself and her husband and was pregnant at the time, and although her mother did accompany her to St. Louis, there was no furniture or other items which were taken along other than personal suitcases which Claimant did not carry. Ms. Sclimouk also testified that she worked for Vanguard for about nine months in 2001. She worked the same machines as her mother and at times worked with her mother. Ms. Sclimouk indicated that they would make anywhere from 2,000 to 5,000 boxes a day depending on the machine that they were on, and she described four types of machines that she herself had operated and her mother had also operated.

There were allegations that the Claimant had knowingly filled out a disability application, indicating she was not hurt at work and Ms. Sclimouk went into detail on how the disability application was filled out as it was her testimony that she is the one who filled out the application for her mother. Claimant's Exhibit H consists of three pages labeled 3, 4 and 5. The signature of Rafia Tahirovic appears at the bottom of page 1. Ms. Sclimouk testified that her and her mother went into the personnel offi