Awolowo Nsane v. Prairie Farms Dairy, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Date of Accident: January 2, 2004

Place and County of Accident: St. Louis City

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 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 administrative law judge dated July 3, 2007. The award and decision of Administrative Law Judge John K. Ottenad, issued July 3, 2007, 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 $\qquad 3^{\text {rd }}$ day of January 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

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: January 2, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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 a cooler-dock worker for Employer who injured his head, neck and body as a whole when he slipped and fell on a wet floor, striking his head on the concrete floor.
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: Head (Closed head injury), Neck and Body as a Whole
14. Nature and extent of any permanent disability: Permanent total disability against Employer/Insurer from the injury in this accident
15. Compensation paid to-date for temporary disability: $11,850.30
16. Value necessary medical aid paid to date by employer/insurer? $22,357.83

Employee: Awolowo (Nicholas) Nsane Injury No.: 04-000991

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee’s average weekly wages: 628.42
3. Weekly compensation rate: 418.95 for TTD/ $347.05 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable: $418.95 per week for Claimant’s lifetime starting 7/19/04, subject to review and modification by law

1. Second Injury Fund liability:

Previously Voluntarily Dismissed

TOTAL: \$418.95 PER WEEK STARTING 7/19/04 WITH CONTINUING WEEKLY BENEFITS AS DESCRIBED

1. Future requirements awarded: As described in the award

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: Jennifer J. Finley.

Insurer: Old Republic Company C/O Crawford \& Co. Checked by: JKO

On March 6, 2007, the employee, Awolowo (Nicholas) Nsane, appeared in person and by his attorney, Ms. Jennifer J. Finley, for a hearing for a final award on his claim against the employer, Prairie Farms Dairy, Inc., and its insurer, Old Republic Company C/O Crawford \& Co. The employer, Prairie Farms Dairy, Inc., and its insurer, Old Republic Company C/O Crawford \& Co., were represented at the hearing by their attorney, Mr. Steven Sharp. The Second Injury Fund was not a party to this case because they had previously been voluntarily dismissed by Claimant. Also present and participating in the hearing was Claimant's cousin, Noble Obanii-Nwibari. 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 fact and rulings of law, are set forth below as follows:

1) On or about January 2, 2004, Awolowo (Nicholas) Nsane (Claimant) sustained an accidental injury arising out of and in the course of his employment that resulted in injury to Claimant.

2) Claimant was an employee of Prairie Farms Dairy, Inc. (Employer).

3) Venue is proper in the City of St. Louis.

were admitted into evidence on March 6, 2007. No additional markings have been made since their admission on that date.

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

1) Claimant is a 42-year-old, currently unemployed individual, who last worked for Prairie Farms Dairy, Inc. (Employer) as a cooler-dock worker on or about January 2, 2004. Claimant had worked for Employer from August 28, 2000 until the date of the accident, January 2, 2004. He did attempt to return to work on or about July 22, 2004, but he was unable to remain working thereafter because of his severe headaches from the light and noise.

2) Claimant's cousin, Noble Obanii-Nwibari testified on Claimant's behalf. He testified that Claimant was born in Nigeria and lived there from birth, October 11, 1964, until 1996, when Claimant fled from Nigeria because of political persecution. Claimant stayed at a refugee camp in The Benin Republic for three years before arriving in the United States at the end of the summer of 1999. Claimant is currently not a US citizen but an Alien Resident. In Nigeria, Claimant finished high school and attended 3 years of post-high school education. Claimant divorced his first wife and remarried Marti Nsane (Exhibit R). He has two children from the prior marriage: an 11-year-old son, Nwalu Nsane, and 9-year-old daughter, Lebutor Nsane, who both live with his current wife in Nigeria.

3) Mr. Obanii-Nwibari testified that Claimant's first job was working in a factory for LUCO Mop Co. Claimant eventually moved into his own apartment on Chippewa, and he obtained a driver's license and bought a car. Besides working, Claimant also attended classes at St. Louis Community College-Forest Park in computer science. Mr. Obanii-Nwibari testified that Claimant had no mental health problems prior to the accident. Claimant lived independently. He paid his bills on time, did his own laundry, shopped and cooked, and cared for his personal hygiene. Claimant enjoyed reading and working on his computer. Mr. Obanii-Nwibari testified that he and Claimant kept in close contact, and Claimant respected him as a father. In addition, Claimant also socialized with friends, and he was good at interacting and working with people.

4) According to the medical report from Barnes-Jewish Hospital (Exhibit C), on January 2, 2004, Claimant was dropped off by his manager at the hospital because Claimant slipped on a wet floor at work, fell, hit the back of his head on the floor, and had a lapse of consciousness. It was unknown as to the length of time Claimant was unconscious. Upon admission to the hospital, Claimant was awake, alert and oriented, and his vitals were normal. His major complaints were: a headache and neck pain, a decrease in hearing out of his left ear, and pain in his left TMJ. Claimant's headache and neck pain were treated with medication, and his neck and head were stabilized with a C-collar.

5) Claimant had a head CT take