Jerri Jackson v. Krispy Kreme

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 November 19, 2007. The award and decision of Administrative Law Judge Suzette Carlisle, issued November 19, 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 11th day of July 2008.

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

- Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: October 16, 1999

- State location where accident occurred or occupational disease was contracted: St. Louis County, MO

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? Yes
3. Did accident or occupational disease arise out of and in the course of the employment? Yes

- Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: While carrying a 50 pound bag of yeast, Claimant twisted and injured her back.
3. Did accident or occupational disease cause death? No Date of death? N/A
4. Part(s) of body injured by accident or occupational disease: Low back, psychiatric

- Nature and extent of any permanent disability: 47.5\% referable to the low back, 7.5\% psychiatric

1. Compensation paid to-date for temporary disability: $\ 85,966.38
2. Value necessary medical aid paid to date by employer/insurer? $\$ 128,278.33[1]$
3. Value necessary medical aid not furnished by employer/insurer? N/A

- Employee's average weekly wages: $\ 535.10

1. Weekly compensation rate: $\$ 356.73 / \ 303.01
2. Method wages computation: Section 287.250 RSMo (2000)/Stipulation

1. Amount of compensation payable:

122 6/7 weeks of TTD (Employer's overpayment)

$(\ 41,738.26)

Less Claimant's TTD underpayment

$- \underline{\$ 2,258.53}

TTD overpayment

(\ 39,479.73)

190 weeks of permanent partial disability -physical

30 weeks permanent partial disability - psychiatric

$\ 57,571.90

$+\ 9,090.30

1. Second Injury Fund liability: Yes

27 weeks of permanent partial disability from the Second Injury Fund:

$\ 8,181.27

Total:

$\ 35,363.74

1. Future requirements awarded: See the award- page 19

Said payments to begin 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 Parker

A hearing was held for a final award at the Missouri Division of Workers’ Compensation (DWC) St. Louis Office on August 16, 2007, at the request of Jerri Jackson (Claimant) pursuant to Section 287.450 RSMo (2000). Attorney Randall Parker represented Claimant. Attorney David Reynolds represented Krispy Kreme (Employer) and One Beacon Insurance Company (Insurer). Assistant Attorney General Levander Smith represented the Second Injury Fund (SIF). The record closed after presentation of the evidence.

Claimant submitted injury numbers 99-141367 and 99-138495. Although separate awards were issued, the body of each award contains similar issues and facts. Hearing venue is correct and jurisdiction properly lies with the DWC.

The parties stipulate that on or about October 16, 1999;

- Claimant was employed by Employer.

- Claimant sustained an accident which arose out of and during the course of employment in St. Louis County, Missouri.

- Employer and Claimant were operating under provisions of the Missouri Workers’ Compensation Law.

- Employer’s liability was fully insured by Insurer.

- Employer had notice of the injury.

- A Claim for Compensation was filed within the time prescribed by law.

- Employer paid TTD totaling $\ 85,966.38 and medical benefits totaling $\ 128,278.33.

- Claimant’s rate for PPD is $\ 303.01.

- Claimant reached maximum medical improvement (MMI), on October 3, 2002.

The issues for disposition at hearing are;

- Medical Causation

- Future Medical Care

- Rates for Permanent Total Disability (PTD) and TTD.

Whether a TTD overpayment occurred from October 3, 2002 to February 15, 2005 totaling 122 weeks and 6 days at $\ 339.73 per week, for a total of $\ 41,735.83 ?

- Employer's liability, if any, for PPD or PTD?

- SIF Liability, if any, for PPD or PTD?

Claimant's Exhibits A-HH and LL-RR were admitted. Exhibits II-KK were excluded based on relevance. Employer's Exhibits 1, 2, 3, 6, 10, 11, 12, 13, 14, and 16 were admitted, and Exhibits 4, 5, 7, 8, 9 and 15 were withdrawn. The SIF offered no exhibits. Any notations contained in the Exhibits were present when offered for admission.

All evidence was reviewed but only evidence supporting this award is referenced below. Any objections not expressly ruled upon in the award are overruled. Based upon a preponderance of the evidence, I find the following facts:

- Claimant was 27 years old at the time of the October 1999 work injury. A high school graduate with a 3.5 GPA, Claimant has eleven years of supervisory and management experience. She is a licensed cosmetologist, although she has never worked in that field.

- Pre-existing Conditions: Claimant was in fair health prior to February 1999. She took Albuterol for seasonal asthma flare ups. The asthma was diagnosed at age seven. Claimant missed no time from work and was not hospitalized for asthma prior to October 1999.

- At thirteen she was diagnosed with diabetes; and began taking 70/30 injectable insulin at age sixteen. She has medical follow-ups every three months to monitor diabetes. She has not missed work or been hospitalized due to this condition.

- She did not comply with diet, exercise and insulin treatments from 1991 to 1996; however, the diabetes was controlled in 1999.

- February 1999 Accident: On February 9, 1999 Claimant injured her back when she fell out of a chair and rammed her back into the seat of the chair. She reported the injury to Cathy Day, and medical treatment was authorized at Missouri Baptist Hospital.

- X-rays showed minimal spur formation at L5-S1. Claimant was diagnosed with a back sprain and instructed to follow up if she experienced numbness, weakness or tingling in her legs or feet. Her next treatment occurred five months later in the emergency room.

- She returned to work February 9th and continued to work a mandatory 10 hour shift until October 16, 1999, with no restrictions, accommodations or discipline for failure to perform her duties. She also

continued driving and performing daily activities of life.

- She sought unauthorized emergency room treatment several times during the summer of 1999 for pain in her back and shooting pain to her leg. Claimant did not request Employer provide treatment because she did not think the pain was related to the February 1999 work injury.

- She treated at BJC on July 27, 1999, for low back and leg pain and was diagnosed with a kidney infection. Repeat x-rays showed mild scoliosis and degenerative changes of the sacroiliac joints and L5-S1 posterior facets.

- On August 2, 1999, Claimant treated at Christian Northeast (CNE) Hospital Emergency Room for low back and left leg pain, with bilateral numbness on the bottom of her feet for 2-4 weeks. Medical records note "sciatica vs. neuropathy."

- Claimant returned to CNE on September 19, and September 29, 1999, with back pain and bilateral leg pain, left side to the foot and right side shooting pain to the knee. The left leg was reportedly worse with numbness and tingling.

- A CT scan on October 14, 1999, showed disc bulges at L4-5 and L5-S1 but no herniations.

Claimant missed no time from work up to October 16, 1999. The L3-4 disc was normal.

- Claimant continued to have back and leg pain up to October 16, 1999 when she reinjured her back.

- Work Experience: Claimant has 11 eleven years of fast food experience. She worked for Rally's eight years as a crew member and later as an assistant manager; before and after graduation from high school. Duties included lifting up to 50 pounds, unloading delivery trucks, operating cash registers, the grill, and food preparation while standing most of the time. She hired, assigned, and fired employees, completed paperwork, and operated the computer during a ten hour shift. Claimant worked sixty hours a week at Sabarro performing similar duties.

- In April 1998, Employer hired Claimant as a crew member, which required lifting 25 pound boxes of milk and juice, 50 pound bags of yeast, and 100 pound packages of dough. In July 1998, she was promoted to manager and received on the job training. She unloaded trucks and lifted 30 pounds of oil and 5 gallons of filling.

- October 16, 1999 Accident: Claimant re-injured her back on October 16, 1999. While carrying a

bag of yeast, she turned to enter a doorway and her legs gave out. She mistakenly told her attorney she was injured on October 19, 1999.

- The same day Claimant was taken by stretcher to CNE where she reported back and left leg pain. She gave a three month history of numbness in both feet. Examination revealed a positive straight leg raise on the left but X-rays were normal.

- Claimant was diagnosed with sciatica and returned to work the next day on light duty. However, light duty was not available, and she continued to lift 50 pound bags and pull 100 pounds of dough through doughnut making equipment.

- Claimant treated at HealthSouth from October 25, 1999 to December 21, 1999. Dr. Meadows prescribed more physical therapy, but she continued to worsen. He planned to refer Claimant to a specialist, however, she returned to CNE emergency room on December 23rd due to increase