Robin Crank v. Willow Brook Foods

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-055457

Employee: Robin Crank

Employer: Willow Brook Foods

Insurer: Zurich North American Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 24, 2009. The award and decision of Administrative Law Judge Margaret Ellis Holden, issued November 24, 2009, 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 $21^{\text {st }}$ day of January 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Robin Crank

Injury No. 03-055457

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Willow Brook Foods

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Zurich North American Insurance Company

Hearing Date: $\quad 8 / 26 / 09$

Checked by: MEH

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: $6 / 16 / 03$
5. State location where accident occurred or occupational disease was contracted: GREENE COUNTY, MO
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 LOST HER BALANCE AND FELL WHEN PUTTING ON BOOTIES.
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: BODY AS A WHOLE
14. Nature and extent of any permanent disability: 15 %
15. Compensation paid to-date for temporary disability: NONE
16. Value necessary medical aid paid to date by employer/insurer? $\ 1,068.82

Employee: Robin Crank Injury No. 03-055457

1. Value necessary medical aid not furnished by employer/insurer?
2. Employee's average weekly wages: $\ 340
3. Weekly compensation rate: $\ 226.66
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: NONE

$36 / 7$ weeks of temporary total disability (or temporary partial disability)

60 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning N/A, for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: NONE

Permanent total disability benefits from Second Injury Fund:

weekly differential (0) payable by SIF for 0 weeks, beginning N/A

and, thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

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:

JIM CORBETT \& JOHN NEWMAN

Employee: Robin Crank

Injury No. 03-055457

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Willow Brook Foods

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Zurich North American Insurance Company

Hearing Date: $\quad 8 / 26 / 09$

Checked by: MEH

The parties appeared before the undersigned administrative law judge on August 26, 2009, for a final hearing. This claim was heard along with Injury No. 05-042195. The claimant appeared in person represented by Jim Corbett and John Newman. The employer and insurer appeared represented by David Bogden. The Second Injury Fund appeared represented by Cara Harris. Memorandums of law were filed by September 21, 2009.

The parties stipulated to the following facts: On or about June 16, 2003, and May 13, 2005, Willow Brook Foods was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by Zurich North American Insurance Company. On the alleged injury dates of June 16, 2003, and May 13, 2005, Robin Crank was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. The parties agree that on or about May 13, 2005, the claimant sustained an accident which arose out of and in the course and scope of employment. The parties do not agree that an accident was sustained on June 16, 2003. The alleged accidents occurred in Greene County, Missouri. The claimant notified the employer of her injuries as required by Section 287.420, RSMo. The claimant's claims for compensation were filed within the time prescribed by Section 287.430, RSMo. At the time of the alleged accident on June

16, 2003, the claimant's average weekly wage was $\ 340, sufficient to allow a compensation rate of $\ 226.66 for temporary total and permanent partial disability compensation. At the time of the alleged accident on May 13, 2005, the claimant's average weekly wage was $\ 418.81, sufficient to allow a compensation rate of $\ 279.20 for temporary total and permanent partial disability compensation. In Injury No. 03-055457 no temporary total disability benefits were paid to the claimant. In Injury No. 05042195 temporary disability benefits have been paid to the claimant in the amount of $\ 4,785.84, representing $184 / 7 weeks in disability benefits at the rate of \ 257.70. In Injury No. 03-055457 the employer and insurer have paid medical benefits in the amount of $\ 1,068.82. In Injury No. 05-042195 the employer and insurer have paid medical benefits in the amount of $\ 33,483.05. The attorney fee being sought is 25 %.

1. Whether the claimant sustained an accident which arose out of and in the course and scope of employment.
2. Whether the accident caused the injuries and disabilities for which benefits are being claimed.
3. Whether the employer is obligated to pay past medical expenses.
4. Whether the claimant has sustained injuries that will require future medical care in order to cure and relieve the claimant of the effects of the injuries.
5. Any temporary total benefits owed to the claimant.
6. The nature and extent of permanent disabilities.
7. The liability of the Second Injury Fund for enhanced permanent partial disability.

FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The claimant is 50 years old. She has a high school degree and attended college, earning an Associates of Arts in Business. She worked in clerical positions from 1986 - 1992. She has also

worked as a jewelry designer, with handicapped children, in factories, Wal-Mart, and McDonalds. Prior to 2003 she had no health problems that prevented her from working.

The employer operates a poultry processing plant. Claimant went to work for the employer in 2003. She worked in various areas of the plant including production line, boxing and wrapping, scanning and bar-coding.

On June 16, 2003, the claimant was putting blue booties over her shoes. She was required to put these on to walk through the raw side area of the plant to get to the cook side of the plant. The bench that was ordinarily in the area had been removed so the claimant was required to stand on one foot to put these on. She had put the first one on, and when she rose up to put the second one on she lost her balance and began to fall. In an attempt to keep her balance, she stumbled approximately 8-10 feet backwards before falling through two steel doors. When she fell she landed on her buttocks and hit the doors. The doors swung back and struck her head. She testified that she would not have fallen if she had not had to put on the booties and if she had the bench to sit on while putting them on.

As a result she suffered a laceration to the back of her head. She testified that she was definitely dizzy after the fall. Her head was bleeding. Someone called her daughter, and the employer sent them both by taxi to Concentra Medical Centers.

The records from Concentra Medical Centers state the claimant gave a history of "bent over to put on bootie and felt a little dizzy. Then bent over again and when standing, again got light-headed and fell backward hitting left side of head." This had not happened before. She was diagnosed with syncope and a head laceration with sutures.

She had migraines prior to a hysterectomy in 2000, which resolved after this surgery. She had no other headaches until hitting her head June 16, 2003. Claimant testified that since this time she has had pressure headaches at the temples that spread to the back of her neck. Claimant said that she can't

function or work with these headaches unless she takes medications. She would take medication for these headaches after the injury when she worked.

Claimant also testified that the day after this injury she had back pain. The employer denied the back injury. Claimant testified that this pain was across the low back. She did not have radicular pain at this time. She went to Dusty Campbell, the employer's nurse, and Kathy Best. The employer denied the back injury and did not provide her with treatment for it. In 2004 she started to develop pain in her leg. This was approximately 2 months before she saw Dr. Kyle Smith on July 15, 2004.

Dr. Smith took a history of low back problems with pain in her left leg for one month. He ordered a lumbar spine series which showed decreased disc space at L5-S1. Dr. Smith ordered medications and noted he wanted to take her off work under the Family Medical Leave Act, and that paper work was filled out accordingly. He returned her to work on August 11, 2004, without restriction. He referred her to Dr. Lee, a neurosurgeon.

An MRI was performed on July 26, 2004. This showed a mild disc bulge at L5-S1 with mass effect on the S1 nerve root as well as degenerative changes at L3-4, L4-5 and L5-S1.

Dr. Lee saw her on August 23, 2004. She gave a history of left leg pain and low back pain for a year. She had positive straight leg raising. Dr. Lee prescribed physical therapy and epidural steroid injections. At some point she took four weeks off under the Family Medical Leave Act. Claimant had physical therapy and three injections. Claimant testified that she had more relief after the third shot. She was working during this time in the stripping room.

She was released from treatment in September 2004. She said at hearing that after these shots she was 90 % symptom free. She had no limitation on her ability to work. She had headaches but could take medication and work.

On May 13, 2005, claimant was working in the box room. She bent to pick up some unmade boxes. These were approximately 3' by 4'. When she bent over to pick them up and twisted, she fel