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Donna Johnson v. Good Humor - Bryers

Decision date: January 26, 201017 pages

Summary

The Commission affirmed the Administrative Law Judge's award of workers' compensation benefits to Donna Johnson for injuries sustained on July 10, 2003, when a co-employee slipped and caused a table to collide with her, resulting in left knee and lower back injuries. The claimant was awarded permanent partial disability benefits totaling 15% for the knee and 17.5% for the back, with the Second Injury Fund liable for $1,957.79 in compensation.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-084699

Employee: Donna Johnson

Employer: Good Humor - Bryers (Settled)

Insurer: Broadspire (Settled)

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 July 15, 2009. The award and decision of Administrative Law Judge Matthew W. Murphy, issued July 15, 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 $\underline{26^{\text {th }}}$ day of January 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

FINAL AWARD

Employee: Donna Johnson

Injury No. 03-084699

Dependents: N/A

Employer: Good Humor - Bryers

Additional Party: Second Injury Fund

Insurer: Broadspire

Hearing Date: $\quad 4 / 20 / 2009 \quad$ Checked by: MM/kh

SUMMARY OF FINDINGS

  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? July 10, 2003
  5. State location where accident occurred or occupational disease contracted: Sikeston, Scott 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 happened or occupational disease contracted: Employee was injured while working as a hand packer for the above
Employee:Donna JohnsonInjury No.03-084699

referenced employer. A co-employee slipped in popsicle juice, collided with a table and the table collided with Employee resulting in an injury to her left knee and lower back. 12. Did accident or occupational disease cause death? No. 13. Parts of body injured by accident or occupational disease: Left knee and lower back. 14. Nature and extent of any permanent disability: $15% PPD to the left knee and $17.5% PPD to the body as a whole referable to the lower (lumbar) back. 15. Compensation paid to date for temporary total disability: $\ 0.00 16. Value necessary medical aid paid to date by employer-insurer: $\ 17,414.85 17. Value necessary medical aid not furnished by employer-insurer: $\ 0.00 18. Employee's average weekly wage: $\ 349.60 19. Weekly compensation rate: $\ 233.07 for TTD and PTD benefits and $\ 233.07 for PPD benefits. 20. Method wages computation: Stipulation. 21. Amount of compensation payable: $\ 1,957.79 22. Second Injury Fund liability: $\ 1,957.79 23. Future requirements awarded: None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Kim Heckemeyer.

FINDINGS OF FACT AND RULINGS OF LAW

On April 20, 2009, the employee, Donna Johnson, appeared in person and by her attorney, Kim Heckemeyer, for a hearing for a final award. The employer was not represented at the hearing. The Missouri State Treasurer as custodian of the Second Injury Fund was represented at the hearing by Assistant Attorney General Frank Rodman. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

UNDISPUTED FACTS

  1. Covered Employer - Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully funded by: Broadspire.
  2. Covered Employee - On or about the date of the alleged accident or occupational disease, the employee was an employee of Good Humor-Bryers and was working under the Workers' Compensation Act.
  3. Accident/Occupational Disease - On or about Thursday, July 10, 2003 the employee sustained an accident arising out of and in the course of her employment.
  4. Notice - Employer had notice of Employee's accident.
  5. Statute of Limitations - Employee's claim was filed within the time allowed by law.
  6. Average Weekly Wage and Rate - Employee's average weekly wage rate was $\ 349.60. The rate of compensation for temporary total disability and permanent total disability was $\ 233.07. The rate for permanent partial disability was $\ 233.07.
  7. Medical Causation - Employee's injury was medically causally related to the accident.
  8. Medical Aid Furnished - Employer/Insurer has paid medical aid in the amount of $\ 17,414.85.
  9. Temporary Total Disability Paid - Employer/Insurer has paid $\ 0.00 as temporary total disability benefits for 0 weeks of disability.
  10. Previously Incurred Medical - There is not claim for previously incurred medical.
  11. Mileage or other medical ( 287.140 RSMo) - There is no claim for mileage or other medical expenses under 287.140 RSMo.
  12. Additional or Future Medical - There is no claim for additional or future medical aid.

ISSUES

  1. Permanent Total Disability - Employee is claiming permanent total disability benefits.
  2. Permanent Partial Disability - Employee is claiming permanent partial disability benefits.
  3. Liability of the Second Injury Fund

EXHIBITS

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Medical Records

B. Deposition of Dr. Cohen

C. Deposition of Susan Shay

D. Stipulation

Second Injury Fund's Exhibits

None

Testimony of Ms. Donna Johnson

Donna Johnson, hereinafter referred to as "Employee", testified at the final hearing of this matter. Employee testified that she was 47 years old and resides in Scott County with a Sikeston address. She attended Bell City High School in Bell City, Missouri. She completed the 10th grade at the age of 17. Upon completion of the 10th grade, Employee left school because she got married. She has not returned to school nor attained a GED. She has not obtained any vocational training or certification. She left school in 1979.

While Employee was attending Bell City High, she was employed at the Bell City Café as a cook and waitress. The dates of employment are from 1977 through 1978. She believes she was employed at Bell City Café for approximately two years. Her duties included waiting tables, cooking burgers, doing dishes, cleaning up, sweeping and mopping. She was approximately 15 to 16 years old at this time period.

While employed at Bell City Café, Employee was suffering from bunions and hammertoe on both feet. She was not under a doctor's because she did not have health insurance. Employee modified her activities by sitting whenever she had the chance and wore shoes that accommodated her condition as much as possible. Employee testified that she could stand for approximately for 30-60 minutes before she had to sit down.

The aforementioned foot problems prevented Employee from participating in volleyball or softball in school. The shoes which she was required to wear were a hindrance to this type of activity. While in high school she could not help out in performing household chores because of her feet. She was working at Bell City Café when she left school and for a few months thereafter. Employee left the work force while she was pregnant. She believes she re-entered the workforce in approximately 1980.

Employee: Donna Johnson Injury No. 03-084699

In approximately 1980, Employee moved to New Orleans, Louisiana to work at her sister’s bar. Her job duties included waiting on tables, cleaning, vacuuming, sweeping, mopping and cleaning the bathrooms. She did not cook. At the time of this employment, her physical complaints were limited to her feet. Her feet were worse than when she was employed at Bell City Café.

Employee had surgery performed on her feet. She could not recall whether this surgery was performed before or after she moved to Louisiana. Upon further reflection, Employee believed that the surgery did not happen prior to moving to Louisiana because she did not have insurance.

While working with her sister in Louisiana, Employee testified that she had to sit after working for an hour. Employee testified that her average daily foot pain was approximately a 7 or 8 on a scale of 10 during this period. She testified that she did not take any medication and worked at this bar for approximately two years. She then moved back to Missouri.

Upon returning to Missouri, Employee began working at Tri-Con. She made seat covers for Chrysler. Her specific job duties consisted of attaching foam padding to the seat covers. She believes the period of employment was from 1983 through 1984. During this time, her foot complaints were worse than while working in Louisiana. Employee testified that she was unable to perform job duties that required pushing carts too far. She had to modify her duties by not putting as much in each cart. During this time, Employee also had difficulty performing household duties. She had difficulty cooking, doing the laundry, and getting down on her knees to clean the bathtub. She was not under a doctor’s care. She stated that the foot problems interfered with her resting and engaging in recreational activities or hobbies. She explained that the sensation she felt was similar to someone trying to pull her toes off. She was unable to wear shoes for a long time and could not go outside to play with her children.

After working at Tri-Con, Employee began working at Smith’s Grocery Store. She was employed as a cashier. Her job duties included taking money for purchases, slicing lunchmeat, sweeping and mopping. She states that her foot pain was worse at this time. She believes that her average daily foot pain was approximately an 8 on a 10 point scale. She was not under the care of a doctor because she did not have insurance and she testified that she did not take any pain medication because she could not afford it. She testified that her foot complaints interfered with her ability to sleep and engage in hobbies. She gave the example that when playing with her children outside she had to go barefoot. She believes she left Smith’s Grocery Store in approximately 1985.

For a short time, Employee stayed home with her niece and nephew. She continued to have feet problems and described burning and hurting, which was worse than before.

Employee believes that she sought treatment for her feet in approximately 1985. She acknowledges that the records may disagree with her recollection regarding the date of treatment. Dr. Ritter performed a bunion surgery at St. Francis. Employee was shown records that suggested the surgery was performed in 1990 and Employee did not disagree with those dates. She states that she did not undergo physical therapy. Employee complained that her foot problems did not go away after being released by the surgeon. Her post surgical complaints included burning and aching in her toe joints. Her

Full decision text continues in the plain-text archive copy.

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