Paula Johnson v. Wal-Mart Associates, Inc.

(Affirming Award and Decision of Administrative Law Judge with Correction)

Injury No.: 03-028306

Employee: Paula L. Johnson

Employer: Wal-Mart Associates, Inc.

Insurer: American Home Assurance, Inc.

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (previously adjudicated)

The above-captioned workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having heard the oral arguments and read the briefs of the parties and having reviewed the evidence and considered the whole record, the Commission affirms (with the correction noted below) the award and decision of the administrative law judge dated October 14, 2009 (award), pursuant to $\S 286.090$ RSMo. This Commission adopts the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the decision set forth below.

The parties are in agreement that the compensation rate that the administrative law judge used to calculate temporary total disability benefits was incorrect. After determining that employee's average weekly wage was $\ 91.49, the administrative law judge neglected to multiply that number by 662 / 3 %, as required under $\S 287.170 .1(4) RSMo. The proper rate is \ 61.00 per week.

Consequently, we correct the award by ordering employer and insurer to pay employee the total amount of $\ 2,143.71 (instead of $\ 3,215.22 ) for temporary total disability, which changes the total employer and insurer shall pay to employee to $\ 69,860.74 (instead of $\ 70,932.25 ).

The award and decision of Administrative Law Judge L. Timothy Wilson, as corrected herein, is attached and incorporated by 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 $15^{\text {th }}$ day of April 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Paula L. Johnson

Injury No. 03-028306

Dependents: N/A

Employer: Wal-Mart Associates, Inc.

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

Insurer: American Home Assurance, Inc.

Hearing Date: August 18, 2009

Checked by: LTW

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: March 29, 2003
5. State location where accident occurred or occupational disease was contracted: Greene 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: Claimant was pulling shopping carts apart that were stuck together; in doing so, she suffered an injury.
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: Neck and shoulders
14. Nature and extent of any permanent disability:
15. Compensation paid to-date for temporary disability:
16. Value necessary medical aid paid to date by employer/insurer?

1. Value necessary medical aid not furnished by employer/insurer?
2. Employee's average weekly wages: 91.49
3. Weekly compensation rate: 91.49TTD/$194.13 PPD
4. Method wages computation: Award

1. Amount of compensation payable:

1. Second Injury Fund liability: No

TOTAL: $70,932.25

1. Future requirements awarded: Future medical care is awarded (See 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: Patrick J. Platter, Esq.

Employee: Paula L. Johnson

Injury No. 03-028306

Dependents: N/A

Employer: Wal-Mart Associates, Inc.

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

Insurer: American Home Assurance, Inc.

Hearing Date: August 18, 2009

Checked by: LTW

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on August 18, 2009. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about September 8, 2009.

The employee appeared personally and through her attorney Patrick Platter, Esq. The employer and insurer appeared through their attorney, Jerry Harmison, Esq. The Treasurer of Missouri, as the Custodian of the Second Injury Fund, is not a party to this hearing. ${ }^{1}$

The parties appearing at the evidentiary hearing of August 18, 2009 entered into a stipulation of facts. The stipulation is as follows:

(1) On or about March 29, 2003, Wal-Mart Associates, Inc., was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by American Home Assurance Inc.

(2) On the alleged injury date of March 29, 2003, Paula Johnson was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about March 29, 2003, the employee claimant sustained an accident, which arose out of and in the course and scope of her employment with the employer.

(4) The above-referenced employment and accident occurred in Camden County, Missouri. The parties agree to venue lying in Springfield (Greene County), Missouri. Venue is proper.

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[^0]: ${ }^{1}$ The employee and the Second Injury Fund have already adjudicated the claim against the Second Injury Fund.

(5) The employee notified the employer of her injury as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) Temporary disability benefits have not been provided to the employee.

(8) The employer and insurer have provided medical treatment to the employee, having paid $\ 13,003.87 in medical expenses.

The sole issues to be resolved by hearing include:

(1) Whether the claimed accident of March 29, 2003 caused the injuries and disabilities for which benefits are now being claimed?

(2) Whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $\ 29,771.84 ?

(3) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee of the effects of the injuries?

(4) What is the applicable compensation rate?

(5) Whether the employee is entitled to temporary total disability compensation? (The employee seeks payment of temporary total disability compensation, payable for the periods of July 23, 2003 to April 22, 2004, and May 31, 2005 to February 2, 2006, which represents 71 weeks of temporary total disability compensation.)

(6) Whether the employee sustained any permanent disability as a consequence of the claimed accident; and, if so, what is the nature and extent of the disability?

(7) Whether the employee is entitled to additional compensation in the nature of disfigurement?

The employee testified at the hearing in support of her claim. Also, the employee presented at the hearing of this case the testimony of her husband - Edgar Leroy Johnson. In addition, the employee offered for admission the following exhibits:

Exhibit 1

Associate Statement (Page 1)

Exhibit 2

Associate Statement (Page 2)

Exhibit 3. Workers' Compensation Request for Medical Care Exhibit 4. Workers' Compensation Tele-reporting Call-In Sheet (Page 1) Exhibit 5. Workers' Compensation Tele-reporting Call-In Sheet (Page 2) Exhibit 6. $\qquad Associate Accident Review Form Exhibit 7. \qquad Associate Accident Review Form Exhibit 8. \qquad$ Claim No.C3223374 Exhibit 9. Authorization for Medical Records and Reports Exhibit 10. New Associate Orientation Checklist Exhibit 11. Wal-Mart Stores Matrix of Essential Job Functions Exhibit 12. Letter to Associates from Ron Kinnison Exhibit 13. Payroll Register Exhibit 14. Exit Interview Exhibit 15. Performance Documentation Related to Paula Johnson Exhibit 16. $\qquad$ .Bate Stamped Documents from Attorney Harmison (under Letter Dated May 31, 2005)

Exhibit 17. $\qquad$ .Bate Stamped Documents from Attorney Harmison (under Letter Dated August 21, 2007)

Exhibit 18. Chart Notes from Lake Ozark Clinic - Dr. Osborn Exhibit 19.... Certified Medical Records from Mid-Missouri Orthopedic \& Sports Medicine

Exhibit 20..... To Whom It May Concern Letter Dated October 13, 2004 from Dr. Michael Hoeman

Exhibit 21... To Whom It May Concern Letter Dated November 4, 2004 from Dr. Michael Hoeman

Exhibit 22. Stipulation for Compromise Settlement (Injury No. 90-069780)

Exhibit 23......Certified Medical Records from Springfield Neurological \& Spine Institute

Exhibit 24.Medical Records from Healthsouth - Initial Evaluation Dated April 9, 2003

Exhibit 25. Division Docket Entry from Judge Zerrer (Dated Sept. 21, 2004)

Exhibit 26. Division Docket Entry from Judge Billings (Dated Jan. 20, 2005)

Exhibit 27. Request for Leave of Absence (Dated May 31, 2005)

Exhibit 28. Deposition of Judy White (Dated Aug. 27, 2007)

Exhibit 29. Deposition of Nancy Baez (Dated Aug. 27, 2007)

Exhibit 30. Deposition of Mary Simpson (Dated Aug. 27, 2007)

Exhibit 31. Deposition of Staci Martin (Dated Sept. 21, 2007)

Exhibit 32. Complete Medical Report from Dr. Robert Strang

Exhibit 33. Complete Medical Report from Dr. Michael Hoeman

Exhibit 34. Medical Records from Lark of the Ozarks Clinic

Exhibit 35. Medical Records from St. John's Smith, Glynn, Callaway Clinic

Exhibit 36. Medical Records from Diagnostic Clinic

Exhibit 37. Medical Records from St. John's Health Center

Exhibit 38. Medical Records from Ferrell-Duncan Clinic

Exhibit 39. Medical Records from University of Missouri Health Care

Exhibit 40. Medical Records from Putnam Orthopedic Clinic

Exhibit 41. Medical Records from Healthsouth

Exhibit 42. Deposition of Shane Bennoch, M.D.

Exhibit 43. Curriculum Vitae of Philip Eldred

Exhibit 44.......... Vocational Rehabilitation Evaluation Report from Philip Eldred (Dated April 4, 2007)

Exhibit 45

Copy of Medical Expenses

Exhibit 46

Deposition of Philip Eldred (Dated July 27, 2009)

Exhibit 47

Certified Medical Records from Diagnostic Clinic

Exhibit 48

Medical Expenses Summary

Exhibits 1 to 45 were initially offered and admitted at the evidentiary hearing of June 11, 2008, which involved the claim against the Second Injury Fund. (The employer and insurer were not parties to the June 11, 2008 hearing.) Without objection, Exhibits 1 through 24, 27 through 39, and 41 through 45 were received and admitted into evidence. Exhibits 25 and 26 were moved to and made part of the Legal File. Exhibit 40 was withdrawn. Exhibits 46 through 48 were received and admitted into evidence at the hearing of August 18, 2009.

The employer and insurer pr