Robin Johnson v. Jared Enterprises, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-048368

Employee: Robin Johnson

Employer: Jared Enterprises, Inc.

Insurer: Guarantee Insurance Company

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 February 7, 2011. The award and decision of Administrative Law Judge Victorine R. Mahon, issued February 7, 2011, 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 $10^{\text {th }}$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Robin Johnson

Injury No. 08-048368

Dependents: Not Applicable

Employer: Jared Enterprises, Inc.

Additional Party: Not Applicable.

Insurer: Guarantee Insurance Company

Medical Fee Dispute: Dismissed.

Hearing Date: December 3, 2010

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

The undersigned administrative law judge heard this workers' compensation claim on December 3, 2010.

Robin Johnson (Claimant and Employee) appeared in person and by her attorney of record, Jeffrey Goodnight.

James Wesley appeared on behalf of Jared Enterprises, Inc., and its insurer Guarantee Insurance Company (hereafter referenced collectively as Employer). Any medical fee dispute has been dismissed. There is no Second Injury Fund claim.

The parties reached the following stipulations:

1) On May 23, 2008, Robin Johnson sustained injuries as a result of an automobile accident. On that date, she was an employee of Jared Enterprises.

2) Jared Enterprises was an employer operating in the State of Missouri and was fully insured by Guarantee Insurance Company on the date of the accident.

3) Robin Johnson was covered by, and Employer was subject to, the Missouri Workers' Compensation Act on the date of the accident.

4) The accident occurred in Taney County, Missouri, but the parties have agreed to venue in Greene County Missouri.

5) Employee's average weekly wage on the date of the accident was $\ 330.00, yielding a weekly rate of $\ 220.00 for temporary total, permanent partial, and permanent total disabilities.

6) There is no dispute as to jurisdiction, notice, or statute of limitations.

7) Employer has paid no medical benefits and no temporary total disability.

The parties agree that the following are the issues are in dispute:

1. Did Employee's injuries arise out of and within the course of her employment?
2. Is Employer liable for temporary total disability?
3. Is Employer liable for $\ 154,480.27 in past medical care?
4. Is Employer liable for future medical care, and the extent of that care?
5. What is the nature and extent of any permanent disability for which Employer is liable?
6. Is Employer liable for the whole cost of the proceeding due to an unreasonable defense as set forth in § 287.560 RSMo?

The administrative law judge has agreed to take official notice of the Division's administrative file, including all claims and answers in this case. In addition, the following exhibits were admitted:

On behalf of Employee:

A - F Medical Records

G Medical Report - Dr. P. Brent Koprivica

H. Vocational Rehabilitation Evaluation - Wilburn Swearingin

I. Deposition - Wilbur Swearingin

J. Deposition - Jeffrey Coursen

K. Deposition - Matt Hediger

L. Summary of Medical Expenses

M - W Billing Records (Exhibit X was withdrawn)

Y. Deposition - Randy Talley

Z. Summary of Attorneys Fees and Expenses

On behalf of Employer:

1. Deposition of Dr. Hendler
2. Deposition of Terry Cordray

Claimant is a 49 year old woman with a high school diploma, but no formal post secondary education or vocational training. She has been married 30 years and lives with her husband, Scott Johnson. She worked 25 years as a graphic artist. Her prior jobs required that she not only design, but help with customers, type-set, and operate the presses. In other words, her prior occupation required more movement than just sitting at a computer

all day, but some jobs were more physical than others. She said the job had changed significantly with technology.

Claimant had a break in her employment, and then accepted a job a Cody's, a convenience store in Republic, Missouri. She accepted the clerk position at the store rather than returning to graphic arts because it was close to her home. The work schedule also allowed her time to watch her daughter's high school softball games. The job was physical, requiring a great deal of lifting and standing and moderate stooping.

On May 23, 2008, Claimant reported to her usual work location at the Cody's store in Republic, Missouri. Shortly after the start of her shift, Claimant's supervisor asked Claimant if she would cover a shift at the Hollister, Missouri store because a worker at that location had to attend a funeral. While Cody's generally does not pay for travel time between job sites in unauthorized vehicles, Claimant was unaware of this policy. She understood that she would be paid for her travel time. In fact, Claimant had not clocked-out.

Jeffrey Coursen, a corporate representative of Jared Enterprises, Inc., which operates the Cody's convenience stores where Claimant worked, confirmed that Claimant was requested to travel from the store in Republic to Hollister on May 23, 2008, due to an understaffing issue at the Hollister store. He had no evidence that the travel policy was ever conveyed to Claimant.

Matthew Hediger, the store manager of the Republic store, could not recall discussing the company travel policy with Claimant on the morning of May 23, 2008. He anticipated that Claimant would have left the Republic store and traveled directly to Hollister, which he estimated as a 45 minute drive.

As Claimant was traveling on Highway 65 South to Hollister on May 23, 2008, she came upon a slowmoving vehicle which cut in front of her. In an attempt to avoid a collision with that vehicle Claimant swerved; she lost control of her vehicle and hit two sets of guard rails. The crash caused serious injury to Claimant, including multiple fractures, lacerations, and damage to the femur, hip, and ankle.

Initially, Claimant was taken by ambulance to Skaggs Hospital in Branson, Missouri. From there, she was transported to Cox Medical Center in Springfield, Missouri where an MRI and x-rays were taken. She was diagnosed at Cox with facial abrasions, fractures to four ribs, pulmonary contusion, and a right acetabular fracture through the posterior column with a subluxation. Because the appropriate orthopedic surgeon was not available at

Cox at the time, Claimant traveled by ambulance to the University of Missouri Medical Center in Columbia, Missouri. She underwent an open reduction and internal fixation of a hip fracture. She remained in Columbia until June 6, 2008, at which time she returned to Springfield, Missouri. She stayed at the Cox Walnut Lawn facility until June 20, 2008, but her medical care did not cease on that date.

Claimant takes prescription medication daily, including Oxycodone for pain. She continues to have sharp pain in her foot and throbbing pain in her hip. She walks with a slight limp with the aid of a foot-ankle orthosis which is fitted in the one pair of shoes that Claimant must wear. Claimant and her spouse tes