Patricia Payne v. Colonial Baking, d/b/a Earthgrains/Sara Lee Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-172549

Employee: Patricia Payne

Employer: Colonial Baking, d/b/a Earthgrains/Sara Lee Corporation

Insurers: Pacific Employers Insurance Company/

Self-Insured c/o Indemnity Insurance Company of North America

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 December 28, 2010. The award and decision of Administrative Law Judge Victorine R. Mahon, issued December 28, 2010, 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 $\qquad 8^{\text {th }} \qquad$ day of November 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Patricia Payne

Injury No. 98-172549

Dependents: N/A

Employer: Colonial Baking d/b/a Earthgrains/ Sara Lee Corporation ${ }^{1}$

Insurer: Pacific Employers Insurance Co./

Self-Insured; Helmsman Management Services

Hearing Date: October 12, 2010

Record Closed: November 10, 2010

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and

Industrial Relations of Missouri

Jefferson City, Missouri

Checked by: VRM/db

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 7, 1998.
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.

[^0]

[^0]: ${ }^{1}$ The parties agreed that The Sara Lee Corporation, a self-insured entity, purchased Colonial Baking and stands in the shoes of Colonial Baking for purposes of this Claim for Compensation.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant slipped and fell, striking her head, neck and shoulder.
2. Did accident or occupational disease cause death? No. Date of death? N/A
3. Part(s) of body injured by accident or occupational disease: Neck and left shoulder.
4. Nature and extent of any permanent disability: 15 % body as a whole.
5. Compensation paid-to-date for temporary disability: $\ 35.25.
6. Value necessary medical aid paid to date by employer/insurer: $\ 41,365.67.
7. Value of necessary medial aid not furnished by employer/insurer: None.
8. Employee's average weekly wages: $\ 620.00.
9. Weekly compensation rate: $\$ 413.35 / \ 294.73.
10. Method wages computation: By agreement.

1. Amount of compensation payable:

15 % body as a whole ( 60 weeks) $\times \$ 294.73=\ 17,683.80.

TOTAL FROM EMPLOYER: $\quad \ 17,683.80

1. Second Injury Fund liability:

15 % body as a whole primary disability $=60$ weeks

25 % to the right upper extremity (at the 175 week level) $=43.75

60+43.75=$ simple sum of 103.75

103.75 \times 10 % load $=10.375 weeks \times \$ 294.73-\ 3,057.82.

TOTALFROM FUND: $\quad \ 3,057.82

1. Future requirements awarded: None.

The compensation awarded to the claimant shall be subject to a lien of 25 percent of all payments in favor of the following attorney for necessary legal services rendered to the claimant: Jay Cummings.

Issued by the Division of Workers’ Compensation

Employee: Patricia Payne

Employee: Patricia Payne

Injury No. 98-172549

Dependents: N/A

Employer: Colonial Baking d/b/a Earthgrains/

Sara Lee Corporation

Additional Party: Treasurer of Missouri, as custodian

of the Second Injury Fund

Insurer: Pacific Employers Insurance Co./

Self-Insured; Helmsman Management Services

Hearing Date: October 12, 2010

Record Closed: November 10, 2010

The undersigned Administrative Law Judge conducted the final hearing in this case on October 12, 2010, in Springfield, Greene County, Missouri. Attorney Jay Cummings represented Patricia Payne (Claimant). Employer The Sara Lee Corporation, a self-insured entity, appeared through Attorney Patrick Platter. Assistant Attorney General Susan Colburn appeared for the Treasurer of Missouri, as custodian of the Second Injury Fund.

At the hearing, Claimant sought to introduce a number of medical bills. Employer objected based on the seven-day-rule. The record remained open seven days to allow Employer’s counsel an opportunity to review the bills and submit any contrary evidence or argument. Employer made its timely submission of argument and requested that the same be marked as Exhibit 18. Hearing no objection from opposing parties, Employer’s submission is admitted. Employer’s objection to Exhibit E is overruled.

Claimant also sought additional time to submit evidence of a settlement agreement relating to a pre-existing disability. Due to the age of the settlement, the Division did not have a

scanned copy of the document in its computer files. First, the record was left open for seven days. When it appeared that the document still was not available from the Division, and with the consent of the opposing parties, the Administrative Law Judge allowed the record to remain open until November 10, 2010. On November 3, 2010, Claimant submitted evidence of Claimant's settlement relating to her earlier workers' compensation claim. The documentation is marked as Exhibit F and is admitted.

Also on November 3, 2010, Claimant submitted supplemental materials relating to medical bills, to which Employer has objected in writing. As Employer correctly noted in its written objection, the record remained open past the original seven day period, from October 17, 2010 to November 10, 2010, solely for the receipt of documents relating to the prior workers' compensation settlement. The Administrative Law Judge made no ruling that contemplated the receipt of any supplemental documentation relating to medical bills. Employer's objection to the additional medical billing documents, submitted on November 3, 2010, is sustained.

Employee's supplemental submission relating to medical bills, along with Employer's objection thereto, as well as the Administrative Law Judge's electronic mail message and related minute entry, are marked as Court's Exhibit I, and shall remain with the file for purposes of review.

The parties have reached the following stipulations:

1. On July 7, 1998, Claimant was in an accident.
2. At the time of the accident, Claimant was an employee of Colonial Baking, d/b/a Earthgrains.
3. All parties were subject to and covered by the Missouri Workers' Compensation Law at the time of the accident.
4. The events occurred in Greene County, Missouri. Venue and jurisdiction are appropriate in Springfield, Missouri, where the hearing occurred.
5. Notice and statute of limitations are admitted.

Issued by the Division of Workers' Compensation

Employee: Patricia Payne

Injury No. 98-172549

1. Employer is fully insured. The Sara Lee Corporation, a self-insured entity, purchased all assets and liabilities of Earthgrains.
2. Claimant's average weekly wage was $\ 620.00, yielding the following rates: $\ 413.35 for Temporary Total Disability and Permanent Total Disability, and $\ 294.73 for Permanent Partial Disability.
3. Employer has paid $\ 41,365.67 in medical expenses. Claimant seeks reimbursement for additional medical bills.
4. Employer has paid $\ 35.25 in temporary total disability.

The parties agree that the following are the issues for this hearing:

1. Did Claimant sustain an injury by accident within the course and scope of employment?
2. Is Claimant's alleged seizure disorder medically and causally related to the work accident?
3. What is the extent of any permanent disability?
4. Is Employer liable for the payment of past medical bills?
5. Is Employer liable for future medical treatment?
6. What, if any, is the liability of the Second Injury Fund?

The following exhibit was offered jointly by Employer and Claimant and admitted:

Joint Exhibit C-12 - Deposition of Dr. Jeremy Daniel Slater

The following exhibits were offered by Claimant and admitted:

Exhibit A Deposition of Dr. Earl Hackett

Exhibit B Deposition of Dr. Shane L. Bennoch

Exhibit D Deposition of Dr. Robert Burger - dated January 27, 2005

Exhibit E Medical Bills Submitted on the Date of Hearing

Exhibit F Division Documents Pertaining to Injury No. 86-017171

The following exhibits were offered by Employer and admitted:

Exhibits 1 through 11, and 13

Medical Records

Exhibit 14 Deposition of Dr. Charles Mauldin

Exhibit 15 Deposition of Dr. Robert Burger (Supplemental 2010)

Exhibit 16 Driver's License of Patricia Payne

Exhibit 17 Follow-up Note of Dr. Park dated July 29, 1998

Exhibit 18 Written Arguments Received October 19, 2010

Claimant Patricia Payne is 56-years-old, married, and the mother of two children. She graduated from high school. Her entire working career has been in production or factory work. On July 7, 1998, Claimant was working as a sanitation foreman for Earthgrains when she slipped and fell. Her arm became entangled in a nearby conveyor belt. She also hit her head on the concrete floor and a bar or pipe that was affixed to the floor. She did not lose consciousness. She continued her shift. She reported the injury the following day after she awoke with a swollen and bruised left arm. Her neck and head also hurt. Employer sent Claimant for medical care. She was paid temporary total disability for part of one day. But, she essentially missed no other work due to her injuries up to the date that the Earthgrains facility shut down many years later.

Employer does not seriously dispute that Claimant sustained some physical injury in the fall, particularly to the neck and shoulder. Dr. William Berner saw Claimant shortly after the work accident and diagnosed a contusion and strain of the neck and left shoulder. X-rays were normal. When Claimant's condition did not improve, Dr. Berner referred Claimant to a neurosurgeon, Dr. Bert Park.

Dr. Park first saw Claimant in July and August 1998. He ordered an MRI which revealed minimal degenerative changes in the cervical spine at the C-3-4, 4-5 levels. He recommended conservative treatment and light duty work for a few weeks.

Claimant next saw Dr. Ted Lennard on September 3, 1998, who recommended additional physical therapy, but returned Claimant to work without restrictions. He also referred Claimant

to Dr. Mark Crabtree, who saw Claimant on October 13, 1998. A myelogram ordered by Dr. Crabtree, and read by Dr. Goodman on October 26, 1998, revealed a vental defect arising from the C4-5 disc space "which appears to be secondary to osteopenic sprurring." (Exhibit 5). Dr. Goodman opined that Claimant suffered degenerative changes with no significant impingement. No surgery was indicated as a result of the work accident.

Dr. Lennard again saw Claimant in November 1998. An EMG of the upper left extremity w