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Hiba Sadic v. Semco Plastics Company, Inc.

Decision date: November 1, 201212 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's decision denying workers' compensation benefits to Hiba Sadic for an alleged right shoulder injury occurring on April 4, 2006, while working on a production line at Semco Plastics Company. The Commission found that the injury did not arise out of and in the course of employment, and therefore no compensation was awarded.

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Third-Party Injury Check

This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
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Caption

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-042666

Employee: Hiba Sadic

Employer: Semco Plastics Company, Inc.

Insurer: Missouri Employers Mutual

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated May 25, 2012, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Lee B. Schaefer, issued May 25, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad$ 1st day of November 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

AWARD

Claimant: Hiba Sadic

Dependents: N/A

Employer: Semco Plastics Company Inc.

Additional Party: Second Injury Fund (open)

Insurer: Missouri Employers Mutual

Hearing Date: February 23, 2012

Injury No.: 06-042666

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LBS

FINDINGS OF FACT AND RULINGS OF LAW

  1. Are any benefits awarded herein? No
  2. Was the injury or occupational disease compensable under Chapter 287? No
  3. Was there an accident or incident of occupational disease under the Law? No
  4. Date of accident or onset of occupational disease: Alleged 4/04/06
  5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
  6. Was above Claimant 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? No
  9. Was claim for compensation filed within time required by Law? Yes
  10. Was employer insured by above insurer? Yes
  11. Describe work Claimant was doing and how accident occurred or occupational disease contracted: Claimant was working for Employer on a production line.
  12. Did accident or occupational disease cause death? No
  13. Part(s) of body injured by accident or occupational disease: Right Shoulder
  14. Nature and extent of any permanent disability: 0 % of the right shoulder
  15. Compensation paid to-date for temporary disability: 0
  16. Value necessary medical aid paid to date by employer/insurer? 0
  1. Value necessary medical aid not furnished by employer/insurer? \1,269.33
  2. Claimant's average weekly wages: \ 410.40
  3. Weekly compensation rate: $\$ 273.60 / \ 273.60
  4. Method wages computation: By agreement and using the table

COMPENSATION PAYABLE

  1. Amount of compensation payable

0 weeks of permanent partial disability from Employer:

  1. Second Injury Fund liability: Dismissed/None
  2. Future requirements awarded: None

FINDINGS OF FACT and RULINGS OF LAW:

Claimant: Hiba Sadic

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

Employer: Semco Plastics Company Inc.

Additional Party: Second Injury Fund (left open)

Insurer: Missouri Employers Mutual

Hearing date: February 23, 2012

Injury No.: 06-042666

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

An evidentiary hearing was held in the above-referenced matter on February 23, 2012. Hiba Sadic ("Claimant") appeared in person and was represented by counsel, Mark Elhoffer. As Claimant has a poor grasp of English, there were two Bosnian interpreters present for the Hearing; one on behalf of Claimant and one on behalf of Employer/Insurer. Semco Plastics Company Inc. ("Employer"), and its insurer, Missouri Employers Mutual ("Insurer"), were represented by counsel, Pat McHugh. The Second Injury Fund was left open, and therefore, was not present at the time of the Hearing. However, it was stipulated that if this Award was not sufficient to reach the statutory thresholds for Second Injury Fund liability, the Fund would be dismissed.

STIPLULATIONS

The parties stipulated to the following facts:

  1. Claimant and Employer were operating under, and subject to, the provisions of the Missouri Workers' Compensation Law;
  2. Claimant was an employee of Employer;
  3. Employer was provided proper notice of Claimant's injury;
  4. Claimant filed her Claim for Compensation in a timely manner;
  5. Claimant earned an average weekly wage of $\ 410.40, for temporary total and permanent partial disability rates of $\ 273.60;
  6. Employer has not paid any benefits to date for this injury;
  7. Venue for the Hearing in this matter is proper at the St. Louis Office of the Missouri Division of Workers' Compensation.

ISSUES

The issued to be resolved at this Hearing are:

  1. Whether Claimant sustained a compensable accident.
  2. Whether Claimant's alleged accident arose out of and in the course and scope of her employment.
  3. Whether there is a medical causal link between Claimant's injury and her employment.
  4. Whether Employer is liable for past medical benefits in the amount of $\ 1,269.33. Claimant and Employer stipulated that, if this is found to be a compensable injury, Employer is liable for these past medical expenses.
  5. If any, the amount of Claimant's permanent partial disability. Claimant and Employer stipulated that, if this case is found to be compensable, the permanent partial disability will fall in the range of 0-20 % of the right shoulder.

EXHIBITS

Claimant offered, and had admitted into evidence, the following Exhibits:

Exhibit A: Deposition of Dr. Shawn Berkin taken on March 31, 2011

Exhibit B: Medical bills for treatment received by Claimant

Employer offered, and had admitted into evidence, the following Exhibits:

Exhibit 1: Deposition of Dr. Mitchell Rotman taken on September 26, 2011

Claimant and Employer offered, and had admitted into evidence, the following Joint Exhibits:

Exhibit I: Deposition of Hiba Sadic taken on July 10, 2007

Exhibit II: Medical records from Washington University Orthopedics

Exhibit III: Treatment records from various medical providers

SUMMARY OF THE TESTIMONY AND EVIDENCE

Based upon the relevant testimony of Claimant, and the Exhibits introduced into evidence, I make the following Summary of the Testimony and Evidence:

Live Testimony

Claimant testified through an interpreter that she came to the United States from Bosnia approximately 14 years ago. She is currently 51 or 52 years old.

For approximately four years, Claimant worked for Employer where her job duties included working on many different machines cutting pieces of plastic. Prior to working for Employer, Claimant worked as a housekeeper at a hotel near the Arch.

At Hearing, Claimant described her injury in April of 2006 as follows: Claimant was working on Machine 31. Her supervisor, John, sped up the machine so she had to work very quickly. Machine 31 made 1-1/2' square lids. The lids would come out of the machine four at a time. Claimant would take the lids off of the machine, and place them on a table where she would use a knife to cut off excess plastic on the lids. Once the excess plastic was removed, Claimant would lift the lids into a dryer that was next to the Machine 31. The lids were ultimately put in boxes. When a box was full of lids, Claimant would push it a distance of approximately five meters. Claimant testified that the boxes were very heavy and she had to use her back to move them.

When Claimant complained that Machine 31 was moving too fast, another supervisor named "Mark" slowed it down, however, John then increased the speed again. When Claimant reported to John that her shoulder was hurting because she had to work so quickly to keep up with the machine, John told her to go home if she could not keep up. The pain began in Claimant's shoulder when she was trimming the excess plastic (flesh) with a knife. Claimant demonstrated the motion necessary to trim the excess plastic; she was required to rotate her wrist and sharply pull her arm back toward her body. In addition to the knife, Claimant also used a tool and gas burner to remove the excess plastic from the lids.

Claimant attempted other treatments for her shoulder before undergoing surgery. She received shots in her shoulder and also took "very strong" pills for her shoulder. Eventually, however, she did undergo surgery on her right shoulder in June of 2009. The surgery did help Claimant's shoulder in that the pain in her shoulder was not as sharp following the surgery. However, her pain level both before and after surgery was around 7-8 on a Pain Scale of 1-10. Claimant's pain increases when it is raining or the weather changes.

As a result of this injury, Claimant cannot put her arm behind her back. She can only raise her right arm to shoulder height, but has to use her other hand and arm to support it. The back of her right hand feels numb, as does the back and front of her whole arm. Claimant said the numbness appeared after she had shots in her shoulder and underwent surgery. Claimant also testified that she first noticed the numbness in her arm about two weeks after the injury. Claimant cannot lift anything heavy with her right arm. Further, when she goes for a walk, she cannot let her right arm hang and must keep it flexed up against her body.

Claimant had no prior injuries to her right arm and no problems with pain in her right arm or shoulder before this incident. Claimant was involved in an automobile accident in May of 2006 and hurt her leg and back, however, she did not injure her right arm or shoulder in that automobile accident. Prior to the automobile accident, Claimant had already seen a doctor for her shoulder and undergone Physical Therapy.

On cross-examination, Claimant testified that the incident in which she injured her right shoulder occurred on March 17, 2006. Claimant testified that she had severe pain in her right

shoulder and arm from the day it was injured until she underwent surgery in June of 2009. Further, Claimant notified both John and Mark about the injury to her shoulder.

Deposition Testimony

Because Claimant's poor grasp of the English language made it difficult for her to testify, her Deposition was introduced as a Joint Exhibit. (Exhibit I) This Award will only recount the Deposition testimony that is relevant to the issues raised at Hearing.

Claimant is unable to read or write, either in Bosnian or English. She does know how to sign her name and can identify numbers. (Exhibit I, page 10)

In her deposition, Claimant described her injury as occurring on March 17, 2006 when she was working on Machine 31 and John increased the pace of the machine. (Exhibit I, pages 18-19) When she worked on Machine 31, a robot would place four lids on a table in front of her, Claimant would then have to cut the plastic with a knife. She had to cut four lids, five times a minute. (Exhibit I, Page 15) Claimant experienced severe pain in her shoulder blade when the injury occurred. Claimant had been working at the faster speed for four and a half hours when her pain began. (Exhibit I, page 19) Claimant reported her injury to her supervisor Mark who then said the pace of the machine should be decreased. (Exhibit I, page 20)

Claimant continued to work following the injury to her shoulder. (Exhibit I, page 21) She would report the continuing pain in her shoulder to both Mark and John, but they did not send her to a doctor. Barnes Jewish Hospital would not treat her because they wanted her to go to the company doctor. (Exhibit I, pages 22-23)

In her deposition, Claimant testified that she then had another injury to her shoulder on April 4, 2006. The April $4^{\text {th }}$ injury occurred when Claimant was pushing some

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

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