Anjelina Cardenas v. Tyson Poultry, Inc.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and considered the whole record and we find 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, except as modified herein. Pursuant to § 286.090 RSMo, we issue this final award and decision affirming the September 10, 2012, award and decision of the administrative law judge, as modified herein. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

Employee alleged she sustained an injury by occupational disease arising out of and in the course of her employment with employer. Pursuant to the terms of a settlement, employer/insurer paid to employee a lump sum of $\ 20,000.00 in resolution of employee's claim against employer/insurer. Employee proceeded to trial on her claim against the Second Injury Fund. The administrative law judge awarded weekly permanent total disability benefits from the Second Injury Fund to employee subject to a credit for 69.75 weeks - the number of weeks of benefits equaling $\ 20,000.00.

The Second Injury Fund filed an Application for Review alleging two errors. First, the Second Injury Fund alleged the administrative law judge's award is in error because the primary injury in this matter is an occupational disease, and an occupational disease cannot be the primary injury supporting liability under $\S 287.220 .1$ RSMo. This argument has been rejected by all three districts of the Missouri Court of Appeals. See Peters vs. Treasurer, ED98300 (Mo. App. E.D., November 6, 2012); Treasurer v. Stiers, WD75101 (Mo. App. W.D, October 9, 2012); Kirkpatrick v. Treasurer, SD31983 (Mo. App. S.D., December 20, 2012.). We affirm the administrative law judge on this point.

The Second Injury Fund next argues that if employee is permanently and totally disabled it is due to the effects of the last injury alone. We disagree. The record supports the administrative law judge's ruling that the employee was rendered permanently and totally disabled due to the effects of the last injury in combination with her preexisting disabilities. But while the administrative law judge reached the correct conclusion, the administrative law judge did not take the right path to the conclusion. "When assessing Fund liability, the Commission must first determine the degree of disability from the last injury alone." Pursley v. Christian Hosp. Northeast/Northwest, 355 S.W.3d 508, 513 (Mo. App. 2011). The administrative law judge did not determine the extent of employee's disability from the last injury alone. We will do so now.

[^0] [^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2009, unless otherwise indicated.

We do not believe the effects of the primary injury, standing alone, have rendered employee unable to compete in the open labor market. Rather, like the administrative law judge, we find credible the opinion of Mr. Eldred that employee was rendered permanently and totally disabled by the effects of the primary injury in combination with her preexisting disabilities.

Because there is no difference between employee's permanent partial disability and permanent total disability compensation rates, the Second Injury Fund's obligation to pay benefits does not begin until the benefit period for the primary injury expires. Employee reached maximum medical improvement on August 17, 2009. The primary injury resulted in 162.7 weeks of disability during which time the Second Injury Fund has no weekly obligation. Thereafter, employee is entitled to weekly permanent total disability benefits from the Second Injury Fund.

We modify the administrative law judge's award regarding the permanent total disability benefits due from the Second Injury Fund. Beginning October 3, 2012, the Second Injury Fund shall pay to employee the weekly permanent total disability benefit of $\ 286.71. The weekly payments shall continue for employee's lifetime, or until modified by law. In all other respects, we affirm the award of the administrative law judge.

We further approve and affirm the administrative law judge's allowance of attorney's fees herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law. The award and decision of Administrative Law Judge Karen Wells Fisher, issued September 10, 2012, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $11^{\text {th }}$ day of April 2013. LABOR AND INDUSTRIAL RELATIONS COMMISSION VACANT Chairman James Avery, Member Curtis E. Chick, Jr., Member Attest:

Secretary

Employee: ANJELINA CARDENAS

Injury No. 09-026289

Dependents: N/A

Employer: TYSON POULTRY INC.

Insurer: SELF INSURED

Additional Party: TREASURER OF MISSOURI, AS THE CUSTODEAN OF THE SECOND INJURY FUND

Hearing Date: JULY 25, 2012

Checked by:

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: April 15, 2009
5. State location where accident occurred or occupational disease contracted: Barry 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 happened or occupational disease contracted: During 13 years of employment with Tyson Poultry, Ms. Cardenas worked as a poultry trimmer. The position required her to, on a daily basis, cut wings, legs, and other body parts off of chickens with scissors. This occupational exposure led to a onset of pain in her bilateral hands and right shoulder.
12. Did accident or occupational disease cause death? No. Date of death? N/a.
13. Parts of body injured by accident or occupational disease: Right and left hand, right shoulder, neck.

14, Nature and extent of any permanent disability: See below

1. Compensation paid to-date for temporary disability: $\ 0
2. Value necessary medical aid paid to date by employer/insurer? $\ 0
3. Value necessary medical aid not furnished by employer/insurer? $\ 0

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Anjelina Cardenas

1. Employee's average weekly wages: $\ 430.07
2. Weekly TTD/PPD compensation rate: $\$ 286.71 / 286.71$
3. Method wages computation: By agreement of the parties.

1. Amount of compensation payable: N/A (Employee and Employer/Insurer entered into a Stipulation for Compromise Settlement)
2. Second Injury Fund liability: Yes

Weeks of permanent partial disability from the Second Injury Fund: N/A

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund: Yes

The Claimant is awarded Permanent Total Disability against the Second Injury Fund.

Employee is entitled to permanent total disability benefits ( $\ 286.71 per week) for her lifetime. Benefits are to commence on August 18, 2009, the date after Employee reached maximum medical improvement. There is no weekly differential between permanent partial disability compensation paid by Employer/Insurer and permanent total disability compensation paid by Second Injury Fund. However, the Second Injury Fund is entitled to credit for the amount paid by employer for permanent partial disability of 488 days

TOTAL: \$286.71 PER WEEK FOR EMPLOYEE'S LIFETIME, EFFECTIVE AS OF AUGUST 18, 2009.

1. Future requirements awarded: Yes (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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Pitts Law Office, P.C.

Employee: Anjelina Cardenas

Injury No. 09-026289

Dependents: N/A

Employer: Tyson Poultry Inc.

Insurer: Self Insured

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

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on July 25, 2012. The claimant, Anjelina Cardenas, appeared personally and through her attorney, Jonathan Pitts. The Second Injury Fund appeared through its attorney, Stephen Freeland, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On April 15, 2009, Tyson Poultry Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully self insured.

(2) On May 11, 2011, Anjelina Cardenas was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On May 11, 2011, the employee sustained an occupational disease which arose out of and in the course and scope of her employment with Tyson Poultry Inc. The occupational disease was the prevailing factor in Ms. Cardenas' resulting medical condition and disability.

(4) The above-referenced employment and occupational disease occurred in Barry County, Missouri. Venue is proper.

(5) The claimant notified the employer of her occupational disease as required by Section, 287.420, RSMo.

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

(7) At the time of the alleged accident the claimant's average weekly wage was $\ 430.07, which is sufficient to allow a compensation rate of $\ 286.71 for temporary total and permanent disability compensation.

(8) The employer and insurer did not provide temporary disability benefits to the employee.

(9) The employer and insurer did not provide medical treatment to the employee.

(10) The employee reached maximum medical improvement ("MMI") on August 17, 2009.

The parties further stipulated that the sole issue to be resolved by hearing was:

(1) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation? The parties stipulated that if permanent total disability was not found, a permanent partial disability rate of 15 % to each hand and a 10 % load factor would apply.

The claimant testified through an interpreter at the hearing in support of her claim. In addition, the claimant offered for admission the following exhibits:

Exhibit A - Dr. Robert Paul's CV, IME Report, and Deposition

Exhibit B - Phil Eldred's CV, Vocational Report, and Deposition

Exhibit C - Deposition of Employee

Exhibit D - Medical Records

Exhibit E - Personnel Records

Exhibit F - Stipulation of Settlement with Employer

The exhibits were received and admitted into evidence.

The Second Injury Fund did not present any witnesses at the hearing of this case