Eleazar Gonzales v. Butterball, LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-059326

Employee: Eleazar Gonzales

Employer: Butterball, LLC

Insurer: Ace American Insurance Company

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 § 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 August 16, 2013. The award and decision of Administrative Law Judge Karen W. Fisher, issued August 16, 2013, 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 $5^{\text {th }}$ day of March 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Eleazar Gonzales Injury No.: 09-059326

Employer: Butterball, LLC

Additional Party: Second Injury Fund

Insurer: Ace American Insurance Company, c/o Sedgwick Claims Management

Hearing Date: April 2, 3013

1. Are any benefits awarded herein? YES
2. Was the injury compensable under Chapter 287? YES
3. Was there an accident under the Law? YES
4. Date of accident: August 7, 2009
5. Location where accident occurred: CARTHAGE, JASPER COUNTY, MISSOURI
6. Was above employee in employ of above employer at time of alleged accident? YES
7. Did employer receive proper notice? YES
8. Did accident 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: EMPLOYEE WAS WORKING ON THE GIZZARD MACHINE IN THE EVISCERATION DEPARTMENT WHEN HIS HAND BECAME TRAPPED IN THE MACHINE.
12. Did accident cause death? NO
13. Parts of body injured by accident: RIGHT HAND

1. Nature and extent of any permanent disability: PERMANENT AND TOTAL DISABILITY
2. Compensation paid to-date for temporary disability: NONE
3. Value of necessary medical aid paid to date by employer/insurer? $\ 20,228.69
4. Value necessary medical aid not furnished by employer/insurer? NONE
5. Employee's average weekly wage: $\ 491.42
6. Employee's weekly compensation rate: $\ 327.61
7. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: NONE

Permanent partial disability benefits: NONE

Permanent total disability benefits: Yes. Beginning on December 31, 2009 and for the remainder of claimant's lifetime at the rate of $\ 245.71 a week.

1. Second Injury Fund liability: NO.

Weeks of permanent partial disability: N/A

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund: N/A

1. Future requirements awarded: NONE

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to Mr. Gonzales 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 Mr. Gonzales: Jennifer L. Newman

Employee: Eleazar Gonzales Injury No.: 09-059326

Employer: Butterball, LLC

Additional Party: Second Injury Fund

Insurer: Ace American Insurance Company, c/o Sedgwick Claims Management

Hearing Date: April 2, 3013

On April 2, 2013, the parties appeared before the undersigned Administrative Law Judge, Karen Fisher, for a final hearing. The employer and insurer appeared through their attorney, Mr. Ron Sparlin. Ms. Stephen Freeland appeared on behalf of the Second Injury Fund. Mr. Gonzales appeared in person and with counsel Jennifer L. Newman. Ms. Lisa Lewis served as the interpreter for the hearing.

The parties stipulated that on or about August 7, 2009, Butterball, LLC (hereinafter referred to as "Butterball") was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was insured by Ace American Insurance Company, c/o Sedgwick Claims Management. On the injury date of August 7, 2009, Eleazar Gonzales was an employee of the employer, and the claimant was working subject to Missouri Workers' Compensation Law. The parties agree that on August 7, 2009, claimant sustained an accident which arose out of and in the course and scope of his employment. This accident occurred at his place of employment in Carthage, Jasper County, Missouri. The claimant notified the employer of his injury as required by Section 287.420. The claimant's claim was filed within the time prescribed

by Section 287.430. At the time of the accident, Mr. Gonzales' average weekly wage with the employer was $\ 491.42, sufficient to allow a temporary total and permanent total disability rate of $\ 327.61 and a compensation rate of $\ 327.61 for permanent partial disability benefits. The employer/insurer have not paid any temporary total disability benefits to the employee to date. The employer/insurer have paid any medical expenses in the amount of $\ 20,228.69 in this claim to date. The attorney fee sought is 25 %.

1. What is the nature and extent of the claimant's permanent disability?
2. Whether the employer/insurer is entitled to a credit for the time period the claimant returned to work from November 3, 2009 through December 30, 2009 if the claimant is permanently and totally disabled?
3. Whether a safety penalty should be assessed?
4. Whether the claimant is entitled to compensation for the disfigurement to his right hand?

Claimant was born May 3, 1947 in Guatemala and is 66 years old. He is right hand dominant. Claimant resides in Joplin, Missouri. He performed poorly in school and left school in Guatemala in $3^{\text {rd }}$ grade. Claimant did not obtain a GED.

Claimant worked several jobs in Guatemala before moving to the United States. Claimant worked as a shoe manufacturer in Guatemala and used a sewing machine to sew the heel and sides of shoes. Claimant testified that this was hand intensive.

Claimant was also employed with a textile company in Guatemala. He used an operating machine and worked with cloths and fabrics. Claimant testified that this was a hand intensive job.

In Guatemala, claimant was also employed as a guard with the government police department. Claimant testified this was a physical job.

Claimant came to the United States originally in 1969 but returned to Guatemala for several years. He returned to the United States in 1975 or 1976 and resided in California. Claimant returned to Guatemala in 1985 when his mother died. Claimant returned to the United States in 1986 and then moved back to Guatemala in 1994. He moved to the United States on a permanent basis in 1995. Claimant testified that he is a citizen of the United States.

Claimant's native language is Spanish. Claimant is limited in the English language. He does not read and write English and is able to communicate very little in English. Claimant attended school in Joplin in 2000 to learn English. However, he was working and was too tired to complete the program. Claimant has had no other training.

Claimant's first job in the United States was working in construction in California. He worked with cement mixtures. Claimant also worked as a manual laborer with plastic and metal companies. Both of these jobs were hand intensive and required heavy lifting. Claimant was also employed as a laborer in soldering, where he worked with electronic parts. Claimant soldered small electronic parts. This was a hand intensive position. Claimant testified that all of the employment positions he has held in the United States have been hand intensive.

Claimant began employment with Butterball in January, 2001. On August 7, 2009, Mr. Gonzales was working full-time on the line in the evisceration department at Butterball. Mr. Gonzales' job responsibilities in August, 2009 included taking the guts, eggs, and hearts out of turkeys. Claimant also cut out the gizzard and other parts of the turkey.

On August 7, 2009, Mr. Gonzales' supervisor, Mr. Cacio Mario, sent him to work on the only machine located in the evisceration department. This machine is used to sort and clean gizzards. His responsibilities while working on the gizzard machine included cleaning and separating the gizzards that were cut and not cut, hanging up the gizzards, and pushing the gizzards into the machine with his right hand.

The claimant testified that he was wearing Four (4) gloves while working on the machine on August 7, 2009. He wore gloves made of steel mesh, plastic, and fabric. He was also wearing a security glove. There were no guards or safety warning labels on the gizzard machine at any time while working at Butterball. Mr. Gonzales testified that he followed all of the employer's rules and protocols at Butterball at all times while using and operating the gizzard machine.

However, while pushing the gizzards into the machine with his right hand, the roller grabbed the tip of claimant's glove. All Four (4) of the claimant's fingers on his right hand were stuck in the gizzard machine. The right thumb was not trapped in the machine. The claimant is right hand dominant. The claimant tried to pull his right hand out of the machine and was unsuccessful.

Mr. Mario ordered another employee, possibly by the name of Chris, to shut down the machine. After the machine was turned off, the claimant was not able to remove his

right hand from the machine. Mr. Mario's assistant came over to the machine but was also unable to remove claimant's right hand from the machine.

The mechanics at Butterball disarmed and disassembled the gizzard machine in an attempt to remove the claimant's hand. The claimant testified that this process took some time. However, after disassembling the machine, the mechanics were not successful in removing the claimant's hand.

Following the unsuccessful attempts to remove the claimant's hand from the machine, Butterball called the paramedics. Upon the arrival of the paramedics, the paramedics spent an additional 37 minutes before they were able to remove the claimant's right hand from the gizzard machine. The claimant's hand was caught in the machine for over an hour and a half. The paramedics transported the claimant by ground ambulance to McCune Brooks Hospital in Carthage, Missouri.

After extricating the claimant's hand, the paramedics recorded that claimant's fingers on his right hand were crushed, which did not appear to be perfusing. The ambulance records from McCune Brooks reflected that the claimant's fingers were blue with little sensation and delayed capillary refill. It is also noted in the medical records from McCune Brooks that the claimant was diagnosed with an avulsion injury with controlled bleeding and crepitus, crushed deformity dislocation, ecchymosis and soft tissue swelling of his hand. Claimant had a traumatic crush injury to his right hand. The claimant was transported by helicopter to Freeman Hospital in Joplin, Missouri.

Upon arrival at Freeman Hospital, it is noted that the claimant had lacerations on his right index, ring, and small finger. He had tenderness and limited range of motion and functional deficit. It is noted that there was obvious deformity of claimant's right

hand and a partial amputation of the fifth digit. X-rays revealed a dislocati