Katy Dierks v. Kraft Foods (a/k/a Adair Foods Company)

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-040114

Employee: Katy Dierks

Employer: Kraft Foods

a/k/a Adair Foods Company

Insurer: 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 § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 14, 2014. The award and decision of Administrative Law Judge Vicky Ruth, issued January 14, 2014, 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 $25^{\text {th }}$ day of July 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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: January 17, 2009.
5. State location where accident occurred or occupational disease was contracted: Kirksville, Adair 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 occurred or occupational disease contracted: Claimant tripped over an air hose and fell to her knees.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: Left knee.
14. Nature and extent of any permanent disability: as to the employer/insurer, 25 % permanent partial disability of the left knee; as to the Second Injury Fund, permanent and total disability.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? $\ 1,087.24.
17. Value necessary medical aid not furnished by employer/insurer? $\ 12,800.

1. Employee's average weekly wages: $\ 654.66.
2. Weekly compensation rate: $\$ 404.66 / \ 436.44.
3. Method of wages computation: By agreement.

1. Amount of compensation payable from employer:

Permanent partial disability of 25 % of the left knee: $\ 16,186.40

Unpaid temporary total disability benefits: $\ 10,786.30

Total: $\quad \ 26,972.70

1. Second Injury Fund liability: permanent and total disability benefits (including differential); see Award.
2. Future medical awarded: Yes, see award.

Said payments to begin immediately and to be payable and 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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Joshua Perkins.

Employee: Katy Dierks

Injury No. 09-040114

Dependents: N/A

Employer: Kraft Foods, also known as Adair Foods Company

Additional Party: Second Injury Fund

Insurer: Indemnity Insurance Company of

North America

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On October 8, 2013, Katy Dierks, (the claimant) and Kraft Foods Company, also known as Adair Foods, (the employer), Indemnity Insurance Company of North America (the insurer), and the Second Injury Fund appeared in Jefferson City, Missouri, for a final award hearing. Claimant was represented by attorney Joshua Perkins. The employer/insurer was represented by attorney Rick Montgomery; attorney Amanda Sterchi observed on behalf of the employer/insurer. The Second Injury Fund was represented by Adam Rowley, Assistant Attorney General. Claimant testified in person at the hearing. Mary Titterington, Dr. P. Brent Koprivica, Dr. Peter Buchert, Dr. Christopher Main, Dr. Raymond Cohen, and Gary Weimholt testified by deposition. The Administrative Law Judge set October 29, 2013, as the deadline for the filing of briefs. At the request of the employer/insurer, the deadline was extended. Claimant and the Second Injury Fund filed their briefs on November 19, 2013. The employer/insurer filed its brief on November 22, 2013.

The parties stipulated to the following:

1. On or about January 17, 2009, Katy Dierks (the claimant) was an employee of Kraft Foods, also known as Adair Foods (the employer), when she sustained an injury by accident to her left knee while in the course and scope of her employment with the employer.
2. The employer was operating subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was insured by the Indemnity Insurance Company of North America (the insurer).
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Adair County is proper. By agreement of the parties, the hearing was held in Jefferson City, Missouri.
5. Notice is not an issue.
6. Claimant filed a Claim for Compensation within the time prescribed by law.
7. Claimant's average weekly wage is $\ 654.66, yielding a weekly compensation rate of $\ 436.44 for permanent total disability and temporary total disability benefits.

1. Medical aid was provided in the amount of $\ 1,087.24.
2. No temporary disability payments were made.

The issues to be resolved in this proceeding are as follows:

1. Whether claimant sustained an injury to her left knee as a result of the work accident.
2. Medical causation/whether the accident is the prevailing factor in causing the resulting medical condition to claimant's left knee.
3. Temporary total disability benefits in the amount of $\ 10,786.30 for $8 / 28 / 09-2 / 18 / 10, a period of 24 and 5 / 7^{\text {th }} weeks.
4. Unpaid medical bills in the amount of \ 12,800.00.
5. Future medical care.
6. Nature and extent of permanent partial disability,
7. Permanent total disability.
8. Second Injury Fund liability.

On behalf of the claimant, the following exhibits were entered into evidence:

Exhibit A Claim for Compensation, Injury No. 09-040114.

Exhibit B Answer filed by the employer/insurer.

Exhibit C Amended Claim for Compensation.

Exhibit D Amended Answer filed by the employer/insurer.

Exhibit E Amended Answer filed by the Second Injury Fund.

Exhibit F Medical report of Dr. Koprivica (12/29/2010).

Exhibit G Addendum to medical report of Dr. Koprivica (8/09/2011).

Exhibit H Vocational Rehabilitation Evaluation Report of Mary Titterington $(4 / 13 / 2011)$.

Exhibit I Medical report of Dr. Buchert (7/09/2010).

Exhibit J Medical records of Dr. Anderson.

Exhibit K Medical records of Northeast Regional Medical Group.

Exhibit L Medical records of Northeast Regional Medical Group.

Exhibit M Medical records of Dr. Sparks.

Exhibit N Medical records of Northeast Regional Medical Group.

Exhibit O Medical records of New Concepts Open MRI.

Exhibit P Medical records of Dr. Buchert.

Exhibit Q Medical records of Dr. Buchert.

Exhibit R Medical records of Dr. Wilson.

Exhibit S Medical records of Dr. McMurtry.

Exhibit T Medical records of Moore Hearing Clinic.

Exhibit U Itemization of medical bills.

On behalf of the employer/insurer, the following exhibits were admitted into the record:

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence. All depositions were admitted subject to any objections contained therein. Unless noted otherwise, the objections are overruled.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings:

1. Claimant's date of birth was January 2, 1945. On the date of the hearing she was 68 years old. She lives in Bloomfield, Iowa.
2. Claimant is a high school graduate. She attended college for approximately one and a half years but did not receive a degree. Claimant began working for the employer on December 1, 1998. The employer is a factory located in Kirksville, Missouri that produces luncheon meats. Claimant's job title was Operation Technician. Claimant's job duties included loading meat and removing meat from coolers and placing it on pallets, running a meat slicer, monitoring the machines, checking and weighing boxes, and using pallet jacks to transport pallets of meat throughout the facility. She typically worked twelve hour shifts from 12:00 a.m. to 12:00 p.m.
3. Claimant testified that approximately 10 hours of her 12 hour shift were spent standing or walking on a concrete surface within the plant facility. Claimant's job required her to spend the majority of her day walking and being on her feet. The most she was required to lift was approximately 15 pounds. Claimant testified that she was receiving regular overtime prior to the January 17, 2009 work injury.
4. On January 17, 2009, claimant was in the pack room when her feet became entangled in an air hose that had been left on the concrete floor. Claimant tripped and fell directly

onto both of her knees and outstretched hands. Claimant testified that her left knee bore the brunt of the fall. Claimant injured her left knee from the direct blow onto the concrete floor.

1. Claimant's fall was witnessed by co-worker, Niki Peterson, who came to claimant's aid and assisted her in getting up from the floor. An incident report was prepared the same day by claimant's supervisor, Rick Combs.
2. Claimant experienced the immediate onset of symptoms in her left knee following the fall. She noted sharp pain behind her knee cap and swelling.
3. Claimant requested medical treatment from her employer; however, she could not get into the employee health clinic until February 3, 2009. Claimant continued to work during this time period but stated that her job duties were very difficult to perform due to the pain and swelling in her left knee. C