Janis Rellergert v. MFA, Inc./Break Time

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 09-039352

Employee: Janis Rellergert

Employer: MFA, Inc./Break Time (Settled)

Insurer: Liberty Mutual Insurance Company (Settled)

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 October 23, 2014. The award and decision of Administrative Law Judge Vicky Ruth, issued October 23, 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 $\qquad 18 ^{\text {th }} \qquad$ day of March 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Janis Rellergert

Injury No. 09-039352

Dependents: N/A

Employer: MFA, Inc./Break Time (SETTLED)

Additional Party: Second Injury Fund Only

Insurer: Liberty Mutual Insurance Company (SETTLED)

Hearing Date: July 22, 2014

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: VR/cs

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: May 30, 2009.
5. State location where accident occurred or occupational disease was contracted: Callaway County, Missouri.
6. Was above employee in the employ of above employer at the time of the 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 lifted a case of soda and turned to her right while leaning against a wall. She lifted, twisted, and reached with her left arm on top of the case of soda as she tried to attach the hoses for the machine. In doing so, she injured her left shoulder.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: left shoulder.
14. Nature and extent of any permanent disability: 25 % of the left shoulder.
15. Compensation paid to-date for temporary disability: $\ 1,426.16.

Issued by DIVISION OF WORKERS' COMPENSATION

1. Value necessary medical aid paid to date by employer/insurer? $21,752.22.

1. Value necessary medical aid not furnished by employer/insurer? N/A.

1. Employee's average weekly wages: N/A.

1. Weekly compensation rate: $180.00.

1. Method of wages computation: By agreement.

COMPENSATION PAYABLE

1. Amount of compensation payable from employer: Previously settled.

1. Second Injury Fund liability: Yes, for permanent total disability benefits of $180/week beginning February 10, 2012, and continuing for Claimant's lifetime or until modified pursuant to statute.

1. Future medical awarded: N/A.

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: R. L. Veit.

WC-32-R1 (b-81)

Page 2

On July 22, 2014, Janis Rellergert (the claimant) and the Second Injury Fund appeared in Jefferson City, Missouri, for a final award hearing regarding Second Injury Fund claims in Injury Nos. 09-025577 and 09-039352; separate Awards are being issued in each case. Claimant was represented by attorney R. L Veit. The Second Injury Fund was represented by attorney Maggie Ahrens. Claimant testified in person at the hearing and by deposition. Dr. David Volarich and Gary Weimholt testified by deposition. Claimant submitted a brief on August 11, 2014. The Second Injury Fund filed a brief on August 12, 2014, and the record closed at that time.

The parties stipulated to the following:

Injury No. 09-025577

1. On or about March 17, 2009, Janis Rellergert (the claimant) was an employee of MFA, Inc./BreakTime (the employer) when she sustained an injury by accident to her low back. This accident occurred while Claimant was working in the course and scope of her employment with 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 Liberty Mutual Insurance Company.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Callaway County is proper. For trial purposes, venue is also proper in Jefferson City, Missouri.
5. Notice is not an issue.
6. Claimant filed a Claim for Compensation within the time prescribed by law.
7. The employer/insurer provided medical aid in the amount of $\ 1,026.10.
8. Claimant's weekly compensation rate is $\ 180.00 for permanent partial disability benefits and for permanent total disability benefits.
9. No temporary disability benefits were provided.

1. Claimant reached maximum medical improvement on December 29, 2010. ${ }^{1}$

1. On or about May 30, 2009, Janis Rellergert (the claimant) was an employee of MFA, Inc./BreakTime (the employer) when she sustained an injury by accident to her left shoulder. This accident occurred while Claimant was working in the course and scope of her employment with 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 Liberty Mutual Insurance Company.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Callaway County is proper. For trial purposes, venue is also proper in Jefferson City, Missouri.
5. Notice is not an issue.
6. Claimant filed a Claim for Compensation within the time prescribed by law.
7. The employer/insurer provided medical aide in the amount of $\ 21,752.22.
8. Claimant's weekly compensation rate is $\ 180.00 for permanent partial disability benefits and for permanent total disability benefits.
9. Temporary disability benefits were provided in the amount of $\ 1,426.16.
10. Claimant reached maximum medical improvement on December 29, 2010.

The parties agreed that the issues to be resolved in each of these proceedings are as follows:

1. Whether Claimant is permanently and totally disabled, or
2. Nature and extent of Claimant's permanent partial disabilities.
3. Liability, if any, of the Second Injury Fund.

On behalf of Claimant, the following exhibits were entered into evidence without objection:

Exhibit 1 Claim for Compensation, Injury No. 09-025577.

Exhibit 2 Stipulation for Settlement, Injury No. 09-025577

Exhibit 3 Claim for Compensation, Injury No. 09-039352.

Exhibit 4 Stipulation for Settlement, Injury No. 09-039352.

Exhibit 5 Deposition of Dr. David Volarich.

Exhibit 6 Curriculum Vitae of Dr. Volarich, Deposition Exhibit 1.

Exhibit 7 Letter from Dr. Volarich (3/28/2011), Deposition Exhibit 2.

[^0]

[^0]: ${ }^{1}$ Claimant's brief references December 21, 2010, but during the hearing the parties agreed to a date of December 29, 2010.

On behalf of the Second Injury Fund, the following exhibit was received into the record:

Exhibit A Deposition of Claimant.

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 is currently 65 years of age; her date of birth is November 1, 1948. At the time of the last injury, in May 2009, she was 60 years old. In June 2014, Claimant moved from Tebbetts, Missouri, to St. Charles, Missouri.
2. Claimant started the $12^{\text {th }}$ grade in school but did not graduate and does not have a GED. In 1977 she attended "beauty college," but has not had any subsequent training or education.
3. Claimant worked for the Break Time Company (the employer) for approximately two years. She worked approximately 30 to 32 hours per week. ${ }^{2}$ The last day she worked for the employer was May 30, 2009.
4. Claimant's job with the employer required her to stand for all or most of her shift. Her duties including running the cash register and stocking shelves, which required her to lift items. She also performed general cleaning tasks and filled up the ice machine. ${ }^{3}$
5. On March 17, 2009, Claimant sustained an injury by accident arising out of and in the course and scope of employment. The accident occurred when Claimant backed up from the cash register, tripped over a step stool, and fell. She landed on her buttocks on the concrete floor. Claimant injured her low back and body as a whole in the accident.

[^0]

[^0]: ${ }^{2} Exh. A, p. 22.

{ }^{3} \mathrm{Id}$.

1. On April 14, 2009, Claimant saw Dr. Janet Elliot for complaints of back and tailbone pain from the fall. The doctor noted that the x-ray of the lumbar spine was negative for fracture, although degenerative changes were noted. Specifically, the x-ray report found 1) no acute fracture; 2) mild degenerative osteoarthritis in the lumbar spine; and 3) severe degenerative osteoarthritis in the lower thoracic spine. ${ }^{4}$ Dr. Elliot's assessment was "history of contusion of the ribs, contusion of the low back."5 Claimant's rib symptoms subsequently resolved.
2. On May 30, 2009, Claimant sustained another injury by accident arising out of and in the course and scope of her employment. This accident occurred when Claimant lifted a case of soda and turned to her right while leaning against a wall for support. She lifted, twisted, and reached with her left arm on top of the cas