Jennifer Brown v. Nestle Purina PetCare Company

Instead, we find that the 30-day notice period was triggered on December 19, 2008, when Dr. Tuteur first identified the causal connection between the underlying medical condition of irritant induced bronchial reactivity and employee's work-related activity or exposures. Employee's claim for compensation of October 26, 2007, satisfied each of the elements of the written notice required under $\S 287.420$, and was filed well before expiration of the 30day notice period. See Allcorn, 277 S.W.3d at 830, noting that "the statute does not require that the notice be given after the diagnosis, but only that it be given 'no later than thirty days after the diagnosis of the condition'" (emphasis in original). We conclude, for the foregoing reasons, that employee's claim is not barred by $\S 287.420$.

In the second full paragraph on page 7 of his award, the administrative law judge states that Dr. Tepper examined employee at the request of her employer. This statement is incorrect; it was employee's attorney who requested that Dr. Tepper examine employee. See Transcript, page 328. Similarly, the administrative law judge states in the fourth full paragraph on page 21 of his award: "It is interesting to note that in this case the doctors who evaluated the employee were all retained by the employer-insurer." This statement is also incorrect, and we must therefore disclaim it and the administrative law judge's analysis that cites or relies upon it.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Gary L. Robbins, issued September 12, 2014, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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 $16^{\text {th }}$ day of April 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

September 10, 2014

Ms. Naomi Pearson

Division of Workers' Compensation

PO Box 58

Jefferson City, Missouri 65102-0058

In Re: Injury Number: 05-144425

Employee: Jennifer R. Brown

Employer: Nestle Purina PetCare Company

Insurer: American Home Assurance Company

Dear Ms. Pearson:

Enclosed please find a final award in the above referenced workers' compensation case. The Court found that the employee had a compensable accident/occupational disease. The employerinsurer was ordered to pay benefits.

Sincerely,

Gary L. Robbins

Administrative Law Judge

Cape Girardeau, Missouri

Employee: Jennifer R. Brown

Injury No. 05-144425

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

Employer: Nestle Purina PetCare Company

Insurer: American Home Assurance Company

Appearances: Mark E. Moreland, attorney for the employee.

Richard A. Day, attorney for the employer-insurer.

Hearing Date: June 16, 2014

Checked by: GLR/rf

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? October 26, 2005.
5. State location where accident occurred or occupational disease contracted: Stoddard 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.

On June 16, 2014, the employee, Jennifer R. Brown, appeared in person and with her attorney, Mark E. Moreland for a hearing for a final award. The employer-insurer was represented at the hearing by their attorney, Richard A. Day. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Nestle Purina PetCare Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by American Home Assurance Company.
2. On October 26, 2005, Jennifer R. Brown was an employee of Nestle Purina PetCare Company and was working under the Workers' Compensation Act.
3. The employee's claim was filed within the time allowed by law.
4. The Jennifer R. Brown's average weekly wage was $\ 973.10, resulting in a compensation rate of $\ 648.73 per week for temporary total disability benefits and $\ 365.08 per week for permanent partial disability benefits.
5. The employer-insurer paid $\ 4,908.33 in medical aid.
6. The employer-insurer paid zero dollars in temporary disability benefits.
7. The employee has no claim for mileage.
8. The employee has no claim for any temporary disability benefits.
9. The employee has no claim for permanent total disability.

1. Whether the employee sustained an occupational disease that arose out of and in the course of her employment.
2. Notice.
3. Medical causation.
4. Previously incurred medical bills.
5. Additional medical care.
6. Permanent partial disability.

The following exhibits were offered and admitted into evidence:

A. Deposition of Peter G. Tuteur, M.D.

B. Deposition of Arnold S. Tepper, M.D.

C. Medical records from Ferguson Medical Group.

D. Medical records from Missouri Delta Medical Center.

E. Medical records from SEMO Health Network.

F. Medical records of Rahat Salamat, M.D.

G. Black Hills Bentonite, LLC Material Safety and Transportation Data Sheet.

H. Industrial Hygiene Report of Nestle Purina PetCare Company.

I. Records from Medical Arts Pharmacy.

1. Deposition of Thomas M. Hyers, M.D.
2. Medical records from Missouri Delta Medical Center.
3. Medical records from Ferguson Medical Group.
4. Post-Offer Medical Questionnaire.
5. Health Questionnaire.
6. E-mail from Kelly Hindman.
7. E-mail from Wes Lemons.
8. E-mail from Rob Taylor.
9. Statement of Manuel Wiley, Jr. dated 10-24-08
10. Statement of Manuel Wiley, Jr. dated 2-6-09.
11. Statement of Larry Daniel dated 4-10-10.

The employee, Jennifer R. Brown, Kelly Hindman, Manuel Wiley Jr., and Larry Daniel personally testified at trial. All other evidence was presented in the form of written reports, medical reports, or deposition testimony.

The employee is a 48-year-old single woman who lives in Sikeston, Missouri. She has two adult children and one child who is still dependent for support. Both her daughter and sister have been diagnosed with asthma and are currently receiving treatment for their condition. The employee has never smoked.

The employee worked for Nestle USA at their facility near Bloomfield, Missouri. She testified Nestle manufactured kitty litter at this facility. She began her employment with Nestle in August of 2003 and eventually resigned her position in late April 2012. She testified that she was going to leave in 2008, but her daughter got sick and she needed the work and the i