Pamela Chesser v. Pepsi Americas a/k/a Pepsi-Cola General Bottlers, Inc.

Employee: Pamela S. Chesser Injury No.: 08-067091

Employer: Pepsi Americas, a/k/a Pepsi-Cola General Bottlers, Inc.

Address: 8000 W. 1st Floor, 1000 W. 5th Floor, 1000 W. 5th Floor, 1000 W. 5th Floor, General Bottlers, Inc. Phone: 800-636-3222

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

Insurer: Indemnity Insurance Co. of North America, c/o Sedgwick Claims Management

Hearing Date: July 15, 2014 Checked by: RBM

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: July 28, 2008.
5. State location where accident occurred or occupational disease was contracted: St. Joseph, Buchanan 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.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: A pallet fell and struck Claimant on her neck and right leg.
2. Did accident or occupational disease cause death? No.
3. Part(s) of body injured by accident or occupational disease: Neck, head, right leg.
4. Nature and extent of any permanent disability: Permanent and total disability as a result of Employee's July 28, 2008 injury considered alone.
5. Compensation paid to-date for temporary disability: $\ 67,950.31 in temporary total disability and $\ 2,620.00 in temporary partial disability.
6. Value necessary medical aid paid to date by employer/insurer? $\ 106,108.05.
7. Value necessary medical aid not furnished by employer/insurer? None.
8. Employee's average weekly wages: $\ 690.51.
9. Weekly compensation rate: $\ 460.34 for temporary total disability, and $\ 460.34 for permanent total disability, and $\ 404.66 for permanent partial disability.
10. Method wages computation: Section 287.250, RSMo for temporary total disability and permanent total disability, and by agreement of the parties for permanent partial disability.

1. Amount of compensation payable:

Unpaid medical expenses: None.

No weeks of temporary total disability (or temporary partial disability).

Three (3) weeks of disfigurement from Employer at the rate of $\ 404.66 per week $= \ 1,213.98.

Employer is directed to authorize and furnish additional medical treatment to cure and relieve Employee from the effects of her July 28, 2008 work injury, in accordance with section 287.140, RSMo.

Permanent total disability benefits from Employer beginning April 12, 2011, and thereafter, at the rate of $\ 460.34 per week for claimant's lifetime.

Employer is entitled to a credit for a temporary total disability over-payment in the amount of $\ 8,051.20 based upon $\ 62.90 per week times 128 weeks.

1. Second Injury Fund liability: None. Employee's claim against the Second Injury Fund is denied.
2. Future requirements awarded: As awarded.

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 % after expenses of all payments hereunder in favor of the following attorneys for necessary legal services rendered to Claimant: Robert E. Douglass and James F. Nadolski, to be divided one-half to each.

Employee: Pamela S. Chesser

Employer: Pepsi Americas, a/k/a Pepsi-Cola General Bottlers, Inc.

Insurer: Indemnity Insurance Co. of North America, c/o Sedgwick Claims Management

Hearing Date: July 15, 2014

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Checked by: RBM

A final hearing was held in this case on Employee's claim against Employer and The Treasurer of the State of Missouri as Custodian of the Second Injury Fund on July 15, 2014 in St. Joseph, Missouri. Employee, Pamela S. Chesser, appeared in person and by her attorney, Robert E. Douglass. Employer, Pepsi Americas, a/k/a Pepsi-Cola General Bottlers, Inc., and Insurer, Indemnity Insurance Co. of North America, c/o Sedgwick Claims Management, appeared by their attorney, David F. Menghini. The Second Injury Fund appeared by its attorney, Richard C. Wiles. Robert E. Douglass requested an attorney's fee of 25 % after expenses, to be divided one-half to him, and one-half to James A. Nadolski, from all amounts awarded. It was agreed that post-hearing briefs would be due on August 12, 2014.

At the time of the hearing, the parties stipulated to the following:

1. On or about July 28, 2008, Pamela S. Chesser ("Claimant") was an employee of Pepsi Americas, a/k/a Pepsi-Cola General Bottlers, Inc., ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.
2. On or about July 28, 2008, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was fully insured by Indemnity Insurance Co. of North America, c/o Sedgwick Claims Management.

1. On or about July 28, 2008, Claimant sustained an injury by accident in St. Joseph, Buchanan County, Missouri, arising out of and in the course of her employment.
2. Employer had notice of Claimant's alleged injury.
3. Claimant's Claim for Compensation was filed within the time allowed by law.
4. The weekly rate of compensation for permanent partial disability is $\ 404.66.
5. Employer/Insurer has paid $\ 67,950.31 in temporary total disability at the rate of $\ 523.24 per week for the period October 28, 2008 through April 11, 2011, and Employer/Insurer has paid \$2,620.00 in temporary partial disability from August 3, 2008 through February 7, 2009.
6. Employer/Insurer has paid $\ 106,108.05 in medical aid.
7. Claimant reached maximum medical improvement on April 4, 2011 when Dr. Bailey released Claimant.

The parties agreed that there were disputes on the following issues:

1. What is the average weekly wage, and what is the weekly rate of compensation for temporary total disability and permanent total disability?
2. Is Employer entitled to a credit for an overpayment of temporary total disability payments?
3. What is the nature and extent of permanent disability, and what is Employer's liability for permanent partial disability benefits, or in the alternative, permanent total disability?
4. What is Employer's liability for disfigurement?
5. What is Employer's liability, if any, for future medical aid?
6. What is the liability of the Second Injury Fund for permanent partial disability benefits, or in the alternative, permanent total disability?

Claimant testified in person. In addition, Claimant offered the following exhibits which were admitted in evidence without objection:

A—First Amended Contract of Employment

B-Central High School records

C—Stipulation for Compromise Settlement for December 1, 1996 injury

D—Employee Statement dated August 1, 2008

E—Medical Report of Dr. Truett Swaim for February 20, 2012 Examination

F-Deposition of Dr. Truett Swaim taken October 23, 2013 with Deposition Exhibits

G—Deposition of Mary Titterington taken October 22, 2013 with Deposition Exhibits

I-Letter from David Menghini to Robert Douglass dated May 8, 2013 with Wage Information

J—Records of Missouri Division of Workers' Compensation

L—Records of Precision Spine and Orthopedics

Employer offered the following exhibits which were admitted in evidence without objection:

1—Records of Advanced Spine and Orthopedic Specialists

2—Records of Comprehensive Family Care

3—Records of Heartland Occupational Medicine

5-Deposition of Dr. David J. Clymer taken on January 27, 2014 with Deposition Exhibits

6-Deposition of Dr. Alexander Bailey taken on January 16, 2014 with Deposition Exhibits

7-Deposition of Terry Cordray taken March 18, 2014 with Deposition Exhibits

8-Deposition of Pamela Chesser taken on December 10, 2013

Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to being made part of this record, and were not placed thereon by the Administrative Law Judge.

The Post-Hearing Briefs have been considered.

Claimant was hired by Employer on May 29, 2007 as a merchandiser. She always worked for Employer as a merchandiser. She put product on the floors of stores. She had to throw cases of pop that weighed 21 pounds. Claimant never had to lift 100 pounds when working for Employer. The most she lifted was two cases that weighed about 40 pounds. 100 cases of pop loaded on a pallet weighed 2,100 pounds. The most she pulled was 2,100 pounds. Her ordinary hours at Employer were from 5:30 a.m. until around 2:30 p.m. or 3:00 p.m.

Claimant was injured on July 28, 2008 at Wal-Mart South in St. Joseph, Missouri while working for Employer when an empty pallet being loaded by a man fell and struck Claimant on the back of her neck and right leg.

Claimant took an incident report to Wal-Mart after the accident. She then went to Employer and reported the incident. She returned to Wal-Mart, and by that time another employee of Employer had finished her work.

Claimant had horrible headaches and took the next two days off work. Employer sent Claimant to Heartland Occupational Medicine. Claimant identified Exhibit D, a record of Heartland Occupational Medicine that she had signed. The document was in her writing and relates to her July 28, 2008 accident.

Claimant was transferred to Dr. Alexander Bailey. Dr. Bailey first saw Claimant on September 12, 2008. He put