Felicia Clutter v. Conagra Foods, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 13-051044

Employee: Felicia S. Clutter

Employer: Conagra Foods, Inc.

Insurer: Old Republic Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480$ RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated February 6, 2015.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

The award and decision of Administrative Law Judge Robert B. Miner, issued February 6, 2015, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $14^{\text {th }}$ day of May 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Felicia S. Clutter

Injury No.: 13-051044

Employer: Conagra Foods, Inc.

Address: 1000 W. 1st St., Suite 1000, New York 11590, U.S.A.

Address: 1000 W. 1st St., Suite 1000, New York 11590, U.S.A.

Address: 1000 W. 2nd St., Suite 1000, New York 11590, U.S.A.

Address: 1000 W. 2nd St., Suite 1000, New York 11590, U.S.A.

Address: 1000 W. 2nd St., Suite 1000, New York 11590, U.S.A.

Hearing Date: November 7, 2014

Date Record Closed: November 26, 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 15, 2013.
5. State location where accident occurred or occupational disease was contracted: Trenton, Grundy, 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: While working for Employer, Employee lifted a door weighing about

two hundred pounds and while she held the door above her head she felt a pop in her left shoulder, had pain in her left shoulder, and she injured her left shoulder.

1. Did accident or occupational disease cause death? No.
2. Part(s) of body injured by accident or occupational disease: Left shoulder.
3. Compensation paid to-date for temporary disability: $\ 638.35.
4. Value necessary medical aid paid to date by employer/insurer? $\ 6,781.05.
5. Value necessary medical aid not furnished by employer/insurer?
6. Employee's average weekly wages: $\ 1,117.93.
7. Weekly compensation rate: $\ 745.29 for temporary total disability and $\ 446.85 for permanent partial disability.
8. Method wages computation: By agreement of the parties.

1. Amount of compensation payable:

Employer is directed to authorize and furnish additional medical treatment to cure and relieve Claimant from the effects of her July 15, 2013 work injury, in accordance with section 287.140, RSMo.

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

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: Michael J. Joshi.

Employee: Felicia S. Clutter

Injury No.: 13-051044

Employer: Conagra Foods, Inc.

Address: 1000 W. 1st St., Suite 1000, Chicago, IL 60601

Address: 1000 W. 2nd St., Suite 1000, Chicago, IL 60601

Address: 1000 W. 3rd St., Suite 1000, Chicago, IL 60601

Email: info@sydneycollege.com

Address: 1000 W. 4th St., Suite 1000, Chicago, IL 60601

Address: 1000 W. 5th St., Suite 1000, Chicago, IL 60601

Email: info@sydneycollege.com

Address: 1000 W. 6th St., Suite 1000, Chicago, IL 60601

Employee: Felicia S. Clutter

Injury No.: 13-051044

Hearing Date: November 7, 2014

Date Record Closed: November 26, 2014

Checked by: RBM

A hardship hearing (non-section 287.203, RSMo) was held in this case on Employee’s claim against Employer on November 7, 2014 in St. Joseph, Missouri. Employee, Felicia S. Clutter, appeared in person and by her attorney, Michael J. Joshi. Employer, Conagra Foods, Inc., and Insurer, Old Republic Insurance Company, c/o Sedgwick Claims Management Services appeared by their attorney, Anton C. Andersen. The Second Injury Fund is not a party in this case. Michael J. Joshi requested an attorney's fee of 25 % from all amounts awarded.

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

1. On or about July 15, 2013, Felicia S. Clutter ("Claimant") was an employee of Conagra Foods, Inc. ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.
2. On or about July 15, 2013, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was insured by Old Republic Insurance Company, c/o Sedgwick Claims Management Services ("Insurer").
3. Employer had notice of Claimant's alleged injury.
4. Claimant's Claim for Compensation was filed within the time allowed by law.

1. The average weekly wage was $\ 1,117.93, the rate of compensation for temporary total disability is $\ 745.29 per week, and the rate of compensation for permanent partial disability is $\ 446.85 per week.
2. Employer/Insurer has paid $\ 638.35 in temporary total disability.
3. Employer/Insurer has paid $\ 6,781.05 in medical aid.
4. Venue is proper in St. Joseph, Missouri for the November 7, 2014 hearing.
5. The issue of permanent partial disability is not to be determined in connection with the November 7, 2014 hearing.

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

1. Did Claimant sustain an injury by accident on or about July 15, 2013 arising out of and in the course of her employment for Employer?
2. If Claimant had an accident on or about July 15, 2013, is the accident the prevailing factor in the medical condition and any disability she sustained?
3. What is Employer's liability, if any, for additional medical aid?

Claimant testified in person. Angie Bruyer testified on behalf of Claimant.

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

1-Deposition of Dr. Alexandra Strong taken October 31, 2014 with Deposition Exhibits

2-MRI Report dated November 11, 2013

3—Records of St. Luke's Health System

4-Pay Records

5—Records of Dr. Salvatore Miceli

6-Deposition of Claimant taken September 4, 2014

It was agreed at the November 7, 2014 hearing that the record would be left open to permit the deposition of Dr. James Hopkins with deposition exhibits to be admitted in evidence as Joint Exhibit 7, subject to any objections contained in the deposition. The deposition of Dr. James Hopkins with deposition exhibits was received by the Division of

Workers' Compensation St. Joseph office on November 26, 2014 and was admitted in evidence on November 26, 2014 as Joint Exhibit 7, subject to any objections contained in the deposition. The record was closed in this case on November 26, 2014.

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 is 26-years-old. She works for Employer in Trenton, Missouri. Her job title is Fourth Lead. Her prior title was General Laborer.

Claimant was working for Employer as a general laborer on July 15, 2013. She was working on a machine that wrapped cans that were put into boxes. She worked on the warehouse side. She helped package product to be shipped when she worked in general labor. Her duties included loading boxes and keeping the machine running. She checked the machine every thirty minutes. If the machine stopped, she opened doors to fix it. The machine stopped if boxes were feeding in the wrong way or flaps were not gluing.

The machine that she worked on is surrounded by metal and heavy Plexiglas doors. There are ten doors on the machine. They go the length of the machine and are different sizes. The doors protect employees from moving parts within the machine. The doors are tight. The machine shuts off when a door opens.

Claimant does not know the exact weight of the doors. She knows that they are heavy and that is the reason the doors have air locks. Air holds the doors down. Switches need to be pushed to open the doors. Pushing a switch helps raise the doors and makes it easier to open the doors.

Claimant was working around Door 8 on July 15, 2013. Door 8 is about eight or nine feet tall and nine or ten feet long. The door is like a garage door. It is a bi-fold door. The door has a handle on the bottom and on the middle.

Door 8 was not operating properly on July 15, 2013. The switch was broken and did not work. Air did not help push the door. It was harder to open Door 8 that day because the switch was not working.

Claimant was injured at work on July 15, 2013. She picked up Door 8 in the middle using the higher handle. She pulled and lifted the door up with both hands and then grabbed the next handle and lifted more. When the door was overhead, she released her right hand and held the door handle with her left arm while her left arm was outstretched. She used her right hand to reach. Her left arm was up in the air while she reached out with her right hand. While she was reaching with her right hand and holding the door with her left arm, she felt a pop in her left shoulder. She pushed the door up a little when she felt a pop and let go. The door did not come down.

Claimant's left arm started throbbing right after that. She had pain on the top outside of her left shoulder and in the scapula under her left shoulder blade. The pain that Claimant felt in her left shoulder at that time was an eight on a scale of one to ten.

Claimant also testified she was not in the process of lifting at the time of the pop even though records at Wright Memorial Hospital said that she was lifting. The pop happened when she was holding the door. The door was not stuck, even though Dr. Miceli's records say it was. The door weighed a couple of hundred pounds, not five hundred pounds as reflected in Dr. Strong's records.

Claimant had lifted Door 8 about forty times on July 15, 2013 before she felt the pop in her left shoulder. She was holding the door up because it had moved a couple of times before. The door had started to come back down one time before. Claimant had also lifted other doors on July 15, 2013 before she was injured.

Claimant continued to work for about an hour after her left shoulder pop