Kelly Reisa v. Kellogg Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 10-112950

Employee: Kelly Reisa

Employer: Kellogg Company

Insurer: Old Republic Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

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 March 24, 2015. The award and decision of Administrative Law Judge John K. Ottenad, issued March 24, 2015, 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 $16^{\text {th }}$ day of October 2015.

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: April 22, 2010
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 worked as a territory sales manager for Employer and injured her right foot and left foot, when she developed bilateral plantar fasciitis as a result of her 10 years of extensive, repetitive work activities for Employer (working on concrete floors, going up and down ladders and going up on her toes to reach items).
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: Right Foot and Left Foot
14. Nature and extent of any permanent disability: 1 % of the Right Foot and 20 % of the Left Foot
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Kelly Reisa Injury No.: 10-112950

1. Value necessary medical aid not furnished by employer/insurer? (Alleged) \12,012.00
2. Employee's average weekly wages: \ 1,278.57
3. Weekly compensation rate: $\ 807.48 for TTD/ $\ 422.97 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

$165 / 7$ weeks of temporary total disability (05/25/11 to 09/19/11) $\ 13,496.45

31.5 weeks of permanent partial disability $\ 13,323.55

1. Second Injury Fund liability: Open

TOTAL: $\mathbf{\$ 2 6 , 8 2 0 . 0 0}$

1. Future requirements awarded: N/A

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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Aaron D. Lefton.

On November 18, 2014, the employee, Kelly Reisa, appeared in person and by her attorney, Mr. Aaron D. Lefton, for a hearing for a final award on her claim against the employer, Kellogg Company, and its insurer, Old Republic Insurance Company C/O Enterprise Comp, Inc. The employer, Kellogg Company, and its insurer, Old Republic Insurance Company C/O Enterprise Comp, Inc., were represented at the hearing by their attorney, Ms. Yvette M. Boutaugh. The Second Injury Fund is a party to this case, but did not participate in the hearing, because the Fund was being left open by agreement of the parties, pending the outcome of this part of the case.

To allow the parties time to prepare and submit their briefs or proposed awards in this matter, the record was technically left open for a period of thirty days. Although we did not go back on the record or take any further evidence in this matter after November 18, 2014, the record was, then, finally closed on December 18, 2014 and the briefs were submitted by the parties by December 23, 2014, after an extension of time to file was requested by the parties.

Along with this Claim [Injury Number 10-112950, with a date of injury of April 22, 2010, alleging injury to the right foot and left foot], Claimant also tried her other open companion claim at the same time. Injury Number 10-048811, with a date of injury of April 16, 2010, alleges injury to the left upper extremity. Separate awards have been issued for each of these cases.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about April 22, 2010, Kelly Reisa (Claimant) allegedly sustained an occupational disease injury.

2) Claimant was an employee of Kellogg Company (Employer).

3) Venue is proper in the City of St. Louis.

4) The Claim was filed within the time prescribed by the law.

5) At the relevant time, Claimant earned an average weekly wage of $\ 1,278.57, resulting in applicable rates of compensation of $\ 807.48 for total disability benefits and $\ 422.97 for permanent partial disability (PPD) benefits.

6) Employer has not paid any benefits to date in this case.

1) Did Claimant sustain an occupational disease?

2) Did the alleged occupational disease arise out of and in the course of Claimant's employment for Employer?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to her alleged occupational disease at work for Employer leading up to April 22, 2010?

4) Did Claimant provide Employer with proper notice of the injury under the statute?

5) Is Employer responsible for the payment of past medical benefits in an amount to be determined?

6) Is Claimant entitled to the payment of temporary total disability benefits for a period of time to be determined?

7) What is the nature and extent of Claimant's permanent partial disability attributable to this injury?

The following exhibits were admitted into evidence in this case:

1. Medical bill from Dr. Mitchell Needleman
2. Medical bill from the Imaging Center at Wolf Creek, LLC

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[^0]: ${ }^{1}$ As a result of both claims being tried in a consolidated hearing, and to address the parties' desire to only have certain evidentiary exhibits admitted into one or the other case, a consecutively numbered/lettered evidentiary list was established for each party, with the parties only offering certain exhibits into evidence in each case. Claimant offered Exhibits 1-7 and 10 into evidence in Injury Number 10-112950, and Exhibits 7-10 into evidence in Injury Number 10-048811. Similarly, Employer offered Exhibits A-G into evidence in Injury Number 10-048811, and Exhibits H-M into evidence in Injury Number 10-112950.

1. Certified medical bill of Belleville Surgical Center
2. Certified medical treatment records of St. Joseph's Hospital-Breese
3. Medical bill of St. Joseph's Hospital-Breese
4. Deposition of Dr. Mitchell Needleman, with attachments, dated March 25, 2014
5. Deposition of Dr. Dwight Woiteshek, with attachments, dated April 9, 2014
6. Claimant's redacted personnel file from Employer

H. Claim for Compensation in Injury Number 10-112950

I. Medical treatment records of Dr. Mitchell Needleman

J. Deposition of Dr. Craig Aubuchon dated September 3, 2014

K. Curriculum vitae of Dr. Craig Aubuchon and medical report dated March 26, 2012

L. Photograph of step ladder and store shelves

M. POP Display Measurements for various displays used by Employer in stores

Notes: 1) Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on November 18, 2014.

2) Unless stated otherwise below, any objections contained in the deposition transcripts in evidence are OVERRULED and the testimony fully admitted into evidence in this case.

3) Employer raised foundation objections to the admission of Exhibits 2 and 3 at the time of hearing. Employer contended that there was no testimony or any other evidence regarding the reasonableness, necessity or relatedness of the bills. Since Claimant had not yet had the chance to testify at the time the objections were lodged, and since I had also not had the chance to review the other medical testimony in the depositions in this case, I withheld ruling on the objections to see if Claimant would lay a foundation for these Exhibits or alternatively if another medical expert addressed their reasonableness, necessity or relatedness to this case. I indicated that I would rule on the objections and the admissibility of these Exhibits in the Award in this case. Now that I have had the chance to review the appropriate testimony, Employer's objections are OVERRULED and the Exhibits are admitted into evidence in this case.

Based on a comprehensive review of the evidence, including Claimant's testimony, the testimony of Employer's witness, the expert medical opinions and testimony, the medical treatment records, the medical bills, and the other documentary evidence in this matter, as well as based on my personal observations of Claimant and the other witness at hearing, I find:

1) Claimant is a 47-year-old former territory sales manager, who worked for Kellogg Company (Employer) for almost 12 years overseeing delivery, stocking and displays of Kellogg products in five to nine stores in her territory. In February 2011, her job title changed from territory sales manager to territory sales rep, where she was

receiving less pay, but essentially performing the same job duties. Her employment ended with Employer on September 20, 2011, when there was no job available for her with Employer when she returned from her alleged work injury. She has worked for the last three years as a sales associate at Aldi's.

2) Claimant testified that as a territory sales manager for 12 years for Employer, she was working an average of 50-60 hours per week. She said that she generally worked 5 days per week, but sometimes she had to work 7 days if there was no merch