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Kabura Jack v. Triumph Foods, LLC

Decision date: April 15, 2016Injury #11-10779126 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's decision denying workers' compensation benefits to Kabura Jack for a repetitive strain injury to his right upper extremity sustained while cutting meat at Triumph Foods. Although the injury was found to be compensable and arose out of employment, no compensation was awarded due to the finding of no permanent disability.

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This archive contains published Missouri Labor and Industrial Relations Commission workers' compensation decisions reproduced for research convenience. Official source links remain authoritative where provided. Joseph Ott, Attorney 67889, Ott Law Firm - Constant Victory - Personal Injury and Litigation maintains these public legal archives to support Missouri case research and to help prospective clients connect that research to the firm's courtroom practice.

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Third-Party Injury Check

This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
  • The injury involved a vehicle, unsafe premises, defective equipment, or a non-employer vendor.
  • A serious injury or death may need both benefits review and civil-claim analysis.

Caption

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 11-107791

Employee: Kabura Jack

Employer: Triumph Foods, LLC

Insurer: Travelers Indemnity Company of America

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 December 10, 2015, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Robert B. Miner, issued December 10, 2015, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $15^{\text {th }}$ day of April 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by DIVISION OF WORKERS’ COMPENSATIONRe: Injury No.: 11-107791
Employee: Kabura Jack

AWARD

Employee: Kabura Jack

Employer: Triumph Foods, LLC

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

Insurer: Travelers Indemnity Co. of America

Hearing Date: September 10, 2015

Injury No.: 11-107791

Before the Division of Workers’ Compensation Department of Labor and Industrial Relations of Missouri

Checked by: RBM

FINDINGS OF FACT AND RULINGS OF LAW

  1. Are any benefits awarded herein? No.
  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: Cumulative to November 17, 2011.
  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.
  11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee repetitively cut meat with his right upper extremity using a Wizard knife.
  1. Did accident or occupational disease cause death? No.
  2. Part(s) of body injured by accident or occupational disease: Right upper extremity.
  3. Nature and extent of any permanent disability: None.
  4. Compensation paid to-date for temporary disability: None.
  5. Value necessary medical aid paid to date by employer/insurer? None.
  6. Value necessary medical aid not furnished by employer/insurer? N/A.
  7. Employee's average weekly wages: $\ 622.18.
  8. Weekly compensation rate: $\ 414.80 for temporary total disability and $\ 414.80 for permanent partial disability.
  9. Method wages computation: By agreement of the parties.

COMPENSATION PAYABLE

  1. Amount of compensation payable: None. Employee's claim against Employer is denied.

Unpaid medical expenses: None.

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

No weeks of disfigurement.

No weeks of permanent partial disability from Employer.

Claimant's request for additional medical aid is denied.

TOTAL FROM EMPLOYER: None.

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

No attorney's fee is awarded to the claimant's attorney.

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Kabura Jack

Injury No.: 11-107791

Employer: Triumph Foods, LLC

Additional Party: The Treasurer of the State of

Missouri as Custodian of the Second Injury Fund

Insumer: Travelers Indemnity Co. of America

Hearing Date: September 10, 2015

Checked by: RBM

PRELIMINARIES

A hearing was held in this case on Employee's claim against Employer on September 10, 2015 in St. Joseph, Missouri. Employee, Kabura Jack, appeared in person and by his attorney, Angela Trimble. Employer, Triumph Foods, LLC, and Insurer, Travelers Indemnity Co. of America, appeared by their attorney, John D. Jurcyk. Interpreter, Joshua Nyaundi, also appeared. The Second Injury Fund did not appear. Angela Trimble requested an attorney's fee of 25 % from all amounts awarded. It was agreed that post-hearing briefs would be due on September 24, 2015.

STIPULATIONS

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

  1. On or about November 17, 2011, Kabura Jack ("Claimant") was an employee of Triumph Foods, LLC ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.
  2. On or about November 17, 2011, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was fully insured by Travelers Indemnity Co. of America ("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 $\ 622.18, the rate of compensation for temporary total disability is $\ 414.80 per week, and the rate of compensation for permanent partial disability is $\ 414.80 per week.
  2. No compensation has been paid by Employer for temporary disability.
  3. No medical aid has been paid or furnished by Employer.

ISSUES

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

  1. Did Claimant sustain an injury by accident or occupational disease on or about November 17, 2011 arising out of and in the course of his employment for Employer?
  2. Is Claimant's current condition medically causally related to the alleged work injury of November 17, 2011?
  3. What is Employer's liability, if any, for additional medical aid?
  4. What is Employer's liability, if any, for permanent partial disability benefits in the event it is determined that Claimant is at maximum medical improvement?

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

A—Medical report of Dr. Edward Prostic with Dr. Prostic's Curriculum Vitae

B-Medical report of Dr. Edward Prostic

Employer offered the following exhibit which was admitted in evidence without objection:

1-Medical report of Dr. Everett Wilkinson with Dr. Wilkinson's Curriculum Vitae

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.

At the beginning of the hearing, the attorneys for the parties announced their agreement that a final Award should be issued in the event it is determined that Claimant

sustained a compensable injury and Claimant is at maximum medical improvement. The attorneys for the parties further announced their agreement that a Temporary Award should be issued in the event it is determined that Claimant sustained a compensable injury and Claimant is not at maximum medical improvement. The attorneys further announced their agreement that in the event it is determined that Claimant did not sustain a compensable injury, the Award will be a final Award.

The Post-Hearing Briefs have been considered.

Claimant's Testimony

Claimant testified he started working for Employer in June 2010. He used a wizard knife in his right hand to remove fat from meat.

Claimant began to have problems with his right hand in February 2011. His right hand swelled and locked. He had pain from his right hand to his right shoulder. The problems came on over time.

Claimant did not have those problems with his right hand and arm before the time he worked for Employer.

Claimant testified he told Employer's Health Services Department most of the time when he had complaints in his right hand and right arm. He stated he went to Health Services most every day. Health Services put ice and Biofreeze on his arm. That treatment did not help him much. Employer did not send Claimant to a doctor for his right arm other than Health Services.

Employer put Claimant on a different job where he did not use a wizard knife for only one day. The next day Employer put him back on the job where he was required to use the wizard knife.

Claimant was terminated by Employer in November 2011.

Claimant testified he had pain continuously from February 2011 until the last day he worked for Employer.

Claimant went to his own doctor, Dr. Prostic, two times. He first saw Dr. Prostic on March 30, 2012, as noted in Exhibit A. The second time he saw Dr. Prostic was on October 6, 2014, as noted in Exhibit B. Claimant told Dr. Prostic all of his complaints. His sister, who speaks English, was with him at the time. Dr. Prostic recommended

treatment for Claimant on October 6, 2014. Claimant testified he took a paper from Dr. Prostic to Employer.

Claimant understood what Dr. Prostic's reports said. Claimant discussed those reports with his attorney.

Claimant testified that he currently has pain from his right shoulder to the end of his right hand. He does not sleep well at night due to pain in his right shoulder, right arm, left elbow, and left arm to the index finger of his left hand.

Claimant testified that he had left arm symptoms that started when he worked at Employer. He stated he had swelling and tingling in his right hand.

Claimant did not have a job from the time he left Employer in November 2011 until he started his new job, about two years after he left Employer. He did not notice any difference in his hands during the two years when he did not work.

Ointment prescribed by Dr. Prostic did not help him. Claimant does not use the ointment anymore because it does not help.

Claimant tried to buy medicine from Africa to help his hands, but he could not afford it. He takes no other medication.

Claimant is currently working at La Costa putting bottles on a line. He has had his current job for about one year. He collects bottles and puts them on a production line in his current job. The bottles come in a box. He takes bottles out of the box and puts them on the line. He reaches and picks up bottles with both hands. He lifts one or two bottles at a time. He does the same work all day long. He works eight hours per day. He described his current job as "easy."

Claimant is allowed to take breaks as needed at his current job. On an average day, he takes breaks six times. His breaks last between five and ten minutes each. He did not report a new injury at La Costa. He wants to quit his job due to pain.

An interpreter was present when Claimant saw Dr. Wilkinson. He told Dr. Wilkinson all of his complaints. Dr. Wilkinson mentioned pain in Claimant's hips and legs.

Claimant wants the workers' compensation insurer to pay for what Dr. Prostic recommends.

I find this testimony of Claimant to be credible unless otherwise discussed later in this Award.

Dr. Edward Prostic Evaluations

Dr. Edward Prostic examined Claimant on two occasions. His reports are addressed to Claimant's attorneys. Claimant was first examined by Dr. Prostic on March 30, 2012. Dr. Prostic's March 30, 2012 report states Claimant reported progressive difficulties with his right hand with pain about the thumb and difficulty opening his fingers. Claimant reported pain predominately on the palm side ulnarly but also about the wrist. Dr. Prostic noted Claimant had what seemed like a triggering as he tried to open his fingers.

Dr. Prostic noted the Tinel's test was negative at the wrist as well as flexion compression medium nerve testing of the right wrist. Wrist strength was noted to be satisfactor

Full decision text continues in the plain-text archive copy.

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