Gale Hardwick v. Conagra Foods Packaged Foods, LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 14-077425

Employee: Gale Hardwick

Employer: Conagra Foods Packaged Foods, LLC

Insurer: Old Republic Insurance Company

Additional Party: Treasurer of Missouri as Custodian

Of Second Injury Fund

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 August 25, 2017. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued August 25, 2017, 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 $\qquad 25 5^{\text {th }} \qquad$ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

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: October 9, 2014.
5. State location where accident occurred or occupational disease was contracted: Saline 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 had been standing upon an elevated, grated, metal platform while filling an oil reservoir; as Employee was stepping from the elevated platform down to the floor below, his left foot slipped causing him to fall.
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: Left foot and ankle, left knee, low back, body as a whole.
14. Nature and extent of any permanent disability: Employee is totally and permanently disabled.
15. Compensation paid to-date for temporary disability: $\ 8,278.53.
16. Value necessary medical aid paid to date by employer/insurer? $\ 24,009.21.

1. Value necessary medical aid not furnished by employer/insurer? Not ascertained.
2. Employee's average weekly wages: $\ 729.25.
3. Weekly compensation rate: $\ 486.17 for temporary total disability benefits and permanent total disability benefits; $\ 451.02 for permanent partial disability benefits.
4. Method wages computation: Stipulation.

Employer liability:

Employer and Insurer are ordered to pay Employee the weekly amount of $\ 486.17, beginning May 8, 2015, for permanent total disability benefits.

Employer and Insurer also ordered to provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required to cure and relieve Employee from the effects of the work-related injury.

Second Injury Fund liability:

None. The claim against the Second Injury Fund is denied in full.

Claimant's attorney, Corey Jackson, is allowed 25\% of all weekly benefits awarded herein, including future weekly benefits, as and for necessary attorney's fees, and the amount of such fees shall constitute a lien on those benefits.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

Employee: Gale Hardwick

Injury No. 14-077425

Dependents:

Employer: Conagra Foods Packaged Foods, LLC

Additional Party: Second Injury Fund

Insurer: Old Republic Insurance Company

Hearing Date: June 27, 2017

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

A final hearing was held on this workers' compensation claim on June 27, 2017 in Marshall. Gale Hardwick ("Claimant") appeared personally and by counsel, Corey Jackson. Conagra Foods Packaged Foods LLC ("Employer") appeared by counsel, Thomas Walsh. Old Republic Insurance Company ("Insurer") appeared by counsel, Thomas Walsh. The Treasurer of Missouri, as the custodian of the Second Injury Fund, appeared by counsel, Eric Doner, Assistant Attorney General. The parties were afforded an opportunity to submit briefs/proposed awards, resulting in the record being completed and submitted to the undersigned on July 31, 2017

The hearing was held to resolve the following issues:

1. The liability, if any, of Employer and Insurer for permanent partial disability benefits or permanent total disability benefits.
2. The liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits.
3. The liability, if any, of Employer and Insurer, to provide future medical benefit pursuant to RSMo $\S 287.140.
4. Whether costs and attorney's fees may be awarded pursuant to RSMo \S 287.560$.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this claim;
2. That venue for the evidentiary hearing is proper in Saline County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, RSMo $\S 287.430$;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;

1. That Employee's average weekly wage is $\ 729.25 with compensation rates of $\ 486.17 for temporary total disability benefits and permanent total disability benefits, and $\ 451.02 for permanent partial disability benefits;
2. That Employee sustained an accident arising out of and in the course of his employment with Conagra Foods Packaged Foods LLC on October 9, 2014;
3. That the notice requirement of RSMo $\S 287.420$ does not serve as a bar to the claim for compensation;
4. That Employer paid medical benefits in the amount of $\ 24,009.21;
5. That Employer paid temporary disability benefits of $\ 8,278.53; and
6. That Old Republic Insurance fully insured the Missouri Workers Compensation liability of Conagra Foods Packaged Foods LLC at all relevant times.

Employee testified at the hearing in support of his claim. Additionally, Employee offered the following exhibits into evidence, which were admitted without objection, with the exception of a portion of Exhibit 7, to which the Second Injury Fund objected, and which objection, and ruling thereon, is noted below.

Exhibit 1

Photos of Employee Pants and Shoes from DOI

Exhibit 3. Attorney Client Contract and Expenses (\$7,197.48)

Exhibit 5. Dr. David Volarich (Letter, IME Report \& CV)

Exhibit 6. Dr. Michael Snyder (Letter, IME Report \& CV)

Exhibit 7. Stella Doering Deposition with Exhibits (12/05/16)

Exhibit 8. Kristine Skahan Deposition with Exhibits (12/19/16)

Exhibit 11. Certified Medical Records

(Health Care Providers: 11A - Fitzgibbon Hospital, 11B - Peak Sport \& Spine, 11C - Peak

Performance, 11D - UM Health, 11E - Jefferson City Medical Group, 11F - Heartland Medical

Equipment, 11G - Boone Hospital Center)

Exhibit 12. Expenses 2 (\$96.92)

Exhibit 13. Hold Harmless Agreement (Employer/Insurer \& Employee)

Exhibit 17. Gale Hardwick Deposition (10/07/15)

Exhibit 18. Conagra Nurse Notes

The Employer offered no testimony but did offer the following Exhibits, which were admitted into evidence.

Exhibit A. Terry Cordray Deposition with Exhibits (03/22/2017)

Exhibit B. Gale Hardwick Social Security Application (05/10/15)

*Second Injury Fund Objection Overruled

Exhibit D Dr. David Clymer (Letter, IME Report \& CV)

Employer-Insurer offered Exhibit C "Social Security Disability Determination" which was not admitted into evidence following an objection by the Second Injury Fund.

The Second Injury Fund offered no evidence.

Ruling on SIF objection to portion of Exhibit 7. The Second Injury Fund propounded objections to a portion of the June 23, 2016 narrative report of Stella Doering, contained on pages 14-15 of that report (Bates stamped as "0091" and "0092").

The last paragraph of "0091" quotes what appears to be a medical treatise regarding Klinefelter's Syndrome and its possible effects on individuals with that syndrome. Ms. Doering is not a physician. No physician has opined in this case regarding the effects, if any, of Klinefelter's Syndrome on Claimant. The objection to that paragraph is sustained, and that paragraph is not admitted.

The first paragraph of "0092" quotes what appears to be a medical or psychological treatise or study regarding Klinefelter's Syndrome and its potential effect on learning skills. No physician or psychologist has opined in this case regarding the effects, if any, of Klinefelter's Syndrome on Claimant. The objection to that paragraph is sustained, and that paragraph is not admitted.

Claimant was born October 15, 1967; Claimant was 49 years old on the date of hearing. Claimant resides in Marshall, Missouri, with his mother. Except for a period of about one year, Claimant has lived the entirety of his life with his mother, in the same house. Claimant has never been married and has no children. Claimant was enrolled in special education classes throughout school. He graduated high school in 1988 at the age of 20+. This is the highest level of education attained by Claimant. He has no had no other formal education, vocational training, licensures or accreditations.

In Claimant's early work career, he worked briefly as a grocery sacker, as a cemetery groundskeeper, and as a gate guard. He then worked a few years for Employer as a laborer, and then for Tyson Foods as an industrial cleaner. Claimant testified that he spent the last seventeen years of his working career working for Employer, beginning most recently in 1996. He began his second stint at Employer in 1996 as a processor, but was eventually promoted to lead man. As lead man, Claimant was responsible for overseeing 13 to 15 workers. He would schedule their work, make sure they were present for their shifts, and supervised the lines' production. Part of Claimant's responsibilities included filling in for missing workers. Accordingly, Claimant had to learn and understand how to perform a variety of tasks, including processor work, line service, and mixing. Claimant testified he had no problems completing any of his work duties prior to October 9, 2014.

Claimant testified that, other than heart/chest issues in 2004/2005 and 2012 and a few days off for occasional back pain, he worked in excess of 40 hours a week without difficulty performing his job throughout the entirety of his employment with Employer, until his October 9, 2014 injury.

On October 9, 2014, Claimant testified that he was filling an elevated oil reservoir on a machine th