Juanita Wall v. Bass Pro Outdoor World, LLC

Issued by THE LABOR AND INUDSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No. 15-046929**

**Employee:** Juanita Wall

**Employer:** Bass Pro Outdoor World, LLC

**Insurer:** Travelers Indemnity Company of America

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge (ALJ) with this supplemental correcting opinion.

Employee's brief suggests that the ALJ's award incorrectly references a prior fusion to employee's left ankle. 1 On page 6 of the ALJ's award, the second sentence of the first paragraph under the subtitle *Prior Medical Conditions* states:

> Her prior injuries include polio to her left foot and leg in 1955, a right knee replacement in 2008, and a left ankle fusion surgery in 1993. (Exhibit F, p. 865).

Employer's Exhibit F includes Dr. Ted Lennard's March 10, 2017, office clinic notes. Dr. Lennard documents a left ankle fusion in 1993 in employee's procedure/surgical history. 2 Dr. Bruce Schlafly's report of September 14, 2016, admitted as employee's Exhibit 1, also references a left ankle fusion in employee's medical history. 3 Dr. John L. Putnam's July 24, 2015, report, included in Employee's Exhibit 3, records a fusion of the employee's right ankle in 1992. 4 Our observation of these inconsistencies does not detract from or affect the administrative law judge's correct analysis.

We affirm and adopt the award of the administrative law judge as supplemented herein.

1 Employee's brief, received May 31, 2018, p. 14.

2 Transcript, 453.

3 Id. 98.

4 Id. 219.

-2-

The award and decision of Administrative Law Judge Kevin A. Elmer, issued January 26, 2018, is attached and incorporated to the extent not inconsistent with this supplemental opinion.

Given at Jefferson City, State of Missouri, this 17th day of August 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Juanita Wall

Injury No. 15-046929

Dependents: N/A

Employer: Bass Pro Outdoor World, LLC

Insurer: Travelers Indemnity Company of America

Additional Party: N/A

Hearing Date: September 25, 2017 (Record Closed October 24, 2017)

Checked by: KAE

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease: July 1, 2015
5. State location where accident occurred or occupational disease was contracted: Springfield, Greene 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? No.
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 employed as a cash office clerk, claimant was pushing a shopping cart filled with coin wrapper boxes through the fishing department. She fell suddenly to her right side, resulting in immediate pain in her right shoulder.

Employee subsequently developed left hand numbness and tingling 4 to 5 weeks after the accident. The claimant alleges they are due to occupational exposure to hand-intensive work activities resulting from modified work mechanics following her right shoulder injury.

1. Did accident or occupational disease cause death? No. Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Right shoulder and left hand.
3. Nature and extent of any permanent disability: None.
4. Compensation paid to-date for temporary disability: None.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Wall

1. Value necessary medical aid paid to date by employer/insurer? $7,649.35
2. Value necessary medical aid not furnished by employer/insurer? None.
3. Employee's average weekly wages: 537.71
4. Weekly compensation rate: 358.47
5. Method wages computation: Stipulation by the parties.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: N/A

TOTAL: $\ 0.00

1. Future requirements awarded: None

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: Jonathan B. Pitts.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Wall

Injury No. 15-046929

**Employee:** Juanita Wall

**Injury No. 15-046929**

**Dependents:** N/A

**Employer:** Bass Pro Outdoor World, LLC

**Insurer:** Travelers Indemnity Company of America

**Additional Party:** N/A

**Hearing Date:** September 25, 2017 (Record Closed October 24, 2017)

Checked by: KAE

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on September 25, 2017. The parties were afforded an opportunity to submit proposed awards, resulting in the record being completed and submitted to the undersigned on or about November 10, 2017. The employee, Juanita Wall appeared personally by and through her attorney, Jonathan Pitts. The employer appeared through its Risk Management Claims Manager, Cheryl Nall, and attorney Todd Johnson appeared on behalf of the employer and insurer.

The parties entered into a stipulation of facts. The stipulation is as follows:

1. On or about July 1, 2015, Bass Pro Outdoor World, LLC was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Travelers Indemnity Company of America.

1. On the alleged injury date of July 1, 2015, Juanita Wall was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

1. The above-referenced employment and alleged accident and/or incident of occupational disease occurred in Springfield, Greene County, Missouri. The parties agree to venue lying in Springfield, Greene County, Missouri. Venue is proper.

1. At the time of the alleged accident and/or incident of occupational disease of July 1, 2015, the employee's average weekly wage was 537.71, which is sufficient to allow a compensation rate of 358.47 for permanent partial disability compensation.

1. The employee gave timely notice of the injury to the employer.

1. The claim for compensation filed by the employee was timely.

1. The employer and insurer have not provided temporary total disability benefits to the employee.

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Wall

Injury No. 15-046929

1. The employer and insurer have provided medical treatment to the employee in the amount of $7,649.35, but an additional claim for past medical care has been asserted by the employee.

1. The attorney fee being sought by Jonathan Pitts of Pitts Law Office is 25%.

1. The parties stipulated on a conditional basis to an award of two weeks for disfigurement to Claimant's left hand, but only if the claim, which is specifically denied by the employer, is found compensable.

ISSUES

The issues to be resolved by hearing include:

1. Whether the employee sustained an accident or incident of occupational disease on or about July 1, 2015; and, if so, whether the accident or occupational disease arose out of and in the course of her employment with the employer.

1. Whether the alleged accident or incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed.

1. Whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $50,024.00.

1. Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of her injuries.

1. Whether the employee is entitled to temporary total disability compensation. (The employee seeks payment for twelve (12) weeks of temporary total disability compensation in the amount of $4,301.64, plus future temporary total disability per Greer v. Sysco Food Service, 475 S.W.3d 655 (Mo. Banc 2015)).

1. Whether the employee sustained any permanent disability as a consequence of the alleged accident on July 1, 2015; and, if so, what is the nature and extent of the disability.

1. Whether employee sustained any disfigurement to her left hand. (There was a conditional stipulation of two weeks as the award for Claimant's injury to her left hand, if it is determined to be compensable).

EVIDENCE PRESENTED

The employee testified at the hearing in support of her claim. In addition, the employee offered for admission the following exhibits:

Exhibit 1: Dr. Schlafly's IME and 60 Day Letter

Exhibit 2: Report of Injury & Claim for Compensation

Exhibit 3: Medical Records

Exhibit 4: Mercy medical Records - 6/12/15

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Wall

Injury No. 15-046929

Exhibit 5: Mercy Denial of Records

Exhibit 6: Medical Bills & Spreadsheet

Exhibit 7: Claimant's Deposition

Exhibit 8: Claimant's Recorded Statement

Exhibit 9: Accident Video

Exhibit 10: Accident Pictures

Exhibit 11: Witness Pa Moua Subpoena

Exhibit 12: Recorded Statement of Pa Moua

Exhibit 13: Travelers' Denial Letter - 7/29/15

Exhibit 14: Request for Treatment - 8/19/15 & 12/1/15

Exhibit 15: Deposition of Pa Moua

The parties stipulated to admission of employee's Exhibits 1-11 and 13-15. The employer/insurer's objection to the admission of Exhibit 12 (Pa Moua Statement) was sustained. The record was left open for 30 days to permit the deposition of witness Pa Moua to occur and be offered into evidence. Exhibit 15 has been offered and admitted into evidence.¹

The employer and insurer presented one witness at the hearing of this case - Cheryl Nall. In addition, the employer and insurer offered for admission the following exhibits:

Exhibit A: Juanita Wall - Written Statement (07-01-2015)

Exhibit B: Juanita Wall - Recorded Statement (07-16-2015)

Exhibit C: Juanita Wall - Deposition (01-19-2017)

Exhibit D: Photos (1, 2, 3)

Exhibit E: Surveillance Video (see enclosed zip drive)

Exhibit F: Dr. Lennard Notice of Complete Medical Report

Exhibit G: 13-Week Wage Statement

Exhibit H: Medical Expense Log

Exhibit I: Excerpt from the record of Dr. Heath Morgan

The employer and insurer presented exhibits A through I. The parties stipulated to the admission of Employer's Exhibits A-H. During the hearing, Employer's Exhibit I, an excerpt from the medical records of Dr. Heath Morgan showing that Claimant had been diagnosed with type II diabetes, was offered into evidence over the objection of Claimant's counsel. The offer included an Affidavit of Dr. Morgan's office identifying the medical records. The Court received and accepted Exhibit I into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

- Notice of hearing

- Claim for Compensation

- Answer of Employer/Insurer to Claim for Compensation

¹ A