Jessica Timmer v. Gilster-Mary Lee Corporation

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 14-073185

**Employee:** Jessica Timmer

**Employer:** Gilster-Mary Lee Corporation

**Insurer:** Self-insured

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 January 10, 2018, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued January 10, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 8th day of November 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Hearing Date: October 11, 2017 Checked by: LCK/kg

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? N/A
5. State location where accident occurred or occupational disease contracted: N/A
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the employer receive proper notice? Undetermined.
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 the employer insured by above insurer? Employer is self-insured.

Employee: Jessica Timmer

Injury No. 14-073185

1. Describe work the employee was doing and how accident happened or occupational disease contracted: N/A.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: N/A.

1. Nature and extent of any permanent disability: N/A.

1. Compensation paid to date for temporary total disability: None.

1. Value necessary medical aid paid to date by the employer? None.

1. Value necessary medical aid not furnished by the employer? None.

1. Employee's average weekly wage: Undetermined.

1. Weekly compensation rate: Undetermined.

1. Method wages computation: N/A.

1. Amount of compensation payable: None.

1. Second Injury Fund liability: N/A

1. Future requirements awarded: None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: N/A

Page 2

On October 11, 2017, the employee, Jessica Timmer, appeared in person and with her attorney, Sarah Elfrink, for a temporary or partial award. The employer was represented by their attorney, David Remley. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

1. Gilster-Mary Lee Corporation was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self-insured employer c/o TPA ESIS, Inc.
2. Jessica Timmer was an employee of Gilster-Mary Lee Corporation from October 8, 2012, through September 8, 2014, and was working under the Workers' Compensation Act during her employment.
3. The employee's claim was filed within the time allowed by law.
4. The employer did not furnish or pay for any medical aid. The employee was not claiming any previously incurred medical aid at the temporary hearing.
5. The employer did not pay any temporary disability benefits.

1. Occupational Disease
2. Date of Alleged Occupational Disease
3. Notice
4. Average Weekly Wage and Rate of Compensation
5. Medical Causation
6. Claim for Additional Medical Aid
7. Temporary Total Disability

1. Report of Injury
2. Claim for Compensation
3. Medical Records from Immediate Convenient Care
4. Medical Records from Perry County Orthopedics and Sports Medicine
5. Medical Records from Regional Brain and Spine
6. Medical Records from Flagstaff Medical Center
7. Wage Information
8. TTD Information
9. Deposition of Jessica Timmer

Employee: Jessica Timmer

Injury No. 14-073185

1. Deposition of Dr. Poetz including his C.V. and Report; and Dr. Crane's December 21, 2016 Report.

1. Cleaner's Daily Assigned Tasks Report

1. Employee Evaluation dated February 11, 2013

Employer's Exhibits:

A. Dr. Vaught's Office Note dated July 21, 2014

B. Various Forms Regarding FMLA Application

C. New Patient First Appointment Form for Dr. Vaught dated July 21, 2014

D. Dr. Vaught's Office Note dated August 11, 2014

E. Dr. Vaught's Office Note dated August 28, 2014

F. Employee's Application for Vacation dated May 21, 2014

G. Deposition of Dr. Crane

H. Curriculum Vitae of Dr. Crane

I. December 21, 2016 Report of Dr. Crane

J. April 10, 2017 Report of Dr. Crane

K. July 25, 2014 Lumbar MRI

L. August 12, 2014 Lumbar MRI

M. Chart of Dermatomes

N. Payroll Check History

Note: Some of the Exhibits admitted into evidence were highlighted at the time of admission.

Judicial Notice of the contents of the Division's file was taken.

WITNESS:

Jessica Timmer, the employee.

PROPOSED AWARDS:

The employee filed her proposed Award on November 8, 2017. The employer filed its proposed Award on November 13, 2017.

STATEMENT OF THE FINDINGS OF FACT:

The employee testified that she is 28 years old, is married and has two children ages 2 and 10. In October of 2012, she started working at Gilster-Mary Lee Corporation. She worked on the Cleaning and Sanitation Crew the entire time she was employed. Prior to working at Gilster, she did not have any problems with her back or legs; and had no treatment to her back and her legs.

The employee testified about her job duties at Gilster and discussed the Cleaner's Daily Assigned Tasks Report. One of her duties was cleaning the transfer tunnel, which is a 40-foot

**Injury No. 14-073185**

long and 8-foot wide container. She had to climb up onto a mezzanine carrying a big shop vacuum. She cleaned the transfer tunnel by shoveling, sweeping or vacuuming the cornflakes. She crawled underneath conveyor belts to clean. A second duty was vacuuming with an industrial shop vacuum under the "storeveyor" where the cornflakes were held. A third duty involved dusting the front, back and side ledges on the mezzanine platform and above the catwalk. She had to go up three ladders and carried extension poles, vacuums, chemical buckets and sprays, towels and wash clothes. She had to bend over the platform using a 3-4 pound extension pole with a metal head brush to clean the walls. The platform is about the size of a desk and there is not much space to move. The vacuum had to be dumped when it was full. She carried that vacuum down to the main floor in the storeveyor, and drug it to a specific hold and dumped the cornflakes. The cornflakes were compacted in the trash barrel. She dragged and carried barrels that weighed about 100 pounds up and down stairs to dump them and wash them. Sometimes the cornflakes were wet due to leaks in the ceiling from the rain or snow. She cleaned the storeveyor room, which was her daily job. She worked 8 hours a day cleaning, shoveling, vacuuming, mopping, dusting with vacuum and hand brush, crawling and lifting.

The employee testified that she started noticing pain in her right bottom down to her right knee 7-9 months after starting at Gilster-Mary Lee. Due to having more pain in her right knee, she thought she had something wrong with her knee or hamstring.

The employee's deposition was taken on December 3, 2014. When asked what day she sustained her back injury she testified in her deposition that she was not exact on the date but there was a time when she knew there was something wrong with her back, or she thought there was something wrong with her leg. She went to Dr. Byrne, an orthopedist, in Perryville because her legs were hurting really bad and she thought she might have pulled some kind of ligament in her leg. There was a possibility that she had a herniated disc then but no one ever told her that.

The employee testified that she reported to Cheryl Bartlett and Diane Roach that she was having back or leg problems and needed to be moved from her job duties due to leg pain. She was moved from the storeveyor to the hydrator area but it was not lighter work. She was assigned to clean, wash and sanitize several sump pumps. The sump pumps had heavy metal lids with filters underneath that had to be removed. She used a water hose and a shop vacuum to clean, bleach and sanitize the sump pumps. She had to bend over to work on the sump pumps. Cleaning the sump pumps was a hard job and it took about 3 hours. She also was responsible for cleaning the sugar tank, which was about 2 stories high and about 15 feet wide. She used a vacuum and washed the tank by hand. She climbed onto the sugar tank using a harness and leaned over to clean the sugar tanks, which took about 30-40 minutes for each tank.

The employee testified that she told Cheryl and Diane that she was having problems about the same time she went to Convenient Care and Dr. Byrne. Prior to June 17, 2014, she had pain in her buttocks and down her right leg. She told the doctor at Immediate Convenient Care that she had pain in her leg and pain from the buttocks down; and told Dr. Byrne that she had pain in the leg and pain in the buttocks down to her leg.

Page 5

**Injury No. 14-073185**

On May 20, 2013, the employee was seen by Dr. Robinson at Immediate Convenient Care in Perryville, Missouri. Her primary complaint was a sore throat, nasal and head congestion and was diagnosed with acute maxillary sinusitis. The employee also had complaints of "chronic knee pain that has bothered her off and on for the last year intermittent at first and is gradually bothering her more with time." The employee had intermittent right knee pain that she described as sharp with certain movements. On examination, the right knee showed good range of motion with no effusion or crepitus. Assessed was chronic intermittent right knee pain.

The employee testified that when she first went to Convenient Care, she was having pain behind her knee but does not remember what she told Dr. Robinson.

The employee testified when she went back to Convenient Care on July 18, 2013, she had right knee pain but the pain did not radiate from her back and she did not know it was due to her back. She did not tell Dr. Robinson that she had pain in her back and buttocks.

The employee returned to Immediate Convenient Care on July 18, 2013, and saw Nurse Practitioner Tanz and had 7 out of 10 right knee pain. Her symptoms were worse since her last visit. The history noted that her right knee pain first began during the summer of 2012. She had pain with stairs; locking, popping, giving away of the knee and swelling. She had an injury to the knee a year ago when running and