Ronald Chilton v. Productive Staffing, Ajinomoto Windsor Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-098442

**Employee:** Ronald Chilton

**Employers:** Productive Staffing, Ajinomoto Windsor Inc.

**Insurers:** Commerce & Industry Insurance Company, Travelers Indemnity Company

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 July 12, 2018. The award and decision of Administrative Law Judge, Maureen Tilley, issued July 12, 2018, 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 **27th** day of March 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Carnegie, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Employee: Ronald Chilton

Injury No. 15-098442

Employee: Ronald Chilton

Injury No. 15-098442

Dependents: N/A

Employer: Productive Staffing and Ajinomoto Windsor Inc. (alleged employer)

Additional Party: N/A

Insurer: Commerce & Industry Ins. Co c/o AIG Claims Inc. and Travelers Indemnity Co. of America (alleged insurer)

Hearing Date: April 11, 2018

Checked by: MT/kg

1. Are any benefits awarded herein? Yes.

1. Was the injury or occupational disease compensable under Chapter 287? Yes.

1. Was there an accident or incident of occupational disease under the Law? Yes.

1. Date of accident or onset of occupational disease: 12/22/15

1. State location where accident occurred or occupational disease was contracted: Wayne County, MO.

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

1. Did the employer receive proper notice? Yes.

1. Did accident or occupational disease arise out of and in the course of the employment? Yes.

1. Was claim for compensation filed within time required by Law? Yes.

1. Was the employer insured by above insurer? Yes.

1

Employee: Ronald Chilton

Injury No. 15-098442

1. Describe work the employee was doing and how accident occurred or occupational disease contracted: Employee's right hand was caught in an industrial dough mixer, severely mangling his hand and fingers.

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

1. Part(s) of body injured by accident or occupational disease: Right hand and fingers.

1. Nature and extent of any permanent disability:

- 100% of the right index finger at the 45 week level;

- 35% of the right thumb at the 60 week level;

- 20% of the right long finger at the 35 week level;

- 6.25% of the right hand at the 175 week level; and

- 12.5 weeks of disfigurement.

1. Compensation paid to date for temporary disability: 4,428.71 paid by Productive Staffing; 0.00 paid by Ajinomoto Windsor.

1. Value necessary medical aid paid to date by the employer-insurer? 25,528.31 paid by Productive Staffing; 0.00 paid by Ajinomoto Windsor.

1. Value necessary medical aid not furnished by the employer-insurer? 0.00.

1. Employee's average weekly wages: 434.54 for Productive Staffing; Sufficient for the maximum rates for Ajinomoto Windsor.

1. Weekly compensation rates: $289.69 for TTD and PPD as applied to Productive Staffing.

1. Method wages computation: By consent of Employee and Productive Staffing.

1. Amount of compensation payable:

- From Productive Staffing: 27,936.98 in PPD benefits; 124.15 in unpaid TTD benefits

1. Second Injury Fund liability: N/A

1. Future requirements awarded: N/A

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 claimant: Daniel Keefe

2061860372

On April 11, 2018, the employee, Ronald Chilton, appeared in person and with his attorney, Daniel Keefe, for a hearing for a final award. There were two alleged employers in this case. Productive Staffing was represented at the hearing by its attorney, Mark R. Kornblum. Ajinomoto Windsor Inc. was represented at the hearing by its attorney, Stephen H. Larson. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

As between Employee and Productive Staffing, the parties stipulated to the following:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by AIG.
2. Employee was a covered employee at the time of the injury.
3. On 12/22/15, Employee sustained a compensable injury by accident arising out of and in the course and scope of his employment, injuring his right hand and fingers.
4. Employee gave Productive Staffing proper notice of his injury.
5. Claim was filed within the time prescribed by law.
6. Employee's average weekly wage was $\ 434.54, and his TTD and PPD rates are $\ 289.69.
7. Employee's injuries were caused by his accident.
8. Medical benefits in the amount of $\ 25,528.31 have been paid.
9. TTD benefits in the amount of $\ 4,428.71 have been paid, covering 16 and $2 / 7$ weeks from 12/26/15-4/18/16 by Productive Staffing, and Productive Staffing agrees to pay 3 days not previously paid, in the amount of $\ 124.15 covering a period of $3 / 7$ weeks from 12/23/15-12/25/15, inclusive, for a total liability in TTD of 16 and $5 / 7$ weeks.
10. Employee sustained 100 % PPD to his right index finger at the 45 week level; 35 % of his right thumb at the 60 week level; 20 % of the right long finger at the 35 week level; 6.25 % of the right hand at the 175 week level; and 12.5 weeks of disfigurement.

1. Whether Employer is liable for PPD benefits and disfigurement.

As between Employee and Ajinomoto Windsor Inc., the parties stipulated to the following:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Travelers Indemnity Company of America.
2. On 12/22/15, Employee sustained an injury by accident arising out of and in the course and scope of his employment.

**Injury No. 15-098442**

1. Employer received proper notice of the injury.
2. Employee's injury was caused by his 12/22/15 work accident.
3. Medical benefits in the amount of 0.00 have been paid.
4. 0.00 has been paid in TTD benefits.
5. Employee sustained 100% PPD to his right index finger at the 45 week level; 35% of his right thumb at the 60 week level; 20% of the right long finger at the 35 week level; 6.25% of the right hand at the 175 week level; and 12.5 weeks of disfigurement.

1. Whether Employee was a covered employee of Employer.
2. Whether the claim was filed within the statute of limitations.
3. Employee's average weekly wage and compensation rates.
4. Whether Employer is liable for TTD benefits from 12/23/15-4/18/16.
5. Whether Employer is liable for PPD benefits and disfigurement.

The following exhibits were offered and admitted into evidence:

1. 11/20/17 Deposition- Dr. David Volarich
2. DWC Report of Injury
3. Medical Records from Poplar Bluff Regional Medical Center
4. Medical Records from Washington University in St. Louis School of Medicine, Dr. Calfee, Barnes Jewish Hospital

I. Deposition transcript of Dr. Calfee

A. Staffing Agreement dated 3/29/16

B. Claim for Compensation

C. Answer to Claim for Compensation - Productive Staffing

D. Answer to Claim for Compensation - Ajinomoto Windsor, Inc.

E. Report of Injury

F. 8 CSR 50-2

G. DOLIR "are you covered" text

**Injury No. 15-098442**

Ronald Chilton was hired by Productive Staffing, a personnel agency, in October 2015, for a job at Windsor Foods. Employee worked sanitation at Windsor Foods. He testified that after being placed at Windsor Foods, Employee's only contact with Productive Staffing was through his paychecks, which Productive Staffing issued.

Every morning, he reported for work at Windsor Foods and his daily instructions were given by Windsor employees and supervisors.

On December 22, 2015, while walking past an auger machine, Employee reached with his right hand to knock some dough off the edge of the auger, but his sleeve was caught and pulled his right hand into the machine. When he pulled it out, he noticed he was missing his right index finger, and that there was blood everywhere. A coworker wrapped his hand for him, and he was taken to the hospital via ambulance.

Because Poplar Bluff Medical Center could not adequately deal with such an injury, Employee was transferred to Barnes-Jewish Hospital. His hand was irrigated and he was admitted for surgery.

On December 23, 2015, Dr. Ryan Calfee took Employee to surgery and performed a right hand revision amputation of his right index finger at the proximal phalanx, and an open reduction internal fixation of his right thumb proximal phalanx with K-wires. On February 9, 2016, Employee complained of persistent tingling in the tip of his thumb and phantom pain in his right index finger, prompting a fluoroscopy, which showed two of the K-wires migrating toward the ulnar side. On February 25, 2016, Dr. Calfee took Employee back to surgery and removed the two deep K-wires from his right thumb. Employee was released to return to work without restrictions on April 18, 2016, and was placed at MMI on July 5, 2016.

At the time of the injury, Employee had worked at Windsor Foods for about 8 weeks. His job duties included shoveling batter and vegetables from the floor into containers, and taking apart machines and cleaning them with high pressure washers, then reassembling them. He worked 8-12 hours a day at the Windsor plant, 6 to 7 days per week, and averaged about 50 hours each week, all of them at the Windsor plant. He had a 30-minute lunch break scheduled by Employer and two 10-minute breaks, also approved by Employer. Employer did not allow any other breaks.

Employee filed claims for compensation against Productive Staffing and Ajinomoto Windsor. The claims were received and processed by the Division of Workers' Compensation on February 8, 2016. The Division sent copies of the claim to the employers and insurers. Productive Staffing's answer was received by the Division on February 19, 2016. Windsor's answer was not received until July 18, 2016. One week before the hearing, on April 4, 2018, Employer filed an Amended Answer. The Amended Answer changed the name of Employer from Windsor Foods to Ajinomoto Windsor.

**Injury No. 15-098442**

#### Issue 1. Permanent Partial disability and disfigurement

Based on the evidence presented and of the stipulations between Employee and Productive Staffing, Employee is awarded a total of 96.4375 weeks of compensation for PPD benefits, which, at the stipulated PPD rate of 289.69, totals 27,936.98, and $124.15 for three days of unpaid TTD benefits. The total amount Productive Staffing is directed to pay Employee is $28,061.13.

**Ajinomoto Windsor**

#### Issue 1. Covered Employee

It is disputed whether Employee was a covered employee of Employer #2 Ajinomoto Windsor. It is undisputed that Employee was a covered employee of Employer #1 Prod