Jose Fuentes v. Cargill Meat Solutions Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 12-052822

**Employee:** Jose Fuentes

**Employer:** Cargill Meat Solutions Inc. (settled)

**Insurer:** New Hampshire Insurance Company (settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This 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, read the briefs, 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 with this supplemental opinion.

We agree with the administrative law judge's ruling that employee is permanently and totally disabled as a result of the primary injury reported on July 10, 2012¹.

Employee presented Dr. James A. Stuckmeyer, M.D. The administrative law judge found Dr. Stuckmeyer to be persuasive, as do we. Dr. Stuckmeyer found employee permanently totally disabled as a result of the "combination of all these orthopedic issues," referencing not only the cervical and upper extremity symptoms, but also the complaints of pain in the lower back and lower extremities. *Transcript*, pages 162, 163. He opined that "as a direct, proximate and prevailing factor of the intense repetitive nature of the occupational duties performed by Mr. Fuentes throughout his years of employment at Cargill ... the significant ongoing complaints of pain in the cervical spine, lower back, upper extremities, and lower extremities, Mr. Fuentes, as a result of the combination of all of these orthopedic issues, is permanently and totally disabled from the open labor market." *Transcript*, page 163. Dr. Stuckmeyer also clarified that his opinion was that the low back symptoms were "not related to the 2005 accident as much as it is to just the years of doing that job." *Transcript*, page 77. We understand the doctor's opinion as not designating a separate prior lumbar back injury as a pre-existing disability per se, but rather all the orthopedic issues resulted from repetitive trauma due to the nature of his work duties.

¹ Employee filed his claim against the employer/insurer on July 11, 2012. On August 14, 2014, employee filed an amended claim designating the Second Injury Fund for the first time.

Injury No.: 12-052822

Employee: Jose Fuentes

- 2 -

Employee's repetitive trauma exposure was an occupational disease resulting from his workplace exposure at Cargill Meat Solutions from 2005 through 2012.

We further clarify the references throughout the administrative law judge's award where the term accident is used interchangeably with injury. Employee's primary injury was the product of an occupational disease² due to repetitive trauma, as opposed to an accident, i.e. "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." § 287.020.2 RSMo. Employee's injury due to repetitive motion activity is an occupational disease as defined by the statute at § 287.067.3 RSMo.

Because employee has not proven that he had a pre-existing disability which combined with his primary injury/disability (repetitive trauma exposure throughout his employment), we must deny the claim against the Second Injury Fund for additional benefits. All other issues are moot.

**Corrections**

We correct the administrative law judge's final award as follows:

We correct all references within the administrative law judge's decision utilizing the term accident in referencing the primary injury. The primary injury is appropriately referenced as an injury by occupational disease, as opposed to accident.

We correct the Award in regard to ambiguity in the date of the occupational injury. The parties stipulated, and the evidence supports the finding, that employee sustained occupational disease within the course and scope of his employment on July 10, 2012. *Award, page 3, #3; Brief of Petitioner, page 4, #3; Brief of Respondent, pages 2 and 10*. More precisely, the occupational disease became a compensable injury on July 10, 2012. *Wickham v. Treasurer of the State*, 499 S.W. 3d 751 (Mo. App. W.D. 2016).

We further clarify a reference to the benefits awarded at page 1, #1 which states:

> Are any benefits awarded herein? Yes.

We correct that statement as:

> Are any benefits awarded herein? No.

Benefits were secured by employee pursuant to the settlement between employee and employer/insurer of the claim prior to this hearing. However, no benefits were awarded herein, as a result of this proceeding between employee and the Second Injury Fund.

**Decision**

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

² Occupational disease is distinctly defined under § 287.067 RSMo.

The award and decision of Administrative Law Judge Lawrence G. Rebman issued August 20, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 15th day of April 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

.

Issued by DIVISION OF W. KERS' COMPENSATION

Employee: Joos M. Fuentes

Injury No: 12-052822

**Employee:** Jose M. Fuentes

**Employer:** Cargill Meat Solutions, Inc.

**Insurer:** New Hampshire Ins. Co. c/o Sedgwick Claims Management

**Additional Party:** State Treasurer, Custodian of the Second Injury Fund

**Hearing Date:** May 24, 2018

**Checked by:** LGR/drl

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, including repetitive.

1. Date of alleged accident or onset of occupational disease: 2005.

1. State location where accident occurred or occupational disease was contracted: Marshall, Saline County, Missouri.

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

1. Did 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 the time required by law? Yes.

1. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Repetitive bending, lifting, twisting, stacking, pushing, pulling, standing, walking associated with handling, processing, and packaging of food products.

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

SCANNED

Issued by DIVISION OF WALL KERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

1. Part(s) of body injured by accident or occupational disease: Bilateral upper extremities, neck, mid and low back.

1. Nature and extent of any permanent disability: As a consequence of repetitive trauma injuries Fuentes is permanently totally disabled.

1. Compensation paid to date for temporary disability: $7,985.75

1. Value of necessary medical aid paid to date by employer/insurer? $10,567.42

1. Value of necessary medical aid not provided by employer/insurer? 65,131.86

1. Employee's average weekly wage: 574.51

1. Weekly compensation rate: 383.01

1. Method wages computation: 13.20/40 hrs./plus overtime

COMPENSATION PAYABLE

1. Amount of compensation payable: None

Issued by DIVISION OF WU...KERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

**Employee:** Jose M. Fuentes

**Employer:** Cargill Meat Solutions, Inc.

**Insurer:** New Hampshire Ins. Co. c/o Sedgwick Claims Management

**Additional Party:** State Treasurer, Custodian of the Second Injury Fund

**Hearing Date:** May 24, 2018

Checked by: LGR/drl

On May 24, 2018, the parties appeared for final hearing before Administrative Law Judge Lawrence Rebman. Jose M. Fuentes appeared in person and through his counsel, Donald T. Taylor of Robb, Taylor & O'Connor. The Second Injury Fund was represented by Eric Doner.

1. Cargill Meat Solutions, Inc was an employer operating subject to the Missouri workers compensation law on July 10, 2012.

1. Mr. Jose Fuentes was its employee working subject to the law in Marshall, Saline County, in the State of Missouri.

1. Mr. Fuentes sustained occupational disease within the course and scope of his employment on July 10, 2012.

1. Mr. Fuentes notified his employer of his injury and filed his claim for compensation within the time allowed by law.

1. The Employer pain Temporary total disability the amount of $7,985.75.

1. The value of necessary medical aid previously paid to date by employer/insurer is reported at 75,699.28.

1. Fuentes' average weekly wage was 574.51.

1. Fuentes' weekly compensation rate for Temporary Total and Permanent Partial disability is $383.01.

Issued by DIVISION OF WU...KERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

The parties requested the Division to determine:

1. Whether the claim was filed within the Statute of Limitations;
2. Whether there was any effect of the 2014 law to the claim at issue;
3. Whether Employee's pre-existing injuries constituted a hindrance or obstacle to employment; and
4. If so, whether the Second Injury Fund is liable to Employee for permanent total disability benefits for the combination of his primary and pre-existing injuries.

Employee testified on his own behalf. He presented the following exhibits, all of which were admitted into evidence without objection:

- Exhibit 1 - James A. Stuckmeyer, M.D. Curriculum Vitae

- Exhibit 2 - Dr. Stuckmeyer Medical Report dated 07/04/2013

- Exhibit 3 - Dr. Stuckmeyer Medical Report dated 06/13/2014

- Exhibit 4 - Dr. Stuckmeyer Medical Report dated 10/02/2015

- Exhibit 5 - Dr. Stuckmeyer Medical Report dated 04/24/2017

- Exhibit 6 - Jose M. Fuentes Medical Itemization and Bills

- Exhibit 1 - Terry L. Cordray Curriculum Vitae

- Exhibit 2 - Terry L. Cordray Report

- Exhibit 1 - Family Medical Leave Act Application

- Exhibit 2 - Jose M. Fuentes Copy of Missouri Driver License

- Exhibit 3 - Lisa Huesgen, RN - Cargill Nurse Business Card

Issued by DIVISION OF WU...KERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

I. Stipulation for Compromise Settlement Injury No. 12-052822

J. Dr. Luke S. Choi, M.D. Independent Medical Examination dated October 12, 2016

K. Dr. Garth Russell, M.D. Medical Report dated January 18, 2013

L. Medical Records of Dr. Douglas Koehn, M.D.

The Second Injury Fund offered no exhibits, and instead relied upon its counsel's cross-examination of all experts and lay witnesses.

FINDINGS OF FACT

Employee Jose Matias Fuentes is a 62-year-old male born in El Salvador on March 4, 1956 who currently resides in Marshall, Missouri. Mr. Fuentes attended school but did not graduate or obtain much formal education.

When Mr. Fuentes came to Missouri, he worked for about two months at the Tyson facility in Sedalia. He did not sustain any injuries while employed at Tyson. On or about October 18, 2004, Mr. Fuentes was hired by the company Excel, now known as Cargill Meat Solutions, Inc.

Mr. Fuentes was in good health and free of back, neck or shoulder pain when he began employment at Excel/Cargill. He was given a physical exam before he started working there.

Pre-Existing Low Back and Neck

Mr. Fuentes attributed his low bac