Cheryl Mincks v. Walmart Associates, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 05-102474**

**Employee:** Cheryl Mincks

**Employer:** Walmart Associates, Inc.

**Insurer:** American Home Assurance 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 October 2, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Kevin A. Elmer, issued October 2, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **22nd** day of May 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Employee: Cheryl Mincks

Injury No. 05-102474

Dependents: N/A

Employer: Walmart Associates, Inc.

Insurer: American Home Assurance Company c/o Claims Management, Inc.

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Hearing Date: June 11, 2018 (record closed June 25, 2018)

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: No work-related injury identified.
5. State location where accident occurred or occupational disease was contracted: Bolivar, Polk County, MO
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: Employee alleges she was carrying a box down a ladder.
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: Cervical spine and right shoulder/scapula
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 4,487.42
17. Value necessary medical aid not furnished by employer/insurer? $\ 0
18. Employee's average weekly wages: $\ 235.62

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

1. Weekly compensation rate: $157.08

1. Method wages computation: Stipulation

**COMPENSATION PAYABLE**

1. Amount of compensation payable: 0

Unpaid medical expenses: 0

0 weeks of temporary total disability (or temporary partial disability): $0

0 weeks of permanent partial disability from Employer / Insurer: $0

0 weeks of disfigurement from Employer / Insurer: None

Permanent total disability benefits from Employer beginning, for Claimant's lifetime $0

**TOTAL: $0**

1. Future requirements awarded: None

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

**Employee:** Cheryl Mincks

**Injury No. 05-102474**

**Dependents:** N/A

**Employer:** Walmart Associates, Inc.

**Insurer:** American Home Assurance Company c/o Claims Management, Inc.

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

**Hearing Date:** June 11, 2018 (record closed June 25, 2018)

**Checked by:** KAE

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on June 11, 2018, in Springfield, Greene County, Missouri. The record was left open until June 25, 2018, to allow for the proper submission of voluminous medical records by scanning and presentment of a CD marked as Exhibit G, Disks 1 and 2. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about July 16, 2018.

The employee appeared personally and through her attorney Jennifer Newman. The employer and insurer appeared through their attorney, Greg Pearman. The Second Injury Fund appeared through its attorney, Skyler Burks, Assistant Attorney General.

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

1. On or about May 2005, Walmart Associates, Inc., was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by American Home Assurance Company, c/o Claims Management, Inc.

1. On the alleged injury date of May 2005, Cheryl Mincks was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

1. The above-referenced employment and accident occurred in Polk County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

1. The employee notified the employer of her injury as required by Section 287.420, RSMo.

1. The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks

Injury No. 05-102474

(6) At the time of the alleged accident in May 2005 the employee's average weekly wage was 235.62, which is sufficient to allow a compensation rate of 157.08 for temporary total disability compensation, permanent total disability compensation, and permanent partial disability compensation.

(7) Counsel for employee seeks an attorney fee of 25% related to Injury Number 05-102474.

The issues to be resolved by hearing include:

(1) Whether the employee sustained an accident on or about May 2005.

(2) Whether the alleged accident arose out of and in the course of her employment with the employer.

(3) Whether the alleged accident caused the injuries and disabilities for which benefits are now being claimed.

(4) Whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $25,513.24.

(5) 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 the injuries.

(6) Whether the employee is entitled to temporary total disability compensation. (The employee seeks payment for 254 weeks of temporary total disability compensation, payable for the period of August 18, 2005, to July 6, 2010, or $39,898.32.)

(7) Whether the employee sustained any permanent disability as a consequence of the alleged accident of May 2005; and, if so, what is the nature and extent of the disability.

(8) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation (or permanent total disability compensation).

(9) The date upon which the claimant reached maximum medical improvement.

EVIDENCE PRESENTED

The employee testified at the hearing in support of her claim. Also, the employee presented at the hearing of this case the testimony of two witnesses - vocational expert, Phil Eldred and husband, Billy Ray Mincks. In addition, the employee offered for admission the following exhibits:

Exhibit 1..............................................................................Medical Records

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Cheryl Mincks