Carole Jones v. Menard's, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-070736

**Employee:** Carole Jones

**Employer:** Menard's, Inc.

**Insurer:** Menard's, Inc. c/o Gallagher Bassett

This workers' compensation case is submitted to the Labor and Industrial Relations 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 and award no compensation in the above-captioned case.

We affirm and adopt the award of the administrative law judge.

The September 11, 2018, award and decision of Administrative Law Judge Melodie A. Powell is attached and incorporated herein.¹

Given at Jefferson City, State of Missouri, this 25th day of June 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornelia-Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

**Attest:**

Curtis E. Chick, Jr., Member

Secretary

¹ The last sentence of paragraph four on page 13 of administrative law judge's award states, "Claimant has failed to meet her burden under Section 287.195, RSMo (emphasis added)." Section 287.195 establishes the proof required in claims for compensation for hernia and does not apply to this case. As the administrative law judge earlier notes in paragraph five on page ten of her award, the employee's burden of proof in this case is established by § 287.020.3(1) RSMo. This clerical error did not affect the rights of the parties and it does not affect our ability to properly review this appeal.

Injury No.: 15-070736

Employee: Carole Jones

The pivotal issue in this case is whether the employee's work accident of September 14, 2015, is the prevailing factor causing the injuries and conditions alleged in her compensation claim.

Carole Jones, a retail store employee, sustained a work injury on September 14, 2015, while lifting fifty-pound bags of birdseed off a flatbed cart and onto a shelf. Employee's injury occurred while she was deep cleaning employer's bird food aisle after an insect infestation. Employee initially complained to employer and employer's designated physician Dr. Janet Elliot about pain in her upper back and shoulder region. The record, including employee's testimony, demonstrates that employee's symptoms for this region, as well as her lower back, have persisted since the date of injury. The evidence further documents a history of medical intervention from September 14, 2015, to present for employee's ongoing shoulder and back pain.

On September 23, 2015, employee's physical therapist noted employee's report of soreness in her upper trapezius region and assessed a dorsal strain. Through October of 2014, employer's physician Dr. Elliot prescribed light duty to employee to recuperate from injury to her back. On January 19, 2016, two days after employee visited the emergency room for pain to her mid and lower back, Dr. Elliot informed employee that she was at maximum medical improvement and released employee from her care.

The majority's award relies on the ratings of employer's expert, Dr. Michael Chabot, who concluded that employee's lower back strain was unrelated to her September 14, 2015, work injury. Dr. Chabot provided no treatment and saw employee only one time. He based his conclusion regarding medical causation of employee's lower back strain, in part, on the lapse in time between the employee's initial injury and her subsequent complaint of lumbar pain. Dr. Chabot nevertheless conceded when deposed that lumbar strain can come from an injury such as employee suffered.

The majority's finding that employer was not responsible for any past or future medical expenses because employee failed to establish a causal link between her work injury and her low back condition ignores employee's testimony about the location of the pain as well as her recollection that she was limping the day of the injury. Both are evidence of more than an injury located in her shoulder. The majority fails to appropriately credit the independent medical examination of Dr. Michael Snyder, who found all current symptoms of employee's lumbar spine directly related to her September 14, 2015, work injury. Given the lack of evidence of prior or subsequent injury to any part of employee's lower back, it is against the evidence to find employee's lower back strain unrelated to her September 2015, work injury.

Employee's attorney correctly notes that determination of a specific amount of or percentage of disability is a factual finding within the special province of the Labor and Industrial Relations Commission (Commission) and that the Commission is not required to adopt a physician's rating for an injury. *ABB Power T & D Co., v. Kempker*, 236 S.W.3d 43, 52 (Mo. App. 2007). Based on the evidence from employee's treating physicians, an award of 15% of the body as a whole for permanent disability to

Injury No.: 15-070736

Employee: Carole Jones

- 2 -

employee's cervical, thoracic and lumbar spine is appropriate. Employee should also receive compensation for outstanding medical bills related to her work injury in the amount of $3,360.00, as detailed in employee's brief.

I respectfully dissent from the majority's denial of all compensation in this case.

Curtis E. Chick, Jr., Member

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Carole Jones

Injury No. 15-070736

**Employee:** Carole Jones

**Dependents:** N/A

**Employer:** Menard's, Inc.

**Additional:** N/A

**Insurer:** Menard's, Inc. c/o Gallagher Bassett

**Hearing Date:** June 27, 2018

**Injury No.:** 15-070736

**Before the**

**DIVISION OF WORKERS' COMPENSATION**

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

**Checked by:** MAP/sb

1. Are any benefits awarded herein? No

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: September 14, 2015

1. State location where accident occurred or occupational disease was contracted: Jefferson City, Missouri

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

1. Did employer receive proper notice? Yes

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

1. Was a claim for compensation filed within 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: Employee was moving 50 lb. bags of bird seed.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: neck

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

1. Nature and extent of any permanent disability: None
2. Compensation paid to-date for temporary disability: $\ 0
3. Value of necessary medical aid paid to date by employer/insurer: $\ 7,449.46
4. Value of necessary medical aid not furnished by employer/insurer: $\ 0
5. Employee's average weekly wage: $\ 474.07
6. Weekly compensation rate: $\ 316.05
7. Method wages computation: $\quad \ 287.250 .4, RSMo.

1. Amount of compensation payable:

None

TOTAL: None

1. Future requirements award: None

Employee: Carole Jones

Injury No.: 15-070736

Dependents: N/A

Employer: Menard's, Inc.

Additional: N/A

Insurer: Menard's, Inc. c/o Gallagher Bassett

Hearing Date: June 27, 2018

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MAP/sb

The evidentiary hearing in this case was held on June 27, 2018, in Jefferson City, Missouri. Employee, Carole Jones, appeared personally and by counsel, Matthew Uhrig. Employer, Menard's, Inc., c/o Gallagher Bassett, appeared by counsel, Thomas J. Pettit. The parties requested leave to file post-hearing briefs. Leave was granted and the case was submitted on August 6, 2018.

1. Whether Employee's work accident was the prevailing factor in causing her low back condition;
2. Whether Employer is responsible for Employee's past medical expenses;
3. Whether Employer is responsible for Employee's future medical expenses;
4. Whether Employer is responsible for any PPD benefits;
5. The value of Employee's average weekly wage and corresponding TTD and PPD rates.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Cole County;
3. That Employee sustained an accident arising out of and in the course and scope of her employment with Menard's, Inc., on September 14, 2015;
4. That the accident resulted in injuries to Employee's neck;
5. That Employee met the notice requirement of Section 287.420 .
6. That the Claim for Compensation was filed within the time allowed by the statute of limitations, Section 287.430 RSMo;
7. That both Employer and Employee were operating under and subject to the Missouri Workers' Compensation Law at all relevant times;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Carole Jones

Injury No. 15-070736

1. That Menard's, Inc., c/o Gallagher Bassett, fully insured Employer's Workers' Compensation liability at all relevant times;

1. That demand for medical was made on 12/1/16, 5/15/17, and 5/23/17;

1. That compensation for total temporary disability has been paid to date in the amount of 0;

1. That necessary medical aid has been paid to date in the amount of 7,449.46;

1. That $3,600 of medical aid from Capital Regional Medical Center has not been paid to date.

**EVIDENCE**

The evidence consisted of Claimant's live testimony; Kasey Parks' deposition testimony; Ryan Olson's deposition testimony; Dr. Snyder's IME report and CV; Medical Records-SSM Occupational Medicine; Medical Records-Select Physical Therapy; Medical Records-Capital Region Medical Center 5/2/16; Medical Records-Capital Region Medical Center 7/20/16; Medical Records-Capital Region Medical Center 11/7/16; Medical Records-Capital Region Medical Center 5/17/17; Medical Records-Capital Region Medical Center 1/19/18; Medical Bills-Capital Region Medical Center 5/23/18; Employer's Report of Injury; Claimant's wage statement; Dr. Chabot's report and deposition testimony; and Claimant's deposition testimony.

**FINDINGS OF FACT**

**Lay Testimony**

Carole Jones ("Claimant") was born on April 17, 1969. She currently works at Phoenix Programs, Inc. in Columbia, Missouri, as a Residential Support Service Specialist. She described her job duties at Phoenix Programs and indicated that she spends most of the day sitting at her computer assessing new residents. She worked at Menard's, Inc., ("Employer") as a Pet/Grocery Specialist from 2013 through 2016 and was terminated on January 22, 2016, for insubordination after refusing to sign a write-up.

Claimant's position at Menard's, Inc., required her to stock shelves and remove items that were expired, as well as perform other types of miscellaneous cleaning and organizational duties. She worked 40 hours per week prior to September 14, 2015, and believed she made approximately 10.85 or 10.95. Claimant's wage statement documents that she made $10.95 per hour and worked anywhere from 35 to 48 hours per week. (Employer's Ex. B). Additionally, the wage statement reflects that she was paid $528.80 for "CMCC" the week of June 20, 2015. (Employer's Ex. B).

On September 14, 2015, Claimant testified she was instructed by her manager to perform a deep