Bin Gardner v. Triumph Foods, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 17-097796

**Employee:** Bin Gardner

**Employer:** Triumph Foods, LLC

**Insurer:** Travelers Indemnity Company of North America

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated July 9, 2019.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

The award and decision of Administrative Law Judge Ryan Asbridge, issued July 9, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 4th day of December 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 WORKERS' COMPENSATION

Employee: Bin Gardner

Injury Number: 17-097796

TEMPORARY AWARD

Employee: Bin Gardner

Injury No. 17-097796

Dependents: None

Employer: Triumph Foods, LLC

Insurer: Travelers Indemnity Company of North America

Additional: None

Hearing Date: March 13, 2019

Checked by: RSA/drl

FINDINGS OF FACT AND RULINGS OF LAW

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: Cumulative December 7, 2017.

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

1. Was above employee in employ of above employer at 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 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 performed multiple jobs each shift throughout Employer's plant.

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

1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Bin Gardner

Injury Number: 17-097796

1. Part(s) of body injured by accident or occupational disease: Left upper extremity at the wrist and hand.

1. Nature and extent of any permanent disability: Undetermined.

1. Compensation paid to date for temporary disability: $0

1. Value necessary medical aid paid to date by employer/insurer? $0

1. Value necessary medical aid not furnished by employer/insurer? Undetermined.

1. Employee's average weekly wage: 996.41

1. Weekly compensation rate: 664.27 TTD and $483.48 PPD.

1. Method wages computation: By agreement of the parties.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

- Unpaid medical expenses: Undetermined

- Weeks for temporary total disability: Undetermined

- Employer previously paid TTD: $0.00

- Underpayment of TTD due: Undetermined

1. Second Injury Fund liability: N/A.

1. Future Medical Requirements Awarded: Undetermined

Said payments to begin upon receipt of this Award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Angela Trimble of the Law Offices of William Phalen.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Bin Gardner Injury Number: 17-097796

Employee: Bin Gardner Injury No. 17-097796

Dependents: None

Employer: Triumph Foods, LLC

Insurer: Travelers Indemnity Company of North America

Additional: None

Hearing Date: March 13, 2019 Checked by: RSA/drl

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on March 13, 2019. The parties were afforded an opportunity to submit briefs or proposed temporary awards, resulting in the record being completed and submitted to the undersigned on April 12, 2019.

Claimant, Bin Gardner, appeared personally and through her attorney, Angela Trimble. Employer and Insurer appeared through their attorney, John D. Jurcyk.

The parties entered into a stipulation of facts as follows:

1. An employer/employee relationship existed on December 7, 2017;
2. On December 7, 2017 Employee was working subject to the Worker's Compensation Law in the City of St. Joseph, Buchanan County, Missouri;
3. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act;
4. The Employer's liability was fully insured by Travelers Indemnity Company of North America;
5. The Employee's claim was filed within the time allowed by law;
6. The Employee's average weekly wage was 996.41; and
7. Employee's temporary total disability compensation rate is 664.27 and permanent partial disability compensation rate is $483.48.

3

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Bin Gardner

Injury Number: 17-097796

ISSUES

1. Whether Employee provided adequate notice of her injury?

1. Whether Employee's work activities are the prevailing factor in her alleged repetitive injury?

EVIDENCE PRESENTED

The employee appeared at the hearing and testified live. In addition, parties stipulate to the admission of the following exhibits:

Employee's Exhibit 1: ............................April 18, 2018 Report of Steven Charapata, M.D.

Employer/ Insurer's Exhibit A: .........................January 30, 2018 Report of Brett Miller, M.D.

The exhibits were received and admitted into evidence.

DISCUSSION

Testimony of Bin Gardner

Claimant testified that she worked for Triumph Foods beginning in 2016 and almost immediately she began to suffer symptoms of pain and cramping in her left hand, which is her dominant hand. Claimant testified that she notified her immediate supervisor, Casey Scott, about her wrist pain before and after seeking medical treatment at the clinic provided by Employer. Claimant sought and received medical treatment at the Employer-provided in-house health clinic and was told to wrap and ice her wrist. Claimant was told it would take some time before she became accustomed to the work and was also treated with heat packs as well as over-the-counter medication. Claimant testified that she was moved to different positions during her employment with Triumph, but she continued to suffer pain, cramping, numbness and other symptoms and was on several occasions sent to Dr. Miller, Triumph's doctor.

Claimant testified that she had no prior complaints about her left hand/wrist although her previous employments included a prep cook at a restaurant. Claimant testified that she continued to have problems in her left hand/wrist culminating in December 2017 when she filed this claim.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Bin Gardner

Injury Number: 17-097796

Steven Charapata, M.D.

Steven Charapata, M.D. provided a medical report dated April 18, 2018. Claimant was evaluated by Dr. Charapata on April 17, 2018 at the request of her attorney. Claimant represented to Dr. Charapata that she worked "mainly in an area where she has to use scissors to cut thyroid glands." Claimant also indicated to Dr. Charapata that she had to use right-handed scissors and was not allowed to use left-handed scissors. She advised Dr. Charapata that her pain "...began early in her employment and has progressed,..." until it became unbearable.

Dr. Charapata reviewed Claimant's Employee Report of Injury as well as all medical records from Employer's in-house clinic and Dr. Miller's office.

Dr. Charapata also performed a physical examination from which he noted Claimant complained of severe left wrist pain that is worse with repetitive use of her left hand. She complained of loss of strength and that the pain became most severe when she was forced to use right-handed scissors when performing her job duties. She stated that the problems in her left hand/wrist have impaired her ability to cut foods as required for a chef and that she has difficulty cooking and picking up pans.

Dr. Charapata measured grip strength as two kilograms on the left and twenty kilograms on the right. Dr. Charapata found Claimant had significant tenderness over the snuffbox with a positive Finkelstein but negative Tinel sign. She had decreased range of motion over the dorsal aspect of the wrist which extends to midforearm. Claimant had tenderness to palpation to the second and third digit of the left hand over the PIP joint and with range of motion.

Dr. Charapata opined that Claimant's intense repetitive nature of her job, which required using right-handed scissors in her left hand for a significant period of time, was the prevailing factor in causing de Quervain's disease, left wrist pain, and questionable neuropathy/carpal tunnel syndrome of the left hand.

As a result of his examination, Dr. Charapata recommended a complete workup of her left wrist and extremity, including x-rays of her wrist and an EMG to rule out any neuropathy. Claimant needs an evaluation by an occupational hand therapist as well as a hand specialist for specific treatment such as corticosteroid injections.

Brett Miller, M.D.

Brett Miller, M.D. provided a medical report dated January 20, 2018. Claimant was "well known" to Dr. Miller, as he had initially treated her in 2016 when her hand complaints first began. At that time, Claimant advised that her left wrist hurts and that she had been using some scissors on the line and now she was a "flyer". She complained that some jobs hurt her more than others. She complained her pain is sharp and wakes her up at night. In the orthopedic note dated November 18, 2016, Dr. Miller diagnosed Claimant with "De Quervian's, mild."

Claimant was seen on November 22, 2017, by Sarah Pederson, PA-C, with Dr. Miller's office. Claimant again advised of her history of pain in the left wrist for approximately one year. Claimant

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Bin Gardner

Injury Number: 17-097796

described her pain as coming and going. Claimant indicated that the pain is sometimes worse at home and sometimes worse at work, and sometimes worse at night and sometimes worse in the morning. Ultimately, Ms. Pederson concluded that Employee's condition was not work-related.

Dr. Miller provided an opinion on January 30, 2018, wherein he concluded that although Ms. Pederson evaluated Claimant and found that her condition was not work-related, he supported and agreed with her evaluation and resulting impression. He lastly added that Claimant does not have de Quervain's tenosynovitis, nor would it be occupationally related. Rather, her symptoms were a natural consequence of general everyday living.

FINDINGS AND CONCLUSIONS

After considering all the evidence, including Claimant's testimony, and observing Claimant's appearance and demeanor, and the reports of Dr. Charapata and Dr. Miller, I find and believe that Claimant has met her burden of proving that she provided adequate notice of her injury, that Employer was not prejudiced by Claimant not providing written notice, that Claimant sustained a cumulative work injury while working for Triumph Foods and that she is in need of further medical treatment. Thus, Employer is ordered to provide her with all reasonable and necessary medical treatments needed to cure and relieve her of the effects of her cumulative work injuries. Employer is also ordered to provide her with temporary total disability benefits should she become so disabled due to her cumulative work injuries.

Claimant has the burden of proving all material elements of her claim. *Jefferson City Country Club v. Pace*, 500 S.W.3d 305, 313 (Mo. App. W.D. 2016); *Johme v. St. John's Mercy Healthcare*, 366 S.W.3d 504, 509 (Mo. Banc 2012). She has met her burden as set out below.

1. Notice.

Missouri cases have held that actual notice of the injury by the employer is sufficient to show that the employer was not prejudiced by the absence of proper written notice to the employer that a work injury as occurred as required by RSMo. 287.420. See *Harley-Davidson Motor Company, Inc. v. Jones*, 557 S.W.3d 328 (Mo. App. W.D. 2018); *Sell v. Ozarks Medical Center*, 333 S.W.3d 498 (Mo. App. 2011).

The evidence showed that Employer had actual notice of the cumulative injuries to Claimant's left hand/wrist beginning with her reporting her symptoms to her supervisor, Casey Scott. No testimony or evidence was provided to contradict Claimant's testimony regarding her notification of her immediate supervisor or that she was treated by Employer's in-house clinic. Claimant sought further treatment, which was directed by Employer, as early as November 18, 2016 when she was evaluated by Dr. Miller. Claimant had made continuous complaints for over a year about the pain and other symptoms and was given treatment, not only at Employer's in-house clinic, but was sent again to Dr. Miller on November 22, 2017 when she was evaluated by Sarah Pederson, PA-C. The Employer-directed medical provider, Dr. Miller, even commented in his January 30, 2018 medical report that the Claimant was "well known to me." (Exhibit A., p. 5).

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Bin Gardner

Injury Number: 17-097796

The Court finds Claimant to be credible. The Court finds Claimant provided actual notice of her work injury to Employer through her immediate supervisor, Casey Scott, as well as through Employer's in-house medical clinic and the Employer-directed medical care of Dr. Miller. The Court finds that, due to having actual notice of Claimant's work injury, Employer was not prejudiced by Claimant not providing written notice of her injury as required by RSMo. 287.420.

1. Prevailing factor and Medical treatment

"An occupational disease due to repetitive motion is compensable only if the occupational exposure is the prevailing factor in causing both the resulting medical condition and disability." RSMo. 287.067.3. Prevailing factor means the primary factor in relation to any other causative factor. RSMo. 287.067.3. Ordinary deterioration caused by aging or normal day-to-day activities is not compensable. RSMo. 287.067.3.

Claimant testified that she had no prior complaints regarding her left hand/wrist until working for Employer. She indicated her immediate previous occupation as a prep-cook at a restaurant in Las Vegas was hand-intensive work, requiring hours of cutting and otherwise prepping food. Claimant had no complaints and sought no medical treatment for her left hand/wrist prior to 2016 when she began working for Employer. Both Dr. Miller's clinic note of November 18, 2016 and Dr. Charapata's report of April 17, 2018, indicate that Claimant had no prior complaints until working for Employer. And both doctors opined that Claimant had De Quervain's.

Claimant's testimony was credible and no contrary evidence was presented. While Claimant's symptoms may have eased somewhat since no longer working for Employer, this does not conflict with the medical reports presented. Claimant has continuously complained of symptoms since initially seeking treatment.

I find Dr. Charapata and his expert medical opinion to be more credible than Dr. Miller due to the fact that Dr. Charapata formed his opinions upon his own personal examination of Claimant, as opposed to basing his opinion on the observations of another individual that does not possess comparable education and experience. Furthermore, Dr. Charapata's examination was the more recent of the two examinations conducted in-person by the expert medical providers (Dr. Charapata's being in April 2018 and Dr. Miller's personal examination being in November 2016). This finding is further supported by Dr. Miller's own medical report from his November 2016 examination of Claimant where, when he personally examined Claimant, he found her to have De Quervain's (which is in agreement with Dr. Charapata).

Based on the credible testimony of Claimant and the opinion of Dr. Charapata, the Court finds that Claimant as met her burden of proof that her work activities are the prevailing factor of her current condition and that she is in need of further medical treatment to cure and relieve her of the effects of her work injury.

CONCLUSION

For the above reasons, Employer is ordered to provide Claimant with all reasonable and necessary medical treatment to cure and relieve her of the effects of the injuries she sustained as a result of

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Bin Gardner

Injury Number: 17-097796

cumulative trauma, and to continue to provide her with such treatment for so long as she remains in need of it.

I certify that on 7-9-19

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By

Made by:

Ryan S. Asbridge

Administrative Law Judge

Division of Workers' Compensation