Cherisse Williams v. Gate Gourmet, Inc.

(After Mandate from the Missouri Court of Appeals for the Eastern District)

**Employee:** Cherisse Williams

**Employer:** Gate Gourmet, Inc. (Settled)

**Insurer:** Liberty Insurance Corporation (Settled)

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

On April 7, 2020, the Missouri Court of Appeals, Eastern District, issued an opinion reversing the September 11, 2019, award and decision of the Labor and Industrial Relations Commission (Commission). *Cherisse Williams v. Treasurer of Missouri as Custodian of Second Injury Fund*, ED108262 (April 7, 2020). By mandate dated April 30, 2020, the Court confirmed its decision to reverse the Commission's award and decision and remanded this matter to the Commission for further proceedings consistent with the Court's opinion.

In their decision, the Court specifically directed "[W]e find the SIF to be liable to Appellant for her permanent total disability. We reverse the Commission's decision, and remand this case with instructions to enter an award consistent with the findings in this opinion." Therefore, pursuant to this express directive and the mandate from the Court, we issue the following award.

The Second Injury Fund is liable to employee for permanent total disability benefits beginning 115 weeks after June 7, 2011, the stipulated date of maximum medical improvement, at the stipulated weekly permanent total disability benefit rate of $397.28. The weekly payments shall continue for employee's lifetime, or until modified by law.

The award and decision of Administrative Law Judge John K. Ottenad, issued April 5, 2019, is attached solely for reference.

For necessary legal services rendered to employee, Kevin D. Wayman, Attorney at Law, is allowed a fee of 25% of the compensation awarded, which shall constitute a lien on said compensation.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this **29th** day of May 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert Cornejo, Chairman**

**Reid K. Forrester, Member**

**Shalonn K. Curls, Member**

**Attest:**

**Secretary**

Employee: Cherisse Williams

**Additional Party:** Second Injury Fund

**Insurer:** Liberty Insurance Corporation (Settled)

**Hearing Date:** January 10, 2019

**Injury No.:** 08-108467

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial**

**Relations of Missouri**

**Jefferson City, Missouri**

**Checked by:** JKO

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: November 30, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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? Yes
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: Claimant was employed as a truck driver for Employer and was unloading a cabinet that weighed approximately 30 pounds from a compartment on the airplane above her shoulders, when she developed a sharp pain between her shoulder blades and into her neck.
12. Did accident or occupational disease cause death? No

**Date of death?** N/A

1. Part(s) of body injured by accident or occupational disease: Body as a Whole—Cervical Spine
2. Nature and extent of any permanent disability: 45% of the Body as a Whole—Cervical Spine
3. Compensation paid to-date for temporary disability: $45,789.71
4. Value necessary medical aid paid to date by employer/insurer? $113,048.21

Revised Form 21 (3/97)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 08-108467

Employee: Cherisse Williams

Injury No.: 08-108467

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

1. Employee's average weekly wages: Sufficient to result in the appropriate rates of compensation

1. Weekly compensation rate: $397.28 for TTD/$397.28 for PPD

1. Method wages computation: By agreement (stipulation) of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer's liability resolved by virtue of the compromise settlement

1. Second Injury Fund liability:

46.593 weeks of permanent partial disability

18,510.46

TOTAL: 18,510.46

1. Future requirements awarded: None

Said payments to begin immediately 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% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Kevin D. Wayman.

Revised Form 21 (3/97)

Page 2

Employee: Cherisse Williams

Dependents: N/A

Employer: Gate Gourmet, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Liberty Insurance Corporation (Settled)

Injury No.: 08-108467

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On January 10, 2019, the employee, Cherisse Williams, appeared in person and by her attorney, Mr. Kevin D. Wayman, for a hearing for a final award on her claim against the Second Injury Fund. The employer, Gate Gourmet, Inc., and its insurer, Liberty Insurance Corporation were not present or represented at the hearing since they had previously settled their risk of liability in this case. The Second Injury Fund was represented at the hearing by its attorney, Assistant Attorney General Mathew Kincade. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about November 30, 2008, Cherisse Williams (Claimant) sustained an accidental injury arising out of and in the course of her employment that resulted in injury to Claimant.

2) Claimant was an employee of Gate Gourmet, Inc. (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage sufficient to result in applicable rates of compensation of $\ 397.28 for total disability benefits and $\ 397.28 for permanent partial disability (PPD) benefits.

7) Employer paid temporary total disability (TTD) benefits in the amount of $\ 45,789.71, representing a period of time of 115 weeks.

8) Employer paid medical benefits totaling $\ 113,048.21.

9) Claimant reached the point of maximum medical improvement from this work injury on June 7, 2011.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 08-108467

ISSUES:

1) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury?

2) What is the liability, if any, of the Second Injury Fund?

EXHIBITS:

The following exhibits were admitted into evidence:

**Employee Exhibits:**

1. Certified medical treatment records of St. Louis Orthopedic, Inc. (Dr. David Lange) dated June 20, 2005 to October 6, 2005

1. Certified medical treatment records of BarnesCare Westport

1. Certified medical treatment records of St. Louis Spine Care Alliance (Dr. David Raskas and Dr. Patricia Hurford)

1. Certified medical treatment records of St. Louis Orthopedic, Inc. (Dr. David Lange) dated May 26, 2009 to July 6, 2010

1. Certified medical treatment records of Dr. James Coyle

1. Certified medical treatment records of SSM/DePaul Medical Group at Cross Keys

1. Certified medical treatment records of The Work Center, Inc.

1. Certified medical treatment records of PRORehab

1. St. Louis Community College Transcript dated December 13, 2012

1. Synergy HomeCare Care Plan for Florence Washington

1. Stipulation for Compromise Settlement in Injury Number 08-108467 (Date of Injury of November 30, 2008) between Claimant and Employer

1. Deposition of Dr. Shawn Berkin, with attachments, dated May 30, 2018

1. Deposition of Mr. J. Stephen Dolan, with attachments, dated June 20, 2018

1. Stipulation for Compromise Settlement in Injury Number 05-072472 (Date of Injury of April 2, 2005) between Claimant and Employer

**Second Injury Fund Exhibits:**

Nothing offered or admitted into evidence

**Notes:**

1) The parties asked that I take Judicial and/or Administrative Notice of any prior settlements contained in any of Employee's prior Workers' Compensation cases in the files kept by the Missouri Division of Workers' Compensation. Without objection, I will take such Judicial and/or Administrative Notice of any such prior settlement documents contained in Employee's prior cases.

2) Any stray markings or writing on the Exhibits in evidence in this case were present on those Exhibits when they were admitted into evidence on January 10, 2019. No additional markings have been made since their admission on that date.

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 08-108467

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and deposition, the vocational opinion and deposition, the medical treatment records, and the other documentary evidence, as well as my personal observations of Claimant at hearing, I find:

1. **Claimant** is a 55-year-old, currently unemployed individual, who was working for Gate Gourmet, Inc. (Employer) as a truck driver on or about November 30, 2008. She worked for Employer for approximately 24 years, from 1984 to 2008, when she stopped working after her injury because Employer could not accommodate the restrictions placed on her by Dr. Coyle. Claimant testified that she was technically employed by Synergy for about a year after her 2008 injury, into 2018, basically being paid to provide home care for her aunt, but she has not worked anywhere else since 2008 because of the effects of all of her injuries/conditions.

1. **Claimant** testified that she graduated from Normandy High School in 1982. She also took classes for one year at Florissant Valley Community College for an associate's degree in childcare after her release from the doctor in 2011. She has not had any other formal education.

1. **Claimant** worked at McDonald's during high school, and, otherwise, has spent the rest of her working career at Gate Gourmet, Inc. (Employer). Claimant worked for Employer as a utility worker, preparing meals for airline flights, and, then, also as a truck driver. She worked full time, 40 hours per week, plus overtime, on a regular basis for Employer.

1. **Claimant** testified that she suffered her first injury at work in 2005. She said that she hurt her neck when she was loading airplanes with 40-pound carriers with bottled water in them. She said that she received treatment and surgery from Dr. Lange. She had complaints across her neck and into her shoulders, with numbness, tingling and a heavy feeling into the arm.

1. **Medical treatment records from St. Louis Orthopedic, Inc.** (Exhibit 1) document the treatment she received from Dr. David Lange in 2005. At her first visit on June 20, 2005, Claimant reported a three-month history of neck pain going into her right shoulder, severe headaches, and right arm numbness going into her hand. The report indicated that she had had diagnostic studies that showed ri