Carol Caldwell v. Unilever USA, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 17-070606**

**Employee:** Carol Caldwell

**Employer:** Unilever USA, Inc.

**Insurer:** Insurance Company of the State of Pennsylvania

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 April 28, 2020.

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 Maureen Byrne, issued April 28, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 5th day of January 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Employee: Carol Caldwell

Injury No. 17-070606

ISSUED BY DIVISION OF WORKERS' COMPENSATION

TEMPORARY OR PARTIAL AWARD

Employee: Carol Caldwell

Injury No. 17-070606

Dependents: N/A

Employer: Unilever USA, Inc.

Additional Party: N/A

Insurer: Insurance Company of the State of Pennsylvania

c/o Broadspire Services, Inc.

Hearing Date: January 27, 2020

Checked by: MT/kg

SUMMARY OF FINDINGS

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? August 20, 2017.

1. State location where alleged accident occurred or occupational disease contracted: Sikeston, Scott 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 happened or occupational disease contracted: Employee sustained an accident to the left index finger after over-using her

Page 1

Employee: Carol Caldwell

Injury No. 17-070606

left hand, in part, because of pain and limitations related to a separate work injury involving her right upper extremity.

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

1. Parts of body injured by accident or occupational disease: Left index finger.

1. Compensation paid-to date for temporary total disability: 0

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

1. Value necessary medical aid not furnished by employer-insurer? 0

1. Employee's average weekly wage: 1,032.37

1. Weekly compensation rate: TTD $688.25

1. Method wages computation: By agreement.

1. Amount of compensation payable:

Unpaid medical expenses: N/A

Additional Medical Aid: See findings.

TTD: N/A

The case was left open in order for the parties to confirm Employee's average weekly wage and temporary total disability rate. The parties confirmed these amounts and the record was closed on January 29, 2020.

This award is only temporary and partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

Page 2

On, January 27, 2020, the employee, Carol Caldwell, appeared in person and by her attorney, Kimberly A. Heckemeyer, for a temporary or partial award. The employer-insurer was represented at the hearing by their attorney, Christopher D. Vanderbeek. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the facts that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: That on or about August 20, 2017, the employer, Unilever USA, Inc., was operating under and subject to the provisions of the Missouri Workers' Compensation Act.
2. Covered Employee: That on or about August 20, 2017, Carol Caldwell was an employee of Unilever USA, Inc. and was working under and subject to the Missouri Workers' Compensation Act.
3. Notice: That the employer had notice of the employee's work injury that occurred on or about August 20, 2017.
4. Statute of Limitations: That the employee's claim was filed within the time allowed by law.
5. Final award if no medical treatment awarded: That if no further medical treatment is awarded, the Award shall be a Final Award.
6. Average weekly wage and rate: That the average weekly wage is $\ 1,032.37 and the rate for temporary total disability is $\ 688.25.
7. Medical aid furnished by Employer-Insurer: That Employer has furnished $\ 0 in medical aid.
8. Temporary disability paid by Employer-Insurer: Temporary total disability benefits have not been paid by the Employer-Insurer.

1. Accident: On or about August 20, 2017, the employee sustained an accident arising out of and in the course of her employment.
2. Medical Causation: Employee's injury was medically causally related to accident or occupational disease.
3. Future Medical Aid: Employee is making a claim for additional or future medical aid.

The following exhibits were offered and admitted into evidence:

1. Dr. Bruce Schlafly's Report
2. Dr. Bruce Schlafly's Addendum with 287.210 letter attached

1. Deposition of Dr. Bruce Schlafly
2. Medical Records

(A) Missouri Delta Physician Services, Dr. Bernardo

(B) Advanced Bone and Joint, Dr. Frisella

(C) Missouri Delta Medical Center

(D) Restart

(E) Motion Orthopaedics, Dr. Milne

Employer-Insurer's Exhibits

A. Deposition of Carol Caldwell

B. Deposition of Dr. Shawn Kutnik

C. Updated Note of Dr. Shawn Kutnik

Employee, Carol Caldwell, is a 55-year-old single individual. Employee graduated high school in 1982. That same year she began working at Brown Shoe Company as a machine operator, a job she held until 1994, cutting shoe patterns. She did not have any workers' compensation claims while in that employment.

In 1994 Employee began working for Unilever and she has worked there continuously since that time. For a period of time in the early 2000s, Employee worked part-time at Casey's making pizzas. She held that job for about five years, working three days per week. She also stocked the kitchen. She was not injured while in that employment.

Employee began with Unilever as a hand packer at the south plant of the company in Sikeston, Missouri. Work as a hand packer involved packing ice cream, taking "bad bars" off the line using her hands. She also put ice cream bars in boxes. She was in this position for about three years. While in this position, she injured her left index finger, sustaining a fracture to the fingertip. She had a fixation surgery with placement of a pin, then removal of that pin, and she eventually received a settlement through workers' compensation. From that time until August 2017, she did not have any problems with the left index finger.

In the late 1990s or early 2000s, Employee took a position with Unilever as a wrap operator. This involved placing wrap in machines, monitoring wrap machines, and monitoring hand packers. At one point, Employee sustained a neck injury while working in this position. She underwent a surgery for this injury and later received a settlement.

In the mid-2000s, Employee took a position as an operator in which she was in charge of the whole wrap machine and the workers operating it. Initially, this was at the south plant; she moved to the north plant in Sikeston in 2015. While still at the south plant, she started having

**Injury No. 17-070606**

problems with her right shoulder, which she reported to Unilever. Those problems continued after she moved to the north plant and through 2017.

At the north plant, Employee continued working as an operator. This required many activities such as pulling pallets, cleaning machines, drawing mix and making mix. Pallets contained ingredients. Using a hand-operated pallet jack, she would move a pallet full of boxes to her workstation, and then she worked with the boxes, weighing 30-40 lbs. each. She typically did two pallets per shift. Then the machine was cleaned and scrubbed with brushes and foamers, and then it was put back together again. Drawing mix involved dumping product into the machine. Typically this was done about six times per day. Making mix involved adding flavor to mix. She also had to do paperwork every 30 minutes, indicating flavor that was brought to the floor, with recording of product weights as well. Product was weighed manually on a scale.

From 2015 to 2017, Employee's work included "changeovers," where one machine was switched out for a different machine. This process involved replacing pipes and tubes. Employee used her left hand more than her right during this period due to the injury to her right shoulder. The only tools she used for this process were screwdrivers, pliers and occasionally hammers. She described the changeover process as the most physically demanding process of her employment. The number of times this process was done per shift varied.

From April 2017 through August 2017, Employee continued to have right shoulder pain, making it difficult to work and causing her to favor her left upper extremity, including on August 20, 2017. She was ultimately diagnosed with a work-related rotator cuff tear, and to date, she has undergone three surgeries as a result of that condition.

On August 20, 2017, Employee began her shift in the morning finishing a changeover, and ultimately she performed three changeovers during this shift. She described this as an "unusually high" number of changeovers, and this date of work more physically strenuous than a typical day. She removed 30-40 clamps per changeover. The clamps are about 1.5" in size and made of metal and have to be twisted into and out of place. On this date she was primarily using her left hand to do this work because of the pain in her right shoulder.

Employee indicated that she did not notice anything unusual about her left hand on August 20, 2017. Employee says that the following morning that her left finger was "stuck" and that she reported this injury to her employer the following day. She described the left index finger as being swollen and painful and testified that she was unable to straighten the left index finger without manually bending it back into place with her other hand. Employee testified she did not have any left index finger complaints of stiffness, swelling, pain, inability to straighten her finger, or popping of the joint before this injury.

Employee testified that she was sent to Dr. Bernardo for medical treatment in August 2017. She said that Dr. Bernardo ordered an X-ray and ultimately told her that she had arthritis.

Employee testified that at that point she sought legal representation. Employee testified that in Sep