Telma Merida v. AJM Packing Corporation

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 13-095197**

**Employee:** Telma Merida

**Employer:** AJM Packing Corporation

**Insurer:** Praetorian Insurance

**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 29, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Karen Fisher, issued October 29, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this _______9th_____ day of February 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 751-4231 FAX: (573) 751-2012

www.labor.mo.gov/DWC

OCTOBER 29, 2019

13-095197

Scan Copy

*Employee : TELMA MERIDA 08776998 0 311 S ORNAR ST CARTNAGE, MO 64836* Employer : AJM PACKAGING 08776999 7 3503 ENTERPRISE AVE WEBB CITY, MO 64870 *Asst Atty General: ATTY GENERAL ERIC SCHMITT 08776997 3 149 PARK CENTRAL SQ STE 1017 SPRINGFIELD, MO 65806

*Employee Attorney: JENNIFER L NEWMAN 415 A E CHESTNUT EXPY SPRINGFIELD, MO 65802* Insurer : PRAETORIAN INSURANCE 08777000 9 PO BOX 975 SUN PRAIRIE, WI 53590

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Please visit our website at www.labor.mo.gov/DWC

MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS *Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.*

Employee: Telma Merida

Injury No. 12-040405 \& 13-095197

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: AJM Packing Corporation

Insurer: Praetorian Insurance c/o Cottingham and Butler Claims Service

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

Hearing Date: June 20, 2019

Checked by:

1. Are any benefits awarded herein? Yes (2012) No (2013)
2. Was the injury or occupational disease compensable under Chapter 287? Yes (2012) No (2013)
3. Was there an accident or incident of occupational disease under the Law? Yes (2012) No (2013)
4. Date of accident or onset of occupational disease: May 24, 2012 \& August 1, 2013
5. State location where accident occurred or occupational disease was contracted: Missouri
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 (2012) No (2013)
8. Did accident or occupational disease arise out of and in the course of the employment? Yes (2012) No (2013)
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 $\sigma$ occupational disease contracted: 2012 right hand was crushed and burned by hot glue while pulling packaging from a malfunctioning machine; 2013 left hand, occupational disease
12. Did accident or occupational disease cause death? Date of death? No.
13. Part(s) of body injured by accident or occupational disease: Right hand (2012) \& left hand (2013)
14. Nature and extent of any permanent disability: 35 % to the hand (2012) \& 0 % (2013)
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 14,536.27 (2012) $\ 0 (2013)

Employee: Telma Merida

Injury No. 12-040405 \& 13-095197

1. Value necessary medical aid not furnished by employer/insurer? $\ 0
2. Employee's average weekly wages: $\ 330.00 (2012) $\ 340.50 (2013)
3. Weekly compensation rate: $\ 220.00 (2012) $\ 227.00 (2013)
4. Method wages computation: statutory: wage statement.

1. Amount of compensation payable: $\ 14,355

Unpaid medical expenses: $\ 0

weeks of permanent partial disability from Employer 61.25

weeks of disfigurement from Employer 4

1. Second Injury Fund liability: No

TOTAL: $\ 14,355

1. Future requirements awarded: N/A

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: Newman Law Firm

Employee: Telma Merida

Injury No. 12-040405 \& 13-095197

Dependents: N/A

Employer: AJM Packing Corporation

Insurer: Praetorian Insurance c/o Cottingham \& Butler Claim Service

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

Hearing Date: June 20, 2019

Checked by:

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on June 20, 2019.

The employee appeared personally and through her attorney Jennifer L. Newman, Esq. The employer and insurer appeared through their attorney, Robin L. Bullock. The Second Injury Fund appeared through its attorneys, Cara Harris and Sheila Skulborstad, Assistant Attorneys General. Also present was Lisa Lewis, interpreter for the employee.

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

(1) On or about May 24, 2012, and August 1, 2013, AJM Packing Corporation was an employer operating under and subject to the Missouri Workers' Compensation Law, and during this time was fully insured by Praetorian Insurance.

(2) On the alleged injury dates of May 24, 2012, and August 1, 2013, Telma Merida was an employee of the employer, and was working under and subject to the Missouri Workers' Compensation Law.

(3) On or about May 24, 2012, the employee sustained an accident, which arose out of and in the course of her employment with the employer.

(4) The above-referenced employment and accidents occurred in Jasper County, Missouri. The parties agree to venue lying in Jasper County, Missouri. Venue is proper.

(5) The employee notified the employer of her May 24, 2012, injury as required by Section, 287.420, RSMo.

(6) The Claims for Compensation were filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the alleged accident of May 24, 2012, the employee's average weekly wage was $\ 330.00, which is sufficient to allow a compensation rate of $\ 220.00 for temporary total disability compensation / permanent total disability compensation, and a compensation rate of $\ 220.00 for permanent partial disability compensation.

For the alleged occupational disease of August 1, 2013, the employee's average weekly wage was $\ 340.50, which is sufficient to allow a compensation rate of $\ 227.00 for temporary total disability compensation/ permanent total disability compensation, and a compensation rate of $\ 227 for permanent partial disability compensation.

(8) The employee received no temporary total disability compensation under either the 2012 injury or the 2013 injury.

(9) The employer and insurer have provided medical treatment to the employee, having paid $\ 14,536.27 in medical expenses under the 2012 injury number and $\ 0 under the 2013 injury number.

The issues to be resolved by hearing include as to 12-040405:

(1) 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.

(2) Whether the employee sustained any permanent partial occupational disease or permanent total disability as a consequence of the alleged accident of May 24,2012 . If so, what is the nature and extent of the disability.

(3) 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).

The issues to be resolved by hearing include as to 13-095197:

(1) Whether the employee sustained an occupational disease on or about August 1, 2013; and, if so, whether the occupational disease arose out of and in the course of her employment with the employer.

(2) Whether the employee gave notice as required by Section 287.420 .

(3) Whether the alleged accident or incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed in the August 1, 2013, injury.

(4) 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.

(5) Whether the employee sustained any permanent partial occupational disease or permanent total disability as a consequence of the alleged accident of August 1, 2013. If so, what is the nature and extent of the disability and any assessment of disfigurement.

The claimant testified at the hearing in support of her claim. The claimant also presented the testimony of three witnesses - Phillip Eldred, MS, CRC; Judith Gonzalez, Psy.D., PCBHC; and Claimant Telma Merida. The claimant offered the following exhibits, which were admitted into evidence:

Exhibit 1 Medical records of Telma Merida

Exhibit 2 Deposition of Dr. David Volarich (dated 5/25/18)

Exhibit 3 ................................................................................................................CV of Phil Eldred

Exhibit 4 ................................................................................................................... IME report of Phil Eldred (dated 9/12/16)

Exhibit 5 ................................................................................................................... CV of Dr. Judith Gonzalez

Exhibit 6 ................................................................................................................... Report of Dr. Judith Gonzalez

Exhibit 7 ..................Stipulation for Compromise Settlement-Injury No. 00-025800

Exhibit 9 ................................................................................................................ Photo of Ms. Merida's hand with glove

Exhibit 10 ................................................................................................................ Photo of bundle of bags

The employer and insurer presented no live witnesses at the hearing of this case. The employer and insurer offered the following exhibits, which were admitted into evidence:

Exhibit A ............................................ Deposition of Dr. Mark McNemar (dated 1/9/15)

Exhibit B...............................................