Nivian Mazariegos Hernandez v. ** Butterball, LLC

Injury Nos. 17-105883

17-107000

19-056530

Employee: Nivian Mazariegos Hernandez

- 3 -

Order

We modify the award of the administrative law judge only as to the issue of the award of

fees and costs relating to Injury Claim No. 17-105883 pursuant to § 287.560.

The amended temporary award and decision of Administrative Law Judge Karen Fisher,

issued January 13, 2020, is attached hereto and incorporated herein to the extent not

inconsistent with this decision and award.

This award is only temporary or partial. It is subject to further order, and the

proceedings are hereby remanded to the Division of Workers' Compensation to be kept

open until a final award can be made. All parties should be aware of the provisions of

§ 287.510 RSMo.

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

Given at Jefferson City, State of Missouri this 21st day of October 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

SEPARATE OPINION AND DISSENT FILED

Shalonn K. Curls, Member

Attest:

Secretary

Employee: Nivian Mazariegos Hernandez

I concur with the majority's award to the extent that it affirms the administrative law judge's January 13, 2020, Temporary Award after a hardship hearing of the employee's three related claims.

I dissent from the majority's reversal of the administrative law judge's award of attorney's fees and costs against the employer/insurer. As discussed in the award, the employer/insurer's refusal to provide employee with medical care related to her September 19, 2017, work injury recommended by its chosen physicians has put employee's physical condition in peril. "The employee was, and is, continuing to experience unresolved symptomology and severe pain, which has significantly impacted her life."1 Under these circumstances, I would uphold the administrative law judge's decision to penalize employer/insurer by an award of attorney's fees and expenses, prior to the issuance of a final award.

Because the majority finds otherwise, I respectfully dissent.

*Shalonn K. Curls* Shalonn K. Curls, Member

[^0] [^0]: 1 *Award*, p. 26.

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

JANUARY 13, 2020

17-105883 #MATTHEW J BARNHART 8000 MARYLAND AVE STE 550 ST LOUIS, MO 63105

17105883S1WC36100020200113INAT002002

Injury No : 17-105883 Injury Date : 09-19-2017 Insurance No. :

Enclosed is a copy of the Temporary or Partial Award made in the above case.

This award is not a final determination of the issues and the case will be reset to allow an Administrative Law Judge to make a final determination in the case. Any party to the case who feels they are not liable for the payment of any compensation as determined by this award may make an Application for Review of the award 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 the Commission.

DIVISION OF WORKERS' COMPENSATION

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

MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS

MISSOURI DEPARTMENT OF LABOR

WIC-181 (06-15) TEMPORARY AWARD APPROVAL NLP Relay Missouri: 800-735-2966

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

**Employee:** Nivian Mazariegos Hernandez

**Injury No.:** 17-105883

**Injury No.:** 17-107000

**Injury No.:** 19-056530

**Employer:** Butterball, LLC

**Additional Party:** Second Injury Fund

**Insurer:** Ace American Insurance Company, c/o Sedgwick Claims, Management Services, Inc.

**Hearing Date:** August 29, 2019, and September 19, 2019

1. Are any benefits awarded herein? YES

1. Were the injuries compensable under Chapter 287? YES

1. Was there an accident under the Law? YES

1. Date of injury: September 19, 2017/July 15, 2019

1. Location where accident(s) occurred: Carthage, Jasper County, Missouri

1. Was the above employee in employ of above employer at time of alleged accident? YES

1. Did the employer receive proper notice? YES

1. Did the accident arise out of and in the course of the employment? YES

1. Was the claim for compensation filed within time required by Law? YES

1. Was the employer insured by above insurer? YES

1. Describe work employee was doing and how accident occurred:

On September 19, 2017, Employee was engaged in her employment with Butterball, LLC, when her feet became tangled in a rope on the floor, causing her to trip and fall, sustaining injuries to both knees, both legs, both hands, and her back.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

1. Did the accident(s) cause death? NO

Part of body injured in the accident: Employee injured both knees, both legs, both hands, and her back.

1. Nature and extent of any permanent disability: To be determined at a later date

1. Compensation paid to-date for temporary total disability and temporary partial disability: None

1. Value of necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? This issue is being deferred to be determined at a later date.

1. Employee's average weekly wage: 679.58

1. Employee's weekly compensation rate: 453.05 for TTD, TPD and PPD.

1. Method wages computation: by agreement.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

Unpaid medical expenses: Deferred

Unpaid temporary total disability benefits: N/A

Medical aid in the future: Yes, Employer/Insurer are ordered to provide the employee with additional medical care, as may be reasonably required to cure and relieve the employee of the effects of her injuries or disabilities, and which is reasonable, necessary, and causally related to the accident of September 19, 2017.

Costs and Fees: Yes, in the amount of $18,788.85. Employee is entitled to costs, including consideration of attorneys' fees, pursuant to Missouri Revised Statute Section 287.560.

Permanent partial disability: To be determined at a later date

Disfigurement pursuant to Missouri Revised Statute Section 287.560: To be determined at a later date

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

1. Second Injury Fund liability: N/A.

Weeks of permanent partial disability: N/A

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund: N/A

TOTAL: 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 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 claimant:

The Newman Law Firm, LLC

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

Hearing Date: August 29, 2019, and September 19, 2019

On August 29, 2019, and September 19, 2019, the parties appeared before the undersigned administrative law judge for a hardship hearing. The employer/insurer appeared by counsel Paul Larimore on behalf of Butterball, LLC, and Ace American Insurance Company, c/o Sedgwick Claims Management Services, Inc. The Second Injury Fund did not appear. The claimant appeared in person and with her counsel, Jennifer L. Newman. Ms. Lisa Lewis served as the interpreter for the hearing.

The parties stipulated as follows:

1. On or about September 19, 2017, Butterball, LLC, was an employer operating subject to Missouri Workers Compensation Law.
2. The employer's liability was fully insured with Ace American Insurance Company, c/o Sedgwick Claims Management Services, Inc.
3. On the alleged injury date of September 19, 2017, Nivian Mazariegos Hernandez was an employee of Employer.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

(4) The claimant was working subject to Missouri Workers Compensation Law.

(5) On or about September 19, 2017, Claimant sustained an accident, which arose out of the course and scope of employment.

(6) This employment occurred in Carthage, Jasper County. Employer admits the employee's contract of employment was made in Missouri. Venue is proper.

(7) The claimant notified the employer of her injury as required by Sec. 287.420 RSMo.

(8) The Claim for Compensation was filed within the time prescribed by Sec. 287.430, RSMo.

(9) The parties agree that the employee's average weekly wage was 679.58, which yields TTD, TPD, and PPD rates of 453.05.

(10) No Temporary Total Disability (TTD) nor Temporary Partial Disability (TPD) benefits have been paid to the employee.

(11) The employer/insurer have not authorized any medical treatment for the employee. However, at the hardship hearing on August 29, 2019, the employer/insurer stipulated that the accident of September 19, 2017, caused the injury to the employee's back and bilateral knees. The employer/insurer agrees to provide treatment to the employee only for the back and bilateral knees. The employer/insurer continues to dispute causation with regard to any other injured body parts in the September 19, 2017, accident.

(12) The undersigned Administrative Law Judge enters an order in relation to Stipulation #11.

(13) The attorney fee being sought by employee's attorney is 25%.

5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

ISSUES

The issues to be resolved by hearing are as follows:

1. Whether the employee has sustained injuries to her bilateral hands as a result of the traumatic accident on September 19, 2017, or as a result of repetitive trauma with a date of injury of July 15, 2019, and whether there is medical causation to support an injury to the employee's bilateral hands for the September 19, 2017, accident/injury, that will require ongoing or future medical care in order to cure and relieve the employee of the effects of the work injuries;

1. Whether the employer/insurer are defending this claim on an unreasonable ground and are responsible for paying for the employee's attorneys' fees and expenses in prosecuting this claim and pursuing this hardship hearing pursuant to Missouri Revised State Section 287.560.

EVIDENCE PRESENTED

The employee testified at the hearing in support of her claim. In addition, the employee offered for admission the following exhibits:

1. Deposition of Dr. Ted Lennard dated August 21, 2019 (includes report dated October 18, 2018, Manzer Family Medicine progress notes, and Butterball, LLC, Nursing progress notes).

1. Filing of Complete Medical Report of Dr. Ted Lennard Pursuant to Missouri Revised Statute Section 287.210.7.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

1. Motion for Costs and Fees Pursuant to Missouri Revised Statute Section 287.560

1. Recitation of Attorney Time for Consideration of Attorneys' fees

1. Detailed Itemization of Attorney Time and Expenses (offered at the continuation of the hardship hearing on September 19, 2019, during the testimony from Jennifer Newman and her designated counsel, John Newman).

The employee's exhibits were received and admitted into evidence.

No one testified at the hearing on behalf of the employer/insurer. The employer/insurer offered for admission the following exhibits:

Exhibit A....Deposition of Dr. Shawn Kutnik dated August 23, 2019

The employer/insurer's exhibit was received and admitted into evidence.

The Second Injury Fund was not present at this hardship hearing.

FINDINGS AND CONCLUSIONS

Background:

The employee, Nivian Mazariegos Hernandez, is 52 years old, having been born on November 11, 1966. The employee testified live at the hearing through a Spanish-speaking interpreter.

On September 19, 2017, the employee was working for Butterball, LLC, (hereinafter "Butterball") in the hamburger department for Employer. Ms. Mazariegos began working for Butterball on July 24, 1996, and has been employed there for more than 23 years.

When the employee hired on with Butterball in July, 1996, she worked in the evisceration department ("Evis"). Her job duties in evis consisted of using pressure and

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

scissors to cut and remove skin from the stomachs of turkeys and to cut gizzards. The employee testified that she would cut and remove skin from 30 to 35 gizzards a minute while working in the evis department. The employee worked from 10:00 p.m. to 8:00 a.m. During the ten-hour shifts, the employee received two 30-minute breaks and one 12-minute break. The employee worked from 10:00 p.m. to 8:00 a.m. five days each week in the evis department. She worked in the evis department for approximately one year before she was moved to the bone-outs department.

In the bone-outs department, the employee used a knife to cut turkey breasts. Her job duties in bone-outs also required the employee to remove fatty tissue, veins, and bones from the turkeys. The employee testified that she used a knife cut 30 to 35 turkey breasts per minute in the bone-outs department. While working in the area to remove veins, the employee cut out approximately 30 turkey veins per minute. The employee also worked a ten-hour shift in the bone-outs department. As with the evis department, she received two 30-minute breaks and one 12-minute break during her ten-hour shifts in bone-outs. The employee worked in the bone-outs department five days a week and also worked on Saturdays as needed. The employee worked in the bone-outs department for somewhere between 15 and 16 years.

After the bone-outs department, the employee worked in the hamburger department for Employer. The employee was working in the hamburger department at the time of her work injury on September 19, 2017. The employee worked a ten-hour shift in the hamburger department and worked from 6:00 a.m. to 6:00 p.m. The employee worked this ten-hour shift six days a week in the hamburger department. She

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

received two 30-minute breaks and one 15-minute break while working in the hamburger department. She worked in the hamburger department for approximately two years.

There were four different areas/job stations in the hamburger department. The first area was working with the hamburgers. The employee's job responsibilities with the hamburgers included: (1) stacking hamburger patties, (2) grabbing hamburgers to stack in piles of three hamburgers or five hamburgers, and (3) placing all hamburger stacks in holes on a machine on a line. The employee testified that she stacked approximately 40 hamburgers each minute with her hands. The employee worked in this first area with hamburgers for 2 1/2 hours before rotating to the second job station.

The second station in the hamburger department involved working with sausages. In this second rotation, all sausages pass through on a moving line. The employee was responsible for removing all bad parts of the sausages with her hands. When she would remove the bad parts from the sausages, the employee would place the removed parts in a container. The employee testified that she removed approximately 42 bad parts from sausages per minute in this area. The employee worked in this second rotation for 2 1/2 hours before moving the third rotation.

The third station of the hamburger department also involved working with sausages. In this station, the bags of sausages are sent up a conveyor belt and fall into a bag. The employee is responsible for catching the falling bags of sausages off the conveyor belt. The employee was responsible for pulling the bag with her hands to lower the bag down off the conveyor belt to weigh the bag. There are 64 to 66 sausages in each bag. The employees weigh the bags of sausages, which weigh between 5 and 15 pounds.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

The employee lifts the bag after weighing it and places each bag back on a conveyor belt for the bag to be sealed. The employee testified that she grabs and lifts approximately 33 bags each minute in this rotation area. The employee worked in this station for 2 ½ hours before rotating to the fourth station.

The fourth station in the hamburger department is the packing area. The employee's job responsibilities in the packing station include: (1) checking dates, (2) packing all products, (3) checking to ensure that all bags are properly sealed, (4) repackaging products that are not packaged and/or properly sealed, (5) placing every two sausage bags in a box, (6) taking the boxes to a machine that tapes and seals the boxes, and (7) pushing the boxes down the line on the conveyor belt. The employee testified that she would keep a roll of stickers around her arm, as she was required to put stickers on boxes to be used in dating products and ensuring quality control. The employee testified that she checked 25 sausage bags each minute. She worked in this rotation 2 ½ hours before rotating back to the first station in the hamburger department.

The employee testified that she did repetitive work with her hands while working in the hamburger department. She stacked hamburgers, grabbed hamburgers, removed bad parts from sausages with her hands, placed bad parts in a container with her hands, caught bags of sausages falling off the conveyor belt with her arms and hands, pulled bags of sausages off the conveyor belt with her hands, reached and grabbed for bags of sausages, lifted bags of sausages with her hands for checking dates, packing, sealing, etc., placed bags of sausages in boxes with her hands, lifted boxes filled with bags of sausages and placed them on a conveyor belt with her hands, lifted boxes and carried them with her hands to a machine to be taped and sealed and then placed the boxes on a conveyor.

10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

belt with her hands, and pushed boxes of meat down the line while working in all four stations/areas of the hamburger department.

On September 19, 2017, the employee was working in the packing area with sausages in the hamburger department. The employee was sealing bad bags of sausages. She testified that on the date she was injured, there were a lot of sausage bags that were coming down the conveyor belt with holes in them. She was walking to the area to remedy the packing with the holes in sausage bags. While walking and carrying several bags of sausages, her feet became entangled in a rope used to tie boxes that were on the floor. She tripped and fell. She reached her hands out to try to catch herself and hit both knees and her back on the way down. She testified "my whole body went down." She landed on cement flooring. She testified that her hands hit first, and she injured both hands, her back, both hips, and both knees in the fall on September 19, 2017. The employee had not received any treatment and had not sustained any injuries to her hands, back, hips, or knees prior to the work injury on September 19, 2017.

The employee testified that she was not able to get up on her own. She required help to get up. David Aguilar and another gentleman named Jose helped her get up. She immediately reported her injury to Eric. Eric is the employee's supervisor. Eric took the employee to the company nurse to be treated for the fall.

As required by Missouri law, the employee notified her employer of her injury on September 19, 2017. The employer completed an internal Incident Report on September 19, 2017. (See Report of Injury-Employee Statement attached as Exhibit 1 to Employee's Hearing Exhibit 3.) This internal Incident Report was signed by the employee and nine supervisors/management personnel with the employer. The

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

signatures for the employer include: (1) the employee's supervisor, (2) Superintendent, (3) Maintenance, (4) a representative of the Safety Committee, (5) the Safety Supervisor, (6) Operations Manager, (7) a representative of the Safety Department Review, (8) a representative of the Complex Manager Review, and (9) an Emergency Medical Technician (EMT). Nearly everyone who signed the Incident Report signed it on September 19, 2017, the date of the employee's injury. Page 2 of the Incident Report notes that the employee was not doing anything other than her required job duties at the time of the accident. Page 3 of the Incident Report notes that with regard to the accident cause analysis, there were hazards at the location, including, but not limited to: poor layout, congestion, insufficient space for storage, poor lighting, etc. and that there was poor housekeeping, such as improper piling or placing, clutter, spillage or breakage.

The employer completed an internal incident report with regard to the employee's work injury of September 19, 2017. However, the employer never filed a Report of Injury with the Division of Workers' Compensation as required by Missouri law. Despite the employer completing an internal incident report on the date of the employee's injury and that nine supervisors/managers signed the report, the employer/insurer denied the employee had sustained a compensable work injury and filed Answers and Amended Answers denying the employee's claim. The employer/insurer have maintained a notice defense in this claim and have alleged that the employee did not report her work injuries of September 19, 2017, up until the date of the hearing, at which time they stipulated to this fact.

The employer provided the employee with minimal treatment from on-site nurses and a visiting doctor that visited the plant every two to four weeks. However, the

12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

employer/insurer did not send the employee for an evaluation, despite the employee's request that they do so. During the time the employee requested medical treatment, there are 43 entries in the Butterball Nursing Progress Notes in an approximately seven-month period where the employee sought medical treatment with the nursing staff with the employer for her work injuries of September 19, 2017. (See Butterball Nursing Progress Notes attached as Exhibit 6 to Employee's Hearing Exhibit 3.)

There is an entry dated May 21, 2018, where the employee presented to the nurse's station for treatment for her back injuries of September 19, 2017. The note states: "Asking about the dr. Advised her she was on the list." (See p. 3 of Exhibit 6 to Employee's Hearing Exhibit 3.) However, as of the date of the employee's hardship hearing on August 29, 2019, nearly two years after the employee's work injury, the employer/insurer did not and had not authorized medical treatment for the employee's work injuries of September 19, 2017.

Following her injury, the employee's pain worsened, and the employee was forced to seek medical treatment on her own, at her own expense, after the employer/insurer denied her multiple requests for medical treatment. Approximately three months after her fall, the employee sought medical treatment with Dr. Manzer in Carthage. The employee's medical treatment with Dr. Manzer consisted of x-rays of the lumbar spine, steroid injections, and pain prescriptions. Dr. Manzer recommended that the employee file a workers' compensation claim in order to receive further treatment.

The employee continues to be employed at Butterball. However, after her work injury of September 19, 2017, the employee returned to the bone-outs department. The

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

bone-outs department does not require as much walking and is less strenuous work than the hamburger department.

The employee testified that she continues to experience ongoing significant pain and discomfort in her hands, back, knees, and hips. The employee testified that she has difficulty sleeping due to the pain that she experiences from the work injury of September 19, 2017. With regard to her hands, it was the employee's testimony that her hands hurt all the time, and her hands are numb all day. Her hands go to sleep. The employee continues to experience swelling in both wrists. She has difficulty grasping objects. She testified that she does not have a lot of strength in her hands and she drops things easily. The employee experiences pain into her forearms. She continues to work and perform her job duties despite the continued pain and symptoms that she experiences in her hands.

The employee also continues to experience pain in her back and knees. The employer/insurer stipulated at the hardship hearing that they would provide the employee with medical treatment for her back and knees. However, as of the date of the hardship hearing on August 29, 2019, the employer/insurer had not provided the employee with treatment for her back and knees, and they had not scheduled any evaluations for the employee.

The employee had received no medical treatment and had sustained no injuries to her hands, back, knees and hips prior to the work injury of September 19, 2017. The employee testified that she is in need of medical treatment and wants to receive the treatment that has been recommended for her by Dr. Lennard.

14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

On October 18, 2018, Dr. Ted Lennard evaluated the employee. At that time the employee had complaints of constant low back pain radiating into her bilateral thighs, into the anterior legs, and dissipating at the bilateral ankles. This was described as a sharp and stabbing pain. Aggravating factors included bending at the waist, sitting longer than 15 minutes, standing in one position longer than one hour, and ambulating stairs. Alleviating factors included changing positions and local steroid injections. Bending at the waist caused the employee's pain to be most severe. The employee reported a constant dull aching pain in both knees with popping and clicking when walking or bending her knees. The employee reported that her knees swell after standing on her feet at work. The employee received steroid injections to her bilateral knees in her treatment with Dr. Manzer. (See Dr. Lennard's report dated October 18, 2018, attached to Employee's Hearing Exhibit 1.)

Dr. Lennard opined that the employee's work accident of September 19, 2017, was the prevailing factor in the onset of her low back and bilateral knee injuries. Dr. Lennard also opined that the employee's bilateral hand numbness, likely bilateral carpal tunnel syndrome, was caused by the direct trauma to her bilateral wrists. (See record of Dr. Lennard dated October 18, 2018, attached as Employee's Hearing Exhibit 1.) Dr. Lennard opined that the employee had no preexisting problems with her low back, hands, or knees. (See record of Dr. Lennard dated October 18, 2018, attached as Employee's Hearing Exhibit 1.)

15

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

It was Dr. Lennard's opinion that the employee had not achieved maximum medical improvement. Dr. Lennard recommended MR imaging of the lumbar spine and both knees. Dr. Lennard also recommended physical therapy directed at her knees and low back. Dr. Lennard opined that depending on the employee's response to physical therapy and the results of the imaging studies, the employee may require additional medical treatment. With regard to the bilateral hands, Dr. Lennard noted the employee had a positive Phalen's test and recommended the employee undergo EMG/NCS of both upper extremities. The employee may require additional treatment based on the findings of this study. (See the record of Dr. Lennard dated October 18, 2018, attached as an exhibit to Employee's Hearing Exhibit 1.)

The employer/insurer maintained their denial of this claim and did not approve the treatment that Dr. Lennard recommended following his evaluation on October 18, 2018. Despite completing an internal Incident Report on September 19, 2017, the date of the employee's injury, the employer/insurer did not send the employee for an evaluation until nearly two years after her work injury.

Dr. Shawn Kutnik

On August 14, 2019, Dr. Shawn Kutnik evaluated the employee for the employer/insurer. The evaluation with Dr. Kutnik occurred nearly two years after the employee's work injury of September 19, 2017.

At the August 14, 2019, evaluation with Dr. Kutnik, the employee reported symptomology in her hands, fingers, back, and both knees. Dr. Kutnik recorded that the employee had an immediate onset of symptoms to her hands after the fall of

16

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

September 19, 2017, and this is confirmed in the employee's deposition and the examination of Dr. Lennard.

Dr. Kutnik concluded that the current diagnosis for the employee's hands is unknown. As Dr. Kutnik does not relate a specific diagnosis to the employee's hands, he is not able to opine with regard to prevailing factor. Dr. Lennard testified in his deposition of August 21, 2019, that the report of Dr. Kutnik did not change his opinions. (See Employee's Hearing Exhibit 1, p. 23.)

To date the employer/insurer have not approved any treatment for the employee's injuries of September 19, 2017. Dr. Lennard recommended medical treatment for the employee's back and knees. It has been more than one year since Dr. Lennard recommended MRI scans of the lumbar spine and both knees, physical therapy for the knees and low back, and an EMG/NCS of the upper extremities. To date the employer/insurer have not approved, nor have they scheduled the (1) MRI scans of the lumbar spine and knees, (2) physical therapy, nor (3) an EMG/NCS of the upper extremities.

ISSUE 1: WHETHER THERE IS MEDICAL CAUSATION TO SUPPORT THAT THE EMPLOYEE HAS SUSTAINED INJURIES TO HER BLATERAL HANDS FROM THE ACCIDENT OF SEPTEMBER 19, 2017, THAT REQUIRE ONGOING OR FUTURE MEDICAL CARE IN ORDER TO CURE AND RELIEVE THE EMPLOYEE OF THE EFFECTS OF THE WORK INJURIES

The employee sustained a work injury on September 19, 2017. Dr. Lennard opined that the employee requires additional medical treatment for her work injuries of September 19, 2017.

Ms. Mazariegos testified live at trial. I find that all of the testimony from the employee was credible. The medical records were also introduced into evidence.

17

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

Dr. Lennard testified by deposition. As to the extent that Drs. Lennard and Kutnik have differing opinions, I find the testimony of Dr. Lennard more credible. Therefore, based upon the testimony of Dr. Lennard, there is substantial and competent evidence that the employer/insurer are responsible for providing future medical care for the employee to help alleviate the effects of the work injuries.

Dr. Lennard opined that the employee requires ongoing and future medical care for her work injuries of September 19, 2017. Therefore, I order that Ms. Mazariegos shall have the treatment prescribed by Dr. Lennard, which shall include

(1) MR imaging of the lumbar spine and both knees,

(2) physical therapy directed at the knees and low back,

(3) and an EMG/NCS of both upper extremities.

ISSUE 2: WHETHER THE EMPLOYER IS DEFENDING THIS CLAIM ON AN UNREASONABLE GROUND AND IS RESPONSIBLE FOR PAYING FOR EMPLOYEE'S ATTORNEYS' FEES AND EXPENSES INCURRED IN THE PROSECUTION OF THIS CLAIM AND PURSUING THIS HARDSHIP HEARING PURSUANT TO MISSOURI REVISED STATUTE SECTION 287.560

On September 19, 2017, Ms. Nivian Mazariegos Hernandez was engaged in her employment in the hamburger department with Butterball and sustained an injury when her feet became tangled in a rope on the floor, causing her to trip and fall. She fell forward on her hands and knees. The employee experienced an immediate onset of pain in both knees and later in the day developed pain in her back and both legs. She also injured both hands in the fall.

It is significant to note that not until the day of the hearing did Employer/Insurer stipulate that the employee notified her employer of her injury on September 19, 2017, as

18

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

required by law. The employer had completed an internal Incident Report on September 19, 2017. (See internal Incident Report attached as Exhibit 1 to Employee's Hearing Exhibit 3.) This internal Incident Report was signed by the employee and nine supervisors/management personnel with the employer. The signatures for the employer include: (1) the employee's supervisor, (2) Superintendent, (3) Maintenance, (4) a representative of the Safety Committee, (5) the Safety Supervisor, (6) Operations Manager, (7) a representative of the Safety Department Review, and (8) a representative of the Complex Manager Review, and (9) an Emergency Medical Technician (EMT).

The employee filed a Claim for Compensation on August 17, 2018. (See Claim for Compensation in Legal File and attached as Exhibit 2 to Employee's Hearing Exhibit 3.) The employer/insurer filed an Answer on September 21, 2018, denying (1) that the employee sustained an injury arising out of and in the course and scope of her employment on the date of her injury. (See Answer of employer/insurer in Legal File and attached as Exhibit 3 to Employee's Hearing Exhibit 3.)

The employer/insurer did not timely file an answer to the Claim for Compensation, as the Answer was filed more than 30 days after the Claim for Compensation. Therefore, the facts alleged in the employee's Claim for Compensation are deemed admitted. The employer/insurer denied the employee's claim based on a notice defense and advised this Court accordingly at scheduled Pre-Hearing Conferences in this claim.

The employee filed an Amended Claim for Compensation on November 20, 2018. (See Amended Claim for Compensation in Legal File and attached as Exhibit 4 to Employee's Hearing Exhibit 3.) The employer/insurer filed an amended Answer on

19

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

December 18, 2018, and continued to deny the claim and denied that they received notice of the employee's work injury. (See Amended Answer of employer/insurer in the Legal File and attached as Exhibit 5 to Employee's Hearing Exhibit 3.)

While the employer completed an internal Incident Report signed by nine representatives in management with the employer on September 19, 2017, the employer/insurer have not filed an Amended Claim to reflect that they received notice on the date of the employee's injury, as referenced on their own documentation. (See internal Incident Report attached as Exhibit 1 to Employee's Hearing Exhibit 3.)

Despite completing an internal Incident Report on September 19, 2017, the employer/insurer never filed a Report of Injury with the Missouri Division of Workers' Compensation, as required by Missouri Revised Statute Section. (See Legal file.)

Missouri Revised Statute Section 287.380 (1) provides, in part:

Every employer or his insurer in this state, whether he has accepted or rejected the provisions of this chapter, shall within thirty days after knowledge of the injury, file with the division under such rules and regulations and in such form and detail as the division may require, a full and complete report of every injury or death to any employee for which the employer would be liable to furnish medical aid, other than immediate first aid which does not result in further medical treatment or lost time from work, or compensation hereunder had he accepted this chapter, and every employer or insurer shall also furnish the division with such supplemental reports in regard thereto as the division shall require. Employers shall report all injuries to their insurance carrier, or third-party administrators, if applicable, within five days of the date of the injury or within five days of the date on which the injury was reported to the employer by the employee, whichever is later. Where an employer reports injuries covered pursuant to this chapter to his insurer or third-party administrator, the insurer

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

or third-party administrator shall be responsible for filing the report prescribed in this section.

The employer/insurer did not comply with Missouri Revised Statute Section 287.380 (1) and thereby violated Missouri law.

The employee requested medical treatment on numerous occasions from the employer. The employer provided the employee with minimal treatment from on-site nurses and a visiting doctor that visits the plant every two to four weeks. However, the employer/insurer did not send the employee for an evaluation for nearly two years after her work injury, despite the employee's request that they do so.

During the time the employee requested medical treatment, there are 43 entries in the Butterball Nursing Progress Notes in an approximately seven-month period where the employee sought medical treatment with the nursing staff with the employer for her work injuries of September 19, 2017. (See Butterball Nursing Progress Notes attached as Exhibit 6 to Employee's Hearing Exhibit 3.) There is an entry dated May 21, 2018, where the employee presented to the nurse's station for treatment for her back injuries of September 19, 2017. The note states: "Asking about the dr. Advised her she was on the list." (See p. 3 of Exhibit 6 attached to Employee's Hearing Exhibit 3.) However, the employer/insurer did not and has not, to date, authorized medical treatment for the employee's work injuries of September 19, 2017.

After the employer/insurer denied her multiple requests for medical treatment, the employee was forced to seek medical treatment on her own, at her own expense. Dr. Manzer advised the employee to file a workers' compensation claim.

Upon hiring an attorney to file her claim, the claimant was set up to see

21

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

Dr. Ted Lennard about her work injuries. The cost of this evaluation with Dr. Lennard was $1,500.00.

Dr. Lennard opined that the employee's work accident of September 19, 2017, was the prevailing factor in the onset of her low back, bilateral knee, and bilateral hand injuries. Dr. Lennard recommended treatment the employee required to cure and relieve the effects of these work injuries. The employee sent a copy of Dr. Lennard's report and a demand for treatment on January 4, 2019. (See Exhibit 7 attached to Employee's Hearing Exhibit 3.)

The employer/insurer did not approve the treatment that Dr. Lennard recommended. Finally, the employer/insurer had the claimant evaluated with Dr. Kutnik on August 14, 2019. Despite completing an internal Incident Report on September 19, 2017, the date of the employee's injury and a demand for treatment by employee. The employer/insurer did not send the employee for any evaluation until nearly two years after her work injury.

At the August 14, 2019, evaluation with Dr. Shawn Kutnik, the employee reported symptomology in her hands, fingers, back, and both knees to Dr. Kutnik. Dr. Kutnik recorded that the employee had an immediate onset of symptoms to her hands after the fall of September 19, 2017, and this is confirmed in the employee's deposition and the examination of Dr. Lennard.

Dr. Kutnik concluded that the current diagnosis for the employee's hands is unknown. As Dr. Kutnik does not relate a specific diagnosis to the employee's hands, he is not able to opine with regard to prevailing factor. Dr. Lennard testified in his

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

deposition of August 21, 2019, that the report of Dr. Kutnik did not change his opinions.

(See Employee's Hearing Exhibit 1, p. 23.)

To date the employer/insurer have not approved any treatment for the employee's injuries of September 19, 2017. Dr. Lennard recommended medical treatment for the employee's back and knees.

It has been more than one year since Dr. Lennard recommended MRI scans of the lumbar spine and both knees, physical therapy for the knees and low back, and an EMG/NCS of the upper extremities. To date the employer/insurer have not approved, nor have they scheduled the (1) MRI scans of the lumbar spine and knees, (2) physical therapy, or (3) EMG/NCS of the upper extremities.

Missouri Revised Statute §287.560 provides, in part, that:

If the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them.

The employer/insurer denied this claim and denied the employee medical treatment. Despite receiving notice on September 19, 2017, the date of the employee's injury, the employer/insurer alleged a notice defense until a hardship hearing was scheduled in 2019. The employee continued to seek treatment at the nurse's station at the employer's facility on a nearly daily basis for her work injuries and also received medical treatment with the visiting company doctor. The employee continued to request medical treatment from the employer. However, the employer/insurer refused to provide the employee with medical treatment for her work injuries of September 19, 2017, and, to

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

date, have not provided the employee with any authorized medical treatment for her work injuries.

Despite a notation being made in the Nursing Progress Notes on May 21, 2018, that the employer had placed the employee on a "list" to see a doctor, she was never referred for medical treatment for her work injury of September 19, 2017. (See p. 3 of Employee's Exhibit 6 attached to Employee's Hearing Exhibit 3.)

Dr. Lennard recommended treatment for the employee on October 18, 2018, and found her fall at work to be the prevailing factor in causing her need for treatment for her back, both hands, and both knees. (See Employee's Hearing Exhibit 1.) The employer/insurer did not authorize the treatment that Dr. Lennard recommended and continued to maintain a notice defense.

The additional treatment the employee requires and the treatment that Dr. Lennard recommended is necessary to cure and relieve the effects of the employee's work injuries. Therefore, the employer/insurer are defending this claim upon an unreasonable ground pursuant to Sec. 287.560.

The employee incurred 1,500.00 in obtaining their IME with Dr. Lennard and 130.00 for interpretation services for the employee's IME with Dr. Lennard. The employee incurred 171.00 in court reporting fees for the employee's deposition and 99.95 for court reporting fees for Dr. Lennard's deposition, while the employer/insurer continued to maintain a notice defense in this claim. The employee incurred $87.90 in court reporting fees for Dr. Kutnik's deposition while the employee continued to wait for the employer/insurer to approve medical treatment for the employee. These were fees that the employee would not have incurred had the employer/insurer approved the

24

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

medical treatment necessary to cure and relieve the effects of the employee's work injuries.

The counsel for employer/insurer deposed employee's counsel and her designated attorney and law partner, John Newman, on September 19, 2019. The employee's counsel claimed 42 hours in prosecuting this claim only with regard to the issue of medical treatment at the time of the hardship hearing on August 29, 2019. At $400.00/hour, the employee's counsel has $16,800.00 in prosecuting this claim to try to obtain medical treatment for the employee that all physicians are commending. These 42 hours do not include the length of the hardship hearing. Counsel for the employer/insurer requested additional documentation with regard to attorney recitation of time in this claim at the deposition of employee's counsel on September 19, 2019. Upon employee's counsel providing counsel for the employer/insurer with this requested documentation, employee's counsel had in excess of 42 hours of time spent in prosecuting this claim with regard to the issue of medical treatment. While employee's counsel proved that they had far more than 42 hours of time in prosecuting the treatment issue, employee's counsel continues to claim only the 42 hours of time submitted at the hardship hearing.

The employer/insurer affirmatively delayed and refused to proceed with authorizing medical treatment for the employee's work injuries of September 19, 2017. The employer/insurer did not send the employee for any evaluation for medical treatment until nearly two years after her work injury.

The denial or lack of authorization for the medical treatment was without support of any medical opinion. Additionally, it is noted that Dr. Lennard, who performed an

25

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

IME for the employee, opined that the work accident of September 19, 2017, involved a compensable injury, for which the employee required medical care. Dr. Lennard opined that the employee requires medical treatment in order to cure and relieve the effects of the work injuries. The only evidence is that the employee requires treatment.

In having sufficiently failed or neglected to provide Ms. Mazariegos with medical care for her work injury of September 19, 2017, the employer/insurer's defense in this case caused the employee to seek legal counsel. The defenses and positions of the employer/insurer prevented the employee from receiving timely and appropriate medical care. This required the employee to incur expenses to prosecute this case, including securing an attorney, obtaining an IME, and preparing for trial.

The actions of the employer/insurer in defending this claim have compromised Ms. Mazariegos' health. Dr. Lennard opined that the work accident of September 19, 2017, is the prevailing factor in causing the employee's injuries and necessitating the medical care Ms. Mazariegos received and continues to need to cure and relieve the effects of her work injuries. Dr. Lennard also opined that the work accident of September 19, 2017, is the prevailing factor in causing the employee's injuries and necessitating the medical care that Ms. Mazariegos requires to cure and relieve the effects of her work injuries.

The subsequent refusal of the employer/insurer to provide the employee with medical care put Ms. Mazariegos' physical condition in peril. The employee was, and is, continuing to experience unresolved symptomology and severe pain, which has significantly impacted her life.

26

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

The employee filed a Motion for Costs and Fees Pursuant to Missouri Revised Statute Section 287.560. (See Employee's Hearing Exhibit 3.) The employee presented evidence of attorney time incurred in prosecuting this claim. (See Employee's Hearing Exhibit 4 and transcript from the deposition/hearing testimony of Employee's counsel on September 19, 2019.) The employee has requested that the attorney time submitted be considered for awarding attorneys' fees and that the employee is awarded reimbursement of their incurred expenses of totaling $1,858.85 for obtaining an IME with Dr. Lennard and incurring the costs of the depositions of Dr. Lennard, Dr. Kutnik, and the employee, as this was necessary medical evidence for the hardship hearing after the employer/insurer would not approve the recommended treatment for the employee.

The employer received notice of the employee's work injury on the date she was injured. The employer completed an internal Incident Report on September 19, 2017. (See Report of Injury-Employee Statement attached as Exhibit 1 to Employee's Hearing Exhibit 3.) This internal Incident Report was signed by the employee and nine supervisors/management personnel with the employer. Despite completing an internal incident report, the employer/insurer continued to maintain a notice defense until the hardship hearing on August 29, 2019.

The employer/insurer presented no evidence as to why they maintained a denial in this claim and delayed in sending the employee for any evaluation until nearly two years after the work injury. I find the inaction of the employer/insurer to authorize the treatment being recommended by their own chosen physicians to be egregious. The employee's health is in peril, and she has continued to suffer while the employer/insurer maintained a baseless notice defense.

27

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

Accordingly, after consideration and review of the evidence, I find and conclude that the employer/insurer in the September 19, 2017, claim defended the Claim for Compensation without reasonable ground, as set forth in Missouri Revised Statute Section 287.560. This statute allows costs, including attorneys' fees, to be assessed against a party if the party brings, prosecutes, or defends a Claim for Compensation without reasonable ground. *Laura Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240 (Mo. 2003). I find and conclude that there is substantial and competent evidence to award attorneys' fees' and costs in the amount of $18,788.85. The calculation of attorney' fees is based on 42 hours at an hourly rate of $400.00. In the event that it is not proper for an administrative law judge to award attorneys' fees and costs at a hardship hearing, then I find that the employer/insurer has defended this claim on unreasonable grounds and that while the employee is entitled to attorneys' fees and costs, it is most appropriate to award attorneys' fees and costs in the final hearing in this claim.

Claimant's attorney, Newman Law Firm, LLC, is awarded an attorney fee of 25%, which shall be a lien on the proceeds until paid. Interest shall be paid as provided by law.

Date: ______________________

Made by: ______________________

Karen Fisher

Administrative Law Judge

Division of Workers' Compensation

I certify that on 1-13-20, 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 ______________________


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

JANUARY 13, 2020

17-107000

8000 MARYLAND AVE STE 550 ST LOUIS, MO 63105

*Employee : NIVIAN MAZARIEGOS HERNANDEZ 08777329 1 1211 PINE ST CARTHAGE, MO 64836*Employer : BUTTERHALL 08777330 7 411 N MAIN ST CARTHAGE, MO 64836 #Employee Attorney: JENNIFER L NEWMAN 415 A E CHESTNUT EXPY SPRINGFIELD, MO 65802 *Insurer : ACE AMERICAN INSURANCE CO 08777331 4 c/o SEDGWICK CLAIMS MANAGEMENT SER PO BOX 14562 LEXINGTON, KY 40512

Enclosed is a copy of the Temporary or Partial Award made in the above case.

This award is not a final determination of the issues and the case will be reset to allow an Administrative Law Judge to make a final determination in the case. Any party to the case who feels they are not liable for the payment of any compensation as determined by this award may make an Application for Review of the award 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 the 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.*

WC-181 (06-15) TEMPORARY AWARD APPROVAL BLD Relay Missouri: 800-735-2966

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

**Employee:**

- Nivian Mazariegos Hernandez

- Injury No.: 17-105883

- Injury No.: 17-107000

- Injury No.: 19-056530

**Employer:** Butterball, LLC

**Additional Party:** Second Injury Fund

**Insurer:** Ace American Insurance Company, c/o Sedgwick Claims, Management Services, Inc.

**Hearing Date:** August 29, 2019, and September 19, 2019

1. Are any benefits awarded herein? YES

1. Were the injuries compensable under Chapter 287? YES

1. Was there an accident under the Law? YES

1. Date of injury: September 19, 2017/July 15, 2019

1. Location where accident(s) occurred: Carthage, Jasper County, Missouri

1. Was the above employee in employ of above employer at time of alleged accident? YES

1. Did the employer receive proper notice? YES

1. Did the accident arise out of and in the course of the employment? YES

1. Was the claim for compensation filed within time required by Law? YES

1. Was the employer insured by above insurer? YES

1. Describe work employee was doing and how accident occurred:

On September 19, 2017, Employee was engaged in her employment with Butterball, LLC, when her feet became tangled in a rope on the floor, causing her to trip and fall, sustaining injuries to both knees, both legs, both hands, and her back.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

1. Did the accident(s) cause death? NO

Part of body injured in the accident: Employee injured both knees, both legs, both hands, and her back.

1. Nature and extent of any permanent disability: To be determined at a later date

1. Compensation paid to-date for temporary total disability and temporary partial disability: None

1. Value of necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? This issue is being deferred to be determined at a later date.

1. Employee's average weekly wage: 679.58

1. Employee's weekly compensation rate: 453.05 for TTD, TPD and PPD.

1. Method wages computation: by agreement.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

Unpaid medical expenses: Deferred

Unpaid temporary total disability benefits: N/A

Medical aid in the future: Yes, Employer/Insurer are ordered to provide the employee with additional medical care, as may be reasonably required to cure and relieve the employee of the effects of her injuries or disabilities, and which is reasonable, necessary, and causally related to the accident of September 19, 2017.

Costs and Fees: Yes, in the amount of $18,788.85. Employee is entitled to costs, including consideration of attorneys' fees, pursuant to Missouri Revised Statute Section 287.560.

Permanent partial disability: To be determined at a later date

Disfigurement pursuant to Missouri Revised Statute Section 287.560: To be determined at a later date

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

1. Second Injury Fund liability: N/A.

Weeks of permanent partial disability: N/A

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund: N/A

TOTAL: 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 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 claimant:

The Newman Law Firm, LLC

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

Employer: Butterball, LLC

Additional Party: Second Injury Fund

Insurer: Ace American Insurance Company, c/o Sedgwick Claims, Management Services, Inc.

Hearing Date: August 29, 2019, and September 19, 2019

On August 29, 2019, and September 19, 2019, the parties appeared before the undersigned administrative law judge for a hardship hearing. The employer/insurer appeared by counsel Paul Larimore on behalf of Butterball, LLC, and Ace American Insurance Company, c/o Sedgwick Claims Management Services, Inc. The Second Injury Fund did not appear. The claimant appeared in person and with her counsel, Jennifer L. Newman. Ms. Lisa Lewis served as the interpreter for the hearing.

The parties stipulated as follows:

1. On or about September 19, 2017, Butterball, LLC, was an employer operating subject to Missouri Workers Compensation Law.
2. The employer's liability was fully insured with Ace American Insurance Company, c/o Sedgwick Claims Management Services, Inc.
3. On the alleged injury date of September 19, 2017, Nivian Mazariegos Hernandez was an employee of Employer.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

(4) The claimant was working subject to Missouri Workers Compensation Law.

(5) On or about September 19, 2017, Claimant sustained an accident, which arose out of the course and scope of employment.

(6) This employment occurred in Carthage, Jasper County. Employer admits the employee's contract of employment was made in Missouri. Venue is proper.

(7) The claimant notified the employer of her injury as required by Sec. 287.420 RSMo.

(8) The Claim for Compensation was filed within the time prescribed by Sec. 287.430, RSMo.

(9) The parties agree that the employee's average weekly wage was 679.58, which yields TTD, TPD, and PPD rates of 453.05.

(10) No Temporary Total Disability (TTD) nor Temporary Partial Disability (TPD) benefits have been paid to the employee.

(11) The employer/insurer have not authorized any medical treatment for the employee. However, at the hardship hearing on August 29, 2019, the employer/insurer stipulated that the accident of September 19, 2017, caused the injury to the employee's back and bilateral knees. The employer/insurer agrees to provide treatment to the employee only for the back and bilateral knees. The employer/insurer continues to dispute causation with regard to any other injured body parts in the September 19, 2017, accident.

(12) The undersigned Administrative Law Judge enters an order in relation to Stipulation #11.

(13) The attorney fee being sought by employee's attorney is 25%.

5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

The issues to be resolved by hearing are as follows:

1. Whether the employee has sustained injuries to her bilateral hands as a result of the traumatic accident on September 19, 2017, or as a result of repetitive trauma with a date of injury of July 15, 2019, and whether there is medical causation to support an injury to the employee's bilateral hands for the September 19, 2017, accident/injury, that will require ongoing or future medical care in order to cure and relieve the employee of the effects of the work injuries;

1. Whether the employer/insurer are defending this claim on an unreasonable ground and are responsible for paying for the employee's attorneys' fees and expenses in prosecuting this claim and pursuing this hardship hearing pursuant to Missouri Revised State Section 287.560.

The employee testified at the hearing in support of her claim. In addition, the employee offered for admission the following exhibits:

1. Deposition of Dr. Ted Lennard dated August 21, 2019 (includes report dated October 18, 2018, Manzer Family Medicine progress notes, and Butterball, LLC, Nursing progress notes).

1. Filing of Complete Medical Report of Dr. Ted Lennard Pursuant to Missouri Revised Statute Section 287.210.7.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

1. Motion for Costs and Fees Pursuant to Missouri Revised Statute Section 287.560

1. Recitation of Attorney Time for Consideration of Attorneys' fees

1. Detailed Itemization of Attorney Time and Expenses (offered at the continuation of the hardship hearing on September 19, 2019, during the testimony from Jennifer Newman and her designated counsel, John Newman).

The employee's exhibits were received and admitted into evidence.

No one testified at the hearing on behalf of the employer/insurer. The employer/insurer offered for admission the following exhibits:

Exhibit A....Deposition of Dr. Shawn Kutnik dated August 23, 2019

The employer/insurer's exhibit was received and admitted into evidence.

The Second Injury Fund was not present at this hardship hearing.

FINDINGS AND CONCLUSIONS

Background:

The employee, Nivian Mazariegos Hernandez, is 52 years old, having been born on November 11, 1966. The employee testified live at the hearing through a Spanish-speaking interpreter.

On September 19, 2017, the employee was working for Butterball, LLC, (hereinafter "Butterball") in the hamburger department for Employer. Ms. Mazariegos began working for Butterball on July 24, 1996, and has been employed there for more than 23 years.

When the employee hired on with Butterball in July, 1996, she worked in the evisceration department ("Evis"). Her job duties in evis consisted of using pressure and

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

scissors to cut and remove skin from the stomachs of turkeys and to cut gizzards. The employee testified that she would cut and remove skin from 30 to 35 gizzards a minute while working in the evis department. The employee worked from 10:00 p.m. to 8:00 a.m. During the ten-hour shifts, the employee received two 30-minute breaks and one 12-minute break. The employee worked from 10:00 p.m. to 8:00 a.m. five days each week in the evis department. She worked in the evis department for approximately one year before she was moved to the bone-outs department.

In the bone-outs department, the employee used a knife to cut turkey breasts. Her job duties in bone-outs also required the employee to remove fatty tissue, veins, and bones from the turkeys. The employee testified that she used a knife cut 30 to 35 turkey breasts per minute in the bone-outs department. While working in the area to remove veins, the employee cut out approximately 30 turkey veins per minute. The employee also worked a ten-hour shift in the bone-outs department. As with the evis department, she received two 30-minute breaks and one 12-minute break during her ten-hour shifts in bone-outs. The employee worked in the bone-outs department five days a week and also worked on Saturdays as needed. The employee worked in the bone-outs department for somewhere between 15 and 16 years.

After the bone-outs department, the employee worked in the hamburger department for Employer. The employee was working in the hamburger department at the time of her work injury on September 19, 2017. The employee worked a ten-hour shift in the hamburger department and worked from 6:00 a.m. to 6:00 p.m. The employee worked this ten-hour shift six days a week in the hamburger department. She

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

received two 30-minute breaks and one 15-minute break while working in the hamburger department. She worked in the hamburger department for approximately two years.

There were four different areas/job stations in the hamburger department. The first area was working with the hamburgers. The employee's job responsibilities with the hamburgers included: (1) stacking hamburger patties, (2) grabbing hamburgers to stack in piles of three hamburgers or five hamburgers, and (3) placing all hamburger stacks in holes on a machine on a line. The employee testified that she stacked approximately 40 hamburgers each minute with her hands. The employee worked in this first area with hamburgers for 2 1/2 hours before rotating to the second job station.

The second station in the hamburger department involved working with sausages. In this second rotation, all sausages pass through on a moving line. The employee was responsible for removing all bad parts of the sausages with her hands. When she would remove the bad parts from the sausages, the employee would place the removed parts in a container. The employee testified that she removed approximately 42 bad parts from sausages per minute in this area. The employee worked in this second rotation for 2 1/2 hours before moving the third rotation.

The third station of the hamburger department also involved working with sausages. In this station, the bags of sausages are sent up a conveyor belt and fall into a bag. The employee is responsible for catching the falling bags of sausages off the conveyor belt. The employee was responsible for pulling the bag with her hands to lower the bag down off the conveyor belt to weigh the bag. There are 64 to 66 sausages in each bag. The employees weigh the bags of sausages, which weigh between 5 and 15 pounds.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

The employee lifts the bag after weighing it and places each bag back on a conveyor belt for the bag to be sealed. The employee testified that she grabs and lifts approximately 33 bags each minute in this rotation area. The employee worked in this station for 2 ½ hours before rotating to the fourth station.

The fourth station in the hamburger department is the packing area. The employee's job responsibilities in the packing station include: (1) checking dates, (2) packing all products, (3) checking to ensure that all bags are properly sealed, (4) repackaging products that are not packaged and/or properly sealed, (5) placing every two sausage bags in a box, (6) taking the boxes to a machine that tapes and seals the boxes, and (7) pushing the boxes down the line on the conveyor belt. The employee testified that she would keep a roll of stickers around her arm, as she was required to put stickers on boxes to be used in dating products and ensuring quality control. The employee testified that she checked 25 sausage bags each minute. She worked in this rotation 2 ½ hours before rotating back to the first station in the hamburger department.

The employee testified that she did repetitive work with her hands while working in the hamburger department. She stacked hamburgers, grabbed hamburgers, removed bad parts from sausages with her hands, placed bad parts in a container with her hands, caught bags of sausages falling off the conveyor belt with her arms and hands, pulled bags of sausages off the conveyor belt with her hands, reached and grabbed for bags of sausages, lifted bags of sausages with her hands for checking dates, packing, sealing, etc., placed bags of sausages in boxes with her hands, lifted boxes filled with bags of sausages and placed them on a conveyor belt with her hands, lifted boxes and carried them with her hands to a machine to be taped and sealed and then placed the boxes on a conveyor

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

belt with her hands, and pushed boxes of meat down the line while working in all four stations/areas of the hamburger department.

On September 19, 2017, the employee was working in the packing area with sausages in the hamburger department. The employee was sealing bad bags of sausages. She testified that on the date she was injured, there were a lot of sausage bags that were coming down the conveyor belt with holes in them. She was walking to the area to remedy the packing with the holes in sausage bags. While walking and carrying several bags of sausages, her feet became entangled in a rope used to tie boxes that were on the floor. She tripped and fell. She reached her hands out to try to catch herself and hit both knees and her back on the way down. She testified "my whole body went down." She landed on cement flooring. She testified that her hands hit first, and she injured both hands, her back, both hips, and both knees in the fall on September 19, 2017. The employee had not received any treatment and had not sustained any injuries to her hands, back, hips, or knees prior to the work injury on September 19, 2017.

The employee testified that she was not able to get up on her own. She required help to get up. David Aguilar and another gentleman named Jose helped her get up. She immediately reported her injury to Eric. Eric is the employee's supervisor. Eric took the employee to the company nurse to be treated for the fall.

As required by Missouri law, the employee notified her employer of her injury on September 19, 2017. The employer completed an internal Incident Report on September 19, 2017. (See Report of Injury-Employee Statement attached as Exhibit 1 to Employee's Hearing Exhibit 3.) This internal Incident Report was signed by the employee and nine supervisors/management personnel with the employer. The

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

signatures for the employer include: (1) the employee's supervisor, (2) Superintendent, (3) Maintenance, (4) a representative of the Safety Committee, (5) the Safety Supervisor, (6) Operations Manager, (7) a representative of the Safety Department Review, (8) a representative of the Complex Manager Review, and (9) an Emergency Medical Technician (EMT). Nearly everyone who signed the Incident Report signed it on September 19, 2017, the date of the employee's injury. Page 2 of the Incident Report notes that the employee was not doing anything other than her required job duties at the time of the accident. Page 3 of the Incident Report notes that with regard to the accident cause analysis, there were hazards at the location, including, but not limited to: poor layout, congestion, insufficient space for storage, poor lighting, etc. and that there was poor housekeeping, such as improper piling or placing, clutter, spillage or breakage.

The employer completed an internal incident report with regard to the employee's work injury of September 19, 2017. However, the employer never filed a Report of Injury with the Division of Workers' Compensation as required by Missouri law. Despite the employer completing an internal incident report on the date of the employee's injury and that nine supervisors/managers signed the report, the employer/insurer denied the employee had sustained a compensable work injury and filed Answers and Amended Answers denying the employee's claim. The employer/insurer have maintained a notice defense in this claim and have alleged that the employee did not report her work injuries of September 19, 2017, up until the date of the hearing, at which time they stipulated to this fact.

The employer provided the employee with minimal treatment from on-site nurses and a visiting doctor that visited the plant every two to four weeks. However, the

12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

employer/insurer did not send the employee for an evaluation, despite the employee's request that they do so. During the time the employee requested medical treatment, there are 43 entries in the Butterball Nursing Progress Notes in an approximately seven-month period where the employee sought medical treatment with the nursing staff with the employer for her work injuries of September 19, 2017. (See Butterball Nursing Progress Notes attached as Exhibit 6 to Employee's Hearing Exhibit 3.)

There is an entry dated May 21, 2018, where the employee presented to the nurse's station for treatment for her back injuries of September 19, 2017. The note states: "Asking about the dr. Advised her she was on the list." (See p. 3 of Exhibit 6 to Employee's Hearing Exhibit 3.) However, as of the date of the employee's hardship hearing on August 29, 2019, nearly two years after the employee's work injury, the employer/insurer did not and had not authorized medical treatment for the employee's work injuries of September 19, 2017.

Following her injury, the employee's pain worsened, and the employee was forced to seek medical treatment on her own, at her own expense, after the employer/insurer denied her multiple requests for medical treatment. Approximately three months after her fall, the employee sought medical treatment with Dr. Manzer in Carthage. The employee's medical treatment with Dr. Manzer consisted of x-rays of the lumbar spine, steroid injections, and pain prescriptions. Dr. Manzer recommended that the employee file a workers' compensation claim in order to receive further treatment.

The employee continues to be employed at Butterball. However, after her work injury of September 19, 2017, the employee returned to the bone-outs department. The

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

bone-outs department does not require as much walking and is less strenuous work than the hamburger department.

The employee testified that she continues to experience ongoing significant pain and discomfort in her hands, back, knees, and hips. The employee testified that she has difficulty sleeping due to the pain that she experiences from the work injury of September 19, 2017. With regard to her hands, it was the employee's testimony that her hands hurt all the time, and her hands are numb all day. Her hands go to sleep. The employee continues to experience swelling in both wrists. She has difficulty grasping objects. She testified that she does not have a lot of strength in her hands and she drops things easily. The employee experiences pain into her forearms. She continues to work and perform her job duties despite the continued pain and symptoms that she experiences in her hands.

The employee also continues to experience pain in her back and knees. The employer/insurer stipulated at the hardship hearing that they would provide the employee with medical treatment for her back and knees. However, as of the date of the hardship hearing on August 29, 2019, the employer/insurer had not provided the employee with treatment for her back and knees, and they had not scheduled any evaluations for the employee.

The employee had received no medical treatment and had sustained no injuries to her hands, back, knees and hips prior to the work injury of September 19, 2017. The employee testified that she is in need of medical treatment and wants to receive the treatment that has been recommended for her by Dr. Lennard.

14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

On October 18, 2018, Dr. Ted Lennard evaluated the employee. At that time the employee had complaints of constant low back pain radiating into her bilateral thighs, into the anterior legs, and dissipating at the bilateral ankles. This was described as a sharp and stabbing pain. Aggravating factors included bending at the waist, sitting longer than 15 minutes, standing in one position longer than one hour, and ambulating stairs. Alleviating factors included changing positions and local steroid injections. Bending at the waist caused the employee's pain to be most severe. The employee reported a constant dull aching pain in both knees with popping and clicking when walking or bending her knees. The employee reported that her knees swell after standing on her feet at work. The employee received steroid injections to her bilateral knees in her treatment with Dr. Manzer. (See Dr. Lennard's report dated October 18, 2018, attached to Employee's Hearing Exhibit 1.)

Dr. Lennard opined that the employee's work accident of September 19, 2017, was the prevailing factor in the onset of her low back and bilateral knee injuries. Dr. Lennard also opined that the employee's bilateral hand numbness, likely bilateral carpal tunnel syndrome, was caused by the direct trauma to her bilateral wrists. (See record of Dr. Lennard dated October 18, 2018, attached as Employee's Hearing Exhibit 1.) Dr. Lennard opined that the employee had no preexisting problems with her low back, hands, or knees. (See record of Dr. Lennard dated October 18, 2018, attached as Employee's Hearing Exhibit 1.)

15

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

It was Dr. Lennard's opinion that the employee had not achieved maximum medical improvement. Dr. Lennard recommended MR imaging of the lumbar spine and both knees. Dr. Lennard also recommended physical therapy directed at her knees and low back. Dr. Lennard opined that depending on the employee's response to physical therapy and the results of the imaging studies, the employee may require additional medical treatment. With regard to the bilateral hands, Dr. Lennard noted the employee had a positive Phalen's test and recommended the employee undergo EMG/NCS of both upper extremities. The employee may require additional treatment based on the findings of this study. (See the record of Dr. Lennard dated October 18, 2018, attached as an exhibit to Employee's Hearing Exhibit 1.)

The employer/insurer maintained their denial of this claim and did not approve the treatment that Dr. Lennard recommended following his evaluation on October 18, 2018. Despite completing an internal Incident Report on September 19, 2017, the date of the employee's injury, the employer/insurer did not send the employee for an evaluation until nearly two years after her work injury.

Dr. Shawn Kutnik

On August 14, 2019, Dr. Shawn Kutnik evaluated the employee for the employer/insurer. The evaluation with Dr. Kutnik occurred nearly two years after the employee's work injury of September 19, 2017.

At the August 14, 2019, evaluation with Dr. Kutnik, the employee reported symptomology in her hands, fingers, back, and both knees. Dr. Kutnik recorded that the employee had an immediate onset of symptoms to her hands after the fall of

16

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

September 19, 2017, and this is confirmed in the employee's deposition and the examination of Dr. Lennard.

Dr. Kutnik concluded that the current diagnosis for the employee's hands is unknown. As Dr. Kutnik does not relate a specific diagnosis to the employee's hands, he is not able to opine with regard to prevailing factor. Dr. Lennard testified in his deposition of August 21, 2019, that the report of Dr. Kutnik did not change his opinions. (See Employee's Hearing Exhibit 1, p. 23.)

To date the employer/insurer have not approved any treatment for the employee's injuries of September 19, 2017. Dr. Lennard recommended medical treatment for the employee's back and knees. It has been more than one year since Dr. Lennard recommended MRI scans of the lumbar spine and both knees, physical therapy for the knees and low back, and an EMG/NCS of the upper extremities. To date the employer/insurer have not approved, nor have they scheduled the (1) MRI scans of the lumbar spine and knees, (2) physical therapy, nor (3) an EMG/NCS of the upper extremities.

ISSUE 1: WHETHER THERE IS MEDICAL CAUSATION TO SUPPORT THAT THE EMPLOYEE HAS SUSTAINED INJURIES TO HER BLATERAL HANDS FROM THE ACCIDENT OF SEPTEMBER 19, 2017, THAT REQUIRE ONGOING OR FUTURE MEDICAL CARE IN ORDER TO CURE AND RELIEVE THE EMPLOYEE OF THE EFFECTS OF THE WORK INJURIES

The employee sustained a work injury on September 19, 2017. Dr. Lennard opined that the employee requires additional medical treatment for her work injuries of September 19, 2017.

Ms. Mazariegos testified live at trial. I find that all of the testimony from the employee was credible. The medical records were also introduced into evidence.

17

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

Dr. Lennard testified by deposition. As to the extent that Drs. Lennard and Kutnik have differing opinions, I find the testimony of Dr. Lennard more credible. Therefore, based upon the testimony of Dr. Lennard, there is substantial and competent evidence that the employer/insurer are responsible for providing future medical care for the employee to help alleviate the effects of the work injuries.

Dr. Lennard opined that the employee requires ongoing and future medical care for her work injuries of September 19, 2017. Therefore, I order that Ms. Mazariegos shall have the treatment prescribed by Dr. Lennard, which shall include:

1. MR imaging of the lumbar spine and both knees,
2. physical therapy directed at the knees and low back,
3. and an EMG/NCS of both upper extremities.

**ISSUE 2: WHETHER THE EMPLOYER IS DEFENDING THIS CLAIM ON AN UNREASONABLE GROUND AND IS RESPONSIBLE FOR PAYING FOR EMPLOYEE'S ATTORNEYS' FEES AND EXPENSES INCURRED IN THE PROSECUTION OF THIS CLAIM AND PURSUING THIS HARDSHIP HEARING PURSUANT TO MISSOURI REVISED STATUTE SECTION 287.560**

On September 19, 2017, Ms. Nivian Mazariegos Hernandez was engaged in her employment in the hamburger department with Butterball and sustained an injury when her feet became tangled in a rope on the floor, causing her to trip and fall. She fell forward on her hands and knees. The employee experienced an immediate onset of pain in both knees and later in the day developed pain in her back and both legs. She also injured both hands in the fall.

It is significant to note that not until the day of the hearing did Employer/Insurer stipulate that the employee notified her employer of her injury on September 19, 2017, as

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

required by law. The employer had completed an internal Incident Report on September 19, 2017. (See internal Incident Report attached as Exhibit 1 to Employee's Hearing Exhibit 3.) This internal Incident Report was signed by the employee and nine supervisors/management personnel with the employer. The signatures for the employer include: (1) the employee's supervisor, (2) Superintendent, (3) Maintenance, (4) a representative of the Safety Committee, (5) the Safety Supervisor, (6) Operations Manager, (7) a representative of the Safety Department Review, and (8) a representative of the Complex Manager Review, and (9) an Emergency Medical Technician (EMT).

The employee filed a Claim for Compensation on August 17, 2018. (See Claim for Compensation in Legal File and attached as Exhibit 2 to Employee's Hearing Exhibit 3.) The employer/insurer filed an Answer on September 21, 2018, denying (1) that the employee sustained an injury arising out of and in the course and scope of her employment on the date of her injury. (See Answer of employer/insurer in Legal File and attached as Exhibit 3 to Employee's Hearing Exhibit 3.)

The employer/insurer did not timely file an answer to the Claim for Compensation, as the Answer was filed more than 30 days after the Claim for Compensation. Therefore, the facts alleged in the employee's Claim for Compensation are deemed admitted. The employer/insurer denied the employee's claim based on a notice defense and advised this Court accordingly at scheduled Pre-Hearing Conferences in this claim.

The employee filed an Amended Claim for Compensation on November 20, 2018. (See Amended Claim for Compensation in Legal File and attached as Exhibit 4 to Employee's Hearing Exhibit 3.) The employer/insurer filed an amended Answer on

19

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

December 18, 2018, and continued to deny the claim and denied that they received notice of the employee's work injury. (See Amended Answer of employer/insurer in the Legal File and attached as Exhibit 5 to Employee's Hearing Exhibit 3.)

While the employer completed an internal Incident Report signed by nine representatives in management with the employer on September 19, 2017, the employer/insurer have not filed an Amended Claim to reflect that they received notice on the date of the employee's injury, as referenced on their own documentation. (See internal Incident Report attached as Exhibit 1 to Employee's Hearing Exhibit 3.)

Despite completing an internal Incident Report on September 19, 2017, the employer/insurer never filed a Report of Injury with the Missouri Division of Workers' Compensation, as required by Missouri Revised Statute Section. (See Legal file.)

Missouri Revised Statute Section 287.380 (1) provides, in part:

Every employer or his insurer in this state, whether he has accepted or rejected the provisions of this chapter, shall within thirty days after knowledge of the injury, file with the division under such rules and regulations and in such form and detail as the division may require, a full and complete report of every injury or death to any employee for which the employer would be liable to furnish medical aid, other than immediate first aid which does not result in further medical treatment or lost time from work, or compensation hereunder had he accepted this chapter, and every employer or insurer shall also furnish the division with such supplemental reports in regard thereto as the division shall require. Employers shall report all injuries to their insurance carrier, or third-party administrators, if applicable, within five days of the date of the injury or within five days of the date on which the injury was reported to the employer by the employee, whichever is later. Where an employer reports injuries covered pursuant to this chapter to his insurer or third-party administrator, the insurer

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

or third-party administrator shall be responsible for filing the report prescribed in this section.

The employer/insurer did not comply with Missouri Revised Statute Section 287.380 (1) and thereby violated Missouri law.

The employee requested medical treatment on numerous occasions from the employer. The employer provided the employee with minimal treatment from on-site nurses and a visiting doctor that visits the plant every two to four weeks. However, the employer/insurer did not send the employee for an evaluation for nearly two years after her work injury, despite the employee's request that they do so.

During the time the employee requested medical treatment, there are 43 entries in the Butterball Nursing Progress Notes in an approximately seven-month period where the employee sought medical treatment with the nursing staff with the employer for her work injuries of September 19, 2017. (See Butterball Nursing Progress Notes attached as Exhibit 6 to Employee's Hearing Exhibit 3.) There is an entry dated May 21, 2018, where the employee presented to the nurse's station for treatment for her back injuries of September 19, 2017. The note states: "Asking about the dr. Advised her she was on the list." (See p. 3 of Exhibit 6 attached to Employee's Hearing Exhibit 3.) However, the employer/insurer did not and has not, to date, authorized medical treatment for the employee's work injuries of September 19, 2017.

After the employer/insurer denied her multiple requests for medical treatment, the employee was forced to seek medical treatment on her own, at her own expense. Dr. Manzer advised the employee to file a workers' compensation claim.

Upon hiring an attorney to file her claim, the claimant was set up to see

21

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

Dr. Ted Lennard about her work injuries. The cost of this evaluation with Dr. Lennard was $1,500.00.

Dr. Lennard opined that the employee's work accident of September 19, 2017, was the prevailing factor in the onset of her low back, bilateral knee, and bilateral hand injuries. Dr. Lennard recommended treatment the employee required to cure and relieve the effects of these work injuries. The employee sent a copy of Dr. Lennard's report and a demand for treatment on January 4, 2019. (See Exhibit 7 attached to Employee's Hearing Exhibit 3.)

The employer/insurer did not approve the treatment that Dr. Lennard recommended. Finally, the employer/insurer had the claimant evaluated with Dr. Kutnik on August 14, 2019. Despite completing an internal Incident Report on September 19, 2017, the date of the employee's injury and a demand for treatment by employee. The employer/insurer did not send the employee for any evaluation until nearly two years after her work injury.

At the August 14, 2019, evaluation with Dr. Shawn Kutnik, the employee reported symptomology in her hands, fingers, back, and both knees to Dr. Kutnik. Dr. Kutnik recorded that the employee had an immediate onset of symptoms to her hands after the fall of September 19, 2017, and this is confirmed in the employee's deposition and the examination of Dr. Lennard.

Dr. Kutnik concluded that the current diagnosis for the employee's hands is unknown. As Dr. Kutnik does not relate a specific diagnosis to the employee's hands, he is not able to opine with regard to prevailing factor. Dr. Lennard testified in his

22

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

deposition of August 21, 2019, that the report of Dr. Kutnik did not change his opinions.

(See Employee's Hearing Exhibit 1, p. 23.)

To date the employer/insurer have not approved any treatment for the employee's injuries of September 19, 2017. Dr. Lennard recommended medical treatment for the employee's back and knees.

It has been more than one year since Dr. Lennard recommended MRI scans of the lumbar spine and both knees, physical therapy for the knees and low back, and an EMG/NCS of the upper extremities. To date the employer/insurer have not approved, nor have they scheduled the (1) MRI scans of the lumbar spine and knees, (2) physical therapy, or (3) EMG/NCS of the upper extremities.

Missouri Revised Statute §287.560 provides, in part, that:

If the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them.

The employer/insurer denied this claim and denied the employee medical treatment. Despite receiving notice on September 19, 2017, the date of the employee's injury, the employer/insurer alleged a notice defense until a hardship hearing was scheduled in 2019. The employee continued to seek treatment at the nurse's station at the employer's facility on a nearly daily basis for her work injuries and also received medical treatment with the visiting company doctor. The employee continued to request medical treatment from the employer. However, the employer/insurer refused to provide the employee with medical treatment for her work injuries of September 19, 2017, and, to

23

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

date, have not provided the employee with any authorized medical treatment for her work injuries.

Despite a notation being made in the Nursing Progress Notes on May 21, 2018, that the employer had placed the employee on a "list" to see a doctor, she was never referred for medical treatment for her work injury of September 19, 2017. (See p. 3 of Employee's Exhibit 6 attached to Employee's Hearing Exhibit 3.)

Dr. Lennard recommended treatment for the employee on October 18, 2018, and found her fall at work to be the prevailing factor in causing her need for treatment for her back, both hands, and both knees. (See Employee's Hearing Exhibit 1.) The employer/insurer did not authorize the treatment that Dr. Lennard recommended and continued to maintain a notice defense.

The additional treatment the employee requires and the treatment that Dr. Lennard recommended is necessary to cure and relieve the effects of the employee's work injuries. Therefore, the employer/insurer are defending this claim upon an unreasonable ground pursuant to Sec. 287.560.

The employee incurred 1,500.00 in obtaining their IME with Dr. Lennard and 130.00 for interpretation services for the employee's IME with Dr. Lennard. The employee incurred 171.00 in court reporting fees for the employee's deposition and 99.95 for court reporting fees for Dr. Lennard's deposition, while the employer/insurer continued to maintain a notice defense in this claim. The employee incurred $87.90 in court reporting fees for Dr. Kutnik's deposition while the employee continued to wait for the employer/insurer to approve medical treatment for the employee. These were fees that the employee would not have incurred had the employer/insurer approved the

24

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

medical treatment necessary to cure and relieve the effects of the employee's work injuries.

The counsel for employer/insurer deposed employee's counsel and her designated attorney and law partner, John Newman, on September 19, 2019. The employee's counsel claimed 42 hours in prosecuting this claim only with regard to the issue of medical treatment at the time of the hardship hearing on August 29, 2019. At $400.00/hour, the employee's counsel has $16,800.00 in prosecuting this claim to try to obtain medical treatment for the employee that all physicians are commending. These 42 hours do not include the length of the hardship hearing. Counsel for the employer/insurer requested additional documentation with regard to attorney recitation of time in this claim at the deposition of employee's counsel on September 19, 2019. Upon employee's counsel providing counsel for the employer/insurer with this requested documentation, employee's counsel had in excess of 42 hours of time spent in prosecuting this claim with regard to the issue of medical treatment. While employee's counsel proved that they had far more than 42 hours of time in prosecuting the treatment issue, employee's counsel continues to claim only the 42 hours of time submitted at the hardship hearing.

The employer/insurer affirmatively delayed and refused to proceed with authorizing medical treatment for the employee's work injuries of September 19, 2017. The employer/insurer did not send the employee for any evaluation for medical treatment until nearly two years after her work injury.

The denial or lack of authorization for the medical treatment was without support of any medical opinion. Additionally, it is noted that Dr. Lennard, who performed an

25

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

IME for the employee, opined that the work accident of September 19, 2017, involved a compensable injury, for which the employee required medical care. Dr. Lennard opined that the employee requires medical treatment in order to cure and relieve the effects of the work injuries. The only evidence is that the employee requires treatment.

In having sufficiently failed or neglected to provide Ms. Mazariegos with medical care for her work injury of September 19, 2017, the employer/insurer's defense in this case caused the employee to seek legal counsel. The defenses and positions of the employer/insurer prevented the employee from receiving timely and appropriate medical care. This required the employee to incur expenses to prosecute this case, including securing an attorney, obtaining an IME, and preparing for trial.

The actions of the employer/insurer in defending this claim have compromised Ms. Mazariegos' health. Dr. Lennard opined that the work accident of September 19, 2017, is the prevailing factor in causing the employee's injuries and necessitating the medical care Ms. Mazariegos received and continues to need to cure and relieve the effects of her work injuries. Dr. Lennard also opined that the work accident of September 19, 2017, is the prevailing factor in causing the employee's injuries and necessitating the medical care that Ms. Mazariegos requires to cure and relieve the effects of her work injuries.

The subsequent refusal of the employer/insurer to provide the employee with medical care put Ms. Mazariegos' physical condition in peril. The employee was, and is, continuing to experience unresolved symptomology and severe pain, which has significantly impacted her life.

26

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

The employee filed a Motion for Costs and Fees Pursuant to Missouri Revised Statute Section 287.560. (See Employee's Hearing Exhibit 3.) The employee presented evidence of attorney time incurred in prosecuting this claim. (See Employee's Hearing Exhibit 4 and transcript from the deposition/hearing testimony of Employee's counsel on September 19, 2019.) The employee has requested that the attorney time submitted be considered for awarding attorneys' fees and that the employee is awarded reimbursement of their incurred expenses of totaling $1,858.85 for obtaining an IME with Dr. Lennard and incurring the costs of the depositions of Dr. Lennard, Dr. Kutnik, and the employee, as this was necessary medical evidence for the hardship hearing after the employer/insurer would not approve the recommended treatment for the employee.

The employer received notice of the employee's work injury on the date she was injured. The employer completed an internal Incident Report on September 19, 2017. (See Report of Injury-Employee Statement attached as Exhibit 1 to Employee's Hearing Exhibit 3.) This internal Incident Report was signed by the employee and nine supervisors/management personnel with the employer. Despite completing an internal incident report, the employer/insurer continued to maintain a notice defense until the hardship hearing on August 29, 2019.

The employer/insurer presented no evidence as to why they maintained a denial in this claim and delayed in sending the employee for any evaluation until nearly two years after the work injury. I find the inaction of the employer/insurer to authorize the treatment being recommended by their own chosen physicians to be egregious. The employee's health is in peril, and she has continued to suffer while the employer/insurer maintained a baseless notice defense.

27

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

Accordingly, after consideration and review of the evidence, I find and conclude that the employer/insurer in the September 19, 2017, claim defended the Claim for Compensation without reasonable ground, as set forth in Missouri Revised Statute Section 287.560. This statute allows costs, including attorneys' fees, to be assessed against a party if the party brings, prosecutes, or defends a Claim for Compensation without reasonable ground. *Laura Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240 (Mo. 2003). I find and conclude that there is substantial and competent evidence to award attorneys' fees' and costs in the amount of $18,788.85. The calculation of attorney' fees is based on 42 hours at an hourly rate of $400.00. In the event that it is not proper for an administrative law judge to award attorneys' fees and costs at a hardship hearing, then I find that the employer/insurer has defended this claim on unreasonable grounds and that while the employee is entitled to attorneys' fees and costs, it is most appropriate to award attorneys' fees and costs in the final hearing in this claim.

Claimant's attorney, Newman Law Firm, LLC, is awarded an attorney fee of 25%, which shall be a lien on the proceeds until paid. Interest shall be paid as provided by law.

Date: ______________________

I certify that on _1-13-20_ 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: ______________________

Karen Fisher

Administrative Law Judge

Division of Workers' Compensation

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

JANUARY 13, 2020

19-056530

#PAUL D LARIMORE 19056530S1WC36100020200113INAT002001

8000 MARYLAND AVE STE 550 ST LOUIS, MO 63105

*Employee . . . : NIVIAN MAZARIEGOS HERNANDEZ 08777332 1 1211 PINE ST CARTNAGE, MO 64836*Employer . . . : BUTTERBALL 08777333 8 411 N MAIN ST CARTNAGE, MO 64836

#Employee Attorney: JENNIFER L NEWMAN 415 A E CHESTNUT EXPY SPRINGFIELD, MO 65802 *Insurer . . . : ACE AMERICAN INSURANCE CO 08777334 5 c/o SEDGWICK CLAIMS MANAGEMENT SER PO BOX 14562 LEXINGTON, KY 40512

Enclosed is a copy of the Temporary or Partial Award made in the above case.

This award is not a final determination of the issues and the case will be reset to allow an Administrative Law Judge to make a final determination in the case. Any party to the case who feels they are not liable for the payment of any compensation as determined by this award may make an Application for Review of the award 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 the 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.*

WC-181 (06-15) TEMPORARY AWARD APPROVAL NLP Relay Missouri: 800-735-2966

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

**Employee:**

- Nivian Mazariegos Hernandez

**Injury No.:** 17-105883

**Injury No.:** 17-107000

**Injury No.:** 19-056530

**Employer:** Butterball, LLC

**Additional Party:** Second Injury Fund

**Insurer:** Ace American Insurance Company, c/o Sedgwick Claims, Management Services, Inc.

**Hearing Date:** August 29, 2019, and September 19, 2019

1. Are any benefits awarded herein? YES

1. Were the injuries compensable under Chapter 287? YES

1. Was there an accident under the Law? YES

1. Date of injury: September 19, 2017/July 15, 2019

1. Location where accident(s) occurred: Carthage, Jasper County, Missouri

1. Was the above employee in employ of above employer at time of alleged accident? YES

1. Did the employer receive proper notice? YES

1. Did the accident arise out of and in the course of the employment? YES

1. Was the claim for compensation filed within time required by Law? YES

1. Was the employer insured by above insurer? YES

1. Describe work employee was doing and how accident occurred:

On September 19, 2017, Employee was engaged in her employment with Butterball, LLC, when her feet became tangled in a rope on the floor, causing her to trip and fall, sustaining injuries to both knees, both legs, both hands, and her back.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

1. Did the accident(s) cause death? NO

Part of body injured in the accident: Employee injured both knees, both legs, both hands, and her back.

1. Nature and extent of any permanent disability: To be determined at a later date

1. Compensation paid to-date for temporary total disability and temporary partial disability: None

1. Value of necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? This issue is being deferred to be determined at a later date.

1. Employee's average weekly wage: 679.58

1. Employee's weekly compensation rate: 453.05 for TTD, TPD and PPD.

1. Method wages computation: by agreement.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

Unpaid medical expenses: Deferred

Unpaid temporary total disability benefits: N/A

Medical aid in the future: Yes, Employer/Insurer are ordered to provide the employee with additional medical care, as may be reasonably required to cure and relieve the employee of the effects of her injuries or disabilities, and which is reasonable, necessary, and causally related to the accident of September 19, 2017.

Costs and Fees: Yes, in the amount of $18,788.85. Employee is entitled to costs, including consideration of attorneys' fees, pursuant to Missouri Revised Statute Section 287.560.

Permanent partial disability: To be determined at a later date

Disfigurement pursuant to Missouri Revised Statute Section 287.560: To be determined at a later date

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

1. Second Injury Fund liability: N/A.

Weeks of permanent partial disability: N/A

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund: N/A

TOTAL: 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 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 claimant:

The Newman Law Firm, LLC

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

On August 29, 2019, and September 19, 2019, the parties appeared before the undersigned administrative law judge for a hardship hearing. The employer/insurer appeared by counsel Paul Larimore on behalf of Butterball, LLC, and Ace American Insurance Company, c/o Sedgwick Claims Management Services, Inc. The Second Injury Fund did not appear. The claimant appeared in person and with her counsel, Jennifer L. Newman. Ms. Lisa Lewis served as the interpreter for the hearing.

The parties stipulated as follows:

1. On or about September 19, 2017, Butterball, LLC, was an employer operating subject to Missouri Workers Compensation Law.
2. The employer's liability was fully insured with Ace American Insurance Company, c/o Sedgwick Claims Management Services, Inc.
3. On the alleged injury date of September 19, 2017, Nivian Mazariegos Hernandez was an employee of Employer.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

(4) The claimant was working subject to Missouri Workers Compensation Law.

(5) On or about September 19, 2017, Claimant sustained an accident, which arose out of the course and scope of employment.

(6) This employment occurred in Carthage, Jasper County. Employer admits the employee's contract of employment was made in Missouri. Venue is proper.

(7) The claimant notified the employer of her injury as required by Sec. 287.420 RSMo.

(8) The Claim for Compensation was filed within the time prescribed by Sec. 287.430, RSMo.

(9) The parties agree that the employee's average weekly wage was 679.58, which yields TTD, TPD, and PPD rates of 453.05.

(10) No Temporary Total Disability (TTD) nor Temporary Partial Disability (TPD) benefits have been paid to the employee.

(11) The employer/insurer have not authorized any medical treatment for the employee. However, at the hardship hearing on August 29, 2019, the employer/insurer stipulated that the accident of September 19, 2017, caused the injury to the employee's back and bilateral knees. The employer/insurer agrees to provide treatment to the employee only for the back and bilateral knees. The employer/insurer continues to dispute causation with regard to any other injured body parts in the September 19, 2017, accident.

(12) The undersigned Administrative Law Judge enters an order in relation to Stipulation #11.

(13) The attorney fee being sought by employee's attorney is 25%.

5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

The issues to be resolved by hearing are as follows:

1. Whether the employee has sustained injuries to her bilateral hands as a result of the traumatic accident on September 19, 2017, or as a result of repetitive trauma with a date of injury of July 15, 2019, and whether there is medical causation to support an injury to the employee's bilateral hands for the September 19, 2017, accident/injury, that will require ongoing or future medical care in order to cure and relieve the employee of the effects of the work injuries;

1. Whether the employer/insurer are defending this claim on an unreasonable ground and are responsible for paying for the employee's attorneys' fees and expenses in prosecuting this claim and pursuing this hardship hearing pursuant to Missouri Revised State Section 287.560.

The employee testified at the hearing in support of her claim. In addition, the employee offered for admission the following exhibits:

1. Deposition of Dr. Ted Lennard dated August 21, 2019 (includes report dated October 18, 2018, Manzer Family Medicine progress notes, and Butterball, LLC, Nursing progress notes).

1. Filing of Complete Medical Report of Dr. Ted Lennard Pursuant to Missouri Revised Statute Section 287.210.7.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

1. Motion for Costs and Fees Pursuant to Missouri Revised Statute Section 287.560

1. Recitation of Attorney Time for Consideration of Attorneys' fees

1. Detailed Itemization of Attorney Time and Expenses (offered at the continuation of the hardship hearing on September 19, 2019, during the testimony from Jennifer Newman and her designated counsel, John Newman).

The employee's exhibits were received and admitted into evidence.

No one testified at the hearing on behalf of the employer/insurer. The employer/insurer offered for admission the following exhibits:

Exhibit A....Deposition of Dr. Shawn Kutnik dated August 23, 2019

The employer/insurer's exhibit was received and admitted into evidence.

The Second Injury Fund was not present at this hardship hearing.

FINDINGS AND CONCLUSIONS

Background:

The employee, Nivian Mazariegos Hernandez, is 52 years old, having been born on November 11, 1966. The employee testified live at the hearing through a Spanish-speaking interpreter.

On September 19, 2017, the employee was working for Butterball, LLC, (hereinafter "Butterball") in the hamburger department for Employer. Ms. Mazariegos began working for Butterball on July 24, 1996, and has been employed there for more than 23 years.

When the employee hired on with Butterball in July, 1996, she worked in the evisceration department ("Evis"). Her job duties in evis consisted of using pressure and

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

scissors to cut and remove skin from the stomachs of turkeys and to cut gizzards. The employee testified that she would cut and remove skin from 30 to 35 gizzards a minute while working in the evis department. The employee worked from 10:00 p.m. to 8:00 a.m. During the ten-hour shifts, the employee received two 30-minute breaks and one 12-minute break. The employee worked from 10:00 p.m. to 8:00 a.m. five days each week in the evis department. She worked in the evis department for approximately one year before she was moved to the bone-outs department.

In the bone-outs department, the employee used a knife to cut turkey breasts. Her job duties in bone-outs also required the employee to remove fatty tissue, veins, and bones from the turkeys. The employee testified that she used a knife cut 30 to 35 turkey breasts per minute in the bone-outs department. While working in the area to remove veins, the employee cut out approximately 30 turkey veins per minute. The employee also worked a ten-hour shift in the bone-outs department. As with the evis department, she received two 30-minute breaks and one 12-minute break during her ten-hour shifts in bone-outs. The employee worked in the bone-outs department five days a week and also worked on Saturdays as needed. The employee worked in the bone-outs department for somewhere between 15 and 16 years.

After the bone-outs department, the employee worked in the hamburger department for Employer. The employee was working in the hamburger department at the time of her work injury on September 19, 2017. The employee worked a ten-hour shift in the hamburger department and worked from 6:00 a.m. to 6:00 p.m. The employee worked this ten-hour shift six days a week in the hamburger department. She

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

received two 30-minute breaks and one 15-minute break while working in the hamburger department. She worked in the hamburger department for approximately two years.

There were four different areas/job stations in the hamburger department. The first area was working with the hamburgers. The employee's job responsibilities with the hamburgers included: (1) stacking hamburger patties, (2) grabbing hamburgers to stack in piles of three hamburgers or five hamburgers, and (3) placing all hamburger stacks in holes on a machine on a line. The employee testified that she stacked approximately 40 hamburgers each minute with her hands. The employee worked in this first area with hamburgers for 2 1/2 hours before rotating to the second job station.

The second station in the hamburger department involved working with sausages. In this second rotation, all sausages pass through on a moving line. The employee was responsible for removing all bad parts of the sausages with her hands. When she would remove the bad parts from the sausages, the employee would place the removed parts in a container. The employee testified that she removed approximately 42 bad parts from sausages per minute in this area. The employee worked in this second rotation for 2 1/2 hours before moving the third rotation.

The third station of the hamburger department also involved working with sausages. In this station, the bags of sausages are sent up a conveyor belt and fall into a bag. The employee is responsible for catching the falling bags of sausages off the conveyor belt. The employee was responsible for pulling the bag with her hands to lower the bag down off the conveyor belt to weigh the bag. There are 64 to 66 sausages in each bag. The employees weigh the bags of sausages, which weigh between 5 and 15 pounds.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

The employee lifts the bag after weighing it and places each bag back on a conveyor belt for the bag to be sealed. The employee testified that she grabs and lifts approximately 33 bags each minute in this rotation area. The employee worked in this station for 2 ½ hours before rotating to the fourth station.

The fourth station in the hamburger department is the packing area. The employee's job responsibilities in the packing station include: (1) checking dates, (2) packing all products, (3) checking to ensure that all bags are properly sealed, (4) repackaging products that are not packaged and/or properly sealed, (5) placing every two sausage bags in a box, (6) taking the boxes to a machine that tapes and seals the boxes, and (7) pushing the boxes down the line on the conveyor belt. The employee testified that she would keep a roll of stickers around her arm, as she was required to put stickers on boxes to be used in dating products and ensuring quality control. The employee testified that she checked 25 sausage bags each minute. She worked in this rotation 2 ½ hours before rotating back to the first station in the hamburger department.

The employee testified that she did repetitive work with her hands while working in the hamburger department. She stacked hamburgers, grabbed hamburgers, removed bad parts from sausages with her hands, placed bad parts in a container with her hands, caught bags of sausages falling off the conveyor belt with her arms and hands, pulled bags of sausages off the conveyor belt with her hands, reached and grabbed for bags of sausages, lifted bags of sausages with her hands for checking dates, packing, sealing, etc., placed bags of sausages in boxes with her hands, lifted boxes filled with bags of sausages and placed them on a conveyor belt with her hands, lifted boxes and carried them with her hands to a machine to be taped and sealed and then placed the boxes on a conveyor

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

belt with her hands, and pushed boxes of meat down the line while working in all four stations/areas of the hamburger department.

On September 19, 2017, the employee was working in the packing area with sausages in the hamburger department. The employee was sealing bad bags of sausages. She testified that on the date she was injured, there were a lot of sausage bags that were coming down the conveyor belt with holes in them. She was walking to the area to remedy the packing with the holes in sausage bags. While walking and carrying several bags of sausages, her feet became entangled in a rope used to tie boxes that were on the floor. She tripped and fell. She reached her hands out to try to catch herself and hit both knees and her back on the way down. She testified "my whole body went down." She landed on cement flooring. She testified that her hands hit first, and she injured both hands, her back, both hips, and both knees in the fall on September 19, 2017. The employee had not received any treatment and had not sustained any injuries to her hands, back, hips, or knees prior to the work injury on September 19, 2017.

The employee testified that she was not able to get up on her own. She required help to get up. David Aguilar and another gentleman named Jose helped her get up. She immediately reported her injury to Eric. Eric is the employee's supervisor. Eric took the employee to the company nurse to be treated for the fall.

As required by Missouri law, the employee notified her employer of her injury on September 19, 2017. The employer completed an internal Incident Report on September 19, 2017. (See Report of Injury-Employee Statement attached as Exhibit 1 to Employee's Hearing Exhibit 3.) This internal Incident Report was signed by the employee and nine supervisors/management personnel with the employer. The

11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

signatures for the employer include: (1) the employee's supervisor, (2) Superintendent, (3) Maintenance, (4) a representative of the Safety Committee, (5) the Safety Supervisor, (6) Operations Manager, (7) a representative of the Safety Department Review, (8) a representative of the Complex Manager Review, and (9) an Emergency Medical Technician (EMT). Nearly everyone who signed the Incident Report signed it on September 19, 2017, the date of the employee's injury. Page 2 of the Incident Report notes that the employee was not doing anything other than her required job duties at the time of the accident. Page 3 of the Incident Report notes that with regard to the accident cause analysis, there were hazards at the location, including, but not limited to: poor layout, congestion, insufficient space for storage, poor lighting, etc. and that there was poor housekeeping, such as improper piling or placing, clutter, spillage or breakage.

The employer completed an internal incident report with regard to the employee's work injury of September 19, 2017. However, the employer never filed a Report of Injury with the Division of Workers' Compensation as required by Missouri law. Despite the employer completing an internal incident report on the date of the employee's injury and that nine supervisors/managers signed the report, the employer/insurer denied the employee had sustained a compensable work injury and filed Answers and Amended Answers denying the employee's claim. The employer/insurer have maintained a notice defense in this claim and have alleged that the employee did not report her work injuries of September 19, 2017, up until the date of the hearing, at which time they stipulated to this fact.

The employer provided the employee with minimal treatment from on-site nurses and a visiting doctor that visited the plant every two to four weeks. However, the

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

employer/insurer did not send the employee for an evaluation, despite the employee's request that they do so. During the time the employee requested medical treatment, there are 43 entries in the Butterball Nursing Progress Notes in an approximately seven-month period where the employee sought medical treatment with the nursing staff with the employer for her work injuries of September 19, 2017. (See Butterball Nursing Progress Notes attached as Exhibit 6 to Employee's Hearing Exhibit 3.)

There is an entry dated May 21, 2018, where the employee presented to the nurse's station for treatment for her back injuries of September 19, 2017. The note states:

"Asking about the dr. Advised her she was on the list." (See p. 3 of Exhibit 6 to Employee's Hearing Exhibit 3.) However, as of the date of the employee's hardship hearing on August 29, 2019, nearly two years after the employee's work injury, the employer/insurer did not and had not authorized medical treatment for the employee's work injuries of September 19, 2017.

Following her injury, the employee's pain worsened, and the employee was forced to seek medical treatment on her own, at her own expense, after the employer/insurer denied her multiple requests for medical treatment. Approximately three months after her fall, the employee sought medical treatment with Dr. Manzer in Carthage. The employee's medical treatment with Dr. Manzer consisted of x-rays of the lumbar spine, steroid injections, and pain prescriptions. Dr. Manzer recommended that the employee file a workers' compensation claim in order to receive further treatment.

The employee continues to be employed at Butterball. However, after her work injury of September 19, 2017, the employee returned to the bone-outs department. The

13

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

bone-outs department does not require as much walking and is less strenuous work than the hamburger department.

The employee testified that she continues to experience ongoing significant pain and discomfort in her hands, back, knees, and hips. The employee testified that she has difficulty sleeping due to the pain that she experiences from the work injury of September 19, 2017. With regard to her hands, it was the employee's testimony that her hands hurt all the time, and her hands are numb all day. Her hands go to sleep. The employee continues to experience swelling in both wrists. She has difficulty grasping objects. She testified that she does not have a lot of strength in her hands and she drops things easily. The employee experiences pain into her forearms. She continues to work and perform her job duties despite the continued pain and symptoms that she experiences in her hands.

The employee also continues to experience pain in her back and knees. The employer/insurer stipulated at the hardship hearing that they would provide the employee with medical treatment for her back and knees. However, as of the date of the hardship hearing on August 29, 2019, the employer/insurer had not provided the employee with treatment for her back and knees, and they had not scheduled any evaluations for the employee.

The employee had received no medical treatment and had sustained no injuries to her hands, back, knees and hips prior to the work injury of September 19, 2017. The employee testified that she is in need of medical treatment and wants to receive the treatment that has been recommended for her by Dr. Lennard.

14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

On October 18, 2018, Dr. Ted Lennard evaluated the employee. At that time the employee had complaints of constant low back pain radiating into her bilateral thighs, into the anterior legs, and dissipating at the bilateral ankles. This was described as a sharp and stabbing pain. Aggravating factors included bending at the waist, sitting longer than 15 minutes, standing in one position longer than one hour, and ambulating stairs. Alleviating factors included changing positions and local steroid injections. Bending at the waist caused the employee's pain to be most severe. The employee reported a constant dull aching pain in both knees with popping and clicking when walking or bending her knees. The employee reported that her knees swell after standing on her feet at work. The employee received steroid injections to her bilateral knees in her treatment with Dr. Manzer. (See Dr. Lennard's report dated October 18, 2018, attached to Employee's Hearing Exhibit 1.)

Dr. Lennard opined that the employee's work accident of September 19, 2017, was the prevailing factor in the onset of her low back and bilateral knee injuries. Dr. Lennard also opined that the employee's bilateral hand numbness, likely bilateral carpal tunnel syndrome, was caused by the direct trauma to her bilateral wrists. (See record of Dr. Lennard dated October 18, 2018, attached as Employee's Hearing Exhibit 1.) Dr. Lennard opined that the employee had no preexisting problems with her low back, hands, or knees. (See record of Dr. Lennard dated October 18, 2018, attached as Employee's Hearing Exhibit 1.)

15

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

It was Dr. Lennard's opinion that the employee had not achieved maximum medical improvement. Dr. Lennard recommended MR imaging of the lumbar spine and both knees. Dr. Lennard also recommended physical therapy directed at her knees and low back. Dr. Lennard opined that depending on the employee's response to physical therapy and the results of the imaging studies, the employee may require additional medical treatment. With regard to the bilateral hands, Dr. Lennard noted the employee had a positive Phalen's test and recommended the employee undergo EMG/NCS of both upper extremities. The employee may require additional treatment based on the findings of this study. (See the record of Dr. Lennard dated October 18, 2018, attached as an exhibit to Employee's Hearing Exhibit 1.)

The employer/insurer maintained their denial of this claim and did not approve the treatment that Dr. Lennard recommended following his evaluation on October 18, 2018. Despite completing an internal Incident Report on September 19, 2017, the date of the employee's injury, the employer/insurer did not send the employee for an evaluation until nearly two years after her work injury.

Dr. Shawn Kutnik

On August 14, 2019, Dr. Shawn Kutnik evaluated the employee for the employer/insurer. The evaluation with Dr. Kutnik occurred nearly two years after the employee's work injury of September 19, 2017.

At the August 14, 2019, evaluation with Dr. Kutnik, the employee reported symptomology in her hands, fingers, back, and both knees. Dr. Kutnik recorded that the employee had an immediate onset of symptoms to her hands after the fall of

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

September 19, 2017, and this is confirmed in the employee's deposition and the examination of Dr. Lennard.

Dr. Kutnik concluded that the current diagnosis for the employee's hands is unknown. As Dr. Kutnik does not relate a specific diagnosis to the employee's hands, he is not able to opine with regard to prevailing factor. Dr. Lennard testified in his deposition of August 21, 2019, that the report of Dr. Kutnik did not change his opinions. (See Employee's Hearing Exhibit 1, p. 23.)

To date the employer/insurer have not approved any treatment for the employee's injuries of September 19, 2017. Dr. Lennard recommended medical treatment for the employee's back and knees. It has been more than one year since Dr. Lennard recommended MRI scans of the lumbar spine and both knees, physical therapy for the knees and low back, and an EMG/NCS of the upper extremities. To date the employer/insurer have not approved, nor have they scheduled the (1) MRI scans of the lumbar spine and knees, (2) physical therapy, nor (3) an EMG/NCS of the upper extremities.

ISSUE 1: WHETHER THERE IS MEDICAL CAUSATION TO SUPPORT THAT THE EMPLOYEE HAS SUSTAINED INJURIES TO HER BLATERAL HANDS FROM THE ACCIDENT OF SEPTEMBER 19, 2017, THAT REQUIRE ONGOING OR FUTURE MEDICAL CARE IN ORDER TO CURE AND RELIEVE THE EMPLOYEE OF THE EFFECTS OF THE WORK INJURIES

The employee sustained a work injury on September 19, 2017. Dr. Lennard opined that the employee requires additional medical treatment for her work injuries of September 19, 2017.

Ms. Mazariegos testified live at trial. I find that all of the testimony from the employee was credible. The medical records were also introduced into evidence.

17

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

Dr. Lennard testified by deposition. As to the extent that Drs. Lennard and Kutnik have differing opinions, I find the testimony of Dr. Lennard more credible. Therefore, based upon the testimony of Dr. Lennard, there is substantial and competent evidence that the employer/insurer are responsible for providing future medical care for the employee to help alleviate the effects of the work injuries.

Dr. Lennard opined that the employee requires ongoing and future medical care for her work injuries of September 19, 2017. Therefore, I order that Ms. Mazariegos shall have the treatment prescribed by Dr. Lennard, which shall include

(1) MR imaging of the lumbar spine and both knees,

(2) physical therapy directed at the knees and low back,

(3) and an EMG/NCS of both upper extremities.

ISSUE 2: WHETHER THE EMPLOYER IS DEFENDING THIS CLAIM ON AN UNREASONABLE GROUND AND IS RESPONSIBLE FOR PAYING FOR EMPLOYEE'S ATTORNEYS' FEES AND EXPENSES INCURRED IN THE PROSECUTION OF THIS CLAIM AND PURSUING THIS HARDSHIP HEARING PURSUANT TO MISSOURI REVISED STATUTE SECTION 287.560

On September 19, 2017, Ms. Nivian Mazariegos Hernandez was engaged in her employment in the hamburger department with Butterball and sustained an injury when her feet became tangled in a rope on the floor, causing her to trip and fall. She fell forward on her hands and knees. The employee experienced an immediate onset of pain in both knees and later in the day developed pain in her back and both legs. She also injured both hands in the fall.

It is significant to note that not until the day of the hearing did Employer/Insurer stipulate that the employee notified her employer of her injury on September 19, 2017, as

18

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

required by law. The employer had completed an internal Incident Report on September 19, 2017. (See internal Incident Report attached as Exhibit 1 to Employee's Hearing Exhibit 3.) This internal Incident Report was signed by the employee and nine supervisors/management personnel with the employer. The signatures for the employer include: (1) the employee's supervisor, (2) Superintendent, (3) Maintenance, (4) a representative of the Safety Committee, (5) the Safety Supervisor, (6) Operations Manager, (7) a representative of the Safety Department Review, and (8) a representative of the Complex Manager Review, and (9) an Emergency Medical Technician (EMT).

The employee filed a Claim for Compensation on August 17, 2018. (See Claim for Compensation in Legal File and attached as Exhibit 2 to Employee's Hearing Exhibit 3.) The employer/insurer filed an Answer on September 21, 2018, denying (1) that the employee sustained an injury arising out of and in the course and scope of her employment on the date of her injury. (See Answer of employer/insurer in Legal File and attached as Exhibit 3 to Employee's Hearing Exhibit 3.)

The employer/insurer did not timely file an answer to the Claim for Compensation, as the Answer was filed more than 30 days after the Claim for Compensation. Therefore, the facts alleged in the employee's Claim for Compensation are deemed admitted. The employer/insurer denied the employee's claim based on a notice defense and advised this Court accordingly at scheduled Pre-Hearing Conferences in this claim.

The employee filed an Amended Claim for Compensation on November 20, 2018. (See Amended Claim for Compensation in Legal File and attached as Exhibit 4 to Employee's Hearing Exhibit 3.) The employer/insurer filed an amended Answer on

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

December 18, 2018, and continued to deny the claim and denied that they received notice of the employee's work injury. (See Amended Answer of employer/insurer in the Legal File and attached as Exhibit 5 to Employee's Hearing Exhibit 3.)

While the employer completed an internal Incident Report signed by nine representatives in management with the employer on September 19, 2017, the employer/insurer have not filed an Amended Claim to reflect that they received notice on the date of the employee's injury, as referenced on their own documentation. (See internal Incident Report attached as Exhibit 1 to Employee's Hearing Exhibit 3.)

Despite completing an internal Incident Report on September 19, 2017, the employer/insurer never filed a Report of Injury with the Missouri Division of Workers' Compensation, as required by Missouri Revised Statute Section. (See Legal file.)

Missouri Revised Statute Section 287.380 (1) provides, in part:

Every employer or his insurer in this state, whether he has accepted or rejected the provisions of this chapter, shall within thirty days after knowledge of the injury, file with the division under such rules and regulations and in such form and detail as the division may require, a full and complete report of every injury or death to any employee for which the employer would be liable to furnish medical aid, other than immediate first aid which does not result in further medical treatment or lost time from work, or compensation hereunder had he accepted this chapter, and every employer or insurer shall also furnish the division with such supplemental reports in regard thereto as the division shall require. Employers shall report all injuries to their insurance carrier, or third-party administrators, if applicable, within five days of the date of the injury or within five days of the date on which the injury was reported to the employer by the employee, whichever is later. Where an employer reports injuries covered pursuant to this chapter to his insurer or third-party administrator, the insurer

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

or third-party administrator shall be responsible for filing the report prescribed in this section.

The employer/insurer did not comply with Missouri Revised Statute Section 287.380 (1) and thereby violated Missouri law.

The employee requested medical treatment on numerous occasions from the employer. The employer provided the employee with minimal treatment from on-site nurses and a visiting doctor that visits the plant every two to four weeks. However, the employer/insurer did not send the employee for an evaluation for nearly two years after her work injury, despite the employee's request that they do so.

During the time the employee requested medical treatment, there are 43 entries in the Butterball Nursing Progress Notes in an approximately seven-month period where the employee sought medical treatment with the nursing staff with the employer for her work injuries of September 19, 2017. (See Butterball Nursing Progress Notes attached as Exhibit 6 to Employee's Hearing Exhibit 3.) There is an entry dated May 21, 2018, where the employee presented to the nurse's station for treatment for her back injuries of September 19, 2017. The note states: "Asking about the dr. Advised her she was on the list." (See p. 3 of Exhibit 6 attached to Employee's Hearing Exhibit 3.) However, the employer/insurer did not and has not, to date, authorized medical treatment for the employee's work injuries of September 19, 2017.

After the employer/insurer denied her multiple requests for medical treatment, the employee was forced to seek medical treatment on her own, at her own expense. Dr. Manzer advised the employee to file a workers' compensation claim.

Upon hiring an attorney to file her claim, the claimant was set up to see

21

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

Dr. Ted Lennard about her work injuries. The cost of this evaluation with Dr. Lennard was $1,500.00.

Dr. Lennard opined that the employee's work accident of September 19, 2017, was the prevailing factor in the onset of her low back, bilateral knee, and bilateral hand injuries. Dr. Lennard recommended treatment the employee required to cure and relieve the effects of these work injuries. The employee sent a copy of Dr. Lennard's report and a demand for treatment on January 4, 2019. (See Exhibit 7 attached to Employee's Hearing Exhibit 3.)

The employer/insurer did not approve the treatment that Dr. Lennard recommended. Finally, the employer/insurer had the claimant evaluated with Dr. Kutnik on August 14, 2019. Despite completing an internal Incident Report on September 19, 2017, the date of the employee's injury and a demand for treatment by employee. The employer/insurer did not send the employee for any evaluation until nearly two years after her work injury.

At the August 14, 2019, evaluation with Dr. Shawn Kutnik, the employee reported symptomology in her hands, fingers, back, and both knees to Dr. Kutnik. Dr. Kutnik recorded that the employee had an immediate onset of symptoms to her hands after the fall of September 19, 2017, and this is confirmed in the employee's deposition and the examination of Dr. Lennard.

Dr. Kutnik concluded that the current diagnosis for the employee's hands is unknown. As Dr. Kutnik does not relate a specific diagnosis to the employee's hands, he is not able to opine with regard to prevailing factor. Dr. Lennard testified in his

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

deposition of August 21, 2019, that the report of Dr. Kutnik did not change his opinions.

(See Employee's Hearing Exhibit 1, p. 23.)

To date the employer/insurer have not approved any treatment for the employee's injuries of September 19, 2017. Dr. Lennard recommended medical treatment for the employee's back and knees.

It has been more than one year since Dr. Lennard recommended MRI scans of the lumbar spine and both knees, physical therapy for the knees and low back, and an EMG/NCS of the upper extremities. To date the employer/insurer have not approved, nor have they scheduled the (1) MRI scans of the lumbar spine and knees, (2) physical therapy, or (3) EMG/NCS of the upper extremities.

Missouri Revised Statute §287.560 provides, in part, that:

If the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them.

The employer/insurer denied this claim and denied the employee medical treatment. Despite receiving notice on September 19, 2017, the date of the employee's injury, the employer/insurer alleged a notice defense until a hardship hearing was scheduled in 2019. The employee continued to seek treatment at the nurse's station at the employer's facility on a nearly daily basis for her work injuries and also received medical treatment with the visiting company doctor. The employee continued to request medical treatment from the employer. However, the employer/insurer refused to provide the employee with medical treatment for her work injuries of September 19, 2017, and, to

23

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

date, have not provided the employee with any authorized medical treatment for her work injuries.

Despite a notation being made in the Nursing Progress Notes on May 21, 2018, that the employer had placed the employee on a "list" to see a doctor, she was never referred for medical treatment for her work injury of September 19, 2017. (See p. 3 of Employee's Exhibit 6 attached to Employee's Hearing Exhibit 3.)

Dr. Lennard recommended treatment for the employee on October 18, 2018, and found her fall at work to be the prevailing factor in causing her need for treatment for her back, both hands, and both knees. (See Employee's Hearing Exhibit 1.) The employer/insurer did not authorize the treatment that Dr. Lennard recommended and continued to maintain a notice defense.

The additional treatment the employee requires and the treatment that Dr. Lennard recommended is necessary to cure and relieve the effects of the employee's work injuries. Therefore, the employer/insurer are defending this claim upon an unreasonable ground pursuant to Sec. 287.560.

The employee incurred 1,500.00 in obtaining their IME with Dr. Lennard and 130.00 for interpretation services for the employee's IME with Dr. Lennard. The employee incurred 171.00 in court reporting fees for the employee's deposition and 99.95 for court reporting fees for Dr. Lennard's deposition, while the employer/insurer continued to maintain a notice defense in this claim. The employee incurred $87.90 in court reporting fees for Dr. Kutnik's deposition while the employee continued to wait for the employer/insurer to approve medical treatment for the employee. These were fees that the employee would not have incurred had the employer/insurer approved the

24

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

medical treatment necessary to cure and relieve the effects of the employee's work injuries.

The counsel for employer/insurer deposed employee's counsel and her designated attorney and law partner, John Newman, on September 19, 2019. The employee's counsel claimed 42 hours in prosecuting this claim only with regard to the issue of medical treatment at the time of the hardship hearing on August 29, 2019. At $400.00/hour, the employee's counsel has $16,800.00 in prosecuting this claim to try to obtain medical treatment for the employee that all physicians are commending. These 42 hours do not include the length of the hardship hearing. Counsel for the employer/insurer requested additional documentation with regard to attorney recitation of time in this claim at the deposition of employee's counsel on September 19, 2019. Upon employee's counsel providing counsel for the employer/insurer with this requested documentation, employee's counsel had in excess of 42 hours of time spent in prosecuting this claim with regard to the issue of medical treatment. While employee's counsel proved that they had far more than 42 hours of time in prosecuting the treatment issue, employee's counsel continues to claim only the 42 hours of time submitted at the hardship hearing.

The employer/insurer affirmatively delayed and refused to proceed with authorizing medical treatment for the employee's work injuries of September 19, 2017. The employer/insurer did not send the employee for any evaluation for medical treatment until nearly two years after her work injury.

The denial or lack of authorization for the medical treatment was without support of any medical opinion. Additionally, it is noted that Dr. Lennard, who performed an

25

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

IME for the employee, opined that the work accident of September 19, 2017, involved a compensable injury, for which the employee required medical care. Dr. Lennard opined that the employee requires medical treatment in order to cure and relieve the effects of the work injuries. The only evidence is that the employee requires treatment.

In having sufficiently failed or neglected to provide Ms. Mazariegos with medical care for her work injury of September 19, 2017, the employer/insurer's defense in this case caused the employee to seek legal counsel. The defenses and positions of the employer/insurer prevented the employee from receiving timely and appropriate medical care. This required the employee to incur expenses to prosecute this case, including securing an attorney, obtaining an IME, and preparing for trial.

The actions of the employer/insurer in defending this claim have compromised Ms. Mazariegos' health. Dr. Lennard opined that the work accident of September 19, 2017, is the prevailing factor in causing the employee's injuries and necessitating the medical care Ms. Mazariegos received and continues to need to cure and relieve the effects of her work injuries. Dr. Lennard also opined that the work accident of September 19, 2017, is the prevailing factor in causing the employee's injuries and necessitating the medical care that Ms. Mazariegos requires to cure and relieve the effects of her work injuries.

The subsequent refusal of the employer/insurer to provide the employee with medical care put Ms. Mazariegos' physical condition in peril. The employee was, and is, continuing to experience unresolved symptomology and severe pain, which has significantly impacted her life.

26

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 19-056530

The employee filed a Motion for Costs and Fees Pursuant to Missouri Revised Statute Section 287.560. (See Employee's Hearing Exhibit 3.) The employee presented evidence of attorney time incurred in prosecuting this claim. (See Employee's Hearing Exhibit 4 and transcript from the deposition/hearing testimony of Employee's counsel on September 19, 2019.) The employee has requested that the attorney time submitted be considered for awarding attorneys' fees and that the employee is awarded reimbursement of their incurred expenses of totaling $1,858.85 for obtaining an IME with Dr. Lennard and incurring the costs of the depositions of Dr. Lennard, Dr. Kutnik, and the employee, as this was necessary medical evidence for the hardship hearing after the employer/insurer would not approve the recommended treatment for the employee.

The employer received notice of the employee's work injury on the date she was injured. The employer completed an internal Incident Report on September 19, 2017. (See Report of Injury-Employee Statement attached as Exhibit 1 to Employee's Hearing Exhibit 3.) This internal Incident Report was signed by the employee and nine supervisors/management personnel with the employer. Despite completing an internal incident report, the employer/insurer continued to maintain a notice defense until the hardship hearing on August 29, 2019.

The employer/insurer presented no evidence as to why they maintained a denial in this claim and delayed in sending the employee for any evaluation until nearly two years after the work injury. I find the inaction of the employer/insurer to authorize the treatment being recommended by their own chosen physicians to be egregious. The employee's health is in peril, and she has continued to suffer while the employer/insurer maintained a baseless notice defense.

27

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nivian Mazariegos Hernandez

Injury Nos. 17-105883, 17-107000 & 17-056530

Accordingly, after consideration and review of the evidence, I find and conclude that the employer/insurer in the September 19, 2017, claim defended the Claim for Compensation without reasonable ground, as set forth in Missouri Revised Statute Section 287.560. This statute allows costs, including attorneys' fees, to be assessed against a party if the party brings, prosecutes, or defends a Claim for Compensation without reasonable ground. *Laura Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240 (Mo. 2003). I find and conclude that there is substantial and competent evidence to award attorneys' fees' and costs in the amount of $18,788.85. The calculation of attorney' fees is based on 42 hours at an hourly rate of $400.00. In the event that it is not proper for an administrative law judge to award attorneys' fees and costs at a hardship hearing, then I find that the employer/insurer has defended this claim on unreasonable grounds and that while the employee is entitled to attorneys' fees and costs, it is most appropriate to award attorneys' fees and costs in the final hearing in this claim.

Claimant's attorney, Newman Law Firm, LLC, is awarded an attorney fee of 25%, which shall be a lien on the proceeds until paid. Interest shall be paid as provided by law.

Date: ______________________

Date: ______________________

Date: ______________________

Date: ______________________

Date: ______________________

Date: ______________________

Date: ______________________

Date: ______________________

Date: ______________________

Karen Fisher

Administrative Law Judge

Division of Workers' Compensation

I certify that on 1-13-20 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 __________________________

*Signature*

*Signature*

My