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.