Cynthia Porter v. St. Louis Post-Dispatch, LLC / Lee Enterprises / CCL Label, Inc. / CCL Industries Corp.

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Employee:** Cynthia Porter

**Injury No. 17-013765**

**Employer:** St. Louis Post-Dispatch, LLC / Lee Enterprises

CCL Label, Inc. / CCL Industries Corp.

**Insurer:** Self-Insurer c/o Parker Services LLC / Sentry Ins. Co. (Post-Dispatch)

Indemnity Ins. Co. of North America / c/o ESIS (CCL Label)

An administrative law judge (ALJ) issued a Temporary or Partial Award in the above-entitled workers' compensation case on December 23, 2021. The employer/insurer filed a timely application for review pursuant to § 287.480 RSMo on January 12, 2022.

Commission Rule 8 CSR 20-3.040 specifies when an application to review a temporary or partial award may be filed. This rule allows a party who feels aggrieved by the issuance of a temporary or partial award by an ALJ to petition the Commission to review the evidence upon the ground that the applicant is not liable for the payment of any compensation.

Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the ALJ in this regard is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The petitioner's application for review challenges the ALJ's finding that "Claimant's diabetes was under control"¹ as without support in the medical evidence. On the contrary, we note medical expert Dr. Bruce Schlafly's deposition testimony that the employee's diabetes "was well controlled as of the blood test of February 10, 2017."²

This award is only temporary or partial and subject to further order. All parties should be aware of the provisions of § 287.510 RSMo.

The award and decision of Administrative Law Judge Lee B. Schaefer, issued December 23, 2021, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **27th** day of July, 2022.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Attest:

**Rodney J. Campbell, Chairman**

**Shalonn K. Curls, Member**

**NOT SITTING**

Kathryn Swan, Member

Secretary

¹ Award, p. 13.

² Transcript, p. 98.

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (800) 775-2667

www.labor.mo.gov/DWC

DECEMBER 23, 2021

17-013765

Scan Copy

@Employee . . . . . CYNTHIA PORTER 5021 MARNE DR HLACK JACK, MO 63033-8527 *Employer . . . . . : ST LOUIS POST DISPATCH LLC 13318548 4 900 N TUCKER BLVD ST LOUIS, MO 63101-1099 *Employer . . . . . : CCL INDUSTRIES CORP 13318550 7 208 SPRING DR ST CHARLES, MO 63303 *Insurer . . . . . : ST LOUIS POST DISPATCH LLC 13318552 1 c/o PARKER SERVICES LLC PO BOX 8032 STEVENS POINT, WI 54481 @Insurer . . . . . : INDEMNITY INS CO OF NO AMERICA c/o KSIS INC PO BOX 6561 SCRANTON, PA 18505-6561 *Insurer . . . . . : INDEMNITY INS CO OF NO AMERICA 13318555 2 c/o KSIS INC PO BOX 6561 SCRANTON, PA 18505-6561 @Insurer Attorney : BRENT M NEUMEYER 505 N 7TH ST STE 2100 ST LOUIS, MO 63101

@Employee Attorney: MARK A CORDES 1 MEMORIAL DR 11TH FLOOR ST LOUIS, MO 63102 *Employer . . . . . : LEE ENTERPRISES 13318549 1 900 N TUCKER BLVD SAINT LOUIS, MO 63101 *Employer . . . . . : CCL LABEL INC 13318551 4 208 SPRING DR ST CHARLES, MO 63303 *Insurer . . . . . : SENTRY INSURANCE COMPANY 13318553 8 1501 N POINT DR PO BOX 8032 STEVENS POINT, WI 54481 *Insurer . . . . . : INDEMNITY INS CO OF NO AMERICA 13318554 5 PO BOX 42065 PHOENIX, AZ 85080 *Insurer Attorney : DAVID S WARE 211 N BROADWAY STE 2500 ST LOUIS, MO 63102

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

Continued TEMPORARY AWARD APPROVAL NLP

17-015765

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

WC-181 (05-21)

TEMPORARY AWARD APPROVAL

NLP

Relay Missouri: 800-735-2966

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.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-013765

TEMPORARY AWARD

Employee: Cynthia Porter

Employers: Post-Dispatch, LLC/Lee Enterprises

CCL Label, Inc./CCL Industries Corp.

Additional Party: Second Injury Fund

Insurers: Self-Parker Services LLC/Sentry Ins. Co. (Post-Dispatch)

Indemnity Co. of NA/ c/o ESIS (CCL Label)

Hearing Date: September 29, 2021

Injury No.: 17-013765

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LBS

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: March 6, 2017

1. State location where accident occurred or occupational disease contracted: St. Louis City

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes (Post-Dispatch)

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

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

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident happened or occupational disease contracted:

Claimant allegedly sustained an occupational disease over time due to repetitive trauma.

1. Did accident or occupational disease cause death? No

1. Parts of body injured by accident or occupational disease: Bilateral wrists - bilateral carpal tunnel syndrome

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

1. Value necessary medical aid paid to date by employer/insurer? Post-Dispatch -$7,324.97, CCL - None

1. Value necessary medical aid not furnished by employer/insurer? None

WC-32-R1 (6-01)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-013765

1. Employee's average weekly wages: 272.38 (Post-Dispatch)

1. Weekly compensation rate: 181.59 (for Temporary Total Disability from the Post-Dispatch)

1. Method wages computation: Using the Workers' Compensation Statute

COMPENSATION PAYABLE

1. Employer/Insurer liability:

Employer/Insurer, the Post-Dispatch, is ordered to provide the necessary medical care to cure and relieve the effects of Claimant's bilateral carpal tunnel syndrome. As required under the statute, the Post-Dispatch is also ordered to pay temporary total disability for any time Claimant misses from work at the Post-Dispatch while receiving the ordered treatment.

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

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

WC-32-R1 (6-81)

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

injury No.: 17-013765

An evidentiary hearing was held before Administrative Law Judge Lee Schaefer in the above-referenced matter on September 29, 2021. Cynthia Porter ("Claimant") was present and was represented by her counsel, Mark Cordes. Mr. Cordes did not request a fee as this is a Temporary Award for treatment. The Post-Dispatch LLC/Lee Enterprises ("Post-Dispatch") is self-insured, its workers' compensation insurance is managed by Parker Services LLC/Sentry Insurance Company. The Post-Dispatch was represented by David Ware and Maryann Lindsey. CCL Label Inc./CCL Industries Corporation ("CCL") and its insurer, Indemnity Insurance Company of N.A./ESIS, were represented by counsel, Jackson Hedges.

The parties stipulated to the following facts:

1. On or about March 6, 2017, Claimant allegedly sustained an occupational disease arising out of and in the course and scope of her employment due to repetitive trauma;
2. Claimant and Employers were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
3. Claimant was an employee of both Employers;
4. Post-Dispatch received proper notice of Claimant's injury;
5. Claimant filed her Claim for Compensation within the time prescribed by law;
6. On March 6, 2017, Claimant was making an average weekly wage at the Post-Dispatch of $272.38;
7. On March 6, 2017, Claimant was making an average weekly wage at CCL of $572.92;
8. Neither Employer has paid any temporary total disability;
9. Post-Dispatch has paid $7,324.97 in medical benefits, CCL has not paid any medical benefits;
10. Claimant is not alleging a specific accident;
11. Venue for the hearing in this matter is proper at the St. Louis Office of the Missouri Division of Workers' Compensation.

WC-32-R1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-013765

The issues to be resolved at this hearing are:

1. Did Claimant sustain an occupational disease arising out of and in the course and scope of her employment with either Employer?
2. Is Claimant's bilateral carpal tunnel syndrome ("CTS") medical casually related to her job duties at the Post-Dispatch?
3. Is Claimant's bilateral carpal tunnel syndrome ("CTS") medically casually related to her job duties at CCL?
4. Did Claimant provide adequate Notice of her occupational disease to CCL, as required under the statute?
5. What is the appropriate rate for temporary total disability from the Post-Dispatch?
6. Is either Employer responsible for surgery for Claimant's bilateral CTS?

Claimant offered and had accepted into evidence, the following Exhibits:

- Exhibit 1a: Deposition of Dr. Bruce Schlafly

- Exhibit 1b: CV of Dr. Bruce Schlafly

- Exhibit 1c: Report of Dr. Bruce Schlafly

- Exhibit 2a: Medical records of Dr. Evan Crandall

- Exhibit 2b: CV of Dr. Evan Crandall

Post-Dispatch offered and had accepted into evidence, the following Exhibits:

- Exhibit A: R