Donna Burns v. Wal-Mart Associates Inc

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 20-025625

Employee: Donna Burns

Employer: Wal-Mart Associates

Insurer: New Hampshire Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. On February 25, 2022, the administrative law judge (ALJ) issued an award allowing compensation in this workers' compensation case. The employer/insurer filed a timely application for review with the Commission. ${ }^{1}$

On June 16, 2022, after all parties filed their briefs, the Employer/Insurer filed a letter/motion requesting to withdraw Point I of the petitioner's brief, titled:

THE ALJ ERRD [sic] IN FINDING THAT THE CLAIMANT ESTABLISHED THAT HER INJURIES AROSE OUT OF AND IN THE COURSE OF HER EMPLOYMENT BECAUSE THE CLAIMANT'S TESTIMONY REGARDING THE ALLEGED PALLET WAS NOT CREDIBLE IN THAT THE MOST CONTEMPORANEOUS EVIDENCE IMMEDIATELY FOLLOWING THE INJURY DID NOT SUPPORT THE CLAIMANT'S TESTIMONY REGARDING TRIPPING OVER A PALLET AT THE AT [the] TIME OF HER INCIDENT.

We grant the employer/insurer's request.

We now address the merits of the employer/insurer's application for review. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the ALJ allowing compensation 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 ALJ's award and decision.

We affirm and adopt the February 25, 2022, award and decision of Administrative Law Judge Kenneth J. Cain, which we attach and incorporate herein.

We further approve and affirm the administrative law judge's allowance of an attorney's fee herein as being fair and reasonable.

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

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[^0]: ${ }^{1}$ The employee named the Second Injury Fund (SIF) as a party in his claim. The employer/insurer also listed the SIF as involved in its application for review. However, the employee's SIF claim was bifurcated at hearing. Award, p. 2, n. 3. Therefore, the SIF is not a party to this award.

From: 20-025625

Employee: Donna Burns

-2-

Given at Jefferson City, State of Missouri, this 21st day of October 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Rodney J. Campbell, Chairman

Shalonn K. Curls, Member

Kathryn Swain, Member

Attest:

Secretary

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

www.labor.mo.gov/DWC

FEBRUARY 25, 2022

20-025625

Scan Copy

*Employee : DONNA R BURNS 13318732 7 523 E PACIFIC AVE INDEPENDENCE, MO 64050* Employer : WAL MART ASSOCIATES INC 13318733 4 702 SW 8TH STREET BENTONVILLE, AR 72712-6209

#Insurer Attorney : ABAGAIL L PIERPOINT 13200 METCALF SUITE 110 OVERLAND PARK, KS 66213

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

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

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

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

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

DIVISION OF WORKERS' COMPENSATION

Continued

AWARD ON HEARING HLP

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

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Donna Burns

Employee

Donna Burns

Injury No. 20-025625

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

Employer: Walmart Associates

Insurer: New Hampshire Insurance Co.

Additional Party: N/A

Hearing Date: January 28, 2022

Checked by: KJC/drl

Briefs Due: ${ }^{1}$

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: April 24, 2020.
5. State location where accident occurred or occupational disease occurred: Independence, Jackson County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while in the course and scope of her employment as a cashier for Walmart was walking down an aisle in the store to get to her work station when she tripped over a pallet and fell and injured her head and left shoulder.

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[^0]: ${ }^{1}$ The parties elected not to file briefs.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

1. Did accident or occupational disease cause death? No. Date of death? N/A.

1. Part(s) of body injured by accident or occupational disease: Head and left shoulder.

1. Nature and extent of any permanent disability: 45 percent to left upper extremity at the 232 week level due to left shoulder injury and 8 percent to body as a whole due to head injury.

1. Compensation paid to date for temporary disability: $9,255.29.

1. Value necessary medical aid paid to date by employer/insurer: $62,730.80.

1. Value necessary medical aid not furnished by employer/insurer: Undetermined.²

1. Employee's average weekly wages: 995.67

1. Weekly compensation rate: 663.72/$514.20.

1. Method wages computation: By agreement.

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: Undetermined. (See additional findings of fact and rulings of law).

Weeks for temporary total (temporary partial disability): 13.67 weeks @ 663.72 per week equals 9,255.29 (previously paid).

Weeks for permanent partial disability: 136.4 weeks @ 514.20 per week equals 70,136.88.

Weeks for permanent total disability: N/A.

Weeks for disfigurement: N/A.

1. Second Injury Fund Liability: ³

TOTAL: $70,136.88

1. Future requirements awarded: Undetermined.

Said payments to begin as of date of the award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Mr. Brett Coppage.

² Case is left open for possible future medical treatment related to the prosthetic device in the employee's left shoulder.

³ The Second Injury Fund claim was bifurcated.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

**Injury No: 20-025625**

**FINDINGS OF FACT AND RULINGS OF LAW**

Employee: Donna Burns

**Injury No. 20-025625**

Dependents: N/A

Employer: Walmart Associates

Insurer: New Hampshire Insurance Co.

Additional Party: N/A

Hearing Date: January 28, 2022

**Checked by: KJC/drl**

**Briefs Due:** 4

Prior to the hearing, the parties entered into various admissions and stipulations. The remaining issues were as follows:

1. Whether the Employee sustained an accident arising out of and in the course and scope of her employment;
2. The nature and extent of the disability sustained by the employee; and
3. Liability of the employer for future medical benefits.

At the hearing, Ms. Donna Burns (hereinafter referred to as Claimant) testified that she was born on October 13, 1953. She stated that she had worked at Walmart for 28 years; all but the first two years as a cashier.

Claimant testified that her injury at work occurred on April 24, 2020. She stated that she took her lunch break in Walmart's employees' breakroom on that date. She stated that after finishing her lunch break, she clocked back in and that as she was walking from the breakroom to her work station in the self-checkout section of the store, she tripped on a pallet on the floor. She stated that she did not remember actually falling.

Claimant testified that her next memory was sitting on the pallet with a paramedic helping her to get up. She stated that she struck her head when she fell and that the left side of her body was hurting. She alleged injuries to her head and left shoulder.

Claimant testified that she had not sustained any prior left shoulder injuries. She stated that she had injured her head in a 1970 motor vehicle accident when she was 17 years old. She stated she experienced some memory problems for probably about 2 years after her 1970 injury. She stated that her memory had returned to normal long before her fall at work in April 2020. She stated that she was able to do all of her job tasks at Walmart from the time she started up until the time of her 2020 fall at work.

4 The parties elected not to file briefs.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donna Burns

Injury No: 20-025625

Claimant explained the treatment she received after her head and left shoulder injuries at work in April 2020. She noted that she had surgery for her left shoulder injury. Her medical records showed that Dr. Cowan performed a reverse left shoulder replacement on Claimant on April 27, 2020. Afterwards, her left shoulder was immobilized for 4 weeks. She then had physical therapy for 6 months. She was released to return to work at full duty on October 26, 2020 with a restriction by Dr. Cowan of no lifting over 40 pounds and no repetitive lifting overhead with her left arm.

Claimant complained of continuing problems with her left shoulder. She complained of constant left shoulder pain. She stated that she still applies Aspercreme to her left shoulder. She stated that the pain from her left shoulder radiated down her left arm to her left hand and wrist. She stated that sometimes the pain was sharp and that other times it was more numbness and tingling.

Claimant testified that her pain increased with lifting. She stated that her pain interrupted her sleep. She stated that she had a greatly reduced range of motion of her left upper extremity. She stated that unassisted she could only raise her left arm to a level parallel with the floor. She stated that her strength in her left arm was now weaker. She stated that she had difficulty in carrying things with her left arm. She stated that she now had to rely more on her right arm. She stated that it was difficult to use her left upper extremity to curl her hair and to shower.

Claimant also testified to continuing problems due to her head injury. She complained of headaches. She complained of short term memory problems. She stated that she now had to take notes or write things down at work or that she would forget what she was supposed to do. She also alleged problems with irritability as a result of her April 2020 head injury at work.

In addition, Claimant testified that she still experienced problems with dizziness, although she indicated that her doctor had advised her that her dizziness was caused by her need for new prescription eye glasses. She stated that she still had not purchased new glas