Court of Appeals of Missouri, Southern District, Second Division
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION.
AFFIRMED IN PART; REVERSED IN PART.
For Appellants: Ronald G. Sparlin, of Blanchard, Robertson, Mitchell and Carter, P.C., Joplin, Missouri.
For Respondent: Jennifer L. Newman, of Newman Law Firm, LLC, Springfield, Missouri.
GARY W. LYNCH, J. -- Opinion author. MARY W. SHEFFIELD, P.J. -- concurs. DON E. BURRELL, J. -- concurs.
GARY W. LYNCH, J.
Butterball, L.L.C., and Ace American Insurance Company (together " Appellants" ) appeal the Labor and Industrial Relations Commission's (" the Commission" ) award of workers' compensation benefits to Eleazar Gonzales for an injury to his chest occurring June 26, 2009. In four points, Appellants claim there was not sufficient, competent evidence in the record supporting the award because Gonzales failed to establish that his injury occurred at work; Gonzeles did not provide notice to his employer of any work accident; Gonzales did not miss any time from work to justify the award of temporary total disability benefits; and there was no evidence linking Gonzales's medical treatment to his alleged work injury. Because Gonzales concedes that he did not miss any time from work other than part of the day of his injury and there was no evidence in the record to indicate otherwise, we reverse the award of temporary total disability benefits in the amount of $342.03. Finding no merit in Appellant's remaining three points, we affirm the balance of the Commission's award of workers' compensation benefits.
Factual and Procedural Background
Gonzales was born in Guatemala in May 1947 and currently resides in Joplin, Missouri. He reached the third grade in Guatemala and never obtained a GED. Although Gonzales has lived in the United States for approximately twenty years and is a United States citizen, his native language is Spanish; he does not read or write English.
Gonzales began his employment with Butterball in January 2001. At the time of his injury, Gonzales was working in the evisceration department; his responsibilities included picking up and lifting both live and dead turkeys and putting them in canisters, weighing the turkeys, taking the turkeys to the grinding machines, and cleaning the line.
On June 26, 2009, while lifting a turkey weighing approximately eighty pounds, Gonzales felt a pull in his chest. Gonzales immediately notified Cacio Mario, a layman assisting Gonzales's supervisor, who took Gonzales to the infirmary. There, Gonzales was evaluated by the company nurse. Gonzales's supervisor, Mateo, was present during the evaluation and questioned Gonzales as to his injury. After someone called 911, Gonzales was taken by ambulance to McCune Brooks Hospital in Carthage, Missouri, where an interpreter was not immediately available. There, he underwent an EKG and CPK. Gonzales was subsequently transferred to Freeman Hospital in Joplin, where he underwent a cardiac catheterization, which showed Gonzales to have normal coronary arteries with normal LV function. He had not had any previous problems with his chest. Gonzales was prescribed Vicodin for pain.
The following day, Gonzales was provided with an interpreter and, at that time, Gonzales informed his treating physicians that he had been lifting a heavy turkey and attempting to place it on an upper shelf when he experienced a sudden onset of chest pain that worsened with breathing and movement of the ribs. A series of rib and chest x-rays revealed normal results,
while a physical examination revealed a slightly swollen area over Gonzales's rib cage; this was determined to be secondary to lifting a heavy turkey. Gonzales was discharged from Freeman Hospital in stable condition the day following his injury with a diagnosis of non-cardiac chest pain with rib pain. The treating physician at Freeman Hospital opined that Gonzales was to remain off work for one week with no lifting more than twenty-five pounds for two weeks. Gonzales did not seek any further medical treatment upon his discharge from the hospital and returned to work full-time at Butterball without missing any scheduled days.
At the request of his attorney, Gonzales was evaluated on June 7, 2010, by Dr. Shane Bennoch. Dr. Bennoch opined that, as a result of lifting the heavy turkey on June 26, 2009, Gonzales sustained a muscle strain to his chest wall. He further opined that Gonzales had achieved maximum medical improvement for his injury and, as Gonzales's chest pain had resolved, there was no permanent disability. According to Dr. Bennoch, the treatment Gonzales received at both hospitals was reasonable and necessary to treat Gonzales's injury.
Gonzales's medical bills for treatment incurred as a result of his chest pain on June 26, 2009, total $19,655.91. Appellants have not ...