Nicholas Parrino v. Universe Corporation

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge, as modified, is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the modified award and decision of the administrative law judge dated July 12, 2004. The award and decision of the administrative law judge (ALJ) is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law. This matter is before the Commission on a review filed by Employee from an award allowing compensation. Employee stated that the ALJ erred in finding no liability against the Second Injury Fund. We disagree and affirm the ALJ in that respect. Employee also stated that the ALJ erred in not finding permanent total disability or, in the alternative, a higher degree of permanent partial disability, in not awarding temporary total disability and reimbursement of medical expenses.

We agree with and adopt the award of the ALJ in all respects save for the amount of permanent partial disability. The Commission is charged with the responsibility of determining the nature and extent of permanent partial disability, if any, resulting from an injury. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879 (Mo. App. S.D. 2001), Elmer v. Bd. of Police Comm'rs, 895 S.W.117, 120 (Mo. App. 1995). After reviewing the lay and medical testimony we find that Employee has sustained a disability of 50% of the left shoulder as a result of the injury of November 4, 1999. This amounts to 116 weeks of compensation at the rate of 303.01 per week or 35,149.16. Said compensation is due and payable.

Given at Jefferson City, State of Missouri, this 7th day of January 2005. LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Hickey, Member

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: November 4, 1999
5. State location where accident occurred or occupational disease was contracted: Bridgeton, 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 the 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: Claimant was engaged in heavy overhead lifting as an ironworker when he sustained an injury to his left shoulder.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left shoulder.
14. Nature and extent of any permanent disability: 40 % permanent partial disability of the left shoulder.
15. Compensation paid to-date for temporary disability: $\ 14,547.92.
16. Value necessary medical aid paid to date by employer/insurer? $\ 35,438.48.

The parties agreed that on or about November 4, 1999, Claimant sustained an accidental injury arising out of and in the course of his employment that resulted in injury to Claimant's left shoulder. At that time, Claimant earned an average weekly wage that qualified him for rates of compensation of $\ 578.48 for temporary total disability benefits and $\ 303.01 for permanent partial disability benefits. Employer paid temporary total disability benefits in the amount of $\ 14,547.92 covering a period of time from January 19, 2001 through July 30, 2001. Employer also paid medical benefits totaling $\ 35,438.48.

At the request of Employer/Insurer's attorney, I take notice of the fact that Amerisure had coverage for Employer from November 30, 1998 through November 30, 2000. Employment, venue, notice, and timeliness of the claim were not at issue.

The issues to be determined are:

1. Is Claimant's condition medically casually related to his work related accident;
2. What is the nature and extent of the disability associated with Claimant's primary left shoulder injury; and
3. What is the liability of the Second Injury Fund?

Claimant seeks permanent total disability benefits from the Second Injury Fund.

Claimant is a 62-year-old married man. As a youth, he completed the ninth grade, and worked menial jobs until joining the Army in 1960. Claimant was honorably discharged in 1962 after achieving the rank of Sergeant E-5. He was trained in combat/infantry alone, and acquired no unique skills while in the Army. Claimant is able to read and balance his checkbook.

In 1965, Claimant joined the Local Ironworkers Union. After a three-year apprenticeship, he became a journeyman, a position he held through his last day of work on January 18, 1999. Claimant described the intensely physical nature of ironwork, which involved building bridges, structural steel, concrete and other structures, often in the cold. His tool belt alone weighed from 45 to 55 pounds when loaded, and he otherwise had to carry from 70 to 90 pounds at a time. The difficult positions he was required to assume included bending, stooping, climbing and walking on four to twelve inch beams, sometimes many feet off the ground.

Claimant injured his left shoulder on November 4, 1999, while working for Employer, a company that produced and installed "skin" for high-rise buildings. In the fall of 1999, Employer was building its own plant in Bridgeton, Missouri, and Claimant was assembling material racks. While holding a 60 to 70 pound piece of metal overhead, Claimant felt a "good jolt of pain" in his left shoulder. Prior to this event, he had no problems or symptoms in his left shoulder.

Claimant testified did not get treatment immediately because getting banged around is common in his profession, and he figured it would get better. However, the next day his shoulder still hurt, so he asked for treatment. At Barnes Care Center, doctors diagnosed a strain, and provided two sessions of physical therapy, which Claimant found painful. Claimant had no improvement while he was at Barnes Care, and despite treatment, continued to have problems with pain, especially with heavy lifting, lifting over shoulder height, and sleeping. The doctor led Claimant to believe he did not have a rotator cuff injury and he would heal with time. Claimant continued to work regular hours performing regular duties for almost a year, but he claimed he favored his shoulder, and got help from his friends and son. During that time his shoulder did not improve, and no new injuries occurred.

Eventually, Claimant got treatment on his own. He first saw Dr. Hertel, who made the same diagnosis. He then saw Dr. Covert, who ordered an MRI and referred Claimant to Dr. Haupt. Dr. Haupt examined Claimant and reviewed films. He proposed, among other things, a scoping procedure to determine the cause of Claimant's complaints and possibly repair the problems. When Dr. Haupt performed the arthroscopic procedure, he found a torn rotator cuff and performed an open repair. Claimant received all this treatment through his private health insurance.

Claimant's recovery included a mechanical chair to assist in mobility of his shoulder, and six months of physical therapy and work hardening. Claimant has not had treatment for his left shoulder since July 2001. Claimant got to the point where he could move his shoulder, but he still had pain with certain movements. He testified that his arm does not physically perform in the manner it did before his injury. For example, he finds it difficult to reach to the opposite shoulder or the top of his head. He has decreased strength and cannot lift even light items overhead. Claimant testified that he was discharged without additional instructions regarding home therapy or other modalities of treatment. Claimant has not returned to work. Claimant testified he cannot do ironwork, and that there is no such thing as light duty in the union.

Claimant explained the problems he says preexisted his shoulder injury. Claimant testified he had problems with his knees for five or six years before his shoulder injury, including numbness, pain with lifting, trouble kneeling, and difficulty

climbing ladders. He took pain pills, but never saw a doctor, never had treatment, and never missed work because of his knees. Claimant made a point of saying tha