Francis Jr. Crotty v. Wire Rope 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 (ALJ) is not supported by competent and substantial evidence and was not made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge dated January 25, 2005, and awards no compensation in the above-captioned case.

The only claim before the ALJ was an injury due to an accident arising out of and in the course of employment occurring on April 9, 2001, when employee was “pulling shaft from wooden reel.” Employee distinctly injured his right upper extremity specifically due to this singular event.

Following the injury, employee received treatment and returned to his regular work on May 4, 2001. He asserted that he had no problems whatsoever, and all medical treatment on account of the accident ceased.

Employee’s testimony, and the medical opinion of Dr. Koprivica, convinces the Commission, that employee’s right upper extremity complaints and problems, as well as ensuing medical treatment, which arose in 2002, and continued thereafter, were not, and are not, medically causally related to the accident occurring on April 9, 2001.

Employee had achieved maximum medical improvement by May 4, 2001; continued to work without restrictions; had “no problems whatsoever”; and worked for more than one year thereafter without complaints.

The competent and substantial evidence does not persuade the Commission that employee’s ensuing right upper extremity problems arising in 2002 and thereafter, and the medical treatment rendered and/or sought, were substantially caused by or were substantially attributable to the singular, traumatic accident occurring on April 9, 2001.

Consequently, the Commission does not find the accident of April 9, 2001, to be a substantial factor as to the cause of employee’s right upper extremity complaints arising in 2002 or in 2003, nor a substantial factor concerning the need for the medical treatment rendered in 2002 or in 2003 or any additional future need.

The injury was reported to the Division of Workers’ Compensation (Division) in April 2001, pursuant to section 287.380 RSMo. The record shows no further treatment, lost time, or payment for this accidental injury occurring April 9, 2001, subsequent to his returning to work without restrictions in May 2001.

A claim for compensation was filed on July 23, 2004. Section 287.430 RSMo, requires that a claim for compensation be filed within two years of the date of injury or payment on account of the injury attributable to the reported accident.

As the claim was filed more that two years after employee returned to work in May of 2001, no proceedings for compensation shall be maintained under Chapter 287 RSMo.

We find employee's claim for compensation was untimely filed. Compensation for the injury of April 9, 2001, is denied.

The award and decision of Administrative Law Judge Rebecca S. Magruder, issued January 25, 2005, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $4^{\text {th }}$ day of May 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Secretary

I must respectfully dissent from the opinion of the majority of the Labor and Industrial Relations Commission (Commission). I would affirm the award of the administrative law judge (ALJ).

The evidence shows that lost time and medical benefits were provided to employee for his right shoulder condition as late as December 9, 2002. This payment effectively extends the statutory filing deadline to December 9, 2004, as the claim must be filed within two years of the last payment on account of compensation. Section 287.430. RSMo. December 9, 2002, is clearly within two years of the date of the filing of the claim on July 23, 2004.

The majority ignores the evidence in the record of treatment, provided by employer to employee, for his right shoulder. There is no evidence in the record that this treatment was not related to the injury of April 9, 2001. To so conclude would require a medical opinion that we do not have before us. Jones v. Dan D. Services, L.L.C., 91 S.W.3d 214 (Mo. App. 2002).

I would disagree with the majority on the question of the expiration of the statutory period within which a claim may be filed.

I would affirm the award of the ALJ regarding further treatment. I would accept the statement of Dr. Koprivica that the need for treatment "does arise as a direct and natural consequence of the original injury of April 9, 2001." In my judgment, this statement is the most clear and concise of the doctor's statements on causation. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 704 (Mo. App. 1973 E.D.).

Employee: Francis X. Crotty, Jr.

Injury No. 01-032299

Dependents: N/A

Employer: Wire Rope Corporation

Insurer: Missouri Private Sector Self-Insurance Guaranty

Additional Party: N/A

Hearing Date: January 7, 2005

Checked by: RSM/lh

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 9, 2001.
5. State location where accident occurred or occupational disease was contracted: St. Joseph, 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: While removing a shaft from an empty spool, claimant injured his right 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: Right shoulder.
14. Compensation paid to-date for temporary disability: $\ 4,509.27
15. Value necessary medical aid paid to date by employer/insurer? \$14,081.24.
16. Value necessary medical aid not furnished by employer/insurer? None.
17. Employee's average weekly wages: $\ 584.51.
18. Weekly compensation rate: $\$ 389.69 / \ 314.26.
19. Method wages computation: By agreement.

Employee: Francis X. Crotty, Jr. Injury No: 01-032299 Dependents: N/A Employer: Wire Rope Corporation Insurer: Missouri Private Sector Self-Insurance Guaranty Corporation. Additional Party: N/A Hearing Date: January 7, 2005 Checked by: RSM/lh At the hearing, the parties stipulated: 1) that on or about April 9, 2001, Wire Rope Corporation was an employer operating under the provisions of the Missouri workers' compensation law and that their liability under said law was fully insured by the authority to self-insure; 2) that on or about April 9, 2001, Francis Crotty (hereinafter "Claimant") was an employee of Wire Rope Corporation and was working under the provisions of the Missouri workers' compensation law; 3) that on or about April 9, 2001, Francis Crotty sustained an injury by accident arising out of and in the course of his employment; 4) that the employer had notice of the injury; 5) that the average weekly wage was $584.51 and that the applicable compensation rate for temporary total disability benefits is 389.69 per week and 314.26 per week for permanent partial disability benefits; 6) that compensation has been paid in the amount of 4,509.27;

7) that medical aid has been furnished in the amount of \ 14,081.24.

The issues to be determined by the hearing are:

1) whether the conditions complained of by the Claimant result from the accident sustained on April 9, 2001;

2) whether there is a statute of limitations defense on the part of the employer for the conditions complained of;

3) whether further treatment, including surgery to the Claimant's right shoulder, is the responsibility of the employer as a result of the accident occurring on April 9, 2001;

4) whether the employer is liable for temporary total disability benefits commencing on June 17, 2003 up to the present and ongoing as needed.

This case was heard on an application for a temporary (hardship) award on January 7, 2005. The evidence consisted of Claimant's testimony and the reports from Claimant's independent medical examiner, Dr. Koprivica. No other medical reports or records were offered into evidence and no deposition testimony or other witness testimony was submitted.

Based on the evidence I make the following findings of fact: Francis Crotty, age 52, started working for Wire Rope Corporation in 1973 and worked continuously with that company up to April 9, 2001. On April 9, 2001, Mr. Crotty and a co-worker were removing a shaft from an empty spool. The co-worker was pulling and Mr. Crotty was pushing on the shaft. It was while Mr. Crotty was pushing on the shaft that he felt something like an electric shock in his right shoulder. He reported the injury to his employer and was sent by the employer to the Med Clinic for treatment the same day. Prior to April 9, 2001, Claimant had no shoulder problems nor medical treatment for his right shoulder, nor was there any significant degenerative disease identified in the x-ray taken on April 9, 2001.

At the Med Clinic the Claimant was examined by Richard Campbell, a registered nurse. Mr. Campbell took x-rays, which were read as normal and diagnosed a shoulder strain. Mr. Campbell took the Claimant off work for approximately one month, during which time the Claimant received physical therapy. He was seen by Mr. Campbell on April 9, 13, 20, 27, and May 4, 2001. On May 4, the Claimant was released to return to work. The employer paid medical expenses in the amount of $\ 1,279.99 during this period of time and paid temporary total disability benefits of $\ 1,867.60. After receiving this limited course of conservative treatment, the Claimant testified, and I find in accordance with his testimony, that he was able to fully perform the regular duties of his job, which was essentially the same job he was doing p