Steven West v. America's Body Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-151207

Employee: Steven West

Employer: America's Body Company

Insurer: Commerce \& Industry

Date of Accident: November 26, 2002

Place and County of Accident: North Kansas City, Clay County, Missouri

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 chief administrative law judge 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 award and decision of the chief administrative law judge dated December 21, 2004. The award and decision of Chief Administrative Law Judge Kenneth J. Cain, issued December 21, 2004, 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.

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

Attest: John J. Hickey, Member

Secretary

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 26, 2002.
5. State location where accident occurred or occupational disease was contracted: North Kansas City, Clay 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 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: Employee, while in the course and scope of his employment as a mechanic for America’s Body Company was lifting a 200 to 300 pounds steel bumper when his left elbow jerked and snapped.
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 elbow.
14. Nature and extent of any permanent disability: Tendon and biceps tear in the left elbow.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None.
17. Value necessary medical aid not furnished by employer/insurer? $5,135.76.
18. Employee’s average weekly wages: 550.
19. Weekly compensation rate: 366.66/$340.12.
20. Method wages computation: By agreement and §287.250.

1. Amount of compensation payable: Unpaid medical expenses: $5,135.76 21 weeks of temporary total disability (or temporary partial disability) @ 366.66 equals 7,696.86. 42 weeks of permanent partial disability from employer @ 340.12 per week equals 14,285.04

1. Second Injury Fund liability: N/A | |

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Steven West

Injury No: 02-151207

Dependents: N/A

Employer: America's Body Company

Insurer:Commerce & Industry

Additional Party: Missouri State Treasurer, Custodian of the Second Injury Fund

Hearing Date: October 20, 2004

Checked by: KJC/lh

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

1) The nature and extent of the disability sustained by the Employee;

2) Whether all the conditions complained of resulted from the accident;

3) Liability of the employer for 21 weeks of temporary total disability benefits in the amount of 7,696.86;

4) Liability of the Employer for 5,135.76 in past medical aid;

5) Whether the Employee sustained any disfigurement as a result of the accident; and

6) Liability of the Employer for fees and costs under §287.560 due to an unreasonable defense in the case.

At the hearing, Mr. Steven West (hereinafter referred to as Claimant), testified that he was 50 years old. He stated that he sustained injuries at work on November 26, 2002, and March 25, 2003.

Claimant testified that he injured his left arm in both incidents. He stated that the November 26, 2002, injury occurred when he lifted a 200 to 300 pounds steel bumper to bolt on a truck and his left arm jerked and snapped. He stated that he felt immediate and sharp pain. He stated that he dropped the bumper. He stated that there were no witnesses to the alleged accident.

Claimant testified that he immediately told his supervisor, Randy Turley, about the injury. He also stated that he told Mr. Turley that he was afraid of losing his job due to company layoffs and that he did not believe that he needed to see a doctor.

Claimant testified that he favored his left arm the rest of the workday. He stated that he was then off work for two days for the Thanksgiving holiday. He stated that upon his return to work he mainly did light duty and favored his left arm until he re-injured it on March 25, 2003. He stated that the light duty primarily consisted of working on air lines to trucks and electrical connections to mirrors.

Claimant testified that the re-injury occurred in March 2003 when he attempted to "pop" a co-employee's back. He indicated that prior to the start of the workday, but while he was standing at his workstation, the coemployee, Danny Wilson, asked him to "pop" his back. He stated that he had never attempted to "pop" anyone's back prior to that day. He stated that he reached around Mr. Wilson and grabbed him by the elbows and was preparing to lift him from the floor when he felt pressure in his left elbow. He stated that he did not believe that he lifted Mr. Wilson from the floor.

Claimant indicated that while attempting to lift Mr. Wilson he realized that his arm had not healed when he experienced a sharp pain in his left elbow. He stated that the pain was less intense than what he experienced in November 2002, when he lifted the 200 to 300 pounds steel bumper.

Claimant testified that he told his supervisor on March 25, 2003 that he did not believe that his arm was going to heal and that he needed to see a doctor. He stated that his supervisor referred him to Steve Boles, the operations manager, who sent him to a clinic in North Kansas City for treatment. He stated that the treatment at the clinic was the first he received for his left elbow injury.

Claimant testified that he provided a history of the November and March incidents at the North Kansas City Clinic. He acknowledged that the doctor's records did not mention anything about the lifting incident on March 25, 2003. He stated, however, that he had no reason not to tell the doctor about the incident because he had already informed his employer of it.

Claimant testified that the doctor at the North Kansas City Clinic prescribed physical therapy three times per week. He stated that his employer refused to provide the treatment. He stated that both his employer and its workers' compensation insurer advised him by letter to submit any claims to his health insurance carrier because the injury was not work related. He stated that the last treatment provided by his employer was on March 26, 2003.

Claimant testified that on March 28, 2003, he sought treatment by his family doctor, who referred him to Dr. Alexandra Strong, an orthopedic surgeon. He stated that Dr. Strong had previously performed an ACL reconstruction on his left knee and treated him for back and ankle sprains. He stated that he told her about both the November 2002 and March 2003 incidents.

Claimant testified that Dr. Strong ordered an MRI of his left elbow and diagnosed a tear. He stated that she initially prescribed therapy, which he received until August 2003. He stated that she then performed surgery to reattach the tendon in his left biceps to his elbow. He stated that she told him that the injury was caused by the November 26, 2002 incident as opposed to the one on March 25, 2003.

Claimant testified that Dr. Strong placed no permanent restrictions on the use of his left elbow. He stated that on a scale of 1 to 10 his strength in the elbow was at a 7 or 8 level. He also stated that he returned to work on September 26, 2003, but at a different company because America's Body Company had terminated him on May 5, 2003, the day after a tornado had destroyed the plant.

Claimant testified that he was off work from March 26 until September 26, 2003. He stated that he was released to return to work on August 19, 2003, and that he was asking for $\ 7,699.86 in temporary total disability benefits, representing the 21 weeks ending on August 19, 2003. He also stated that he was seeking the $\ 5,135.76 he incurred in medical bills for treatment for his left elbow injury.

Claimant testified that when he returned to work on September 26, 2003, he did oil changes and grease jobs in his new position. He stated that he obtained a new job in February 2004, which allowed him to work on light trucks and perform similar duties as to those he did for America's Body.

Finally, Claimant testified that his left arm was still weak and that it was difficult to grasp things with his left upper extremity. He stated that he had pain in his elbow, but not of a constant nature. He complained of an inability to lift heavy objects. He stated that cold weather affected his elbow. He admitted that most of his range of motion in the elbow had returned.

In addition, Claimant's scar on his left elbow due to the tendon transplant extended approximately $41 / 2$ inches in both a horizontal and vertical direction. The scar was more pronounced vertically. It was also a little wider than pencil width in the horizontal direction.

On cross-examination, Claimant admitted that at his deposition he had indicated that following the November 2002 incident his pain on a scale of 1 to 10 was a 4 . He admitted that he had testified that he only had a little loss of strength in his elbow prior to the March 2003 incident.

Claimant admitted that his employer did not tell him that he would be laid off if he requested medical treatment following a work related injury. He admitted that he did not seek treatment by his family doctor for his elbow complaints until after the March 2003 incident. He admitted that he had health insurance during the period November 2002 to March 2003.

Claimant admitted that he received disability benefits of approximately $\ 3,200 for the period March 25 to July 7, 2003. He stated that his employer told him to apply for the benefits.

On Redirect Examination, Claimant testified that he knew of three employees wh