Eddie Mays v. United Parcel Service

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-182773

Employee: Eddie Mays

Employer: United Parcel Service

Insurer: Liberty Mutual Fire Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: October 28, 1999

Place and County of Accident: 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 February 3, 2005. The award and decision of Chief Administrative Law Judge Kenneth J. Cain, issued February 3, 2005, is attached and incorporated by this reference.

The Commission further approves and affirms the chief 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 $\qquad 25^{\text {th }} \qquad$ 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: October 28, 1999.
5. State location where accident occurred or occupational disease was contracted: 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 delivery driver for United Parcel Service, sustained an accident when he slipped on some grease while walking through a shopping mall to make a delivery. Employee sustained injuries to his right shoulder, neck, and upper back.
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, neck, and upper back.
14. Nature and extent of any permanent disability: Right rotator cuff tear, herniated disc at C3-C4, and strain to upper back muscles.
15. Compensation paid to date for temporary disability: $\ 20,000.52
16. Value necessary medical aid paid to date by employer/insurer? $\ 27,555.13
17. Value necessary medical aid not furnished by employer/insurer? None.
18. Employee's average weekly wages: $\ 921.55
19. Weekly compensation rate: $\$ 578.48 / \ 303.01
20. Method wages computation: $\S 287.250$ and by agreement of parties.

1. Amount of compensation payable:

Claimant indicated that his employer referred him for treatment with Dr. Chenoweth at Altrutech. He stated that afterwards, he was fine until he grabbed a "bunch of golf clubs" at work and re-injured his right shoulder. He stated that he was again referred to Dr. Chenoweth, who released him to return to work on October 25, 1999. He admitted that his pain had greatly improved by that time.

Claimant testified that he sustained another injury at work on October 28, 1999, when he slipped on some grease and fell to the floor while walking through a local shopping mall to make a delivery. He stated that the wall stopped him from sliding across the floor. He also stated that the 600 -pound cart he was pushing rolled on top of his body.

Claimant stated that he initially complained of injuries to his right upper back, the base of his neck, and his right shoulder. He stated that he immediately reported the fall to both his supervisor at work and to the mall supervisor. He stated that the next day he could not move the upper part of his body and that he was again referred to Dr. Chenoweth for treatment.

Claimant testified that his initial treatment was only to the right shoulder and not the upper back and neck. He stated that in December 1999, Dr. Alexandra Strong ordered an MRI and diagnosed a partial tear of the right shoulder. He also stated that although he told Dr. Strong that his neck was his real problem, she advised him that she was only authorized to treat his right shoulder. He stated that she recommended arthroscopic surgery for his rotator cuff tear.

Claimant testified that he initially chose not to have the arthroscopic surgery because he had experienced past problems with various anesthetics. He stated that as a teenager, he almost died following hand surgery and his reaction to the anesthetics. He stated that he was willing to have the surgery if Dr. Strong used a local anesthetic or a block. He also stated that she kept him off work.

Claimant testified that his employer terminated his temporary total disability benefits on January 17, 2000. He stated that he was not physically able to work at that time. He stated that his employer did not reinstate the benefits until October 31, 2000, when it referred him to Dr. Lowry Jones for treatment. He stated that he complained to Dr. Jones of shoulder, upper back, and neck pain. He stated that Dr. Jones advised him that he would treat the shoulder first and then the neck.

Claimant testified that Dr. Jones performed an acromioplasty and arthroscopic surgery to repair the rotator cuff tear in January 2001. He stated that Dr. Jones released him to return to work in April 2001 for his shoulder complaints. He further indicated that Dr. Jones ordered a cervical spine MRI in May 2001, which revealed a herniated disc, and that the doctor then placed him on work restrictions, which his employer could not accommodate. He stated that he treated with Dr. Jones until July 11, 2001.

Claimant testified that his employer last provided treatment for his shoulder and upper back complaints on May 29, 2001. He stated that his employer provided no treatment for his neck complaints other than the MRI. In addition, Claimant testified that he was experiencing some problems with his right testicle, leg, and hip and that on February 23, 2000, he saw Dr. Bergant of KC Neurology for those conditions. He indicated that he had initially experienced the problems about a month after the October 1999 accident and that they became worse in January of the following year.

Claimant also admitted, however, that he had experienced testicular pain prior to his accident at work. He stated that he began experiencing such problems in 1995 and that his pain became constant and more severe after the October 1999 accident.

Claimant testified that from June 14 to August 8, 2002, he was treated at The Headache and Pain Center with complaints of upper and low back pain. He stated that from November 2001 to January 2002, he was treated at the Providence Health Center where he received two shots to his low back. He stated that by January 2002, his low back pain was constant. He stated that he could not work at that time due to neck and low back pain.

Claimant testified that on January 16, 2003, Dr. Wilkinson at KU Medical Center performed surgery at the L4-L5 levels of Claimant's low back. He stated that after the surgery he had less testicular and low back pain. Nevertheless, he stated that he remained unable to sit for extended periods of time. He also stated that he was still receiving therapy for his low back and taking morphine and hydrocodone for his back and neck pain.

Claimant testified that on a scale of 1 to 10 , his neck pain was at a 10 level without medication and at a 3 with it. He stated, however, that the medication caused dizziness, slowness, and constipation. He stated that he could not drive while on it. He also stated that his right shoulder was still weak, numb, and painful. He stated that he could no longer lift a 5-pound

bag of sugar with his right arm. He stated that he still experienced a deep ache in his upper back and numbness and some pain on his left side.

Finally, Claimant admitted to several back injuries prior to 1999. He stated that in 1994, he sprained his back in a work-re