Josef Czuppon v. Midwest Woodworking

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-020819

Employee: Josef Czuppon

Employers: 1) Midwest Woodworking \& Fixture

2) Thoms Contracting

3) Wise Installations

4) National Installers (dismissed before hearing by claimant)

Insurers: 1) Missouri Employers Mutual

2) Royal Insurance/Frank Gates

3) American International Group

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund (dismissed before hearing by claimant)

Date of Accident: last exposure prior to filing claim

Place and County of Accident: St. Louis, 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 administrative law judge (ALJ) 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 administrative law judge dated December 8, 2004, and awards no compensation in the above-captioned case.

The Commission finds that the ALJ correctly weighed and evaluated the testimony and the law in reaching his conclusions as to compensability. Reese v. Gary and Roger Link, Inc., 5 S.W.3d 522 (Mo. App. E.D. 2002), Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879 (Mo. App. S.D. 2002), Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240 (Mo. banc 2003).

The award and decision of Administrative Law Judge William L. Newcomb, issued December 8, 2004, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\underline{26^{\text {th }}}$ day of July 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

N O T S ITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

AWARD

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: last exposure prior to filing claim
5. State location where accident occurred or occupational disease was contracted: N/A
6. Was above employee in employ of above employers at time of alleged accident or occupational disease? Yes
7. Did employers receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employments? Yes, but liable employer was dismissed.
9. Was claim for compensation filed within time required by Law? Yes
10. Was claim for compensation filed within time required by Law? Yes
11. Were employers insured by the above insurers? Yes
12. Describe work employee was doing and how accident occurred or occupational disease contracted: repetitive work with hands and arms as carpenter over a number of years for different employers.
13. Did accident or occupational disease cause death? No Date of death? N/A
14. Part(s) of body injured by accident or occupational disease: wrists
15. Nature and extent of any permanent disability: N/A
16. Compensation paid to date for temporary disability: None
17. Value necessary medical aid paid to date by employer/insurer? None
18. Value necessary medical aid not furnished by employer/insurer? N/A
19. Employee's average weekly wages: Unknown
20. Weekly compensation rate: $\mathrm{PPD}=314.26$
21. Method wage computation: Agreement among remaining parties

Additional Party: Second Injury Fund (dismissed by Claimant)

Insurer: Missouri Employers Mutual (Midwest)

Royal Insurance / Frank Gates USA (Thoms)

AIG (Wise)

Hearing Date: October 1, 2004 Checked by: WLN

The claimant, Jozsef Czuppon, was represented by Shaun M. Falvey of The Roach Law Firm. Employer Thoms Contracting and insurer Royal Insurance Co. were represented by Patricia L. Musick. Employer Wise Installations and insurer AIU Insurance Co. were represented by James A. Thoenen. Employer Midwest Woodworking \& Fixture, Inc. and

insurer Missouri Employers Mutual Insurance were represented by Patrick N. McHugh. Employer National Installers, Inc. and insurer The Hartford were dismissed by the employee on October 1, 2004, prior to trial. The date of Hearing was October 1, 2004. Mr. Falvey sought a fee of 25% of claimant's award.

The parties stipulated to the following:

1. Did the employee sustain an occupational disease arising out of and in the course of his employment?
2. If the employee sustained an occupational disease, which employer is liable pursuant to Section 287.063, i.e. the last exposure rule?
3. Is an employer liable for permanent partial disability and, if so, what is the nature and extent of that liability?
4. Is an employer liable for medical expenses incurred to date and, if so, the extent of that liability?

It was stipulated that claimant's rate of compensation for permanent partial disability is $\ 314.26. Ratæf compensation for temporary total disability benefits was not addressed as any claim for past due benefits was not sought.

No temporary total disability or medical benefits had been paid by or on behalf of any employer.

The claimant offered the following exhibits:

CLAIMANT'S EXHIBIT A: Medical records from HealthSouth surgery dated 1/22/01

CLAIMANT'S EXHIBIT B: Employment records of Thoms Contracting

CLAIMANT'S EXHIBIT C: Employment records of Midwest Woodworking \& Fixture, Inc.

CLAIMANT'S EXHIBIT D: HealthSouth - physical therapy bill

CLAIMANT'S EXHIBIT E: HealthSouth - physical therapy records dated 1/23/01 through 2/27/01

CLAIMANT'S EXHIBIT F: Amended Claim for Compensation

CLAIMANT'S EXHIBIT G: Records of Carpenters' Health and Welfare Trust Fund of St. Louis

CLAIMANT'S EXHIBIT H: Employment records of Wise Installation, Inc.

CLAIMANT'S EXHIBIT I: Employment records of National Installers, Inc.

CLAIMANT'S EXHIBIT J: Deposition of Robert P. Poetz, D.O.

CLAIMANT'S EXHIBIT K: Medical records of Southwest Medical Center - Douglas Parashak, M.D.

CLAIMANT'S EXHIBIT L: Medical records of Neurological Medicine, Inc. - Glenn M. Sherrod, D.O.

Employers/insurers stipulated to the admission of Exhibits A-F and H-L, subject to objections contained in Exhibit J. Employers/insurers objected to admission of Exhibit G and the court reserved its ruling of the admissibility of same. Exhibit G was admitted.

The employers/insurers offered the following joint exhibits:

EMPLOYERS'/INSURERS' EXHIBIT 1: Deposition of Mitchell B. Rotman, M.D.

EMPLOYERS'/INSURERS' EXHIBIT 2: Original Claim for Compensation filed March 2, 2001

EMPLOYERS'/INSURERS' EXHIBIT 3: Records of Health and Welfare, Pension and Vacation Trust Funds - Member Summary Work History

Claimant stipulated to the admission of Exhibits 1 through 3.

Based on the competent and substantial evidence, I find:

1. Claimant Jozsef Czuppon, a 64 year old male, was born in Hungary and came to America in 1956. He served in the United States military and obtained his GED. He has since worked as a union carpenter and described the type of work he has performed throughout his career as "finish and trim" work. Claimant has, over the years, obtained his jobs both through direct contact with contractors and through his local union hall.
2. Claimant's work has primarily involved cabinet installation, installation of trim, crown molding and baseboards. He retired in 2002. His last two or three years of employment involved commercial installation of cabinets requiring the use of hammer drills and impact wrenches to secure cabinetry to concrete floors, drills and other hand tools.
3. Claimant recalled experiencing pain in his wrist associated with constant throbbing or numbness in the latter part of 1999 .
4. Medical records of Dr. Parashak indicate claimant was seen on 1/21/99 with symptoms of left hand numbness and tingling affecting his thumb, index, third and fourth fingers. These symptoms had been increasing in severity and were worse at night. Dr. Parashak diagnosed early carpal tunnel syndrome, prescribed Motrin and a wrist brace to be worn at night. [Exhibit K].
5. Claimant next returned to Dr. Parashak on 3/30/02 with similar left hand symptoms. Dr. Parashak noted a negative Tinel's sign, no pain with flexion of the wrist and felt biceps tendonitis was responsible for his symptomatology. He recommended an orthopedic evaluation with consideration of nerve conduction studies. [Exhibit K].
6. Claimant was seen by Dr. Glenn Sherrod on April 13, 2003 and an Electromyogram and Nerve Conduction Study was performed. Dr. Sherrod noted this study was consistent with bilateral median nerve compression at the wrists. [Exhibit L].
7. Claimant returned to Dr. Parashak on 6/1/00 for a physical exam because of increase of fatigue and tiredness. Dr. Parashak also noted claimant was having increasing pain from his carpal tunnel and gave him several names of physicians to see for this condition. [Exhibit K].
8. Claimant testified he made arrangements to see Dr. David Caplin in December of 2000. Dr. Caplin performed bilateral endoscopic carpal tunnel decompression on 1/22/01 at HealthSouth Outpatient Surgery Center. [Exhibit A]. Dr. Caplin then referred him to HealthSouth where he received therapy through 2/15/01. [Exhibit E]. Claimant testified he returned to Dr. Caplin on 2/15/01 and 3/9/01 and has not received medical treatment for this condition since that date.
9. Claimant filed a Claim for Compensation on March 2, 2001 alleging bilateral carpal tunnel syndrome from constant repetitive use of his hands. He alleged a date of accident/occupational disease as "1/22/01 Date of Surgery" and "3/00 Date of Diagnosis." The employers named in this claim were "Thomas Contracting" and "Midwest Woodworking." [Exhibit 2].
10. Claimant filed an Amended Claim for Compensation in October of 2002 naming Wise Installations, Out-ofTown Contractors and Woodworkers of Denver as additional employers. All other allegations were unchanged. [Exhibit F].
11. Prior to filing his Claim for Compensation, claimant last worked for National Installers, Inc. This employment consisted of 27 hours of work from 2/12/01 through 2/15/01. [Exhibit I]. This was claimant's first job after surgery and involved installation of cabinets and fixtures at an Office Max. His job duties required him to use a hammer drill and a rubber mallet. Claimant testified that he thought it was too early for him to return to work and his job duties "definitely" caused his symptoms of his bilateral carpal tunnel symptoms to increase. During this time, claimant was still receiving physical therapy and had yet to be released from Dr. Caplin's care.