Salvatore Vitale v. Vee-Jay Cement Construction Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-166347

Employee: Salvatore Vitale

Employer: Vee-Jay Cement Construction Company

Insurer: Fairmont Insurance Company/TIG

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

Date of Accident: November 22, 1999

Place and County of Accident: Various work locations

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 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 May 6, 2005. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued May 6, 2005, 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 $\qquad 12^{\text {th }} \qquad$ day of October 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

FINAL AWARD

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 onset of occupational disease: November 22, 1999.
5. State location where accident occurred or occupational disease was contracted: Various work locations.
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. Other insurers named are not liable for benefits.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: As an ironworker, Claimant used his right upper extremity in a repetitive manner.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Right upper extremity at the elbow and wrist.
14. Nature and extent of any permanent disability: $17 ½% of the elbow and 40% of the wrist, plus disfigurement.
15. Compensation paid to-date for temporary disability: $\ 34,583.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 35,774.72

Employee: Salvatore Vitale Injury No.: 99-166347 17. Value necessary medical aid not furnished by employer/insurer? $\ 0 18. Employee's average weekly wages: $\ 1,100.00 19. Weekly compensation rate: $\$ 578.48 / \ 303.01 20. Method wages computation: By agreement.

1. Amount of compensation payable: $572 / 7$ weeks of temporary total disability:* $\quad \ 33,138.64 106.75 weeks of permanent partial disability from Employer: $\quad \ 32,346.32

8 weeks of disfigurement from Employer: $\quad \ 2,424.08

December 14, 1999 to December 14, 2000 for work at BJC cites ONLY.

The following issues presented for determination at the final hearing:

1. Which insurance company is responsible to pay benefits due Claimant;
2. Does the Division of Workers' Compensation have jurisdiction to order one insurance company to reimburse another;
3. Is Claimant entitled to temporary total disability benefits from December 28, 2000 to February 2, 2002; [1]
4. What is the nature and extent of Claimant's disability; and
5. What is the liability of the Second Injury Fund?

Claimant is a 61-year-old man who was born in Sicily, Italy. He learned to read and write in Italian even though he left school when he was approximately 11 years old to begin his working career. In his homeland, he had laborer and truck driving jobs. Claimant came to the United States in 1967, but continues to rely on his native tongue to communicate. Although he can understand spoken English, he does not read or communicate well in English, and he has always worked with or for other Italian-speaking people. He is able to drive, shop, and generally function independently even with the language barrier. Claimant's daughter was present at hearing and provided assistance as a translator under oath.

Claimant has worked for Employer for over 20 years. Initially a laborer, Claimant worked as an ironworker since 1990. Claimant was able to complete his training as an ironworker by watching demonstrations of new techniques and talking with other workers in his native tongue. On a daily basis, Claimant's job as an ironworker involved pushing and pulling steel rods up to 100 pounds, lifting up to 20 pounds several hundred times a day and using tools such as power saws, hammers, pliers, and torches. Claimant is right hand dominant. Prior to his right upper extremity problems, Claimant only had minor injuries that left no lasting disability: he sliced the tip of his right index finger, and broke his collar bone.

In the mid-1990's, Claimant developed right upper extremity symptoms of pain, numbness, tingling and burning. After his family doctor diagnosed carpal tunnel syndrome ("CTS") in 1999, Claimant underwent a surgical release by Dr. Kostman at the direction of Employer on January 7, 2000. Dr. Brown, who saw Claimant in follow up, found cubital tunnel problems on April 7, 2000, provided conservative treatment, and released Claimant to return to work on April 11, 2000. Claimant returned to work as an ironworker through May 23, 2000, and worked several job, including Bridge Data, MCIWorld Com, YMCA, BJC, and Home Depot. ${ }^{[2]}$ During this time, he had some assistance, and limited the use of his right hand where possible, but he did the work of an ironworker, was sometimes the only ironworker at the job, used tools such as bolt cutters and pliers, and received his fully salary. The pain and swelling he was having in the right hand continued and got worse during this time. Claimant did not work any job after May 24, 2000.

Under the care of Dr. Benz, Claimant had a second surgery on June 27, 2000, and pursuant to the Temporary Award, Employer was ordered to pay benefits from June 6, 2000 to December 27, 2000. On December 28, 2000,Dr. Benz released Claimant from care. Dr. Schlafly examined Claimant on February 6, 2001, and suggested surgery, which was ordered in the Temporary Award, and performed by him on October 8, 2001. Dr. Schlafly found Claimant at MMI on February 1, 2002, and Employer, through Amerisure, paid TTD from the date of surgery to February 3, 2002. Since February 2002, Claimant has not received any workers' compensation benefits, nor has he had further treatment to his right upper extremity.

Since his last surgery, Claimant reports improvement in that his fingers open a bit more and his elbow is O.K., but he still has problems with his right upper extremity, including pain and tingling in his hand, sharp pain when turning the wrist, decreased strength, and painful swelling with use. He can lift no more than 10 pounds with his right hand, and finds it hurts to make a fist. He has a $41 / 2-inch scar on the hand, and a 31 / 2$-inch scar on his elbow. Claimant had bypass surgery in his leg since he stopped working.

On a typical day, Claimant requires help from his wife to get dressed and put on his shoes. He walks every day, lies on the couch, watches television, tends to small tasks the garden, and sleeps. He cannot garden or cut grass like he used to. Standing is not a problem, but sitting for long per