Raymond Nelson v. ABB Power T & D Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-160865

Employee: Raymond Nelson

Employer: ABB Power T \& D Company

Insurer: Self-Insured

c/o Pacific Employers Insurance Company

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

Date of Accident: November 30, 2001

Place and County of Accident: ABB, Jefferson City, Cole 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 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 April 4, 2005. The award and decision of Administrative Law Judge Hannelore D. Fischer, issued April 4, 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 $\underline{27^{\text {th }}}$ day of October 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

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?
4. Date of accident or onset of occupational disease: November 30, 2001.
5. State location where accident occurred or occupational disease was contracted: ABB, Jefferson City, MO.
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:
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 arm/shoulder.
14. Nature and extent of any permanent disability: 50 % ppd of the right shoulder.
15. Compensation paid to-date for temporary disability: $\ 2,930.32.
16. Value necessary medical aid paid to date by employer/insurer?
17. Value necessary medical aid not furnished by employer/insurer? $\ 30,057.65
18. Employee's average weekly wages:
19. Weekly compensation rate: $\$ 445.92 \mathrm{ttd} and \mathrm{ptd} / \$ 329.42 \mathrm{ppd}$.
20. Method wages computation: By agreement.

1. Amount of compensation payable:

27.4 weeks of temporary total disability (or temporary partial disability) through $5 / 5 / 03 \ 12,294.65

116 weeks of permanent partial disability from Employer 38,212.72

1. Second Injury Fund liability: Yes

weeks of permanent partial disability from Second Injury Fund

Permanent total disability benefits from Second Injury Fund:

payable by SIF for indet. weeks, and including 5/6/03, through 8/20/05 - 116 wks $=\ 13,514.00.

Thereafter, Second Injury Fund owes $\ 445.92 per week for claimant's lifetime.

and, thereafter, for Claimant's lifetime

TOTAL:

1. Future requirements awarded:

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments, except medical, past and future, hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

R. L. Veit.

Employee: Raymond Nelson

Injury No: 01-160865

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: ABB Power T and D

Additional Party Second Injury Fund

Insurer: Self-insured/Pacific Employers Ins. Co.

Checked by: HDF/cs

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on January 27, 2005. Memoranda were due by March 28, 2005.

The parties stipulated that on or about the $30^{\text {th }}$ day of November, 2001, the claimant was in the

employment of ABB Power T and D; the claimant sustained an injury by accident; the accident arose out of and in the course of employment; the employer was operating under the provisions of the Missouri workers' compensation law; the employer's liability was self-insured and had additional insurance provided by Pacific Employers Insurance Company; the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law; the rate of compensation on the date of accident was $\ 445.92 per week for permanent total disability and temporary total disability benefits, $\ 329.42 per week for permanent partial disability benefits; temporary disability benefits have been paid to the claimant to date in the amount of $\ 2,930.32, those payments representing payments made through July 15, 2002, six and four-sevenths weeks; medical aid has been provided in the amount of $\ 16,313.78.

The issues to be resolved by hearing include 1) the liability of the employer/insurer for an occupational disease affecting the claimant's right shoulder, 2) the liability of the employer/insurer for past temporary total disability benefits from October 22, 2002, through May 5, 2003, a period of 27 and four-sevenths weeks, 3) the liability of the employer/insurer for past medical expenses related to the occupational disease claim, 4) the liability of the employer/insurer for unpaid mileage for 968 miles traveled in conjunction with the occupational disease claim, 5) the nature and extent of permanent disability, 6) the liability of the Second Injury Fund, 7) the liability of the employer/insurer for future medical treatment and 8) the liability of the employer/insurer for attorney's fees.

The claimant, Raymond Nelson, began his employment with ABB Power T and D Company (ABB) in 1978. Mr. Nelson completed high school. Mr. Nelson's work history with ABB includes working on several different "lines," putting machinery together. Mr. Nelson's work involved using his hands and arms to operate air guns and air wrenches and also involved lifting heavy baskets weighing approximately 100 pounds.

Mr. Nelson sustained a right knee injury on October 5 of 1999 (See award in Injury No. 99167059 which is incorporated herein.)

On November 30, 2001, Mr. Nelson was working on the three-phase internal line wiring transformers when a torque gun jerked injuring his right shoulder. Mr. Nelson had already experienced some right shoulder discomfort while working for ABB.

Mr. Nelson received medical treatment through ABB's workers' compensation insurance from Dr. William Quinn who performed arthroscopic surgery on his shoulder on May 30, 2002.

When Dr. Quinn recommended a replacement of the right shoulder, Mr. Nelson was sent to Dr. Haupt for a second opinion. Thereafter, workers' compensation benefits were terminated.

On October 23, 2002, Dr. Quinn performed a right shoulder replacement on Mr. Nelson. This surgery was paid for through Mr. Nelson's health insurance provided by ABB. The surgery was performed at the University of Missouri Health Care Systems. The resulting charge was $\ 24,570.99. Mr. Nelson stated that he paid for physical therapy following his shoulder replacement in the amount of $\ 690.00; however, records reflect a total bill in the amount of $\ 661.26.

Mr. Nelson testified to the 1968 miles traveled for his additional medical treatment with Dr. Quinn, stating that he made 12 trips and each trip was 164 miles round-trip.

Currently, Mr. Nelson has limitations in lifting his right arm to the side or the front. Approximately 70 degrees of movement from his side is the extent of Mr. Nelson's ability to lift. Mr. Nelson cannot raise his right arm sufficiently to cross the right arm to the left armpit. Mr. Nelson uses his left arm to drive his tractor. Mr. Nelson cannot hook any attachments to his tractor as the result of the limitations of his right shoulder. Mr. Nelson can no longer mend fences or sit and write or work at a computer because of his right arm injury.

Mr. Nelson is currently taking Celebrex for his right shoulder injury.

Mr. Nelson also described his limitations in kneeling and walking as the result of his 1999 right knee injury.

Wilber Swearingin, certified rehabilitation counselor, testified that he believed Mr. Nelson is permanently and totally disabled as the result of his right shoulder injury. Mr. Swearingin found Mr. Nelson's inability to reach out with his right arm as the result of the right shoulder injury to be a significant impediment to activities involving Mr. Nelson's right arm.

Dr. Glen Cooper, osteopathic physician, testified that he initially saw Mr. Nelson on April 1, 2002. although the date of onset in Dr. Cooper's records is December of 2001 or January of 2002, Dr. Cooper noted that Mr. Nelson "experienced a sharp pain" while using a torque gun. Dr. Cooper's records for Mr. Nelson's first visit on April 1, 2002, also include the statement that [Mr.

Nelson] states that he has noted problems for quite some time." Dr. Cooper referred Mr. Nelson to Dr. Quinn for surgery to the right shoulder, noting that Mr. Nelson had sustained a work-related right shoulder injury. Dr. Cooper stated that the arthroscopic surgery performed by Dr. Quinn was for an impingement while the right shoulder replacement was for degenerative arthritis.

Dr. Quinn's medical records for the months of May through July of 2002 reflect degenerative arthritis as the cause of his right shoulder pain.

Dr. William Quinn, orthopaedic surgeon, testified by deposition that with regard to Mr. Nelson's right shoulder, it was primarily the years of his work at ABB that caused his shoulder injury rather than a specific incident in November of 2001 or non-work-related deterioration associated with aging. Dr. Quinn treated the right shoulder injury as one injury, describing the arthroscopic surgery on the right shoulder as the initial attempt to provide relief to Mr. Nelson followed by the hemiarthroplasty of the shoulder when the arthroscopic procedure proved unsuccessful. Dr. Quinn referred Mr. Nelson to Maries Manor for physical therapy on his shoulder after surgery.

With regard to additional medical care, Dr. Quinn opined that Mr. Nelson would require additional care. Particularly worrisome to Dr. Quinn was Mr. Nelson's "pain along the bicipital tendon" and the possibility that the prosthesis was rubbing and irritating the tendon. Dr. Quinn mentioned having Dr. Satterlee, another orthopaedic surgeon evaluate Mr. Nelson with regard to the possibility of further treatment.

Dr. Quinn testified to the reasonableness of his $\ 4,825.40 bill for the right shoulder surgery.

Dr. Raymond Cohen, neurologist, testified that he examined Mr. Nelson on November 25, 2003. Dr. Cohen found Mr. Nelson's right shoulder disability to be 75 percent of the shoulder and found Mr. Nelson to be permanently totally disabled as