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Michael Scott v. Advance Logistics, LLC

Decision date: December 1, 2005Injury #01-0713019 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award of workers' compensation benefits to Michael W. Scott for a right shoulder injury sustained on January 19, 2001, while lifting a battery changer for a forklift. The employee was awarded 10% permanent partial disability of the right upper extremity at the 232-week level, along with temporary total disability compensation and medical benefits.

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This archive contains published Missouri Labor and Industrial Relations Commission workers' compensation decisions reproduced for research convenience. Official source links remain authoritative where provided. Joseph Ott, Attorney 67889, Ott Law Firm - Constant Victory - Personal Injury and Litigation maintains these public legal archives to support Missouri case research and to help prospective clients connect that research to the firm's courtroom practice.

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This workers' comp decision may point to a separate injury claim.

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Caption

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
FINAL AWARD ALLOWING COMPENSATION(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 01-071301
Employee:Michael W. Scott
Employer:Advance Logistics, LLC
Insurer:American Manufacturer’s Mutual Insurance Company
Date of Accident:January 19, 2001
Place and County of Accident:Cape Girardeau 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 May 6, 2005. The award and decision of Chief Administrative Law Judge Jack H. Knowlan, Jr., 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.This award also is subject to a lien in favor of the Division of Child Support Enforcement.Any past due compensation shall bear interest as provided by law.Given at Jefferson City, State of Missouri, this ___1st _ day of December 2005.LABOR AND INDUSTRIAL RELATIONS COMMISSION
NOT SITTING
William F. Ringer, Chairman
Alice A. Bartlett, Member
John J. Hickey, Member
Attest:
Secretary

ISSUED BY DIVISION OF WORKERS’ COMPENSATION

AWARD

Employee: Michael W. ScottInjury No.: 01-071301
Dependents: N/A
Employer: Advance Logistics, LLC
Additional Party: N/A
Insurer: American Manufacturer’s Mutual Insurance Company
Hearing Date: January 25, 2005 (Completed February 7, 2005)Checked by: JK/sm
SUMMARY OF FINDINGS
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? January 19, 2001
5. State location where accident occurred or occupational disease contracted: Cape Girardeau County
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 happened or occupational disease contracted: Employee injured his right shoulder while lifting a battery changer for his forklift.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Right shoulder
14. Nature and extent of any permanent disability: 10% of the right upper extremity at the 232 week level
15. Compensation paid to date for temporary total disability: $4,745.85
16. Value necessary medical aid paid to date by employer-insurer: $10,194.94
17. Value necessary medical aid not furnished by employer-insurer: None
18. Employee's average weekly wage: $572.78
19. Weekly compensation rate: 381.85 for temporary total disability and 314.26 for permanent partial disability
20. Method wages computation: By agreement
21. Amount of compensation payable: 23.2 weeks of permanent partial disability ($7,290.83)
TOTAL$7,290.83
Less Credit for amount advanced by employer-insurer(3,645.42)
NET AMOUNT DUE TO EMPLOYEE$3,645.41
22. Second Injury Fund liability: N/A
  1. Future requirements awarded: None

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Chris Weiss.

The compensation awarded to employee is also subject to a child support lien filed by the Missouri Division of Child Support Enforcement, Department of Social Services.

FINDINGS OF FACT AND RULINGS OF LAW

On January 25, 2005, the employee, Michael W. Scott, appeared in person and by his attorney, Mr. Chris Weiss, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Mr. Jim Kennedy. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

UNDISPUTED FACTS:

  1. On our about January 19, 2001, Advance Logistics, LLC was an employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by American Manufacturer's Mutual Insurance Company.
  2. On or about January 19, 2001, Michael W. Scott was an employee of Advance Logistics, LLC, and was working under the provisions of the Missouri Workers' Compensation Act.
  3. On or about January 19, 2001, the employee sustained an accident which arose out of and in the course of is employment.
  4. The employer had notice of the employee's accident.
  5. The employee's claim was filed within the time allowed by law.
  6. The employee's average weekly wage was $\ 572.78 per week and his rate of compensation is $\ 381.85 for temporary total disability and $\ 314.26 for permanent partial disability.
  7. The employer-insurer paid medical bills totaling $\ 10,194.94.
  8. The employer-insurer paid temporary total disability benefits totaling $\ 4,745.85. These payments covered $123 / 7$ weeks commencing on January 19, 2001 and ending on April 15, 2001.
  9. The employer-insurer previously advanced the sum of $\ 3,645.42 to the employee, and is entitled to a credit for this amount against any award of permanent partial disability.
  10. The amount awarded to the employee is subject to a child support lien filed by the Missouri Division of Child Support Enforcement.

SUMMARY OF THE EVIDENCE:

At the time of his accident on January 19, 2001, Michael W. Scott was working as a forklift operator for Advance Logistics, LLC. Although the employer-insurer questioned the employee's version of the accident, the employee testified that his injury occurred when he was lifting a manual battery changer in order to change the battery in his forklift. The employee stated that when he lifted the battery changer, he felt pain shoot through his shoulder and arm. He stated that it felt like "someone had put a wedge in there and was trying to tear my arm off."

After reporting his accident, the employee was authorized by the employer to seek medical treatment. The medical records from Southeast Missouri Hospital, Occupational Medical Services, Southeast Patient Rehab, Cape Imaging, MidAmerica Rehab and Dr. Herbert Haupt all confirm that both the employee and the health care providers believed the employee had suffered an injury to his right shoulder (Employee's Exhibit A, B, C, D, E, F and G and Employer-insurer's Exhibit 1).

The emergency room physician at Southeast Missouri Hospital diagnosed the employee as having an acute right shoulder and pectoralis strain. The employee told the emergency room doctor that he felt a pop and pain in his right shoulder. The emergency room physician ordered x-rays of the employee's right shoulder that were negative (Employee's Exhibit A). The employee was subsequently treated by Sarah Froemsdorf, who is a nurse practitioner with Occupational Medical Services. The employee gave a history of his right shoulder popping, with pain that ran into his arm. The employee was diagnosed as having a right shoulder strain. A subsequent MRI was negative for any rotator cuff or labrum tear (Employee's Exhibit E). None of the early medical records from Occupational Medical Services indicate the employee ever complained of neck pain or other symptoms that would typically be associated with a herniated disc in his cervical spine (Employee's Exhibit C).

The Cape Imaging MRI report dated March 13, 2001 also indicates both the employee and the health care providers believed the employee had injured his right shoulder. In his clinical history taken prior to the MRI of the employee's right shoulder, the radiologist recorded the employee's comments as follows:

The patient was injured on January 19, 2001. He states he was injured at work. He suggests that this represented a twisting and/or hypertension injury. He has not had any previous surgery or fracture involving this joint. He has multiple symptoms to include pain, swelling, limitation of motion, and a sensation that the joint gives out.

(Employee's Exhibit E.)

The physical therapy records from Southeast Outpatient Rehab indicate that in January and February of 2001, the employee received approximately ten sessions of occupational therapy and 20 sessions of physical therapy. These records also indicate that neither the employee nor the therapist felt the employee had suffered any injury to his neck or cervical spine. The employee's primary, recurring complaint was of pain, popping, soreness or aching in his right shoulder. The therapy records do note that on a few occasions, the employee experienced pain that went from his upper arm into his forearm and numbness in his right arm (Employee's Exhibit D).

When the conservative treatment from Nurse Practitioner Froemsdorf failed to resolve the employee's complaints of right shoulder pain, the employer authorized additional treatment with Dr. Herbert Haupt, who is an orthopedic surgeon in St. Louis, Missouri. Dr. Haupt first saw the employee on April 11, 2001, with a chief complaint of right shoulder discomfort. Based on his physical examination and his review of the MRI, Dr. Haupt concluded the employee had strained his right shoulder. Dr. Haupt felt that the employee had received appropriate rehabilitation, and recommended he be allowed to return to his functional activities at work while maintaining a home exercise program (Employer-insurer's Exhibit 1, page 7-9).

The employee saw Dr. Haupt again on May 2, 2001, with continued complaints of soreness in his right shoulder. The employee was maintaining his full work duties, but was experiencing discomfort at night while sleeping. Dr. Haupt then prescribed additional physical therapy at Mid America Rehab to strengthen the scapular stabilizers around his shoulder blade (Employer-insurer Exhibit 1, page 11).

The initial evaluation at Mid America Rehab on May 4, 2001, is consistent with the other medical records. The employee complained of right shoulder pain and weakness, and reported that he had injured his shoulder on January 18, 2001 while lifting a battery chain. The employee stated that he had a constant ache with occasional sharp pain in the posterior aspect of his right shoulder. Once again, the employee did not report any neck pain or other symptoms to indicate he might have been suffering from a herniated cervical disc (May 4, 2001 evaluation in Employee's Exhibit F).

On May 9, 2001, however, the employee reported that, in addition to soreness in his shoulder, he had "intermittent feeling of hitting my funny bone." He described this sensation as "pins and needles that comes and goes down

Full decision text continues in the plain-text archive copy.

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