Mosley Williams v. ABBCO Service Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-027112

Employee: Mosley Williams, Jr.

Employer: ABBCO Service Corporation

Insurer: Missouri Retailers Insurance Trust

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Dismissed by award)

Date of Accident: Alleged March 18, 2003

Place and County of Accident: Alleged St. Louis City, 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 September 7, 2005, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Linda J. Wenman, issued September 7, 2005, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 21st day of December 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? No
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: Mach 18, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis 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: Employee was buffing a floor when an exposed wire sparked, producing a burn on volar side of his left index finger.
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: Left index finger
14. Nature and extent of any permanent disability: No permanency or disfigurement.
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Mosley Williams, Jr. Injury No.: 03-027112

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee’s average weekly wages: 300.00
3. Weekly compensation rate: 200.00 / $200.00
4. Method wages computation: Stipulated

COMPENSATION PAYABLE

1. Amount of compensation payable: None - 0 -
2. Second Injury Fund liability: No

A hearing was held regarding the above referenced Workers’ Compensation claim by the undersigned Administrative Law Judge on June 2, 2005. The case was formally submitted on July 5, 2005. Attorney Susan Brown represented Mosley Williams, Jr. (Claimant). ABBCO Service Corp., (Employer) is insured by Missouri Retailers Insurance Trust, and represented by Attorney Amanda Miranda. Attached to the case is an unreleased child support lien.

Prior to the start of the hearing the parties identified the following issues for disposition in this case as: accident; arising out of and in the course and scope of employment; medical causation; liability for past medical expenses; temporary total disability (TTD); and nature and extent of permanent partial disability (PPD). Further, Claimant agreed to dismissal of his Second Injury Fund claim if the award does not meet the statutory threshold necessary to a viable claim. Claimant offered Exhibits A-D, and Employer offered Exhibits 1-3. All exhibits were admitted into the record. Any objections not expressly ruled on in this award are overruled.

Only testimony necessary to support this award will be reviewed and summarized.

Claimant: Claimant worked for Employer as a member of a floor crew. The floor crew duties included buffing, cleaning and waxing floors. Claimant was a full-time employee on the night shift. On March 18, 2003, Claimant was buffing a floor when the handle on his buffer broke. Claimant notified his manager, and the manager used tape to try to repair the buffer. When Claimant resumed buffing, the tape came off exposing a wire, the wire sparked, causing an electrical shock, and knocked his left hand off the buffer. The top of his hand hit a wall, and he burned the volar side of his left hand.

Claimant notified his manager, and ice was placed on his left hand. Injury papers were completed, and although Claimant didn't return to his work, he stayed until the end of his shift. When his shift ended, Claimant went to the emergency room of a local hospital because his hand remained swollen.

At the hospital, Claimant told the emergency room staff he had been electrocuted at work. An x-ray of his left hand was obtained, and he was told he had a dislocated bone in his hand. A specialist was consulted, and Claimant was told he might need hand surgery. He agreed to undergo left hand surgery.

Following surgery, Claimant was in a cast for approximately three months. He didn't return to work with Employer because he was terminated two or three weeks following his hospital stay. Claimant couldn't work while the cast was on. Employer denied his claim for benefits. His medical bills have not been paid, and Claimant did not have private health insurance.

At the date of the hearing, Claimant testified he feels fine, and only notices pain when his hand is exposed to cold weather or if he lifts a heavy item. Claimant has started his own janitorial company and is actively working. Claimant's scarring was viewed, demonstrating surgical scars present on the dorsum of his hand, and palm discoloration of approximately two inches long, and of varying widths. No visible scarring was present on his left index finger.

Upon cross-examination by Employer, Claimant verified he has no recollection of his hand hitting anything after the buffer sparked. He testified sparks did land on his hand, although he can't say exactly where the sparks landed. Claimant acknowledged he told Dr. Tung his hand could have hit something. Claimant testified he didn't tell Dr. Schlafly he hit his hand, and he doesn't remember seeing Dr. Ollinger. Claimant denied he had ever received treatment for his left hand prior to this injury. Claimant verified he was injured on the fifth day of his employment, and was terminated on March 27, 2003, due to the discovery of a previous felony conviction that he had not reported on his application for employment.

Barnes-Jewish Hospital: Claimant was seen in the emergency room (ER) on March 19, 2003. His chief complaint was swelling of his left hand, and a bump on the top of his hand with dorsal numbness after an electrical shock. An x-ray was obtained that demonstrated a healed $4^{\text {th }}$ metacarpal fracture, left index finger soft tissue swelling with an osseous abnormality. The ER physician noted Claimant had experienced a powerful shock that flung his left hand back, and the physician noted a small volar blister on Claimant's left index finger. The ER intake drawing indicated two blisters on the volar side of Claimant's left index finger at the $1^{\text {st }} proximal joint, and at the 2^{\text {nd }}$ proximal joint. No other blister sites are identified on the intake drawing. Claimant's CPK enzyme level was mildly elevated, and Claimant was admitted for observation and definitive therapy for a boxer's fracture.

On March 21, 2003, Dr. Tung took Claimant to surgery and performed a corrective osteotomy and plate fixation of Claimant's left $4^{\text {th }}$ metacarpal neck fracture. Dr. Tung noted Claimant's left hand fracture by history appeared to be a new injury, but Claimant's physical exam and x-rays supported a mal-union of a previous fracture. Claimant was discharged the day of surgery. Dr. Tung's last progress note dated June 16, 2003, indicated Claimant had full mobility of his left hand and left ring finger. Claimant complained of tenderness with heavy activity and cold weather. Dr. Tung planned to re-evaluate Claimant in three to four months for a final check.

Claimant: Claimant's deposition was obtained on July 7, 2003. Claimant's deposition testimony differs from his sworn testimony in that Claimant testified his hand when shocked flew back, but did not hit anything (Exhibit 3, pgs. 20-21). Claimant described his hand movement as "kind of like somebody punching your hand while you've got your hand up" (Exhibit 3, pg. 20). Claimant also denied that sparks hit his hand (Exhibit 3, pg. 21). Claimant testified his ring and long fingers were burned (Exhibit 3, pg. 25).

Dr. Schlafly: Dr. Schlafly is a board certified hand surgeon. Dr. Schlafly examined Claimant on December 19, 2003.

Claimant told Dr. Schlafly he had never had a prior injury to his left hand, and had never had symptoms in his left hand prior to receiving the electrical shock. Dr. Schlafly testified the presence of blisters on the palmer side of Claimant's hand would be consistent with an electrical shock. Dr. Schlafly opined Claimant's work injury of March 18, 2003, was a substantial factor in Claimant's need for surgery because Claimant was asymptomatic prior to the injury. Further, Dr. Schlafly found the treatment provided to Claimant to be reasonable and necessary to treat his injury.

Upon cross-examination, Dr. Schlafly acknowledged relying on Claimant's version of events when forming his opinion. Dr. Schlafly conceded his opinion would change if he had been presented with a version of events in which Claimant did not strike his hand. Finally, Dr. Schlafly agreed with Dr. Tung's assessment that Claimant's fracture had preexisted the injury.

Dr. Ollinger: Dr. Ollinger is a board certified plastic surgeon. Dr. Ollinger examined Claimant on October 22, 2003. Claimant told Dr. Ollinger he had not struck his left hand when he received the electrical shock. Dr. Ollinger testified it would not be possible for the fracture to have occurred on the date of injury, as fractures of this type take time to heal. Dr. Ollinger pointed to use of a saw during surgery necessary to separate the bone to correct Claimant's deformity, as further evidence that the left hand fracture was old. Upon examination, Dr. Ollinger found Claimant's left hand sensation to be normal. Claimant's left hand, including his fingers, had full extension and flexion. Dr. Ollinger found Claimant to have had an excellent surgical result, and opined the March 18, 2003 injury was not a substantial factor or proximate cause in Claimant's need of treatment. Finally, Dr. Ollinger opin