Stanley Cain v. The Boeing Company (fka McDonnell Douglas)

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-163235

Employee: Stanley Cain

Employer: The Boeing Company (fka McDonnell Douglas)

Insurer: Insurance Company of the State of Pennsylvania

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

Date of Accident: December 8, 2000

Place and County of Accident: St. Louis 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 August 23, 2005. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued August 23, 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 $28^{\text {th }}$ day of December 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? Yes.
4. Date of accident or onset of occupational disease: December 8, 2000
5. State location where accident occurred or occupational disease was contracted: St. Louis 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 occurred or occupational disease contracted: Claimant performed heavy, repetitive, physical labor as a machinist for 25 years with Employer, which ultimately caused a herniated disc, permanent nerve damage and other disability of the low back and body.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Low back and body as a whole.
14. Nature and extent of any permanent disability: Permanent total disability.
15. Compensation paid to-date for temporary disability: $0.
16. Value necessary medical aid paid to date by employer/insurer? $0.

Employee: Stanley Cain Injury No.: 00-163235 17. Value necessary medical aid not furnished by employer/insurer? $ 91,120.76 18. Employee's average weekly wages: Sufficient for the maximum rates of compensation 19. Weekly compensation rate: $599.96 / $314.26 20. Method wages computation: By application of subsections (4) and (7) of §287.250.

1. Amount of compensation payable:

Unpaid medical expenses: $ 91,120.76

Permanent total disability benefits* from Employer beginning

The matter of Stanley Cain (“Claimant”) proceeded to hearing to determine whether Claimant was entitled to workers’ compensation benefits on account his back disability. Attorneys Ronald Edelman, with Jeff Estes, represented Claimant. Attorney David Reynolds represented The Boeing Company f/k/a McDonnell Douglas Company (“Employer”) and its insurer. Assistant Attorney General Kevin Nelson represented the Second Injury Fund.

The parties stipulated that on December 8, 2000, the last day he worked for Employer, Claimant earned an average weekly wage that corresponds to a rate of compensation of $314.26 for permanent partial disability benefits. The parties could not agree on the rate of compensation for total disability benefits. The parties did not place venue, notice, or timeliness of the claim at issue. Employer denied the claim, and has paid no benefits.

1. Does Claimant have an occupational disease arising out of and in the course of employment;
2. Is Claimant’s back condition medically causally related to the requirements of his work;
3. Is Employer responsible for paying past medical benefits, and future medical care to cure and relieve the effects of his injury;
4. Is Claimant entitled to temporary total disability benefits;
5. What is the nature and extent of Claimant’s disability;
6. What is the liability of the Second Injury Fund; and
7. What is the appropriate rate of compensation for permanent total disability benefits?

Claimant seeks permanent total disability benefits. Objections made in the depositions that are not specifically ruled

upon in this award are hereby overruled.

Claimant is a 53-year-old man who lives in Franklin County, approximately 75 miles away from his former place of employment. He is currently divorced, but lives with 25-year-old son and ex-wife, who drove him to the Division of Workers' Compensation. For the hearing, Claimant did not take his pain medication in order to be clear-headed.

Vocational History

Claimant stopped attending school in ninth grade because his family moved frequently, and he was tired of starting new schools. He has had no other education or training, other than on the job training. His prior work history includes several jobs with tree trimming services, including that of a working supervisor, and working assembly positions for a ladder company. He also worked several machinist positions prior to his work for Employer, all of which included lifting, bending, squatting, twisting, and heavy lifting.

On August 25, 1975, Claimant started working for Employer as a full-time milling machinist, specializing in making parts of different sizes, shapes, weights, and uses. Claimant testified in great detail about the machinist positions he held in various departments during his 25 -year career with Employer. His titles included set up man, machine operator, and machinist. He worked in the NC department, the tooling department, and the jig bore department. His jobs all required a great deal of often fast paced, physical activity, including: lifting and carrying heavy tools and parts; maneuvering large fixtures; using pry bars to position parts; climbing ladders or on tabletops; jumping down from tables onto concrete; operating a power wrench; working in awkward, overhead positions; stoning off parts to remove burrs; and shoveling or sweeping metal chips into the dumpster. His jobs always required bending, lifting, and stooping. Most of his tasks jarred his body and back.

Claimant testified that four or five years after he started working for Employer, he began to notice fluctuating symptoms of pain and stiffness in his legs and back which got progressively worse over the employment. At first, Claimant recovered quickly from leg and back symptoms, especially if he took it easy. He estimated he had missed work ten times over the years because of back and leg pain. However, the episodes got longer and more frequent over the years. All activity that jarred his back made his back and legs sore.

Over the last two years of his employment, he still had some good days, but his symptoms became more constant, he was constantly stiff and aching, and he began to limp. During the last two months, Claimant was suffering from unbearable pain radiating to his feet in the right leg. His foot felt as if it were in a vice. He reported this to his supervisors, but they did not accept the claim or direct him to obtain treatment.

Beginning December 4, 2000, Claimant took three days off because of back and leg pain. As it had helped him get better in the past, he rested. When Claimant returned to his normal job on Thursday the $7^{\text {th }}$, he was functioning, but on Friday, things got worse. Claimant experienced no sudden or unexpected events, injuries, or accidents. However, his pain became unbearable. Co-workers offered to call 911, but Claimant declined, because he wanted medical care closer to home. That morning and the next day, Claimant's leg and back pain were unbearable, and he assumed the fetal position in an attempt to sleep. On Saturday he rested, but on Sunday, his wife took him to the emergency room, where he received shots of Demerol. He told hospital personnel that he was having back problems, but he did not know why. He did not understand his problems were related to work at the time.

Claimant returned to the hospital the next day. Eventually, Claimant's family doctor sent him to Missouri Baptist Hospital in St. Louis for an MRI, which showed a disc that "blew out." Upon referral to Dr. Bailey, Claimant understood that he needed immediate surgery. On December 18, he filled out paperwork with Employer indicating he did not know his injuries were work related (Exhibit 6). He had surgery with Dr. Bailey on the $19^{\text {th }}$. Based on his discussions with Dr. Bailey, Claimant came to understand that the type of job he does causes the kind of back problems he had. This was the first time he became aware of the job connection between his work and his back. Claimant then reported to Employer's workers' compensation department before January 24, 2001 that he had a work related injury (Exhibit 9). Employer did not offer benefits. Claimant applied for short-term disability, but the benefits were denied on January 31, 2001 because the injury was work related (Exhibit 7).

Claimant has come under the care of Dr. Gahn for pain management following his surgery. He has had epidural shots and physical therapy. Following a successful trial, he had a spinal cord stimulator permanently implanted. He takes several medications for his pain control, including Naproxen, Welbutrin, Ambien, and Amitryptolene. Currently, Dr. Elkey maintains his medication. He is aware that his spinal cord stimulator needs new batteries on occasion, but cannot testify as to how often.

In November 2001, Employer placed Claimant on