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Charles Kuykendall v. Gates Rubber Company

Decision date: April 20, 200621 pages

Summary

The Commission affirmed the administrative law judge's award of workers' compensation benefits for Charles Kuykendall's occupational disease involving repetitive motion injuries to both upper extremities sustained on March 10, 2000. The employee was awarded permanent partial disability compensation totaling $48,824.40 for injuries to the shoulder, wrist, and multiplicity, plus disfigurement benefits.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-042763

Employee: Charles Kuykendall

Employer: Gates Rubber Company

Insurer: Self-Insured

Date of Accident: On or about March 10, 2000

Place and County of Accident: Mississippi 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 September 13, 2005. The award and decision of Associate Administrative Law Judge Lawrence C. Kasten, issued September 13, 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 $\qquad 20^{\text {th }}$ day of April 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

ISSUED BY DIVISION OF WORKERS' COMPENSATION

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? On or about March 10, 2000.
  5. State location where accident occurred or occupational disease contracted: Mississippi County, Missouri.
  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: Repetitive motion with upper extremities.
  12. Did accident or occupational disease cause death? No.
  13. Parts of body injured by accident or occupational disease: Right and left upper extremities.
  14. Nature and extent of any permanent disability: 40 % of right upper extremity at the shoulder, 20 % wrist, 20 % multiplicity, and 15 weeks disfigurement.
  15. Compensation paid to date for temporary total disability: $\ 37,385.38
  16. Value necessary medical aid paid to date by employer-insurer? $\ 121,092.95
  17. Value necessary medical aid not furnished by employer-insurer? None.
  18. Employee's average weekly wage: $\ 435.00
  19. Weekly compensation rate: $\ 290.00
  20. Method wages computation: By Agreement.
  21. Amount of compensation payable:

92.8 weeks of compensation for 40 % permanent partial disability of the right upper extremity at the 232 week level at $\ 290.00 per week for a total of $\ 26,912.00.

35 weeks of compensation for 20 % permanent partial disability of the left wrist at the 175 week level at $\ 290.00 per week for a total of $\ 10,150.00.

25.56 weeks of compensation for multiplicity at $\ 290.00 per week for a total of $\ 7,412.40.

15 weeks of disfigurement at $\ 290.00 per week for a total of $\ 4,350.00.

TOTAL: $\ 48,824.40.

Second Injury Fund liability: N/A

Future requirements awarded: None.

Said payments to begin (see findings) and 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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Steve Taylor.

FINDINGS OF FACT AND RULINGS OF LAW

On December 10, 2004, the employee, Charles Kuykendall appeared in person and by his attorney, Steve Taylor for a hearing for a final award. The employer was represented at the hearing by its attorney, Ken McManaman. The record was left open until March 15, 2005 for the submission of the records of Dr. Tobin and Dr. Graham and the depositions of Donna Abram, Dr. Lehman, and Dr. Strecker. An extension was requested and granted for the record to remain open until March 31, 2005. The exhibits were received and admitted on March 30, 2005, and the record was then closed. The employee filed his brief on April 11, 2005. The employer's brief was filed on May 6, 2005. A response to the employer's brief was received on May 18, 2005.

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. Gates Rubber Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act of Missouri and was duly qualified as a self-insured.
  2. On or about March 10, 2000, Charles Kuykendall was an employee of Gates Rubber Company and was working under the Workers' Compensation Act of Missouri.
  3. The employee's claim was filed within the time allowed by law.
  4. The employee's average weekly wage was $\ 435.00 and his rate of compensation is $\ 290.00 per week.
  5. The employer has paid $\ 121,092.95 in medical aid.
  6. The employer has paid $\ 37,385.38 in temporary total disability benefits. The time periods were August 30, 2000 through September 6, 2000, and from October 30, 2000 through May 2, 2003.

ISSUES:

  1. Accident/occupational disease.
  2. Notice.
  3. Medical causation.
  4. Claim for additional or future medical aid.
  5. Nature and extent of permanent disability either permanent total or permanent partial disability.

EXHIBITS:

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

A. Deposition of Dr. Eaton

B. Deposition of James England

C. Picture of burn to employee's arm taken on July 20, 2000

D. Picture of burn to employee's arm taken on July 24, 2000

E. Picture of burn to employee's arm taken on July 25, 2000

F. Picture of burn to employee's arm taken on July 26, 2000

G. The employee's transcript from Charleston High School

H. 1-15 medical records in 3 parts

Employer's Exhibits:

  1. Deposition of Dr. Coin
  2. Deposition of Dr. Strecker (Admitted on March 30, 2005)
  3. Deposition of Dr. Lehman (Admitted on March 30, 2005)
  4. Deposition of Donna Abrahms (Admitted on March 30, 2005)
  5. Medical Records of Dr. Graham including other health care providers (Admitted on March 30, 2005)
  6. Medical Records of Dr. Tobin (Admitted on March 30, 2005)

Testimony of the employee:

The employee was born in 1955, and graduated from Charleston High School. He has no further formal education but has had training and experience as a meat cutter. After high school, he worked as a butcher for about 16 years. He started working at Gates in July of 1988. He worked at Gates until his dismissal in 2002 or 2003.

He worked at Gates as a spiral line operator, which involved several different jobs. The first job was as a line yarn tech. He used an air ratchet gun. Each time he used the gun it would ratchet his wrist and had a lot of torque, which put pressure on wrist supination and pronation. On the average he used the air ratchet gun 5-6 hours a day. The second job was stripping the cover off hoses to salvage tubing to be fed back in the machine. He would use his wrists, elbows, and shoulder and his upper body to pull the coverings off of hoses. This was difficult to do because the hoses were vacuumed and pulled on tight. The third job was to relieve other employees performing the pan hose job, which was using his arms and hands in a pivot motion while the hose was moving at 140 feet per minute. The fourth job was to feed rubber into the extruders. A lot of the time the rubber was defective and would get hung in the extruders. He would then have to yank, tug and pull the rubber with his hands to get them out. Every time he pulled, the motion would separate the wrist from his arm. Most of the time he was operating the air ratchet, which is more twisting of the hands and arms, and would also affect his shoulders. It is more hand intensive than the stripping hose and panning hose. The last job, feeding rubber into the extruder, is more hand intensive than the air ratchet but he did that job the least. All of the different jobs were all repetitive use of hands and shoulders.

Most of time he would work 12-hour days, and averaged about 44 hours per week in work. Every 2 hours he would have a 15 -minute break, would have a 20 -minute break for lunch. He did not work for anyone else other than Gates Rubber. He did mow a few yards with a full size tractor, which was owned by the KC Hall. It was not hand intensive and did not cause any problems with his upper extremities.

The employee reported the injuries on March 10, 2000, because the plant manager had therapists from Restart at the plant. There had been a lot of injuries in the plant and they had come to observe the jobs. He had been having problems with his hands, arms and wrists for about three months before. The employee was swollen and hurting a lot that day and reported it to his supervisor, Marty Vied. Marty said that since the therapist was there for him to go see her. The therapist was out on the floor to watch his job, and saw the air ratchet gun twisting. He was using constantly using his hands and arms during a shift. Prior to that day, he did not know what was causing the problems. The employer had filled out a report of injury.

Prior to March of 2000, he had no other treatment for his upper extremity. Outside of Gates Rubber, he had no other hand or arm intensive work, hobbies, or anything else. On March 10, 2000, his symptoms included swelling of his fingers, wrists, and the elbows to the point of discolorment.

The company sent him to Dr. Tobin, Dr. Lents, and Dr. Brown for treatment. Dr. Brown performed surgery

on his right wrist on July 18, 2000. Employee Exhibits C, D, E and F, are pictures of a burn to his arm that resulted from surgery when his arm was placed in a stainless steel trough. Dr. Thornton debrided the burn and did a skin graft from right upper thigh. The burn was observed during the hearing. The burn was on the upper part of forearm to lower part of his arm at the elbow, and was about $3 \times 4$ inches. He did not continue under the care of Dr. Brown and went back to Dr. Lents. In 2001, Dr. Lents performed surgery on his right and left wrists. The employer sent the employee to Dr. Kapp for impingement of his shoulders. Dr. Kapp performed surgery on his right shoulder. The symptoms with right hand and shoulder improved somewhat but as not much as he though they would. He did not have surgery on his left shoulder.

Dr. Lents performed surgery on his left wrist on June 11, 2001. Between June 11, 2001 and June 25, 2001, he was outside of his house and fell over garden hose. He was walking on an embankment and caught his right toe under garden hose and tripped. On the way down he twisted his body and landed on his left shoulder blade and back. His arm was up in the air. It did not affect his wrist. When he went back on June 25, had had no swelling that he knew of and no increase in symptoms.

He was sent to Dr. Chiu for pain management and for RSD. He continued to have problems and was sent to Dr. Strecker who performed surgery on his left hand and wrist where he shortened a bone and repaired cartilage. The surgery did not solve the problems and he had a fusion to his left wrist on December 20, 2002. After the surgery, the RSD got worse and he had a wound infection that required hospitalization. He saw Dr. Graham for pain management. The company sent him to Dr. Lehman who examined him but did not tre

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

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