Robert McDonough v. Rock Hill Mechanical Corp.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-041543

Employee: Robert McDonough

Employer: Rock Hill Mechanical (Settled)

Insurer: Missouri Employers Mutual Insurance Company (Settled)

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

Date of Accident: February 2, 1999

Place and County of Accident: St. Louis City

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 October 19, 2005. The award and decision of Administrative Law Judge Joseph E. Denigan, issued October 19, 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 $\qquad 3^{\text {rd }} \qquad$ day of May 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

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: February 2, 1999
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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 fell down steps. 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 shoulder and neck 14. Nature and extent of any permanent disability: 32.5 % permanent partial disability of body referable to cervical spine 15. Compensation paid to-date for temporary disability: $\ 10,321.66 16. Value necessary medical aid paid to date by employer/insurer? $\ 8,279.28

Employee: Robert McDonough Injury No.: 99-041543 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: Unknown 19. Weekly compensation rate: $\$ 562.67 / \ 294.73 20. Method wages computation: Stipulation

1. Amount of compensation payable: 32.5 weeks of permanent partial disability from Employer (Settled)

1. Second Injury Fund liability: Yes

12 weeks of permanent partial disability from Second Injury Fund \3,536.76

TOTAL: \quad \ 3,536.76

1. Future requirements awarded: None

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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Timothy O'Mara

This matter involves three separate Claims for Compensation identified as follows:

99-041543 02-09-99 cervical fusion (primary settled at 32.5\% PPD BAW)

01-160544 07-25-01 multiple repetitive traumas (upper extremities)

02-157640 11-30-02 tinnitus (primary settled at 5\% PPD BAW)

These cases may be referred to hereinafter as the first, second, and third cases, chronologically. Employer and its insuror stipulate that Claimant was employed on said date and that any liability is fully insured. The SIF neither disputes the interim benefits paid nor the relevance of any body part mentioned in the evidence which is important since no party introduced the Claims and Claimant introduced thirty years of medical evidence encompassing multiple body parts. The first and third cases concern SIF liability only. Claimant seeks permanent total disability benefits under an assertion of unemployability. All parties are represented by counsel.

1. Liability of the SIF.

1. Claimant, age 61, received sheet metal training while in high school and joined the Pipefitters Union after graduation.
2. Claimant worked as a welder throughout his employment history. He also worked maintenance and installation of refrigeration equipment for a number of years. He also worked alone in the service industry for a number of years.
3. Claimant testified the work required climbing, lifting, bending and kneeling. He climbed ladders while carrying equipment and toolboxes to the rooftop of buildings to work on refrigeration systems.

1. Claimant fell down a flight of steps on February 9, 1999 and injured his left knee and left shoulder and neck. Claimant subsequently had surgical fusion at the C5-C6 level. Claimant received a settlement for 32.5\% PPD of the body referable to the neck in Injury No. 99-041543.

1. Claimant testified he began experiencing numbness and tingling in his hands. The symptoms progressed to the point he would awake at night with pain in his hands.
2. Claimant was referred to Dr. Ollinger who performed a right carpal tunnel release on November 8, 2002 and both left carpal tunnel release and left elbow ulnar nerve transposition on November 22, 2002. Dr.Ollinger released Claimant from treatment without restrictions on May 19, 2003.
3. Claimant admitted the symptoms in his hands improved after the surgery. He also admitted he did not attempt to return to work following his discharge by Dr. Ollinger.

1. Claimant filed an occupational disease claim for chronic tinnitus with a reported onset date of November 30, 2002. Claimant settled this claim for 5\% PPD of the body referable to tinnitus. Chronic tinnitus was diagnosed by Dr. John McKinney.

1. Claimant testified he sustained an injury to his right elbow and right hand in 1974 when he fell at the Rush Island powerhouse. As a result of the injury, Claimant cannot fully supinate his right arm experiences difficulty lifting heavy objects.
2. Claimant testified he sustained an injury requiring surgery to his right knee in 1984. He gave unimpeached

testimony that he received periodic injections into the right knee due to ongoing symptoms.

1. In 1997, Claimant sustained an injury to his right thumb when it became caught in a machine. Dr. Stromberg performed multiple surgeries on the hand and thumb. He indicated the injury affects his grip.
2. Claimant received treatment from Dr. Glogovac for ongoing problems involving the hand. He indicated Dr. Glogovac diagnosed arthritis in the thumb and hand. He also indicated Dr. Glogovac injected the right thumb joint due to ongoing problems.
3. Claimant sustained an injury to his neck and back when he fell in 1999. Heunderwent a cervical fusion in May 1999. Claimant experiences radiculopathy and curtailed range of motion in the neck.
4. Claimant was diagnosed with having sleep apnea. He was prescribed a CPAP machine which he uses every night.
5. Claimant testified he was diagnosed with asbestosis approximately six years ago. He admitted to a long history of smoking. He experiences shortness of breath with exertion.
6. Claimant experienced chest pains and palpitations a number of years ago. He underwent a stress test and takes an aspirin each day. Claimant testified he occasionally experiences tightness and pain in his chest.
7. Claimant admitted to having problems performing his job leading up to the time he was diagnosed with carpal tunnel. He stated he avoided climbing ladders, bending, and had difficulty getting up and down off the floor. He had helpers who performed some of the heavier tasks during the years from 1994 through 1999 when he worked at the Savvis Center.

1. Dr. Ollinger rated Claimant as having a 2 % disability of the right wrist and a 5 % disability of the left elbow as a result of the July 25, 2001 incident. He did not recommend any additional medical treatment for Claimant. (Exhibit 1).
2. Claimant was examined by Dr. Musich at the request of his attorney on April 29, 2004. Dr. Musich rated Claimant as having a 25 % disability of the right wrist and a 30 % disability of the left elbow due to the July 25, 2001 injury. Dr. Musich did not recommend any additional medical treatment for Claimant. (Exhibit B/2).
3. Claimant was examined by Dr. Musich at the request of his attorney on September 4, 2001 for problem associated with pre-existing conditions. Dr. Musich rated Claimant as having a 40 % disability of the person as a whole referable to the neck. Dr. Musich rated Claimant as having a 50 % disability of the right elbow and 30 % disability of the right wrist due to the previous injury. He also rated Claimant as having a 50 % disability of the right thumb. (Exhibit B2).
4. Dr. Musich subsequently reported in 2004 that Claimant was permanently and totally disabled due to a combination of his current upper extremity disability and his physical limitations, advanced age, work history and training. (Exhibit B2).
5. Dr. Berstein, a psychologist and licensed counselor, reviewed the medical record and testified Claimant was unemployable in the open labor market.
6. Mr. England, a licensed counselor, found Claimant employable at sedentary to light range of exertion. Claimant had trade expertise that permitted him to supervise building maintenance, sell plumbing supplies or handle an answer desk for a builder.

1. Claimant received a settlement for 55 % of the left thumb in Injury No. 85-159633.
2. Claimant received a settlement for 15 % of the right knee in Injury No. 84-118379.

Dr. Musich identified elements from which a finding of permanent total disability may be drawn. Severe injury to opposite upper extremities together with the cervical disc fusion with radiculopathy, independent upper extremity pathologies, and chronic pain combine to prevent any reasonable means by which Claimant might compensate for individual losses in order to endeavor regular, sustained work hours.

More importantly, he had opportunity to evaluate Claimant over several years' gap. It is noted, however, that Dr. Musich did not rate the right knee surgery or the left heel surgery each of which are relevant to an assessment of Claimant's ability to ambulate. The right knee was settled at fifteen percent PPD which was a reasonable assessment in 1984. However, Claimant's gait at trial, his unrebutted complaints at trial, together with the recognition of progressive degenerative joi