Don Tracy v. Bilyeu Plumbing

Employee: Donald Tracy

Injury No. 05-005717

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: Bilyeu Plumbing

Additional Party:

Insurer: Nationwide Mutual Ins. Co.

Hearing Date: October 3, 2005

Checked by: HDF/cs

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?
4. Date of accident or onset of occupational disease: January 11, 2005.
5. State location where accident occurred or occupational disease contracted: Jefferson City, 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: Injured left shoulder when loading a water softener into a truck.
12. Did accident or occupational disease cause death? No. Date of death? $\mathrm{N} / \mathrm{a}$
13. Parts of body injured by accident or occupational disease: Left shoulder.
14. Compensation paid to-date for temporary disability: None.
15. Value necessary medical aid paid to date by employer/insurer? \$144.51.

1. Value necessary medical aid not furnished by employer/insurer? \$296.65

Employee: Donald Tracy

Injury No. 05-005717

1. Employee's average weekly wages:
2. Weekly compensation rate: $\ 297.06 for alll benefits.
3. Method wages computation: By agreement.

1. Amount of compensation payable:

Unpaid medical expenses: $\ 296.65

(Future - unknown)

weeks of temporary total disability (or temporary partial disability) Unknown (future)

TOTAL: $\ 296.65

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

No attorney's fee was requested.

The above-referenced workers’ compensation claim was heard before the undersigned administrative law judge on October 3, 2005. Memoranda were by due by November 7, 2005.

The parties stipulated that on or about the 11th day of January, 2005, the claimant was in the employment of Bilyeu Plumbing; the employer was operating under the provisions of the Missouri workers’ compensation law; the employer’s liability was insured by Nationwide Mutual Insurance Company; the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law; the rate of compensation on the date of the alleged accident was $297.06 per week for all benefits; no temporary disability benefits have been paid to the claimant to date; medical aid has been provided in the amount of $144.51.

The issues to be resolved by hearing include 1) the occurrence of an accident, 2) the causation of the injuries alleged, 3) the liability of the employer/insurer for past medical treatment in the amount of $296.65, 4) the liability of the employer/insurer for past temporary total disability benefits from January 31, 2005, through the present, 5) the liability of the employer/insurer for further medical treatment, and 6) the liability of the employer/insurer for further temporary total disability benefits.

FINDINGS OF FACT

The claimant, Donald Tracy, was 51 years old as of the date of hearing. Mr. Tracy began working for John Bilyeu Plumbing, Inc. (Bilyeu) in July of 2004 and worked through January of 2005. As a plumber for Bilyeu, Mr. Tracy did both commercial and residential plumbing.

On January 11, 2005, Mr. Tracy was picking up a water softener at a local appliance store when, while moving the water softener from the loading dock to the back of a truck bed, the person assisting him pulled on the water softener, thereby pulling Mr. Tracy’s left shoulder with the water softener. Mr. Tracy said that he felt an electric shock of pain, but said nothing to the person helping him with the water softener. Mr. Tracy said he told M. Bilyeu that evening that he had hurt his left shoulder but would work until week’s end.

Mr. Tracy was seen by a nurse at St. Mary’s Health Center on January 24, 2005, who diagnosed a sprain of the left shoulder. An MRI taken of Mr. Tracy’s left shoulder on that same date reflects the radiologist’s impression that “AC joint injury suspected based on the slight separation of the AC joint on the images taken with weights.”

When Mr. Tracy was seen on January 28, 2005, by Christine Hurt, the nurse with St. Mary’s Health

Care West, he was released to return to work with a 20-pound lifting, pushing, pulling restriction, as well as restricted lifting from the knee to shoulder height and a restriction from ladder climbing. Ms. Hurt noted that Mr. Tracy was not working due to his blood pressure. By the time Mr. Tracy was ready to return to work, Mr. Bilyeu had replaced him.

Mr. Tracy presented a bill for $\ 296.65 for physical therapy with St. Mary's Health Center for which he was referred by Dr. Elliott's nurse, Christine Hurt. Ms. Hurt's notes reflect that the workers' compensation carrier approved the physical therapy.

Mr. Tracy settled a previous workers' compensation claim for a left shoulder injury on August 10, 2000, for $\ 18,000.00, representing 24.5 percent of the left shoulder. On September 16, 2002, a claim for a December 11, 2001 right shoulder injury was settled on October 17, 2003, for $\ 23,981.78, reflecting permanent disability of 27.5 percent of the right shoulder. Mr. Tracy claimed permanent and total disability against the Second Injury Fund as the result of the combination of his right and left shoulder injuries and settled his Second Injury Fund claim for $\ 55,000.00 on March 30, 2004.

Dean Farris, an employee of the company selling the water softener, testified that he was attempting to load the water softener from the driver's side of the truck onto which the water softener was being loaded while Mr. Tracy was on the passenger side. Mr. Farris was not aware on January 11, 2005, that Mr. Tracy had been hurt.

John Bilyeu, the owner of Bilyeu, testified that Mr. Tracy told him on January 11, 2005, that his left shoulder was hurt but did not elaborate on an injury while picking up the water softener. It was on January 17, 2005, when Mr. Tracy called Ms. Bilyeu seeking authorization for medical attention for the left shoulder that Mr. Bilyeu discovered that Mr. Tracy was alleging a work injury to his left shoulder.

After completing the week of January 11, 2005, at work, Mr. Tracy did not work again until January 26 and 27, 2005, on each of which days he worked eight hours for Bilyeu. Bilyeu had light-duty work for Mr. Tracy after January 24, 2005; however, Mr. Tracy did not work after January 27, 2005, for personal reasons, including a doctor's appointment, a family visit and high blood pressure. When Mr. Tracy called Mr. Bilyeu on February 14, 2005, about returning to work, Mr. Bilyeu had replaced him and had no further work for work.

Prior to January 11, 2005, in the fall of 2004, Mr. Tracy slipped on his apartment steps. Mr. Tracy sought no medical treatment for any injuries after this incident.

Dr. Joann Mace, M.D., specialist in physical medicine and rehabilitation, as well as Medical Director of Physical Medicine and Rehabilitation for Capital Region Medical Center, testified by deposition that she examined Mr. Tracy on August 9, 2005. Dr. Mace opined that Mr. Tracy's work injury on January 11, 2005, was a "substantial factor" with regard to his left shoulder injury. Dr. Mace also diagnosed "acromioclavicular separation, depression, disturbed sleep cycle, hypertension exacerbated by anxiety and pain, functional impairment in activities of daily living and work capabilities and financial compromise as causally related to the January 11, 2005 accident. Dr. Mace opined that Mr. Tracy should be restricted from work and that Mr. Tracy have an MRI of his left shoulder and possibly an arthrogram of the left shoulder, as well as a referral to an orthopedic physician. Dr. Mace recommended medication for pain control, depression and anxiety and hypertension along with management of the hypertension by a primary care physician.

During cross-examination, Dr. Mace clarified her recommendation for Mr. Tracy saying that he needed to be seen by an orthopedic surgeon for a confirmation of her diagnosis.

Dr. Mace admitted that she is not a psychiatrist or psychologist and said that even though she could not diagnose depression in every patient she could diagnose depression "in this patient."

Records of the Division of Workers Compensation pertaining to Mr. Tracy's history of work injuries include a settlement of an August 10, 2000 left shoulder injury based on 24.5 percent of the left shoulder. Dr. Vale's report is included in the records pertaining to the August 10, 2000 left shoulder injury. Dr. Vale's description of the August 10, 2000 left shoulder injury is "rupture of the left biceps muscle tendon unit as well as disruption of the anterior superior left shoulder labrum and small rotator cuff tear." With regard to the future of the left shoulder, Dr. Vale had the following to say: