James Hudson v. LaFarge Construction Corporation

(Affirming Award and Decision of Administrative Law Judge)

Place and County of Accident: St. Charles 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 27, 2005. The award and decision of Administrative Law Judge Leslie E. H. Brown, issued September 27, 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 $\qquad 29^{\text {th }} \qquad$ day of August 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

Secretary

SEPARATE OPINION

CONCURRING IN PART AND DISSENTING IN PART

I have reviewed and considered all of the competent and substantial evidence on the whole record. I agree with the conclusion of the administrative law judge that employee has sustained compensable injuries. However, I believe the award of the administrative law judge should be modified to increase the compensation awarded to employee.

After his bilateral carpal tunnel syndrome release, employee returned to his work of shoveling all day for employer. Employee continued to complain of symptoms with his right wrist and hand, which symptoms were indicative of carpal tunnel syndrome. The administrative law judge's conclusion that employee failed to meet his burden of showing a medical causal link between his recurrent right carpal tunnel syndrome and his shoveling duties is erroneous. In the months after the April 15, 1998, bilateral carpal tunnel releases, the records of Dr. Powell indicate, "soreness in his hands" (May 14, 1998), "pain in right shoulder and right thumb" and "pain on resisted extension of the wrist and fingers" (August 3, 1998), "pain at the CMC join of both thumbs" (January 18, 1999). Employee's ongoing complaints continued after his first release and long pre-dated his separation from his shoveling duties in June 1999. That the medical professionals did not get around to referring to the ongoing complaints as carpal tunnel symptoms until September 1999 is not controlling. I believe employee has established that his recurrent right carpal tunnel syndrome was caused by his shoveling duties with employer. The administrative law judge awarded permanent partial disability of 17 % at the level of the right wrist. In light of the recurrent nature of the right carpal tunnel syndrome and limited improvement in symptoms despite two carpal tunnel releases, I believe employee suffered a 25 % permanent partial disability of his right wrist. I would award additional permanent partial disability of 8 % at the level of the right wrist.

The administrative law judge erred in failing to find employee's work duties caused his bilateral thumb conditions. In 1997, employee began performing exclusively shoveling and dragging duties. By August 1998, employee reported to Dr. Powell that he did a lot of shoveling that bothered his thumb in the metacarpal joint, where Dr. Powell noticed swelling. On January 18, 1999, employee again reported "pain at the CMC joint of both thumbs." Dr. Volarich offered his opinion within a reasonable degree of medical certainty that employee's shoveling and dragging duties were substantial contributing factors in causing and/or aggravated his bilateral thumb carpal/metacarpal degenerative arthritis. I find that employee has established that his shoveling and dragging duties caused and/or aggravated his bilateral thumb carpal/metacarpal degenerative arthritis. I would award permanent partial disability of 30 % for each wrist at the 175 -week level (CMC joint).

Because I find that employee's recurrent, right carpal tunnel syndrome and bilateral thumb conditions are compensable, I would award medical expenses for the treatment of these conditions.

Dr. Volarich credibly testified that employee would need ongoing medications for pain management. I would award such future medical care to employee.

I find credible the testimony of Dr. Volarich regarding employee's pre-existing conditions and the disability attributable to each. The employee established through competent and substantial evidence that he suffered form preexisting disability to his shoulders, right elbow and cervical spine and that such disabilities were a hindrance or obstacle to employment. The testimony of employee, Mr. England, Dr. Volarich and Dr. Cantrell make clear employee is unable to compete in the open labor market. I believe employee's work-related upper extremity overuse conditions combined with his preexisting disabilities render him unemployable. Employee is entitled to permanent total disability benefits from the Second Injury Fund.

In conclusion, in addition to the compensation awarded by the administrative law judge, I would modify the award of the administrative law judge to award additional compensation as described herein.

Employee: James A. Hudson

Injury No. 99-182494

Dependents: ---

Employer: LaFarge Construction Corporation

Add. Party: State Treasurer, as Custodian of the Second Injury Fund

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Self-Insured (c/o Reliance/bankruptcy) c/o Gallagher Bassett

Hearing Date: 3/1/05 (finally submitted 4/4/05) Checked by: LEHB:bfb (by df)

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 and up to February 23, 1999
5. State location where accident occurred or occupational disease was contracted: St. Charles County, 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? ---
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: Shoveling
12. Did accident or occupational disease cause death? No Date of death? ---
13. Part(s) of body injured by accident or occupational disease: Both wrists, and left shoulder
14. Nature and extent of any permanent disability: 17 % PPD each wrist, and 9 % PPD left shoulder
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00
17. Value necessary medical aid not furnished by employer/insurer? None, see Award
18. Employee's average weekly wages: ---
19. Weekly compensation rate: $\$ 562.67 / \ 294.73
20. Method wages computation: By agreement of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: ---

5-4/7 weeks of temporary total disability (or temporary partial disability) $\ 3,134.88

17 % each wrist and 9 % left shoulder permanent partial disability from Employer, or......\23,690.40

2 weeks of disfigurement from Employer. \ 589.46

Multiplicity $\ 2,266.47

1. Second Injury Fund liability: No

TOTAL: $\quad \ 29,681.21

1. Future requirements awarded: None

Said payments to begin as of date of this Award 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:

Keith Link, Attorney for Claimant

Employee: James A. Hudson

Injury No: 99-182494

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ---

Employer: LaFarge Construction Corporation

Add. Party: State Treasurer, as Custodian of the

Second Injury Fund

Insurer: Self-Insured (c/o Reliance/bankruptcy) C/0 Gallagher Bassett

Checked by: LEHB:bfb (by df)

Attorney Keith E. Link. The employer/insurer, LaFarge Construction Corporation//self-insured/Reliance/Gallagher Bassett (tpa), appeared by and through counsel, Attorney Edward J. Bippen. The Second Injury Fund appeared by and through Assistant Attorney General Barbara Toepke.

The parties entered into certain stipulations, and agreements as to the complex issues and evidence to be presented in this hearing.

1. The claimant, James A. Hudson, was working for the LaFarge Construction Corporation on and up to February 23, 1999 and remained in LaFarge Construction's employment up to June 1, 1999.
2. LaFarge Construction Corporation was doing business in St. Charles County, Missouri during this time period.
3. The employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law.
4. The employer's liability was self-insured (NOTE: Reliance Insurance Company was a third-party administrator at that time but went into bankruptcy, and presently Gallagher Bassett is the third-party administrator).
5. A Claim for Compensation was filed within the time prescribed by law.
6. The rate is $\ 562.67 over $\ 294.73.
7. No temporary total disability benefits have been paid.
8. No medical aid has been provided.

1. Whether or not claimant suffered occupational disease arising out of and in course of his employment
2. Medical causation
3. Liability of past medical expenses in the amount of $\ 35,778.93
4. Future medical care
5. Nature and extent of past temporary total disability for six weeks in 1998
6. Nature and extent of permanent disability - whether partial or total
7. Liability of the Second Injury Fund
8. Date of injury

The following exhibits were admitted into evidence:

No. A: Cumulative exhibit of medical bills in the amount of $\ 35,778.93

No. B: Deposition transcript of James England, taken on April 8, 2004 on behalf of the employee (with attached deposition exhibits) (Admitted subject to the objections therein)

No. C: Deposition transcript of Dr. David T. Volarich, D.O. taken on behalf of the employee on October 22, 2003 (with attached exhibits) (Admitted subject to the objections therein)

No. D: Medical records from St. Charles Clinic, period May 8, 1995 - June 14, 1999

No. E: Medical records of St. Charles Orthopedic Surgery Associates, period March 16, 1998 - April 16, 2001

No. F: Medical records from Dr. Subbaroa Polineni, M.D., period July 26, 2001 - October 22, 2002

No. G: Medical records from Dr. Subbaroa Polineni, M.D., period November 12, 2001 - September 16, 2002

No. H: Medical records from HealthSouth, period December 18, 2001 - May 3, 2002

No. I: Medical records from Dr. Jacques Herzog, period 2/15/2000 - January 23, 2001

No. J: Medical records from Dr. Powell, period April 15, 1998 - January 11, 2001

No. K: Medical records from BJC Aid Station, period February 20, 1995 - March 3, 199