Eugene White v. General Motors

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 88-034276

Employee: Eugene White

Employer: General Motors

Insurer: Self-Insured

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

Date of Accident: February 26, 1988

Place and County of Accident: St. Charles County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations 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 April 27, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Koren M. Mueller, issued April 27, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 13 1^{\text {th }} \qquad$ day of October 2006.

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? No
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 26, 1988
5. State location where accident occurred or occupational disease was contracted: St. Charles 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 occurred or occupational disease contracted: assembly work
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Chest
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: $\ 2,100.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 2,000.00
17. Value necessary medical aid not furnished by employer/insurer? N/A
18. Employee's average weekly wages: N/A
19. Weekly compensation rate: $\$ 269.81 / \ 161.88
20. Method wages computation: by agreement

1. Amount of compensation payable: None
2. Second Injury Fund liability: No

1. Future requirements awarded: NONE

Said payments to begin as of the 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 -- of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Eugene White

Injury No: 88-034276

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: General Motors

Additional Party State Treasurer, as Custodian of the Second Injury Fund

Insurer: Self-Insured

Checked by: KMM/lsn for bb

A consolidated final hearing was held on the above-referenced claim as well as companion file number 89-065590 in the St. Charles Division of Workers' Compensation office on December 20, 2005. Post-hearing briefs were received and the case was formally submitted on January 13, 2006. Gary J. Sanguinet represented Eugene White (hereinafter "Claimant"). Daniel J. Harlan represented General Motors (hereinafter "Employer") and Barbara Toepke represented the Second Injury

Fund. Claimant appeared and was the only live witness to testify. Mr. Sanguinet requested an attorney fee of 25 % of all benefits awarded.

The parties have stipulated and agreed that on or about February 26, 1988 Claimant while in the employment of Employer sustained an injury by accident arising out of and in the course of employment occurring in St. Charles County, Missouri. The parties agreed the rates for temporary total disability and permanent partial disability were $\ 269.81 and $\ 161.88 respectively. Claimant was paid compensation to date in the amount of $\ 2100.00 and medical aid was provided by Employer in the amount of $\ 2000.00.

The parties agreed and stipulated that the following issues are to be resolved:

1. Medical causation
2. Nature and extent of permanent partial disability
3. Nature and extent of Second Injury Fund liability

Claimant offered the following exhibits, which were admitted into evidence without objection:

Exh. A: Dr. Robert Poetz deposition taken November 12, 1990

Exh. B: Dr. Robert Poetz deposition taken August 12, 1993

Employer offered the following exhibits, which were admitted into evidence without objection:

Exh. 1: Dr. Ralph Graff deposition taken August 9, 1994

Based upon the substantial and credible evidence, as well as the applicable law I find the following:

Only the evidence necessary to support this award has been summarized. Any objections not expressly ruled on in this award are overruled. Claimant testified he was working for Employer when a tail panel with a staple on the end struck him on the left chest nipple. He had surgery on his own two weeks later to remove a lump from his left chest area. He then was treated for a post-operative infection. At hearing he complained of no feeling and numbness in the left nipple area. He also complained of problems using his left arm since this injury. Claimant testified he has not worked since 1989.

Dr. Robert Poetz testified on Claimant's behalf by depositions taken on November 12, 1990 and August 12, 1993. Dr. Poetz testified he examined Claimant and at the time of his evaluation Claimant complained of left chest area pain radiating into the left armpit and left arm and left nipple numbness. Dr. Poetz testified Claimant was released to return to work after his surgery and infection on June 15, 1988. Dr. Poetz admitted he did not review any medical records regarding this injury prior to his testimony. Dr. Poetz testified on cross-examination that Claimant did not sustain any permanent partial disability as a result of his left chest injury.

Dr. Ralph Graff testified on Employer's behalf by deposition taken on August 9, 1994. Dr. Graff testified he examined Claimant for the first time on January 19, 1989. He testified that the pathology report after the breast tissue excision indicated a diagnosis of benign gynecomastia. Dr. Graff noted his exam of the left nipple area revealed a well-healed scar and no mass. He testified that his examination of the left axilla was negative. He concluded Claimant had no disability as a result of the March 1988 incident. Dr. Graff could find no connection between the left breast surgical procedure and Claimant's pain in the left axilla.

A permanent partial award is intended to cover claimant's permanent limitations due to a work related injury and any restrictions his limitations may impose on employment opportunities. Phelps v. Jeff Wolk Construction Co., 803 S.W.2d 641, 646 (Mo.App. 1991). With respect to the degree of permanent partial disability, a determination of the specific amount of percentage of disability is within the special province of the finder of fact. Banner Iron Works v. Mordis, 663 S.W. 2d 770,773 (Mo.App. 1983). After reviewing all the evidence submitted including Claimant's complaints regarding the nature and extent of disability in this case I find there is no expert medical evidence introduced of any permanent partial disability resulting from this injury. I find the medical experts persuasive and therefore find Employer is not liable for any permanent

partial disability in this case.

Based upon the above findings, I also find there is no Second Injury Fund liability. Therefore the other issues in this case are moot.

Date: April 27, 2006

Made by: /s/ KOREN M. MUELLER

KOREN M. MUELLER

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

/s/ PATRICIA "PAT" SECREST

PATRICIA "PAT" SECREST

Director

Division of Workers' Compensation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Injury No.: 89-065590

Employee: Eugene White

Employer: General Motors

Insurer: Self-Insured

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

Date of Accident: May 22, 1989

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 April 27, 2006. The award and decision of Administrative Law Judge Koren M. Mueller, issued April 27, 2006, 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 $\qquad 13 1^{\text {th }}$ day of October 2006.

Hearing Date: December 20, 2005; formally submitted January 13, 2006 Checked by: KMM/bfb

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: May 22, 1989
5. State location where accident occurred or occupational disease was contracted: St. Charles 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 occurred or occupational disease contracted: Assembly work
12. Did accident or occupational disease cause death? No Date of death? ---
13. Part(s) of body injured by accident or occupational disease: low back
14. Nature and extent of any permanent disability: 71 / 2 % body as a whole referable to the low back
15. Compensation paid to-date for temporary disability: $\ 1,957.55
16. Value necessary medical aid paid to date by