Phillip Sanders v. Ward Plumbing and Heating Co.

(Affirming Award and Decision of Administrative Law Judge)

Date of Accident: August 28, 2000

Place and County of Accident: Springfield, Greene 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 July 5, 2006. The award and decision of Administrative Law Judge David L. Zerrer, issued July 5, 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 $8^{\text {th }}$ day of November 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? 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: August 28, 2000
5. State location where accident occurred or occupational disease was contracted: Springfield, Greene 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: Claimant was prying with pry bar when shoulder popped
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
14. Nature and extent of any permanent disability: 30%
15. Compensation paid to-date for temporary disability: $\ 32,860.50
16. Value necessary medical aid paid to date by employer/insurer? \$21,683.00
17. Value necessary medical aid not furnished by employer/insurer? None
18. Employee's average weekly wages: $\ 855.53
19. Weekly compensation rate: $\ 314.26
20. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: -0- 22-5/7 weeks of temporary total disability (or temporary partial disability) less credits as set out herein

69.6 weeks of permanent partial disability from Employer

-0- weeks of disfigurement from Employer

1. Second Injury Fund liability: Yes No X Open

TOTAL: $\ 21,685.95

1. Future requirements awarded: None

Said payments to begin 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: Stuart Huffman

Employee: Phillip Sanders

Injury No: 00-178154

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: Ward Plumbing and Heating Co.

Additional Party

Insurer: Security National Insurance Co.

Checked by: DLZ

On the $10^{\text {th }}$ day of April, 2006, the parties appeared before the undersigned Administrative Law Judge for final hearing. Claimant appeared in person and by his attorney, Stuart Huffman. Employer appeared by its attorney, Michael Bandre. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, is not a party this claim.

The parties have entered into a stipulation as to certain facts which are not at issue in this claim as follows, to wit:

On or about the $28^{\text {th }}$ day of August, 2000, Ward Plumbing and Heating Co. was an employer operating subject to the Missouri Workers' Compensation law; the Employer's liability was fully insured by Security National Insurance Co.; on the alleged injury date of August 28, 2000, Phillip Sanders was an employee of the Employer; the Claimant was working subject to the Workers' Compensation Law; the parties agree that on or about

August 28, 2000, Claimant sustained an accident/occupational disease which arose out of the course of and scope of employment; the employment occurred in Greene County, Missouri, and Greene County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed accident/occupational disease, Claimant's average weekly wage was $\ 855.53, sufficient to allow the following compensation rates: $\ 570.38 for temporary total disability and $\ 314.26 for permanent partial disability; temporary disability benefits have been paid in the amount of $\ 25,422.20 and an additional sum of $\ 7,438.30 was paid to the Claimant, the character of which payments is an issue in this claim; the Employer has paid medical benefits in the amount of $\ 21,683.00 prior to the date of this hearing; the Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award; the parties further stipulate that Employer is entitled to a credit for 10 weeks of temporary total disability paid to the Claimant in the sum of $\ 5,703.80 when Claimant was not entitled to temporary total disability because of an unrelated medical condition.

Whether the Claimant has sustained injuries that will require future medical care in order to cure and relieve the Claimant of the effects of the injuries.

Any temporary total benefits owed to the Claimant.

The nature and extent of any permanent disabilities.

A legal file was established which contains the Claim for Compensation, filed by the Claimant, and the Answer to Claim for Compensation, filed by the Employer.

Phillip Sanders, claimant herein, testified on his own behalf. Claimant testified that on August 28, 2000, his job task was to service large and small heating, ventilation, and air conditioning equipment. Claimant was 53 years of age at the date of the hearing and had worked in the heating and air-conditioning industry for more than 30 years. Claimant testified that he was trained in many service classes and was licensed as a master mechanic in the City of Springfield, Missouri. Claimant testified that the physical requirements of his job were such that he would lift Freon bottles which weighed about 50 pounds each, and he would also have to carry ladders that weighed as much as 50 pounds up onto roofs of commercial buildings. Claimant testified that his work was concentrated on commercial installations, most of which were located on roofs well above ground. Claimant further testified that he often worked above the ceiling level of commercial buildings while using a

ladder.

Claimant testified that he was sent to Dr. Carnell for initial treatment who referred Claimant to Dr. Roeder, orthopedic surgeon, after the results of an MRI of Claimant's left shoulder were evaluated. Claimant had surgery in April 2001 on his left shoulder and was referred to physical therapy by Dr. Roeder after the surgery. Claimant testified that his initial physical therapy was a "spider walk" on walls to improve raising Claimant's arm above his head. In addition, physical therapy included exercises and maneuvers to increase Claimant's range of motion, both in flexion and extension and abduction. Claimant further testified that he was given a series of home exercises with which he was compliant. Claimant testified that he was administered physical therapy until Dr. Roeder released him on November 5, 2001. Claimant testified that he continues to do his home exercise program in order to maintain the strength in his left arm.

Claimant testified that during the time he was doing his physical therapy, he began to develop pain in his lower arm and a sharp pain in his forearm as well as tingling in each of the fingers of his left hand except his little finger. Claimant testified that he had neither experienced this type of pain before the injury of August 28, 2000, nor during the physical therapy following his left shoulder surgery. Claimant further testified that he discussed this arm pain and finger tingling with Dr. Roeder who told Claimant if the pain got worse, Claimant may need additional surgery. Claimant testified that he decided to put up with tingling rather than have another surgery.

Claimant testified that currently he continues to suffer pain in his shoulder, especially when the weather changes. Claimant further testified that if he does too much activity, his forearm hurts and if he lifts too much weight, his arm will hurt for 2-3 days. Claimant also testified that the tingling in his fingers does not affect his grip but does affect his concentration because he is afraid of dropping things. Claimant stated that prior to his August 28, 2000, injury, he never had a problem with left forearm pain or tingling in his fingers. Claimant further testified that his complaints with regard to arm pain and finger tingling did not occur until he was doing exercises for his shoulder in physical therapy.

Claimant testified that he was released from Dr. Roeder's care in November 2001 and that Dr. Roeder told Claimant that he may need periodic shots and over-the-counter anti-inflammatory medications. Claimant states that he does take Aleve from time to time. Claimant further testified that Dr. Roeder gave him certain restrictions, which included not lifting more than 40 pounds with both arms, refrain from repetitive motion of the left shoulder and no climbing ladders while carrying objects. Claimant further testified that he could not do his job task with Employer under the restriction set out by Dr. Roeder; and therefore, Claimant did not return to work for the Employer.

Claimant testified that he was not employed from November 5, 2001, through April 2002 when Claimant started his own heating and air-conditioning business, which Claimant referred to as Walnut Grove Mechanical. Claimant further testified that when he started his own business, he hired personnel to do the job tasks that Claimant could not perform and that Claimant acted as manager and told workmen what to do but Claimant did not perform tasks which were outside of his permanent restrictions from Dr. Roeder. Claimant testified that the new business was closed in December 2005 because Claimant had to hire too many people to make the business profitable.

Claimant testified that after Dr. Roeder released him that he continued to receive benefit checks from Employer's insurer. Claimant stated that the amount of the checks changed without explanation and that the checks arrived