Dennis Shay v. Michelin Aircraft Tire Corp.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-094318

Employee: Dennis Shay

Employer: Michelin Aircraft Tire Corp.

Insurer: Pacific Employers Insurance Company

Date of Accident: August 21, 2002

Place and County of Accident: Kansas City, Platte 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 May 2, 2006. The award and decision of Administrative Law Judge Emily S. Fowler, issued May 2, 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 $20^{\text {th }}$ day of November 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Dennis Shay

Injury No. 02-094318

Dependants: N/A

Employer: Michelin Aircraft Tire Corp

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 21, 2002.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Platte 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: During the course and scope of Employee’s employment with the Employer, he was required to use his upper extremities in repetitive motion fixing aircraft tires, causing injury to his left wrist and elbow and right shoulder.
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 upper extremity at the wrist and elbow and right shoulder.
14. Nature and extent of any permanent disability: 10% permanent partial disability to the left upper extremity at the 210 week level. And 10% permanent partial disability to the right shoulder.
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? Unknown at this time.
17. Value necessary medical aid not furnished by employer/insurer? N/A
18. Employee's average weekly wages: $\ 730.74
19. Weekly compensation rate: $\$ 487.16 / \ 340.12
20. Method wages computation: By stipulation.

1. Amount of compensation payable: 10% permanent partial disability at the 210 week level or 21 weeks of disability to the left upper extremity at the wrist and elbow at $\ 340.12 per week equals $\ 7,142.52. 10% permanent partial disability at the 232 week level or 23.20 weeks of disability to the right shoulder at 340.12 per week equals $\ 7,890.78.

Total disability to be paid $\ 15,033.30. 22. Second Injury Fund liability: N/A 23. Future requirements awarded: No future medical treatment awarded.

Said payments to begin as of date of 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mark Kelly.

Employee: Dennis Shay

Injury No. 02-094318

Dependants: N/A

Employer: Michelin Aircraft Tire Corp

Insurer: Pacific Employers Insurance Company

Additional Party: N/A

On April 14, 2006 the Employee and Employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$ RSMo. The Employee, Dennis Shay appeared in person and with counsel, Mark Kelly. The Employer and Insurer appeared through counsel, Joe Ebbert.

The parties stipulated that:

1. The Employer was an employer operating subject to Missouri Workers' Compensation Law on August 21, 2002 and was fully insured by Pacific Employers Insurance Company;
2. that Dennis Shay was its Employee and he was working subject to the law in Kansas City, Platte County, Missouri on August 21, 2002;
3. that Employee sustained an accident or occupational disease arising out of and in the course of employment with regard to his left upper extremity at the wrist and elbow;
4. that the Employee notified the Employer of the injury as required by law with to the left upper extremity at the elbow and the wrist;
5. that the Employee's claim was filed within the time allowed by law; and
6. that Employee's average weekly wage was $\ 730.74 resulting in a compensation rate of $\ 487.16 for

temporary total disability and $\ 340.12 for permanent partial disability.

The parties requested the Division to determine:

1. Whether the Employee sustained an accident arising out of and in the course of employment with regard to his right shoulder.
2. Whether the Employee notified the Employer of the injury to his right shoulder as required by law.
3. Whether the Employer must provide the Employee with additional medical care in the form of future medical care.
4. Whether the Employee suffered any disability and, if so, the nature and extent of Employee's disability with regard to the left upper extremity at the elbow and wrist as well as the right shoulder.
5. Whether the Employer should receive credit in the amount of $\ 250 for costs incurred when Employee failed to appear for an appointment with employer's doctor.
6. Whether the Employer should reimburse Employee for mileage costs for medical care.

The Employee testified on his own behalf and presented the following exhibits:

Exhibit A - a copy of the claim for workers' compensation

Exhibit B - medical evaluation of Employee by Dr. Stuckmeyer

Exhibit C - medical records of EHS of North Kansas City

Exhibit D - medical records of Seaport Family Practice

Exhibit E - report of injury

Employer and Insurer had no live witness testimony and the following exhibits were admitted into evidence by the Employer and Insurer without objection:

Exhibit No. 2 - report by Dr. Link

The following Exhibit was not admitted into evidence:

Exhibit No. 1 - letter dated July 15, 2004

At the time of the hearing Employee, Dennis Shay, (hereinafter referred to as Employee), was 45 years of age, having a birth date of June 13, 1961. He was a high school graduate and was currently employed at Folgers Coffee Company as a production technician, filling and packing coffee products. At the time of his injuries, Employee was working for Michelin Aircraft Tire Corporation. This employment ended in 2003. He stated he had no repetitive work since he left employment with the Employer. His job title with Michelin Aircraft Tire was as a production technician. He worked for the Employer for 13 to 14 years. Of that time period he worked in quality assurance for approximately six years. He went on the production line in 1998 where he stayed until he left his employment with the Employer in 2003. His activities for that time period included working with a small group who would re-tread aircraft tires. They would begin by tearing off the rubber from the old tire. The weight of the tires ranged from 30 to 150 pounds. First the outer rubber was removed, the rubber sometimes weighed up to 30 pounds in and of itself, then the steel belt was removed by inserting a knife blade and cutting. Then an automated brush was used to prepare the surface for the re-tread. The carcass of the tire was then inspected using pneumatic air grinders. This air tool weighed approximately 5 pounds. Grinding on the tire caused a great deal of vibrating. Then a quality inspection was done to make sure that the surface was smooth and any irregularities were taken out of it. Next a steel belt was then applied to the carcass of the tire for the new tire. They would put the steel belt on using a pneumatic tool. The tire would then be measured and the steel cut with sheers. A roller was used to press against the tire, securing the belt onto the tire. Then an extruder was used to apply the tire rubber. When the tire was moved from station to station the tires were placed on a truck and moved using hoists.

Employee testified that he could use both his hands in his daily activities. He generally would write and eat with the left hand and do any sports with the right hand. When he used the pneumatic grinder he would use the left hand. This pneumatic grinder was a tool shaped like a cucumber and there was a lever you would depress with the fingers. It was set at 80 PSI. The brush that was used on it had a wire texture to it and once a new one was used for a short period of time it would then become slightly erratic giving a jumpy feel to the use of it. Employee stated that he would spend anywhere from two minutes to half an hour on one tire inspecting it and using the grinder. He believed he used the pneumatic tool approximately 50 percent of the time in an eight-hour-day and using it primarily with his left hand. He also used a grinder as well as a wire brush. Both of these tool heads would cause vibrating when used. The jobs required that the tire be set approximately 6 feet or at eye level. Therefore, his arm and hands were lifted during the entire process. Employee stated that the constant lifting of the arms caused the shoulder to be fatigued with a feeling of deadness in the arm throughout the

day. The vibration from the tool would also cause tingling in his fingers and up his arm to the elbow.

Employee suffered tingling in his hands, fingers and up to the elbow. The problems in his right shoulder included dull pain or deadness with difficulty lifting his arm above the shoulder area. Employee does not recall any specific incident with regard to the shoulder just progressive development of problems. He noted that his co-workers would have the same problem and they would rotate positions to help each other out so that no one person had specific stress on their body the entire day. He stated the supervisors were aware of the problem. He stated he told his supervisors he had problems with his shoulder but they never offered to treat him or fill out an accident report. He went to his family doctor, Dr. Kelly, for his shoulder. He was given medication, x-rays, but no MRI. With regard to his left upper extremity he went to EHS at the direction of his Employer as well as North Kansas City Hospital for nerve conduction testing. He was also sent to a specialist, Dr. Joe Pryor. He was given medication.

He is still having problems with the left hand and forearm. He had constant numbness in the pinky and ring finger up under the side of the arm and up to the elbow and discomfort in the elbow as well as clumsiness in the hand. He has lost strength in the hand, has problems holding objects, picking up things and holding small tools. He stated he had some numbness and tingling in all his fingers and up to half of his middle finger