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 closest to the ring finger had some numbness as well. He stated that with regard to his right shoulder he was constantly aware of the problem everyday. He stated that in his left shoulder there was some weakness and pain and lack of strength, but the right shoulder was worse than the left. He has had no treatment to the shoulder or wrist since leaving Michelin. He stated that the doctors had given him no other options with regard to his elbow and wrist other than surgery. He had seen other people who had the surgery and had not been successful. He therefore has been reluctant to have the surgery.

Employee attributed his shoulder problem to work, specifically repetitive movements of his arms and shoulders everyday. He stated there were no other accidents or traumatic events that would have caused his shoulder problems. Further, he stated that he had injury to his left hand and forearm attributable to his work and the fatigue and pain and other problems were due to using the tools he had to use on a daily basis.

Employee stated that the changes in his physical activities include that he cannot throw a baseball to his son overhand any longer. He no longer plays basketball, he cannot paint his house as it is very difficult to do because he cannot get his hand over his shoulder. He stated that the problems with his left arm and right shoulder were a consideration of what job he would take after he left Michelin. He said he has had no other injuries to the right shoulder or left arm since that time.

On cross-examination Employee admitted that when he was terminated from Employer there were hard feelings between himself and the supervisor. He admitted that he did not appear on July 12, 2004 at an appointment with Dr. Link. He stated the mileage from home to Dr. Link's was from 10709 North Booth to 31st and Main Street. He admitted that there were not any hobbies that he could not do now. He can still juggle, a hobby he has enjoyed since his teens. He admitted that he was not sure when the right shoulder problems started, but he did go to a doctor at Seaport who prescribed meds and exercises and ice. He was told to return if symptoms continued but he never went back. He admitted that he only discussed the problems with the shoulder with Dr. Link and Dr. Stuckmeyer. In his deposition it was brought out that he asked whether he notified the employer about his shoulder, and his response was, "Not that I recall." He recalled mentioning it to his co-workers who later became his supervisors, but never mentioned it to his supervisors at the time of the problems. He admitted on cross-examination that he had a previous work-related injury and, therefore, he knew the process with regard to work comp. He was released to return to regular duties and was supposed to go back, but did not return to any doctors regarding his shoulder complaints. He returned to his regular job duties and then was terminated approximately 10 to 11 months later. He stated he does not want surgery to the left hand, arm or right shoulder. He has worked for Folgers for two years. Prior to that he received unemployment until it ran out. He has been working regularly since then and, in fact, works for more money than he did at Michelin. He admitted that he does everything that is required of him at Folgers. Most of his work there is quality control as a line tech mainly pushing buttons and pulling levers and watching the coffee go along the line and making sure adjustments are made to the machines as required. On redirect he admitted that his drive to Dr. Link's office is approximately 30 miles from his home.

Medical records reveal that Employee was referred to Employee Health Services on August 21, 2002 complaining of left wrist pain and numbness in the left forth and fifth fingers. In addition, Employee was complaining of severe weakness in the left hand. The assessment was that Employee had a repetitive injury to the left wrist strain for which he was treated with a wrist splint. He was seen on follow-up in September 18, 2002 and it was felt that Employee had a left ulnar neuropathy and it was recommended that he undergo electro diagnostic studies. The studies were performed on September 25th by Dr. Joe Pryor, who commented that the problems began in September when the patient noted difficulty manipulating objects due to clumsiness of the hands, especially the ring and little fingers. The electrodiagnostic studies demonstrated the presence of a mild focal mononeuropathy of the median nerve at the left carpal tunnel. Employee was complaining of clumsiness of manipulating objects, especially in reference to the little and ring fingers. However, it was noted that there was no direct correlating abnormality identified and the ulnar nerve condition was normal. Employee was seen in the follow-up visit at Employee Health Service on September 27, 2002 where he was prescribed a Medrol Dosepak and continued using the splint.

On June 25, 2002 it is noted in the Seaport Family Practice medical records that Employee was seen for right shoulder pain. He presented with a four-month history of right shoulder pain. At the time he was unaware of any injury or trauma. He stated he did a lot of repetitive movement at work, but denied any numbness or tingling down the arm. There

was no redness or warmth or weakness noted. He did have a dull ache, which he stated was there most of the time and that it does throb at times. At that time it was determined that he suffered from right shoulder pain likely tendonitis. There was no other medical report regarding Employee's right shoulder pain in his medical records.

Claimant's Exhibit B is a report by Dr. Stuckmeyer dated July 23, 2005. At the time he saw Employee, he was complaining of numbness and tingling primarily in the left forth and fifth digits with occasional symptoms of nocturnal awakedness. He was capable of living with his ongoing neurological complaints. Employee's major concern at the time was that he needed evaluation for his right shoulder pain. He described difficulty with repetitive utilization of the right arm and difficulty and pain elicited with repetitive pushing, pulling, lifting and reaching activities an marked exacerbation with overhead activities.

Dr. Stuckmeyer noted that Employee's right shoulder revealed tenderness over the acromioclavicular joint as well as subacromial space. Pain was elicited with abduction greater than 80 degrees and Employee did have weakness with resisted abduction. His active abduction is only 0 to 120 degrees, he had no tenderness in the glenohumeral joint; however, it was noted he had a positive impingement sign. The distal neurocirculatory exam and the right upper extremity was within normal limits. Physical examination of Employee's left upper extremity revealed a positive Tinel's sign over the cubital tunnel. He had full flexion, extension, pronation and supination of the left elbow. His left wrist revealed a negative Tinel's sign and negative Phalen's. He also had a negative Tinel's sign over Guyon's canal. There was no evidence of intrinsic muscle atrophy. Dr. Stuckmeyer felt that in conclusion within a reasonable medical certainty that as a direct result of the repetitive nature of Employee's occupation while employed with Michelin Aircraft Tire he developed mild cubital tunnel syndrome. Electrodiagnostic studies are not 100 percent accurate in assessing cubital tunnel syndrome; however, his clinical examination clearly revealed evidence of a positive Tinel's sign over the ulnar nerve at the cubital tunnel. He determined that due to Employee's ongoing neurological complaints he would assess a 15 percent permanent partial disability to the left elbow. He also felt that Employee had ongoing symptoms of right shoulder pain and dysfunction. He did not feel that Employee had reached maximum medical improvement, but did feel that his symptoms were causally related to his occupational duties. He would recommend an orthopedic referral for consideration of a provocative local steroid injection in the subacromial space. He also felt that an MRI scan would be appropriate and indicated, and based on the outcome further treatment recommendations should be rendered. He stated, however, if these treatment recommendations were not rendered, he could only assume that Employee was plateaued in his recuperation and would render a 20 percent permanent partial disability to the right shoulder causally related to the repetitive nature of Employee's occupation while employed at Michelin Aircraft Tire. Further, he felt combining these bilateral extremity disabilities, he does believe that the disability to the body as a whole is greater than the mere simple sum of the disabilities and would render 22.5 percent body as a whole rating causally related to the repetitive trauma of his occupation.

With regard to Employer's Exhibit 2, a report by Dr. Timothy link, Dr. Link reviews the medical records and finds that Employee suffers from left ulnar nerve distribution paresthesia with no established diagnosis as well as right shoulder pain and limitation of motion with no established diagnosis. He ultimately finds that given the lack of objective findings including an EMG/NCV to explain the alleged left fourth and fifth finger symptoms, a return to unrestricted work, and the lack of follow-up for the alleged symptoms after 9/27/02 with regard to his left upper extremity, it is not possible to establish a connection between current symptoms and the August 21, 2002 work injury. It is possible that his original symptoms arose from a transient ulnar neuritis due to the work activity involving repetitive, forceful elbow flexion and extension. The current symptoms may represent another episode of ulnar neuritis arising from current work activities or from vocational activities. He stated that defining the etiology of the current symptoms of the left fourth and fifth finger symptoms would require a current EMG/NCV of the left upper extremity. The need for treatment could be determined on the basis of this test. He felt that, however, with no objective findings to explain his current symptoms, no disability could be established.

With regard to the right shoulder, Dr. Link felt there was no objective abnormality in the initial evaluation by Dr. Nelson, Employee's personal physician on June 25, 2002, given that the shoulder pain was not reported as a work injury, given that there was no follow-up despite advice to return if symptoms persisted or worsened, and given that he worked in an unrestricted capacity thereafter with no further report of shoulder pain, the right shoulder pain of June 25, 2002 cannot be established as a medically determinable impairment. Although it is possible that a transient tendonitis arose from his work or another activity prior to the June 25, 2002 office visit, it is not possible to establish a connection between current right shoulder symptoms and signs, and the pain reported to his personal physician on June 25, 2002. He felt that to better define the etiology of the current right shoulder symptoms and signs, an MRI would be needed and subsequent treatment recommendations could be determined on that basis. However, based on his findings of August 25, 2004 exam, Employee has a temporary disability of 4 percent at the 232-week level.

The first issue to be determined is whether the Employee sustained an accident or occupational disease to his left upper extremity and right shoulder arising out of and in the course of employment. After reviewing the medical records and Employee's testimony, which this Court finds to be credible, it appears that Employee did sustain an accident or occupational disease arising out of and in the course of his employment. The injury to Employee's left upper extremity having been admitted by employer, This Court will determine whether Employee suffered injury to his right shoulder while in the course and scope of his employment. It is clear from the description of his work activities that they required repetitive lifting of objects weighing between 30 to 150 pounds to shoulder level and above, and working consistently at shoulder level or above. This clearly could cause pain and other problems with Employee's shoulder. There being no evidence to the contrary, this Court finds that the Employee did sustain an accident or occupational disease arising out of and in the course

of his employment to his right shoulder due to the repetitive work he was doing at Michelin Aircraft Tire Corporation.

The next issue to be determined is whether the Employee notified the Employer of the injury as required by law with regard to his injury to his right shoulder. As this is a repetitive motion related injury the status of the current law states that notice is appropriate at the time the claim is filed. Endicott v. Display Technologies, 77 S.W. $3^{\text {rd }} 612$ (M0., 2002). The claim itself being notice to the employer of the injury and demand for treatment. Claimants Exhibit A is a copy of the letter from Employee's attorney to employer notifying employer that a claim was being filed and requesting all benefits offered to Employee under the law, including medical treatment. The claim itself notes injury to Employee's left upper extremity and right shoulder. This Court therefore determines that proper notice was given the employer as required by law.

The next issue to be determined is whether the Employer must provide the Employee with additional future medical treatment in this case to Employee's right upper extremity at the shoulder. Employee requested medical care from employer upon filing of his claim. Employer failed to give employee treatment for the right shoulder. However Employee sought medical care at the time of his initial problems approximately 14 months prior to filing his claim.. This treatment consisted of a one time visit to his family physician, who prescribed medicine to relieve the pain. He was advised that if he had continued problems he should return for additional treatment. He never returned to this doctor and further when he was being treated by Employer's physician for his left upper extremity he never made mention of his shoulder problems. In fact there is no mention of shoulder problems anywhere other than the one visit. This Court feels that it is not appropriate for additional medical treatment to be provided by the employer. Therefore this Court denies Employee's request for additional medical treatment to his right shoulder.

The next issue to be determined is whether the Employee suffered any disability and, if so, the nature and extent of Employee's disability. With regard to the right shoulder Dr. Stuckmeyer felt that Employee suffered a 20\% disability to the shoulder and Dr. Link determined that said disability was 4 % to the shoulder. After reviewing the medical records and Employee's testimony this Court finds that Employee has suffered 10 % disability to the right shoulder. With regard to the left wrist and elbow, Dr. Link found there was no disability to the left wrist and elbow. Dr. Stuckmeyer found that Employee suffered a 15 percent permanent partial disability to the left elbow. This Court feels that after reviewing all the medical records and hearing Employee's testimony, that 10 percent permanent partial disability to the left upper extremity at the elbow is appropriate in this case.

The next issue to be determined is whether the Employer should receive a $\ 250 credit for a missed appointment with Dr. Link. There is no evidence before this Court to determine that bill for $\ 250.00 was a fair and reasonable bill. Nor is there any evidence before this Court of the surrounding factors regarding this matter. Any evidence that was offered was objected to, and said objection was sustained. Therefore, this Court will not order a credit to Employer for $\ 250 with regard to the missed appointment.

The last issue to be determined is whether or not Employee should be paid mileage for his travel to Dr. Link's office from his home. Employee testified that it was approximately 30 miles each direction or a total of 60 miles. The law in this matter can be found in $\S 287.140 .1$ which states, "When an employee is required to submit to medical examinations or necessary medical treatment at a place outside of the local or metropolitan area from the place of injury or the place of his residence, the employer or its insurer shall advance or reimburse the employee for all necessary and reasonable expenses." The testimony was that Employee had to drive from his residence on North Booth to approximately 31st and Main. This does not fulfill the requirements of $\S 287.140 .1$ as this was not an examination or medical treatment at a place outside of the local or metropolitan area from the place of injury or the place of his residence. Therefore, this Court does not award to Employee any additional costs for travel.

This Court further orders that an attorney fee of 25 percent of all benefits paid herein shall be awarded to Mark Kelly as attorney for Employee.

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation