Jesse Bunch v. Yellow Freight System

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-068541

Employee: Jesse Bunch

Employer: Yellow Freight System (Settled)

Insurer: Gallagher Bassett Services (Settled)

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

Date of Accident: June 2, 1999

Place and County of Accident: St. Louis, 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 June 26, 2006. The award and decision of Administrative Law Judge Suzette Carlisle, issued June 26, 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 $\qquad 22^{\text {nd }}$ day of December 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: June 2, 1999.
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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: While exiting a tractor trailer, the employee injured his right knee when his foot became caught on a running board, twisting his right knee, causing it to pop.
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: Right knee.
14. Nature and extent of any permanent disability: 30 % referable to the right knee.
15. Compensation paid to-date for temporary disability: $\ 14,912.01.
16. Value necessary medical aid paid to date by employer/insurer? $\ 16,920.31.

Employee: Jesse Bunch Injury No.: 99-068541 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: $\ 705.28 19. Weekly compensation rate: $\$ 470.29 / \ 294.73 20. Method wages computation: By stipulation

1. Second Injury Fund liability: Yes 37.4625 weeks of permanent partial disability from Second Injury Fund

Said payments to begin immediately 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 20 % of all past and future Second Injury Fund payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Ann G. Dalton.

Pursuant to Section 287.450 RSMo., a hearing was held on March 21, 2006, at the Division of Workers’ Compensation in the City of St. Louis at the request of Jesse Bunch (Claimant) to determine whether Claimant is entitled to receive compensation for permanent total disability (PTD) from the Second Injury Fund (SIF). The record closed after the hearing. Claimant was represented by attorney Ann G. Dalton and the SIF was represented by attorney Kevin A. Nelson. Yellow Freight System (Employer) and Gallagher Bassett Services (Insurer) settled their case with Claimant prior to the hearing and did not participate in the proceeding. Venue is proper and jurisdiction properly lies with the Missouri Division of Workers' Compensation.

The parties have stipulated to the following: 1) On or about June 2,1999, the Claimant sustained an accidental injury while working for Employer in St. Louis, Missouri, 2) The Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation Law, 3) The Employer was self-insured, 4) Employer had notice of the injury, 5) The Claim for Compensation was filed within the time prescribed by law, 6) At the relevant time, Claimant's average weekly wage was $\ 705.28, his rate for temporary total disability (TTD) was $\ 470.29 and $\ 294.73 for permanent partial disability (PPD), 7) Employer paid $\ 14,912.01 in TTD benefits and $\ 16,920.31 in medical benefits.

The issue to be decided is whether the SIF is liable to pay Claimant for either PTD or PPD benefits, and if so, to what degree?

Only evidence necessary to support this award will be summarized. Any objections not expressly ruled upon in this award are overruled. Claimant offered Exhibits A-J. Exhibits A and C-J were admitted without objection. A ruling on Exhibit B was reserved and the Exhibit was later admitted after a review of the evidence.

Claimant is a sixty-four year old high school graduate with certification from Bailey Technical School in diesel and automotive mechanics and aircraft mechanic training with the United States Navy in the 1960s. He was honorably discharged after four years of service. He worked as a diesel mechanic before and after military service for a total of thirty four years. As a diesel mechanic for Employer, he performed brake work, maintained and overhauled engines, and welded.

In the performance of his work, he used hand tools, hydraulic pressure, large impact tools, jacks and wrenches weighing up to fifty pounds. Climbing, kneeling, working in awkward positions, and lifting up to one-hundred pounds were activities Claimant performed without help on a daily basis. Claimant input a limited amount of data into the computer but his performance did not require bookkeeping, inventory, receiving or supervisory skills. Claimant worked for Employer for thirty years. He has not worked anywhere since he was injured at work on June 2, 1999 due to the work restrictions, inability to perform tasks and his belief that he is no longer a good employee.

On June 2, 1999, Claimant was working on a tractor trailer when his foot became caught on the running board, twisting his right knee and causing it to pop. Dr. Fagan performed surgery on Claimant's right knee on June 9, 1999. After surgery he had weakness, pain, and limited range of motion, problems in climbing ladders and walking on uneven surfaces, swelling, left knee pain and he was unable to complete work hardening. Dr. Fagan released him from treatment on January 11, 2000 with permanent restrictions of no kneeling, squatting, crawling or lifting heavy weights, but he could not return to Employer with those restrictions.

Dr. Maylack performed Claimant's right knee replacement in January 2002 and a revision surgery in February 2003. Claimant received workers' compensation benefits for the June 1999 injury based on PPD of 30\% of his right knee (Exhibit B). Claimant testified his right knee is worse since the June 1999 injury, with increased pain, decreased range of motion, popping, stiffness, swelling and difficulty in standing or sitting, although walking is better.

Now he has good and bad days and has to lay down when activity or weather causes general aches. He spends the day in the house when the pain is worse.

Upon cross-examination, Claimant admitted that before the June 1999 injury, he could bend, stoop, crawl, climb, and lift heavy tools in awkward positions, while working more than forty hours per week without prescription medication, accommodations or restrictions.

Before the June 1999 injury, Claimant had sustained injuries to both his knees, back, neck and left wrist, but he returned to a physically demanding job without restrictions after each injury, did not change jobs, and worked overtime without medication prior to the June 1999 injury.

- Claimant missed six weeks work after arthroscopic surgery performed by Dr. Vierling on his right knee on March 4, 1987. He was released to full duty, without restrictions. After treatment, he moved more slowly, standing or walking caused pain, he was unable to straighten the knee or squat, and it swelled. Mowing with a push mower and gardening were more difficult and required Claimant to take aspirin.

- Claimant required surgery on his left knee after injuring it at work on April 4, 1996. Six weeks later, he returned to work without restrictions and settled the case with his Employer for 30\% PPD of the left knee. After treatment, Claimant complained of weakness, pain, limited range of motion, increased difficulty climbing ladders, and walking on uneven surfaces or down stairs. He slowed down, limited heavy lifting, and switched to a riding lawnmower.

- Dr. Mitchell Rotman performed a carpal tunnel release on Claimant's left wrist in August, 1997. After missing five weeks from work, Claimant returned to work without restrictions and settled the case with his Employer for 31.5 % PPD of the left wrist, due to limited range of motion, pain, decreased grip strength, the need for help when working, and increased use of aspirin.

- Claimant received conservative treatment from Dr. Lord in the 1980's for back problems. The treatment consisted of physical therapy, traction and a corset. After the injury, he experienced pain when bending to lift heavy objects or when engaged in twisting motions, and he continued to seek help at work and home.

- Claimant sought treatment from Dr. Caskanett for neck problems in the 1980's. Claimant complained of pain through his shoulders which slowed him down and caused him to ask for help at work and home.

Dr. Volarich examined Claimant twice for knees, back, left wrist and neck problems. Claimant also interviewed with Mr. Brethauer, a vocation rehabilitation counselor. Since the 1999 injury, Claimant's problems include bilateral knee weakness and difficulty walking on uneven surfaces, climbing, and difficulty with prolonged sitting, standing, driving, sleeping, and activity. Weather changes occasionally affect his back and knees. Prior to the June 1999 injury, he stopped turkey hunting and walking in streams to fish. Claimant takes aspirin for his knees, wrist and back.

Claimant presented at Healthline on June 2, 1999, complaining of an inability to fully extend his right knee after twisting it while exiting a trailer. X-rays identified advanced degenerative arthritis, found not to be work related, a degenerative baker's cyst, and a loose body impinging the knee. Claimant was placed on limited duty, with no squatting, kneeling, or crawling and