Herbert Hilderbrand v. Howard Price Turf Equipment

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 16, 2006. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued May 16, 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 $\underline{26^{\text {th }}}$ 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: on or about April 1, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 used air and vibratory tools, performed tedious wiring, and did other tasks requiring ulnar deviation of the wrist, all which caused a disabling left wrist injury
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left wrist.
14. Nature and extent of any permanent disability: 171 / 2 % of the left wrist.
15. Compensation paid to-date for temporary disability: $\ 0.
16. Value necessary medical aid paid to date by employer/insurer? Employer/St. Paul Travelers paid \$3,102.00.

Employee: Herbert Hilderbrand Injury No.: 03-057777 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: $\ 526.00 19. Weekly compensation rate: $\$ 350.67 / \ 340.12 20. Method wages computation: By agreement.

1. Amount of compensation payable:

Unpaid medical expenses (All expenses have been paid - see Award). \ 0.00 30.625 weeks of permanent partial disability from Employer: \ 10,416.18

1. Future requirements awarded: None.

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 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Tim O’Mara

Injury No.: 03-057777

Before the **Division of Workers’ Compensation** Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Checked by: KOB

The matter of Herbert Hilderbrand (“Claimant”) proceeded to hearing to determine whether Claimant sustained an occupational disease arising out of and in the course of employment. Attorney Tim O’Mara represented Claimant. Attorney Mark Cordes represented Howard Price Turf Equipment (“Employer”) and its Insurer, AIG National Insurance Company (“AIG”). Attorney Jay Lory was present to represent the interest of St. Paul Travelers (“Travelers”), a prior workers’ compensation carrier of Employer that paid certain expenses for which it was not liable. Assistant Attorney General Kay Osborne appeared briefly to confirm that the Second Injury Fund had entered into an agreement with Claimant to leave the claim against the Second Injury Fund open.

The parties stipulated that on April 1, 2003, Claimant was an employee of Employer, and earned an average weekly wage of 526.00, corresponding to rates of compensation of 350.67 for total disability benefits and $340.12 for permanent partial disability benefits. Employer paid no temporary total disability benefits, but through Travelers, Employer paid medical benefits totaling $3,102.00.

The issues to be determined [1] are: 1) did Claimant sustain an occupational disease arising out of and in the course of employment; 2) is Claimant’s current medical condition causally related to his job activities; 3) has Claimant established a right to recover temporary total disability benefits; 4) what is the nature and extent of Claimant’s permanent partial disability; and 5) is Employer/AIG liable for past medical benefits of $4,044.44?

Claimant is a right-handed man who worked twenty years for Employer as an assembler/foreman. His workweek consisted of four ten-hour days. Claimant stopped working for Employer on or about July 5, 2003 due to a dispute unrelated

to the alleged wrist injury that is the subject of this claim. The foreman position consisted of paper and computer work, but as an assembler, Claimant performed hand intensive work assembling the sub components of the tractors with several different air powered tools. For example, Claimant held a part in his left hand while using an air ratchet with his right hand, which often severely twisted or jerked his left hand when the ratchet reached the end of its rotation. Furthermore, Claimant installed electrical wiring in the dashboard, used pneumatic grinders and other vibrating tools, lifted pumps and motors, and performed other tedious work that required him to hold his left hand in awkward, compromised positions.

Claimant testified that approximately one and one-half years before he actually went to a doctor to have it treated, he started to have pain in his left upper extremity. Eventually, Claimant saw Dr. Vaughn, his family doctor, who ruled out a broken bone and referred Claimant to his workers' compensation carrier, as he felt the injury and pain were work related.

When Claimant reported his wrist as a work related injury, Employer sent Claimant to Unity Corp. Initially, the injury was treated as a sprain, and Claimant went to four or five visits of physical therapy. Then, on July 25, 2003, Claimant saw Dr. Strege, who provided a cortisone shot, casted Claimant's wrist for about a month, and posted restrictions including no lifting more than five pounds. Claimant told Dr. Strege that his wrist hurt when he was performing his lawn care business, operating a commercial walk-behind mower that he bought in May 2003.

Claimant then saw Dr. Brown, who performed an MRI, and diagnosed arthritis and cartilage damage. Dr. Brown told Claimant his condition was not work related and released him.

Claimant currently has pain when he lifts or turns his wrist. He has a catching in his wrist. He cannot pour a carton of milk with his left hand. Claimant takes over the counter pain relievers and wears a brace when he performs any sort of work.

In October or November 2003, Claimant started his lawn care business, working three days and 24 hours a week. He testified that he could never fully operate the lawn care business due to pain in his wrist, and he recently sold the business. In the fall of 2004, Claimant attended taxidermy school and now operates his own taxidermy business, despite that fact that it is hand intensive and often causes him pain. Claimant's hobbies in the past have included archery, hunting, fishing, and gardening, although Claimant has had to cut back on all such activities because of his wrist.

Dr. Richard Vaughn, Claimant's personal physician, followed Claimant over the years for several chronic conditions, including back pain and heart-related complaints. In 1999 and 2001, the records reflect complaints of left arm tingling, but in the context of heart related concerns. It was not until June 18, 2003 that Dr. Vaughn recorded specific complaints of left wrist pain for several months. By mid-July, Dr. Vaughn noted a workers' compensation doctor was following Claimant for his wrist complaints.

From July 25 to September 10, Claimant was under the care of Dr. Strege, who provided partially successful conservative treatment, but eventually suggested surgical treatment. Exhibit C indicates Dr. Strege's office billed Employer's insurance carrier, Traveler's Insurance Co., as Claimant's condition was related to employment. Dr. Strege mentioned the option of surgery in September. Dr. Strege's deposition testimony is summarized below.

On September 23, 2003, Claimant came under the care of Dr. David Brown, who diagnosed osteoarthritis at the radiolunate joint with findings consistent with a capular leak over the ulnar carpal joint. He provided injections and placed Claimant on work restrictions through October 27, 2003. Claimant's pain, said Dr. Brown, was due to osteoarthritis. He did not specifically address causation, but his office billed Employer/Travelers, and he issued a final rating to Travelers assigning permanent partial disability of 5 % of the left wrist.

Dr. David Volarich examined Claimant once on July 28, 2004, generated a report, and testified by deposition. Based on the complaints, history, records, tests and physical findings, Dr. Volarich concluded Claimant suffered a work accident on or about April 1, 2003, that resulted in permanent partial disability of 25 % of the left wrist. Claimant's disability is due to the aggravation of degenerative arthritis of the radiocarpal joint and strain of the triangular fibrocartilage complex ("TFCC"). The rating accounts for pain, lost motion, weakness and crepitus. According to Dr. Volarich, the diagnosis is causally related to work. Specifically, the repetitive nature of his work, holding onto parts with his left hand, repetitively lifting, twisting, and performing similar job activities as described in his report, are the substantial contributing factors in causing the above diagnosis. Other than pain control medications, no further treatment is necessary. Suggested restrictions include use of ergonomic positions, limited repetitive actions, and avoidance of impact/vibratory trauma. Dr. Volarich agreed that the operation of a mower requiring ulnar deviation could aggravate or cause