John Jones v. Bennett Packaging of Kansas

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 12, 2006. The award and decision of Administrative Law Judge Emily S. Fowler, issued June 12, 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 17th day of January 2007. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman Alice A. Bartlett, Member John J. Hickey, Member Attest:

Secretary

FINAL AWARD

1. Future requirements awarded: N/A

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: Mr. Geoffrey Clark.

Employee: John Jones

Injury No: 03-051406

Dependents: N/A

Employer: Bennett Packaging of Kansas City

Insurer: Mid Century Insurance Company

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

Hearing Date: April 17, 2006.

Checked by: ESF/1h

On April 17th, 2006, the employee and the Second Injury Fund appeared for final hearing. The employee and the employer had previously settled the underlying claim by stipulation on August 26th, 2004. The employee John Jones appears in person and with counsel Geoffrey Clark. The Second Injury Fund was represented by Maurine Shine.

The parties stipulated:

1) that on or about February 28th, 2003, Bennett Packaging of Kansas City was an employer operating subject to the Missouri workers' compensation law and whose liability was fully insured by Mid Century Insurance Company and that John Jones was its employee;

2) that John Jones was working subject to the law in Lee's Summit, Jackson County, Missouri;

3) that John Jones sustained an accident or occupational disease arising out of the course and scope of his employment;

4) that employee notified the employer of injury as required by law;

5) that the employee's claim was filed within the time allowed by law;

6) that employee's average weekly wage was $\ 823.44 resulting in a compensation rate of $\ 548.99 for temporary total and $\ 340.12 for permanent partial disability compensation;

7) that employee was paid temporary total disability compensation of $\ 2,379.39 and the medical care cost was $\ 650;

8) that the employer and the employee agreed through stipulated settlement to a 20 percent disability to the right upper extremity at the 175 -week level resulting in a payment of $\ 11,904.20

The parties requested the Division to determine:

1) whether the Second Injury Fund is liable to employee for any disability compensation either as permanent total disability or permanent partial disability as a result of employee's injury from February 28th, 2003, in combination with his prior medical condition.

The employee testified on his own behalf and further presented the live testimony of his wife, Terry L. Jones, and Dr. Allen Parmet, and further presented the following exhibits, all of which were admitted into evidence without objection:

Exhibit A - Stipulation for Compromise Settlement in case 03-051406 as to employer.

Exhibit B - CV of Dr. Allen J. Parmet.

Exhibit C - report of Dr. Allen J. Parmet dated 6/13/04

Exhibit D - report of Dr. Allen J. Parmet dated January 29th, 2005.

Exhibit E medical records of John Jones

The Second Injury Fund presented no live testimony but offered the following exhibits, which were admitted into evidence without objection:

No. 1 - Deposition of Mr. John Jones taken on December 13, 2005

Mr. John Jones (hereinafter referred to as employee) testified that he was 59 years old at the time of hearing, and he had been married for approximately 24 years. He stated that his wife accompanied him to all of his medical appointments to help him "keep in line because my memory is not too good." Employee graduated from the 8th grade and subsequently obtained a GED in Chicago. After graduating from the 8th grade at the age of 16 years old, he began full-time work. He has had no other education since that time. He noted that since his coronary bypass surgery in September of 2002, he has had a loss of memory and is not very good at remembering things. He has been driving trucks all of his life, starting when he was approximately 14 years old and eventually graduated into driving tractor-trailer rigs all over the United States. He would supervise the loading and unloading of his rigs and occasionally help. The last job he had, started in 2001, local driving with Bennett Packaging of Kansas City. He left Bennett in 2003 after carpal tunnel surgery to his right upper extremity. He noted that the carpal tunnel injury was due to having to bang on the doors of the trucks to open them occasionally, causing the injury to his right upper extremity. Prior to this injury, which was February 28th of 2003, employee stated that he had suffered a heart attack in September of 2002. He had chest pain prior to that time starting back in 1998 and it gradually became worse and worse. On September 5th, 2002, he underwent a triple bypass for which he was off work for approximately two months until late October of 2002. He noted that since 1998 and over the following years he had become more fatigued and he had trouble with his legs with walking, as well as pushing in the clutch. Employee was also diagnosed with diabetes mellitus in 2002 after an increase in need to urinate, as well as an increase in fatigue. He also was suffering from blood in his urine. Prior to his heart attack in September of 2002, employee stated that his problems included his legs were becoming numb and weak interfering with his work. He would have to stop, rub his legs, and walk around. He also noticed problems with his eyes; he wasn't seeing as well. He was having chest pains. With regard to his diabetes, he noticed that he was getting sleepy, and often slept through lunch. He would have to stop frequently to go to the bathroom; and, further, since the surgery, the triple bypass surgery, he has had a loss of memory, which made it difficult for him to remember the routes and where he was supposed to go. He also noted that he was having problems with his arms being able to use the steering wheel. He would have to hit his arms on the steering wheel to wake them up as they would become numb and go to sleep. He stated he continued to work because he had to put food on the table. After his

carpal tunnel surgery, he was denied his DOT approval and was not able to return to work as a truck driver.

He noted that with regard to his activities of daily living, he would go to sleep somewhere around eight p.m. in the evening and wake up at 10 a.m. in the morning. He would get up and try to maybe work on the lawn, do a little raking, or maybe work on something mechanical but then would have to go back to bed. He stated that recently he tried to dig a trench in order to put some camera wires underground and it completely wore him out and he actually became very ill after only 30 minutes. He continues to have difficulty staying awake while driving. He lets his wife do all the driving. If he sits in a chair for very long, he will simply fall asleep. He doesn't feel there is any job he can do because of a combination of his problems of which he suffers, including sleepiness, fatigue, frequent urination. He continues to have numbness in his hands and shortness of breath.

On cross-examination, he did admit that he has a bad memory and that maybe his answers were not as accurate as he would have liked for them to be. He admitted that others generally unloaded the trucks, although from time to time he was required to help. He was a two- to three-pack-a-day smoker for quite sometime and was urged to stop smoking as far back as 1987. He admitted that when he initially had problems with the diabetes and it was recommended that he take a glucose test, he did not do so and continued to drive his truck after April 2001 w