Joseph Barron v. Johnson Controls Battery Group

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-041234

Employee: Joseph A. Barron

Employer: Johnson Controls Battery Group

Insurer: Johnson Controls Battery Group

c/o Underwriters Safety \& Claim

Date of Accident: April 26, 2004

Place and County of Accident: St. Joseph, Buchanan 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 September 22, 2006. The award and decision of Administrative Law Judge Robert B. Miner, issued

September 22, 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 $\qquad 27^{\text {th }} \qquad$ day of February 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Joseph A. Barron

Injury No.: 04-041234

At the hearing, the parties stipulated all issues except the payment of temporary total benefits for the periods July 17, 2004 through September 5, 2004, September 8, 2004 through September 21, 2004, and November 1, 2004, through December 8, 2004, and the nature and extent of Employee's permanent partial disability. The parties stipulated that:

1. On or about April 26, 2004, Joseph A. Barron ("Claimant") was an Employee of Johnson Controls Battery Group ("Employer"), and was working under the provisions of the Missouri Workers' Compensation Law.
2. On or about April 26, 2004 Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law, and Employer was duly qualified as a selfinsured employer.
3. On or about April 26, 2004, Claimant sustained an injury by accident or occupational disease arising out of and in the course of his employment.
4. Claimant's April 26, 2004 injury occurred in St. Joseph, Buchanan County, Missouri.
5. Employer had notice of Claimant's injury.
6. Claimant's claim for compensation was filed within the time allowed by law.
7. Compensation paid to date of hearing for temporary disability was $\ 15,542.59 that was paid at a temporary total disability rate of $\ 395.63 per week, representing $392 / 7$ weeks for the periods April 28, 2004 through July 16, 2004, September 6, 2004 through September 7, 2004, September 22, 2004 through October 31, 2004, and December 9, 2004 through March 11, 2005.
8. The value of medical aid paid to date of hearing by employer/insurer was $\ 11,504.15.
9. Claimant did not offer any value of necessary medical aid not provided by employer/insurer.
10. Claimant's average weekly wage was $\ 593.45.
11. Claimant's weekly compensation rate is $\ 395.63 for temporary total disability and $\ 347.05 for permanent partial disability.

Claimant testified in person. In addition, Claimant offered the following exhibits that were admitted in evidence: Exhibit A, narrative report of P. Brent Koprivica, M. D., and Exhibit B, medical records and rating report of John B. Moore, IV, M. D. Employer offered the following exhibit that was admitted in evidence: Exhibit 1, correspondence between counsel, consisting of Attorney Bates' letters dated September 3, 2004 and October 29, 2004, and Attorney Taylor's reply letter of November 12, 2004.

The parties stipulated that the only two issues in dispute were nature and extent of Employee's permanent partial disability and liability for past temporary total disability benefits for the periods July 17, 2004 through September 5, 2004, September 8, 2004 through September 21, 2004 and November 1, 2004 through December 8, 2004.

Joseph Barron (hereafter "Claimant") testified that on April 26, 2004, he was employed by Employer, Johnson Controls. He started work for Employer in 1985. During his employment there, he worked as a formation handler. He did that job for nine-to-ten years. He pushed completed batteries on down a conveyer. He used his upper extremities constantly. He also worked as a grid caster. He operated three machines. His job involved putting fifty-pound cakes of lead into a pot. He did that job about nine-to-ten years. During the last four years of that job a lift was available to lift the pigs from a conveyor. Claimant said he also changed molds weighing between eighty and ninety pounds. He also used scrapes every hour to hour and onehalf. He also used a hand brush. He used a hand drill and a spray gun. He said he had progressive problems with numbness and weakness in his upper extremities. He was transferred to be a reed stacker January 2004. He said that was a hard job and he began having complaints in his right elbow. The reed stacker finished the grids. He said the grids were three times as heavy as the ones in casting. He lifted the grids from a pallet onto a rail and into a machine. He first cleaned and lifted the grids before they were put on the rail. He could barely grab the plates. The pain in his hands increased when he started the job, and he began to drop plates. He sprained his ankle and was off work for one week but his arms did not get better. He went back to work and within one hour, his pain increased and he dropped things.

Claimant went to see Dr. Wineinger. He also saw Dr. Sharma for diagnostic studies. Then he saw Dr. Humphreys who recommended surgery. He said the employer then referred him to Dr. Moore the day before Dr. Humphreys was scheduled to do his surgery. Claimant stated that he was between five feet eight inches and five feet nine inches tall, and weighed 205 pounds. Dr. Moore examined him and then scheduled an appointment for him to have surgery to his left hand. Claimant said that the doctor told him he would need a ride home after the surgery. He said his wife had her own business and could not drive him home the day of his scheduled surgery. Claimant said he changed his surgery appointment to two weeks later because he did not have a ride home from surgery. Employer did not offer to provide transportation to Claimant for Dr. Moore's surgery. Temporary total disability benefits were not paid during those two weeks. Claimant said his employer told him he should have been able to get his wife to drive.

Dr. Moore put him on light duty with a five-pound weight restriction after his first surgery.

He was unaware of any light duty work available within those restrictions. He said that Employer did not tell him to report back to work after the first surgery. The first he learned about that was about two weeks later when his attorney contacted him and told him to report to work. He said in November 2004 his employer told him he had abandoned his job.

Claimant met with his employer after the first surgery and discussed Dr. Moore's restrictions. A second surgery was schedule for December 9, 2004. He had a meeting with Employer one week before the second surgery. He said he requested vacation during the surgery, but Employer refused vacation and told him if he left work he would be fired. He said he was not offered any work until Employer offered him a painting job one week before December 9, 2004. He had his second surgery on December 9, 2004 and was off work for a while. He was terminated on December 26, 2004 pending arbitration.

Dr. Moore released Claimant to return to work on March 11, 2005. He did not go back to work at Johnson Controls due to resolution of his arbitration. He had not had any medical treatment since March 11, 2005.

Claimant testified that his hands and mainly his wrists felt like a sprain. He said that when he has that feeling he cannot function and has no grip in his hands. He said that lasts between twenty-four and seventy-two hours. When that happens he applies cold packs and heat. Activities that cause his hands to flare include lifting logs, pulling brush, and even opening the refri