Antonino Pereira v. John Volpi Co.

Claimant: Antonino Pereira

Injury No.: 05-085227

Dependents: N/A

Employer: John Volpi Co.

Additional Party: Second Injury Fund

Insurer: Missouri Retailers Insurance

Hearing Date: June 27, 2006

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED:tr

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: April 15, 2005
5. State location where accident occurred or occupational disease contracted: St. Louis City, Mo.
6. Was above Claimant 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 Claimant was doing and how accident happened or occupational disease contracted: sustained repetitive trauma from overhead and lateral lifting of product.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: upper spine, upper extremities
14. Compensation paid to-date for temporary disability: None
15. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? Indefinite
2. Claimant's average weekly wages: $\ 370.00
3. Weekly compensation rate: $\$ 246.66 / \ 246.66
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

$\ 16,164.80

59 and 3/7ths weeks of temporary total disability benefits

14,658.65

1. Second Injury Fund liability: Open

TOTAL:

$\ 30,823.45

1. Future requirements awarded: Open

Each of said payments to begin immediately and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % which is awarded herein on all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Jill Bollwerk

This case involves a disputed repetitive trauma injury resulting to Claimant with the reported onset date of April 15, 2005. Employer admits Claimant was employed on said date and that any liability was fully self-insured. The Second Injury Fund is a party to this claim but remains open for a determination of liability at a future date. Both parties are represented by counsel. This matter proceeds pursuant to Hardship Petition.

1. notice;
2. incidence of occupational disease (medical causation \& exposure);
3. liability for unpaid medical expenses (stipulated at $\ 16,164.80 );
4. authorization of medical care;
5. nature and extent of temporary total disability.

1. Claimant's work experience with Employer begins December 2004 and ends May 6, 2005.
2. Claimant testified with the assistance of a Spanish interpreter. Upon hire, he was placed in each of three departments of Employer's salami plant. Claimant was hired to be a team leader for Spanish-speaking employees. During his first two weeks of employment, he worked in the department where pork legs were salted. And included unloading 20-25 pound pork legs from a bin for salting, and then hanging the pork legs on a trolley and pushing them into a refrigeration unit. He moved eight (wheeled) tubs per shift each holding sixty legs.
3. Claimant next worked in the salami department for two months. His principle job was slicing and cutting salami. The salami came from a cart, or trolley, where two moveable rods or sticks hung each holding five or six salamis. Each salami weighed five or six pounds, or 25-26 pounds per stick. These sticks had to be carried a few steps from the cart to a slicing table where 100 sticks of salamis were sliced in half each day. Claimant is notably shorter than average height, he was apparently unable to reach the sticks at the higher level ( 82 inches) of the cart (Exhibit 6). On occasion, another worker lifted the salamis sticks off the higher level and gave them to Claimant. Approximately 100 rods of hanging salami was moved to the slicing table each shift. While working in the salami department on this first occasion, Claimant was having no difficulties with his upper extremities or back.
4. After the salami department, Claimant spent about three weeks in the shipping department. This task involved placing salamis into boxes for packaging and scanning the boxes. Five five-pound salamis were placed in each box with a reported heaviest weight sampling of 26.92 pounds (Exhibit 6).

1. From the middle of March 2005 to the end of his employment on May 6, 2005, Claimant worked in the salami department. Shortly after returning to that department, Claimant began to have pain arms and hands.
2. Claimant had carpal tunnel syndrome (CTS) surgery more than a year earlier, prior to work with Employer. Claimant testified the symptoms were similar to his pre-existing CTS. Claimant told several co-workers and his supervisor that this pain was not related to this job. Claimant's supervisor, "Tim," did not testify at trial but apparently told Claimant to go see a doctor on his own.
3. In approximately the first or second week of April 2005, Claimant was lifting pork legs when he felt a new symptom in his neck and more pain in his arms. Claimant apparently told "Tim" that he had symptoms in his neck while lifting pork legs, and Tim told him to see his family doctor. Claimant continued to work until he could see a doctor.
4. Claimant treated with Dr. Scherer and returned to work after this appointment with a brace on his hand, and later, his arm in a sling. Claimant continued to work, but limited his duties as needed due to the pain. In May 2000, Claimant again complained of symptoms to his supervisor who referred him to the president of the company. Employer's president told Claimant to take a thirty day leave of absence (without pay). Claimant never returned to work thereafter. The timesheet shows Claimant's last day of work as May 6, 2005 (Exhibit 3). The president testified that she instructed Claimant to keep her updated during this leave and that he failed to do so. ${ }^{[1]}$ Employer did not elect to undertake medical investigation at this time or beforehand. ${ }^{[2]}$
5. Employer's president testified that she saw Claimant bring in the medical status/off work slip of May 27, 2005 from Dr. Scherer (Exhibit B). The medical status report/off work slip indicated right shoulder and arm pain and ongoing treatment plan for the next week. Although communicated within her required thirty days, her testimony nevertheless consisted largely of Claimant's lapses in communication regarding his status. She apparently had no knowledge of Claimant's reports of injury (or symptoms) to his supervisor, "Tim." Subsequently, on June 9, 2005, she sent Claimant a letter terminating his employment (Exhibit M). On cross-examination she admitted she made no attempt to determine Claimant's medical status prior to his termination.

1. Treatment and nerve conduction study per Dr. Scherer was performed on May 6, 2006-the last day Claimant worked at Volpi. Dr. Scherer interpreted the nerve conduction studies as showing much improvement in his right carpal tunnel syndrome and only mild carpal tunnel on the left, but not having any clinical significance. Dr. Scherer noted Claimant had developed severe tenderness of the right shoulder and weakness in abduction, plus radiation of pain down his hand with stress on his shoulder. He also noted that Claimant had spasms in his fifth finger. Dr. Scherer indicated in his notes, "His consolation (sic) of symptoms is a little unusual and I am not certain we have a full understanding yet of the source of his symptoms." (Ex. B). He placed Claimant off work on May 27, 2006 (Ex. B). Claimant never returned to work.
2. An MRI of the right shoulder was performed which appeared normal. Dr. Scherer expressed confusion in his office note of June 10, 2005. He thought now that the symptoms might be radiating from his neck, so he ordered a cervical spine MRI. He continued to keep Claimant off work (Ex. B, see off work slip of 6/10/05). The MRI revealed impingement at T2-T3 level was noted. The radiologist recommended neurological consultation (Ex. B). Dr. Scherer called Claimant on 6/21/05 and they discussed his debilitating pain. Dr. Scherer recommended that Claimant be evaluated by Dr. Paul Young or his associate, Dr. Armond Levy.

1. On 6/21/05, Dr. Levy noted pain in the neck radiating into the shoulder and right arm. Dr. Levy reviewed the MRI and noted that there was a severe spondylotic stenosis at T2-3 with possible cord signal change. Dr. Levy felt that Claimant required urgent attention to the T2-T3 level of the spine before his symptoms worsened. He ordered a full thoracic spine MRI to exclude other affected areas (Ex. H).

1. Claimant saw Dr. Levy at St. Anthony's on 6/23/05 with bilateral leg weakness. He was sent home on steroids and scheduled for thoracic spine surgery with Dr. Levy on 6/27/05 (Ex. A). The surgery performed by Dr. Levy was a decompressive laminectomy at T1, T2 and T3. He found a "wad of sublaminar soft tissue consistent with hype