Roger Poor v. Porta Fab Corporation

(Affirming Award and Decision of Administrative Law Judge)

Date of Accident: August 13, 2003

Place and County of Accident: St. Louis 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 November 14, 2006. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued November 14, 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 $\qquad 3^{\text {rd }}$ day of April 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Roger Poor

$\qquad$

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: August 13, 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 was lifting large, heavy wall sections when he sustained a low back injury.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low back.
14. Nature and extent of any permanent disability: Permanent total disability due to a combination of disabilities.
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? $\ 195.14 Employee: Roger Poor Injury No.: 03-084913
17. Value necessary medical aid not furnished by employer/insurer? N/A
18. Employee's average weekly wages: $\ 915.99
19. Weekly compensation rate: $\$ 610.66 / \ 347.05
20. Method wages computation: By stipulation.

1. Amount of compensation payable:

Employer settled its risk of liability 22. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

1. In 1991, Claimant sustained an injury to his right shoulder at work. Dr. Hammon performed a rotator cuff tear repair, and directed therapy. Claimant improved following the first surgery, but reinjured his shoulder. On October 6, 1999, Dr. Emanuel performed surgery to repair a "massive and difficult rotator cuff" injury. As a result of the injury and two surgeries to his right shoulder, Claimant cannot lift more than ten pounds overhead or twenty pounds to the waist. He is limited to pushing no more than two hundred pounds on wheels. He has lost his strength and cannot use his right arm in any functional manner. When Claimant was working, he used his right arm for balancing the large panels but never to lift. He experiences daily pain in his right arm. Claimant is right hand dominant.
2. In 1992, Claimant experienced a twisting injury to his left ankle, which resulted in several ligament and tendon tears. Claimant's ankle was surgically repaired, but it continues to be weak and twists or sprains easily. He has difficulty walking on rough surfaces and has lost strength in his left foot, although he experiences little pain. Claimant had to be very careful when walking in the plant to avoid injury to his left ankle.
3. In the early 1990s, Claimant was diagnosed with depression. He started on Zoloft and continues to take the medication today. Although Claimant feels fine when he is on medicine, if he stops taking the medicine he experiences very bad depression.
4. On March 27, 2003, Claimant slipped and struck his left shoulder. ${ }^{[1]}$ He reported the injury to his supervisor, but continued to work. However, Claimant's shoulder symptoms got worse and he asked for treatment. Employer authorized treatment with Dr. Kramer, who examined Claimant on April 14, 2003, and prescribed several therapy visits. Two weeks later, Claimant had an MRI, and followed up with Dr. Kramer for two injections, which provided only a small amount of relief. Claimant continued to work.
5. Claimant first noticed trouble with his low back around Wednesday, August 13, 2003, when he was running twelve-foot panels in the hot melt machine. The panels were particularly large and heavy, and required awkward handling. Claimant's back started to hurt soon after he began work, but he continued to work for two days with increasing pain. On Monday, Claimant reported his symptoms to Employer, who authorized treatment.
6. On August 18, 2003, Claimant came under the care of Dr. Polinski, who took an MRI that showed a low back disk protrusion with degenerative disk disease. Dr. Polinski referred Claimant for pain management, and administered one shot, which had little effect on Claimant's pain. Dr. Polinski performed a discectomy on October 22, 2003, and released Claimant to return to work as of January 5, 2004, with restrictions of no lifting over 30-50 pounds and avoiding repetitious bending, lifting and twisting. Claimant continues to experience aches and pain in his back, and his personal doctor, Dr. McKinney, prescribes Percocet for his back pain, which he takes every couple of days. When he increases his activity the pain level increases. He reclines or shifts his weight to relieve pain, but does not often have to lie down completely in order to get through the day. He is antsy in his seat and cannot sit still for long.
7. On February 20, 2004, Dr. Kramer performed an open left rotator cuff repair with debridement of a partial thickness biceps tear, prescribed three months of physical therapy, and discharged him on July 20, 2004. Claimant's left shoulder hurts constantly and is weak. He uses a massager on both arms and has to take Percocet frequently to relieve the pain. The pain in his left shoulder limits him, and he often has to ask his son to help with lifting over thirty pounds. He cannot work anymore due to the limitations with his shoulders.
8. Claimant is fairly active on a typical day. He takes his sons to school and does things around the house like dishes, laundry, and cleaning up. Claimant used to walk a lot, but that now aggravates his back. When he has time to himself, he piddles around the house, plays the guitar, ${ }^{[2]}$ and performs some yard work. He picks his sons up at school and starts supper. After dinner, he watches television, and goes to bed late because he has trouble sleeping due to pain.
9. Claimant is asking for permanent total disability. He testified he could not return to work for Employer due to the restrictions, and he is physically unable to do any of the jobs he has done in the past. For example, his right arm and back prevent him from being a mechanic because he cannot reach and bend over a fender.
10. Claimant settled his August 2003 back injury with Employer for 20 % of the body as a whole (Exhibit M), and his March 27, 2003 left