Elbert McDaniel v. General Motors Corporation

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 Kevin Dinwiddie, 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 $7^{\text {th }}$ day of May 2007. 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? accident
4. Date of accident or onset of occupational disease: 7/8/03
5. State location where accident occurred or occupational disease was contracted: St. Charles County, MO
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:

Employee suffered a trip and fall on angle iron and injured his low back 12. Did accident or occupational disease cause death? No Date of death? N/A 13. Part(s) of body injured by accident or occupational disease: Low back 14. Nature and extent of any permanent disability: 10 % permanent partial disability of the body as a whole, referable to the low back 15. Compensation paid to-date for temporary disability: None 16. Value necessary medical aid paid to date by employer/insurer? None 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: maximum rate 19. Weekly compensation rate: $\$ 662.55 / \ 347.05 20. Method wages computation: by agreement of the parties

1. Amount of compensation payable: 40 weeks of permanent partial disability from Employer at $\ 347.05 per week $\ 13,882.00

1. Second Injury Fund liability: claim as against the Second Injury Fund denied. See Award.

TOTAL: $\ 13,882.00

1. Future requirements awarded: Future medical care found in favor of employer. See Award.

Said payments to begin as of date of this Award 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:

Ray A. Gerritzen

Employee: Elbert McDaniel

Injury No: 03-109407

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: General Motors Corporation

Additional Party State Treasurer, as Custodian of the Second Injury Fund

Insurer: Self-Insured

Checked by: KD/lsn

The claimant, Mr. Elbert McDaniel; the employer, General Motors Corporation, self-insured; and the State Treasurer, as custodian of the Second Injury Fund, appeared at hearing by and through their counsel and entered into various stipulations and agreements as to the issues and evidence to be submitted in this claim for compensation. The parties agreed to a joint hearing in the matter with a companion claim, Injury Number 04069472 .

The parties identified the following as the issues to be resolved at hearing in Injury Number 03-109407:

Injury by occupational disease;

Notice;

Medical causation;

Future medical care;

Permanent partial disability, and

Liability of the Second Injury Fund.

Mr. Elbert McDaniel appeared at hearing and testified on his own behalf. The claimant also submitted the deposition testimony of Robert Poetz, D.O. The employer and insurer submitted the deposition testimony of Bernard C. Randolph, Jr., M.D. The State Treasurer, as Custodian of the Second injury Fund, declined to call any witnesses on its behalf.

The hearsay objection of the Second Injury Fund has been sustained as to the opinion expressed by Dr. Morrow within his report, as contained in Claimant's Exhibit K, as to nature and extent of permanent partial disability. Subject to the aforementioned ruling, the following exhibits are in evidence:

A. Deposition of Robert Poetz, D.O., taken on 1/30/06

B. Certified medical records of Barnes-Jewish Hospital

C. Certified medical records of Barnes West County Hospital

D. Certified medical records of Christian Hospital NortheastNorthwest

E. Certified medical records of Orthopaedic Surgery, Division of Washington University Medical School, by affidavit signed on $4 / 3 / 04$

F. Certified medical records of Orthopaedic Surgery, Division of Washington University Medical School, by affidavit dated 11/7/03

F-1. Certified medical records of Orthopaedic Surgery, Division of Washington University Medical School, by affidavit signed on $5 / 27 / 04$

G. Medical records of Adam LaBore, M.D.

H. Reports of Robert P. Poetz, D.O., dated 10/13/04; 10/26/04; 9/12/05

I. Medical records of Robert A. Shively, M.D.

J. Certified medical records of Saint Joseph Hospital West

K. Certified records of the Division of Workers' Compensation, dated 12/06/04

L. Certified medical records of Melvin Butler, M.D.

1. Deposition of Bernard C. Randolph, Jr., M.D., taken on 3/20/06
2. General Motors Physical History Form
3. Certified medical records of Orthopaedic Surgery, Division of

Washington University Medical School, by affidavit dated 2/1/05

Second Injury Fund Exhibits

None offered.

The parties at hearing stipulated to the employment history of the claimant, Mr. Elbert McDaniel, prior to his employment with General Motors Corporation in March of 1985. The parties acknowledge that the claimant is a

high school graduate, and that prior to his employment at G.M. he worked a variety of jobs as a porter; a physical instructor; a van driver; and as a carpenter for McCarthy Brothers.

Mr. McDaniel relates that his duties varied from menial, such as working on locks or doors, to more involved construction of partitions and platforms. Claimant relates that his work often involved heavy lifting of construction lumber, angle iron, dry wall, scaffolding, bags of concrete weighing as much as 80 to 90 pounds, and tanks weighing as much as 60 to 80 pounds. Claimant recalls that he was constantly being called upon to patch concrete, and recalls that he would also do roof work that would require him to carry 40 to 50 pounds of tar up as many as three to four stories.

Mr. McDaniel recalls that he attended courses at Forest Park Community College from time to time; that changes to his work schedule were disruptive to his education; and that he attended as many as $11 / 2$ to 2 years of college but did not earn a degree. Mr. McDaniel recalls that for a year he attended courses in Ministry at Leal University, but did not attain a degree.

Mr. McDaniel acknowledges a history of right shoulder, bilateral knee, and prostate complaint beginning in the 1990s. Claimant recalls suffering a work injury to his right rotator cuff in 1995, with a reinjury in 1996. Claimant recalls that he did not have a surgery, and was able to continue working as a carpenter, noting that his shoulder injury resulted in a loss of strength that affected his ability to lift on occasion.

Mr. McDaniel recalls that his prostate problem did not affect him at his work, but notes that after his back injury he was obliged to go to the bathroom as many as six times a day.

Mr. McDaniel recalls suffering from excruciating knee pain after a motor vehicle accident occurring on the way to work in 1997or 1998. Mr. McDaniel mentioned the motor vehicle accident in response to a question from his counsel as to when low back complaints first began, but claimant did not provide a history of back treatment thereafter, and testified only as to knee complaints to his family physician, Dr. Butler, after that particular accident. Mr. McDaniel does not recall missing any time from work after his motor vehicle accident, and notes that he was able to continue working as a carpenter with knee pain from time to time. Claimant also recalls suffering a medial meniscus tear to his right knee that was repaired in 1969 or 1970. Mr. McDaniel relates that he had no problems with his knee after that repair, noting that he began to suffer from knee pain in varying degrees in the 1990s. Mr. McDaniel does not recall a specific incident as to his knees, noting that over the 18 years of employment with General Motors as a carpenter, he was obliged to perform tasks that required that he bend, stoop, crawl, and lift.

Mr. McDaniel recalls that on 7/8/03 he was working with another carpenter, building platforms during a plant shutdown. Claimant recalls tripping over some angle iron that had been bolted to the floor, and falling while wearing his tool pouch and with tools in hand. Mr. McDaniel recalls suffering "excruciating pain" in his low back, and acknowledges that he continued to work that day, and continued to work thereafter, without seeking medical attention, supposing that he would recover from the event. Mr. McDaniel recalls that he did not report the injury or seek treatment for about six weeks thereafter, and that he began treating at the plant dispensary while he continued to work. Claimant recalls being referred by his family physician, Dr. Butler, to Dr. Shively, who treated the claimant for knee complaints, and subsequently referred claimant to Dr. Fotopoulos for treatment as to low back complaints. Claimant relates that he continued working while under the care of Dr. Fotopoulos, and recalls attending physical therapy at Christian Hospital Northeast-Northwest. Claimant recalls that in November of 2004 his treatment was switched from Dr. Fotopoulos to Dr. LaBore. Mr. McDaniel recalls receiving injections to his low back, as many as 4 or 5 since 2003, and most recently receiving an injection in December of 2005. Mr. McDaniel reports temporary relief of his low back pain for two weeks or so.

Claimant relates that his last day of work at General Motors was on 10/04/04. Mr. McDaniel recalls that he was on sick leave at one poi