Daniel Williams v. Breckenridge Material Company

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: September 24, 2003 and six years leading up to 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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 was driving a truck when it hit a pothole and jarred Claimant. Claimant also sustained repetitive trauma to his low back over a number of years from driving a cement truck and repetitively lifting materials. 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: 20 % permanent partial disability of the body as a whole referable to the low back and 30 % permanent partial disability of the left hand preexisting 15. Compensation paid to-date for temporary disability: $\ 5,610.80 16. Value necessary medical aid paid to date by employer/insurer? $\ 4,460.14

Employee: Daniel Williams Injury No.: 03-097964 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $\ 808.00 19. Weekly compensation rate: $\$ 347.05 / \ 538.66 20. Method wages computation: Statutory

A hearing was held on May 4, 2006, at the Division of Workers’ Compensation in the City of St. Louis. Daniel Williams (Claimant) was represented by Mr. Ray Gerritzen. Breckenridge Material Company (Employer) and its Insurer Hartford Insurance Company were represented by Mr. John Palombi. The Second Injury Fund was represented by Assistant Attorney General Joseph Diekemper. Mr. Gerritzen requested a fee of 25% of Claimant’s award.

The parties stipulated that on or about September 24, 2003, Claimant sustained an accidental injury arising out of and in the course of employment; at that time Claimant was an employee of Employer; venue is proper in the City of St. Louis; Employer received proper notice of the injury; and the claim was timely filed. The parties further stipulated that Employer paid temporary total disability benefits in the amount of $\ 5,610.80, representing a period of time from September 24, 2003 to December 7, 2003, or 10 and 3/7ths weeks. Employer also paid medical benefits of $\ 4,460.14. The parties further stipulated that Employer advanced $\ 5,000.00 on August 23, 2004, and should receive a credit for that advance against any benefits awarded.

The issues for resolution by hearing are whether Claimant sustained an occupational disease arising out of and in the course of his employment; medical causation with respect to occupational disease to Claimant's back; liability of Employer for past medical benefits; liability of Employer for future medical care; whether Claimant is entitled to temporary total disability benefits; whether Claimant is permanently and totally disabled; liability of the Second Injury Fund; nature and extent of permanent partial disability sustained by Claimant; what is Claimant's appropriate rate of compensation; whether 3/7ths of a week temporary total disability was overpaid at the rate of $\ 538.00; and whether Employer underpaid temporary total disability benefits. Some of the exhibits received by the Court were highlighted. The Court did not highlight, mark or alter the exhibits in any way.

Claimant is a 39-year-old man who obtained his GED and completed some college credits. After he dropped out of high school, Claimant worked delivering pizzas and waiting tables for a couple of years before entering the Marine Corps in May 1988. Claimant served in the Marines for four years and was in combat in Desert Storm. As an artilleryman, he was exposed to a large amount of burning oil. After returning from Desert Storm, Claimant experienced fatigue, joint pain, and began having health problems such as asthma and allergies. Claimant also started gaining weight. Claimant testified that he is five feet, eight inches tall, and in high school his highest weight was 190 to 195 pounds. In 1988, when Claimant returned from boot camp, he weighed 191 pounds. In combat, Claimant weighed about 215 pounds. When he left the Marines he weighed 225 to 230 pounds, and has had problems with obesity ever since.

After Claimant left the Marines in 1992, he obtained a job as a security guard and remained there for approximately one year. As a security guard he was required to sit at a console and patrol. It was not a physically demanding job. Following his employment as a security guard, Claimant went to work for Pop's Saloon where he was a doorman and disc jockey. He removed unruly patrons and cut people off if they had too much to drink. Claimant remained at Pop's on and off for approximately seven years and then was a school bus driver.

Following his work as a bus driver, Claimant went to work for Employer. When Claimant first started working for Employer, he bagged and carried sand, loaded and unloaded supply trucks, and loaded rebar. His job required him to climb ladders and he had to carry 75 to 100 pound bags of weight to the top of the truck one to three times a week. Ten percent of his time working was carrying bags.

Prior to September 24, 2003, Claimant operated truck \#169. According to Claimant, the truck had a bad seat and every time he rode in it, it catapulted him up and down in the seat. Claimant reported the bad seat to Employer. Anytime Claimant hit a bump, it bounced him around more than a normal truck. Claimant had truck \#169 for one and one-half years.

Claimant testified that he kept a log regarding the bad seat, and filed it with Employer. Claimant testified that everyday he wrote down on his inspection sheet that the seat was bad. According to Claimant, there were probably 200 to 300 entries in the log regarding the bad seat. Claimant testified that he heard Employer sold the truck. Claimant knows other drivers have had trouble with that truck.

Claimant testified that before September 24, 2003, his asthma was a daily issue. Claimant had to use inhalers and daily treatments and still has problems with his asthma. At Employer it was difficult for him to work. Asthma affects his daily work because of the treatments, and he has to use a nebulizer two to three times a day. This has been going on since he was diagnosed after coming back from the Gulf War. His VA doctor told him that working in cement is hard on him because of his asthma.

Claimant was diagnosed with sleep apnea since the war. His sleep apnea causes him to be fatigued all the time because he does not get a restful sleep. For the most part, his sleep apnea is corrected with the use of a CPAP. He now needs a humidifier in conjunction with his CPAP.

On July 15, 1999, Claimant was first diagnosed with pancreatitis. Claimant testified that he lost time from work because of his pancreatitis which caused him to be sick to his stomach.

On July 28, 1999, Claimant fell on his left hand and wrist. Rebar pierced his hand and tore his muscles. Reconstructive surgery was done at St. Mary's Hospital by Dr. Dunn. As a result of this injury, Claimant has difficulty lifting any weight. The palm of his hand is lumpy. The hand injury affected his driving at work, climbing a ladder, and he had difficulty carrying things with his left hand. In Claimant's opinion, his hand functions at about 70 % of how it used to function before his hand accident.

Claimant had an accident in April 2000 when he hit a bump and bounced, hitting his head on the top of the truck. Claimant testified Employer sent him to Concentra where he was x-rayed and told nothing was wrong with his back. Claimant testified that after his treatment at Concentra, he went to Dr. Lane, a chiropractor, on his own. Claimant went to Dr. Lane off and on for a period of two years. Dr. Lane performed adjustm