Lieutenant Carter v. Lemay Concrete Block Co.

1. Are any benefits awarded herein? No
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: March 11, 2005
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:

While working, Claimant's jacket became caught in a machine injuring his right shoulder. 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: Right shoulder 14. Nature and extent of any permanent disability: 20 % of the right shoulder at the 232 week level 15. Compensation paid to-date for temporary disability: $\ 2,894.62 16. Value necessary medical aid paid to date by employer/insurer? $\ 4,693.68

Employee: Lieutenant Carter Injury No.: 05-019476 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: $\ 400.00 19. Weekly compensation rate: $\quad \$ 266.67 / \ 266.67 20. Method wages computation: Section 287.250.1.5

1. Amount of compensation payable:

1. Future requirements awarded: None

Said payments to begin 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Ray Gerritzen

A hearing was held at the Missouri Division of Workers’ Compensation, St. Louis office, on January 16, 2007 at the request of Lieutenant Carter ("Claimant"). Attorney Ray Gerritzen represented Claimant. The Second Injury Fund ("SIF") appeared represented by Assistant Attorney General Kevin Nelson. Prior to hearing, Claimant settled the claim with Lemay Concrete Block Co. ("Employer") and Missouri Employers Mutual Insurance ("Insurer"). The record closed after presentation of all the evidence. Hearing venue is correct and jurisdiction properly lies with the Missouri Division of Workers’ Compensation.

The parties have agreed the issues for disposition are:

1. Accident;
2. Rate; and
3. Nature and extent of SIF liability, if any, for permanent partial disability (PPD) or permanent total disability (PTD).

Claimant offered Exhibits A through L, which were admitted over SIF objection to Exhibit A. ${ }^{[1]}$ The SIF offered Exhibits I through IX. Exhibits I -VI were admitted over Claimant's objection to Exhibits II through VI. ${ }^{[2]} Exhibits VII and VIII are inadmissible hearsay and not admitted. { }^{[3]}$ SIF motion to clarify the record by adding evidence after the record closed is denied. ${ }^{[4]}$ Any objections not expressly ruled on in this award are overruled. Any notations contained in the records were present when admitted into evidence.

1. Claimant was 40 years old in March, 2005. He quit school in $9^{\text {th }}$ grade at age 18 and did not obtain a GED.
2. After leaving school, Claimant worked "odd jobs", planting trees, mowing lawns, working in a car wash, kitchen, restaurant, hotels, and a warehouse, and through temporary agencies.
3. Claimant testified he aspired to be a 'top chef'; so most of his work was performed in the kitchen. He cooked for week long parties at Henry the VIII Hotel and for the Canteen Corporation at the Chrysler Corporation plant.
4. Claimant testified he was often paid in cash and the income was not reported to the IRS or the Missouri Department of Revenue.
5. Claimant is right handed and denied any right-shoulder problems prior to March 11, 2005.
6. Claimant was hired March 5, 2005 and began working full time March $7^{\text {th }} earning \ 10.00 an hour for eight hours a day. Some days he worked more than eight hours. Claimant described the work as "strong hard labor," lifting 50 to 90 pound blocks, moving skids, sweeping, and driving a forklift.
7. On March 11, 2005 shortly after arriving at work, Claimant testified he cleaned a machine by bending and "going into the machine and pulling" gravel from underneath using a hoe. The machine ran constantly and contained 9 huge blocks used to move pallets electronically.
8. While bending over the machine, Claimant's jacket became caught for 20 minutes, as his life flashed before his eyes.
9. The same day, Claimant treated at St. Louis University Hospital (SLU) where he was hospitalized, received medication, x-rays, and bed rest until March $13^{\text {th }}$. Claimant denied giving a history of crawling under the machine, calling the SLU intake information a lie. Claimant testified he gave the best history he could give as he was alone and in pain.
10. Claimant testified that Dr. Nogalski placed Claimant's arm in a sling and ordered physical therapy at ProRehab and limited Claimant's lifting to ten pounds.
11. Claimant returned to work on May the $10^{\text {th }} and only worked 51 / 2 hours due to pain. On May 11^{\text {th }}, Claimant worked 11 / 2 hours with a pain level of 8 out of 10 . Claimant's last day at work was May 16^{\text {th }}$ when he worked 6 hours and asked Dr. Nogalski to keep him off work until he completed therapy. He did not call or report to work again.
12. Claimant testified he injured his right shoulder, punctured his lung, fractured a rib and has a protruding right scapular bone. He complained of great pain and nightmares from the injury.
13. Claimant described his typical day as being stuck in the house, and that he might as well be in jail. He can perform light housework but not heavy work in the kitchen or yard. Claimant cannot play baseball, swim, or play football to the extent he once did. Claimant uses his left arm for many activities. Claimant plays set shots in basketball and shoots with his left arm. Claimant has problems sleeping on his right side or lifting overhead.
14. Before March 11, 2005, Claimant testified he had no problems doing anything he wanted to do, including working a physical job. Claimant testified he lifted weights up to approximately 475 pounds before the injury, but now he cannot. Now he feels stuck and unable to deal with "things."
15. Claimant testified that because of the injury, his dream of becoming a top chef has gone to "crap." Claimant believes his life is a "done deal." Claimant would like to write a book but cannot, due to his right hand problems and inability to use a computer.
16. Claimant does not believe he can work because he uses his right hand for everything.
17. He believes his life is "through" due to the March injury; and that working "ain't gonna happen." Claimant attributed his inability to work to the March 2005 injury.
18. Later in the hearing, Claimant could not remember what year his work-related injury occurred; but was certain it happened by 2000. Claimant was uncertain where and when he received treatment for his right shoulder injury. Claimant testified he has difficulty remembering details, which was supported by the medical records.