Edward Michalik v. True Manufacturing

injuries as all symptoms pertaining to those injuries resolved. However, I believe the administrative law judge erred in concluding that employee's work related accident on January 11, 2005 was not a substantial factor in causing his right shoulder injury.

The administrative law judge found that employee failed to prove that his shoulder condition was a result of his work-related injury. The administrative law judge found that the substantial weight of the evidence indicated that employee experienced the right shoulder pain or injury in issue two days after the work related accident, and after work hours, and not on the premises of his employment but rather at home while removing his shirt. However, competent and substantial evidence shows that employee did suffer a shoulder injury on January 11, 2005.

Immediately following his injury, employee sought treatment and complained of pain in his right wrist, elbow and shoulder. Employee underwent x-rays of his wrist and elbow, but none were taken of his shoulder at that time. However, the medical record does indicate that employee had shoulder related complaints immediately following his work-related injury which pre-dated the "pop" he experienced in his right shoulder on the $13^{\text {th }}$ of January. Employee was suffering from an injury which could have been aggravated by other activities, such as removing his shirt. Any subsequent aggravation of his condition would be related to the primary injury on the $11^{\text {th }}$ of January. Therefore, almost certainly the pop employee experienced while removing his shirt was only an aggravation of his January 11, 2005 work-related injury and was not the cause of employee's shoulder injury.

Furthermore, employee has established through the testimony of Dr. Volarich that the work injury sustained on January 11, 2005, was the substantial contributing factor causing employee's right shoulder strain injury. Dr. Volarich opined that as a direct result of the injuries sustained on January 11, 2005, that there was a 20\% permanent partial disability of the right upper extremity rated at the shoulder due to the strain/sprain injury and development of myofascial pain in the trapezius muscle. The rating accounted for the joint strain, which contributed to employee's pain, mild loss of motion, and weakness in the dominant arm.

Therefore, employee has met his burden by establishing that he suffered a work-related injury on January 11, 2005 and that his shoulder condition is medically causally related to the work-related injury. Accordingly, I would modify the decision of the administrative law judge and award compensation for employee's right shoulder injury.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission to deny compensation for employee's right shoulder strain injury.

John J. Hickey, Member

AWARD

Employee: Edward Michalik

Injury No. 05-002579

Dependents: ---

Employer: True Manufacturing

Additional Party: State Treasurer, as Custodian of the Second Injury Fund (Open)

Insurer: Liberty Mutual Fire Insurance Company

Hearing Date: October 19, 2006

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LEHB/lsn

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

1. Date of accident or onset of occupational disease: January 11, 2005
2. State location where accident occurred or occupational disease was contracted: Franklin County, MO
3. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
4. Did employer receive proper notice? Yes
5. Did accident or occupational disease arise out of and in the course of the employment? Yes
6. Was claim for compensation filed within time required by Law? Yes
7. Was employer insured by above insurer? Yes
8. Describe work employee was doing and how accident occurred or occupational disease contracted: Drilling into a cooler and the drill caught
9. Did accident or occupational disease cause death? No Date of death? ---
10. Part(s) of body injured by accident or occupational disease: right elbow
11. Nature and extent of any permanent disability: ---
12. Compensation paid to-date for temporary disability: $\ 0.00
13. Value necessary medical aid paid to date by employer/insurer? $\ 1,279.36
14. Value necessary medical aid not furnished by employer/insurer? $\ 2,695.00 (See Award)
15. Employee's average weekly wages: $\ 452.83
16. Weekly compensation rate: $\$ 301.89 / \ 301.89
17. Method wages computation: by agreement of the parties

1. Amount of compensation payable:

Unpaid medical expenses: (Bill for MRI ordered by Dr. Brown) $\ 2,695.00 (See Award)

$21 / 7 weeks of temporary total disability (or temporary partial disability) \ 646.91

--- permanent partial disability from Employer ---

--- weeks of disfigurement from Employer ---

Permanent total disability benefits from Employer beginning --- for ---

Claimant's lifetime

1. Second Injury Fund liability: Open

TOTAL: $\ 3,341.91

1. Future requirements awarded: None

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:

Employee: Edward Michalik

Injury No: 05-002579

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ---

Employer: True Manufacturing

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

Insurer: Liberty Mutual Fire Insurance Company

Checked by: LEHB/lsn

This is a hearing in Injury Number 05-002579. The claimant, Edward Michalik, appeared in person and by counsel, Attorney Frank Niesen. The employer/insurer, True Manufacturing Company/Liberty Mutual Fire Insurance Company, appeared by and through counsel, Attorney Brad McChesney. The claim against the Second Injury Fund is to remain open by agreement of the parties, and the Second Injury Fund was not present at this hearing.

The parties entered in to certain stipulations, and agreements as to the complex issues and evidence to be presented in this hearing.

On or about January 11, 2005: a. the claimant while in the employment of True Manufacturing Company sustained an injury to his right elbow by accident, arising out of and in the course of his employment occurring in Franklin County, Missouri; b. the employer and employee were operating under and subject to the provisions of the Workers' Compensation law; c. the employer's liability was insured by Liberty Mutual Fire Insurance Company; d. the employee's average weekly wage was $\ 452.83, the rate being $\$ 301.89 / \ 301.89.

e. The employer had notice of the injury. f. A Claim for Compensation was filed within the time prescribed by law. g. No temporary total disability benefits have been paid. h. Medical aid has been provided in the total amount of $\ 1,279.36.

ISSUES:

1. Medical causation in regards to the right shoulder
2. Liability of past medical expenses
3. Nature and extent of temporary total disability for the period of January 17, 2005 through February 28, 2005
4. Nature and extent of permanent partial disability

The following exhibits were admitted into evidence without objection as to the admissibility:

No. A: Medical records from St. Anthony's Medical Center emergency room for two service dates of January 11, 2005, and the second date January 14, 2005

No. B: Itemized bill from St. Anthony's Medical Center referable to Mr. Michalik for the two visits described in Exhibit A respectively for January 11, 2005 in the amount of $\ 932.81 and January 14, 2005 in the amount of $\ 868.00 (Stipulation: these bills are reasonable and necessary care, but the employer and insurer is disputing liability as to the shoulder.)

No. C: Records from BarnesCare

No. D: Medical record from Orthopedic Center of St. Louis/Dr. David Brown, M.D.

No. E: Records from Imaging Partners, 01/24/05 MRI with attached bill

No. F: Records from ProRehab Physical Rehabilitation Center

No. G: Itemized bill from ProRehab referable to Mr. Michalik (Stipulation: these bills are reasonable and necessary and related to the shoulder, but the employer and insurer is disputing liability as to the shoulder.)

No. H: Records from Orthopedic Specialists/Dr. Joseph R. Ritchie, M.D.

No. I: Itemized bill from Orthopedic Specialists/Dr. Ritchie referable to the treatment rendered Mr. Michalik, in the amount of $\ 499.00 (Stipulation: these bills are reasonable and necessary and related to the shoulder, but the employer and insurer is disputing liability as to the shoulder.)

No. J: Bill from South County Radiologists referable to treatment rendered at St. Anthony's Medical Center on 1/11/05 to Mr. Michalik, in the amount of $\ 79.00 (Stipulation: these bills are reasonable and necessary and related to the shoulder, but the employer and insurer is disputing liability as to the shoulder.)

No. K: Bill from South County Radiologists in the amount of $\ 85.00 and is referable to the January 14, 2005 emergency room visit by Mr. Michalik to St. Anthony's Medical Center (Stipulation: these bills are reasonable and necessary and related to the shoulder, but the employer and insurer is disputing liability as to the shoulder.)

No. L: Series of pharmaceutical bills referable to Mr. Michalik's care and treatment, and from various physicians at the emergency room at St. Anthony's Hospital