Ronald O'Neal v. Beltservice Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-126452

Employee: Ronald O'Neal

Employer: Beltservice Corporation

Insurer: Liberty Mutual Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: December 16, 2003

Place and County of Accident: St. Louis, 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 October 4, 2006. The award and decision of Administrative Law Judge Kathleen M. Hart, issued October 4, 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 $25^{\text {th }}$ day of September 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Said payments to begin immediately 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: Dean Christianson

Employee: Ronald O’Neal

Dependents: n/a

Employer: Beltservice Corporation

Additional Party: Second Injury Fund

Insurer: Liberty Mutual Insurance Company

Injury No.: 03-126452

Before the

Division of Workers’

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter July 13, 2006. Attorney Dean Christianson represented Ronald O’Neal (Claimant). Attorney Debby Hellmann represented Beltservice Corporation (Employer) and Liberty Mutual Insurance Company (Insurer). Assistant Attorney General Carol Barnard represented the Second Injury Fund (SIF).

The Division’s records erroneously show the Attorney General’s office has withdrawn. AAG Barnard formally re-entered her appearance at trial.

The parties stipulated to the following:

1. Claimant sustained an injury to his right shoulder in the course and scope of his employment with Employer on or about December 16, 2003.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law and Employer's liability was fully insured by Insurer.
3. Employer had notice of the injury and a claim for compensation was timely filed.
4. While Claimant's TTD rate is in dispute, the parties agree Claimant has been paid compensation in the amount of $\ 3,028.41 for the time period of December 22, 2003 through March 1, 2004.
5. Claimant's rate for PPD is $\ 347.05.
6. Claimant has received $\ 15,923.83 in medical benefits.

The parties stipulated the issues to be resolved are as follows:

1. The medical causation of Claimant's psychiatric condition
2. Whether Claimant is entitled to future medical care
3. Claimant's average weekly wage and compensation rate
4. Whether TTD benefits were underpaid
5. The nature and extent of Claimant's permanent partial or permanent total disability
6. The liability of the Second Injury Fund

Based on the competent and substantial evidence, I find:

1. Claimant is a 56 year-old male who worked for Employer from 1984 through July 2005.
2. Claimant's father was an alcoholic and was physically abusive towards him as a child. Claimant developed alcohol and drug problems, but he has "been clean" for 13 years.
3. Claimant is a high school graduate although he testified he "barely passed". He had Army training from 1969 or 1970 in air-frame repair of helicopters. He has not used this training since that time. He was discharged from the Army after he refused to go to Vietnam. Claimant has no other vocational training. He is unable to type, and his computer knowledge consists of using his email and copying photographs.
4. After leaving the Army in the early 1970's, Claimant worked as a dry cleaner for close to three years. He then worked in shipping and receiving for another employer for close to six years.
5. Claimant began working for Employer as a Laborer in 1984. He made conveyor belts which were anywhere from 1"x12" long to 60 " wide x a few hundred feet long. Many of the conveyor belts weighed 200-300 pounds. Claimant was a very valuable employee and got along well with his co-workers. He was eventually promoted to a Lead Man working in a management capacity and training new employees. All of his evaluations before 2003 showed he met and exceeded expectations.
6. In 2001, Claimant had a left shoulder arthroscopy with subacromial decompression and debridement. He feels he had a good result from this surgery although he continues to have some pain and difficulty reaching overhead. He

believes he lost about one-third of his strength in his left arm. Following this injury, Claimant returned to work as a Laborer. He did favor his left arm somewhat by using his right arm more.

1. Claimant has had breathing difficulty for several years. He easily gets out of breath and has been treated for this by his family physician, Dr. Brightfield.
2. Claimant has a history of psychological problems dating back to 2001. During his testimony, Claimant didn't remember when his treatment started, but records indicate he sought help through his Employee Assistance Program in March 2002. He was referred to a psychiatrist and started seeing Dr. Bassett in September 2002. He has continued to treat with Dr. Bassett and has treated with no other psychiatrists.
3. Claimant has a history of migraine headaches, which he thinks began sometime in 2000. He began having almost daily migraines and started treating with his neurologist, Dr. Lee, in January 2003. He had difficulties working when he had a migraine because he could not concentrate and the noise of his co-worker's radios bothered him. He was hospitalized in March 2004 and June 2005 for his migraines. He continues to have migraines and he regularly sees his neurologist to monitor his medications and continued headaches. Claimant missed a significant amount of work in the summer of 2005 due to his migraines and his depression.
4. Claimant did not remember many of the details regarding his psychiatric treatment prior to his December 2003 shoulder injury. He did recall that he was treating with Dr. Bassett for depression. He remembered he was crying a lot, he was not paying attention to his wife, he did not care much about work, he had sold all his hunting equipment, and he wasn't doing much of anything. He recalls he had an attitude at work, he didn't like his job, and he missed time from work. He remembers having hallucinations, but he did not recall if that was before or after his 2003 work injury.
5. The records indicate Dr. Bassett took Claimant off work from September 19, 2002, through December 2, 2002, to treat his severe major depressive disorder. Claimant applied for short-term disability from September 18, 2002, through November 13, 2002. He then returned to work as a Laborer, but continued to have excessive absenteeism. He again applied for short-term disability and was off work from May 8, 2003, through June 10, 2003, and then requested an extension until June 30, 2003. He then returned to work half days and then full time on July 14, 2003. On October 22, 2003, at Claimant's request, Dr. Bassett recommended he not return to work in a management capacity as lead man and that he not be involved in training of employees. On December 17, 2003, Employer gave Claimant an oral warning that he had excessive absenteeism.
6. Claimant injured his right shoulder in the fall of 2003 due to the repetitive nature of his work. He initially felt he had simply strained his shoulder and went to the doctor on his own. When his pain increased, he reported his condition to his employer on December 16, 2003. Shortly thereafter, Employer referred him to Dr. Kreigshauser who performed surgery to repair a partially torn rotator cuff and adhesive capsulitis in January 2004. He was taken off work for 7 weeks following surgery. After a period of light duty, Claimant returned to work full time and was released from treatment in July 2004 with a permanent restriction of no lifting greater than 25 pounds above his shoulder and a rating of 10 % PPD. Employer was able to accommodate this lifting restriction.
7. Claimant continued to regularly miss work due to his migraines and his depres