Thomas Milkert v. Union Electric Company

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 January 8, 2007, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Matthew D. Vacca, issued January 8, 2007, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $4^{\text {th }}$ day of October 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? 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: See Award
5. State location where accident occurred or occupational disease was contracted: See Award
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? See Award
7. Did employer receive proper notice? See Award
8. Did accident or occupational disease arise out of and in the course of the employment? See Award
9. Was claim for compensation filed within time required by Law? See Award
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: See Award
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: See Award
14. Nature and extent of any permanent disability: Issue not reached
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? -0 -

Employee: Thomas Milkert Injury No.: 01-169441 17. Value necessary medical aid not furnished by employer/insurer? -0 18. Employee's average weekly wages: $\ 1,275.00 19. Weekly compensation rate: $\$ 599.96 / \ 314.26 20. Method wages computation: Agreed

1. Amount of compensation payable:

None 22. Second Injury Fund liability: No

1. Future requirements awarded: N/A

Said payments to begin N/A 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:

$\mathrm{N} / \mathrm{A}$

Four claims were tried together. In Injury Number 01-169441, the issues presented for resolution by way of the hearing were occupational disease, statute of limitations, permanent partial disability, and temporary total disability. The claim was for occupational disease of the left upper extremity and the defendant amended the answer by interlineation at hearing to allege the defense of the statute of limitations.

In Injury Number 03-122189, the issues presented for resolution were occupational disease, the nature and extent of permanent partial disability, and the nature and extent of temporary total disability. The claim was for occupational disease to the left and right upper extremities, elbows and wrists. Employer sought to amend the answer by interlineation at the hearing to allege the defense of the statute of limitations regarding the left wrist only

In Injury Number 03-050167, the issues presented for resolution were occupational disease, the nature and extent of permanent partial disability, and the nature and extent of temporary total disability. The claim was for occupational disease to the left and right upper extremities, elbows and wrists. Once again, the Employer amended the answer by interlineation at the time of the hearing to allege the defense of the statute of limitations. All amendments to the answers were objected to by Claimant's counsel.

In Injury Number 03-138356, the issues presented for resolution were occupational disease and the nature and extent of permanent partial disability.

The parties agreed that in each case the average weekly wage was the maximum in excess of $\ 1,275.00 a week. The rates of compensation in Injury Number 01-169441 are \$599.96/\$314.26; in Injury Number 03-122189 are \$649.32/\$340.12; Injury Number 03-050167 are \$649.32/\$340.12 and in Injury Number 03-138356 are \$662.55/\$347.05.

In each case the claims are denied on the sole ground of the last exposure rule.

1. Claimant was born June 29, 1947, was 59 years old, and married on the date of the hearing. He attended high school, took college classes, and obtained a certificate in Industrial Electricity. Claimant worked for Ameren UE for approximately 31 years, retiring on February 1, 2003.
2. On April 7, 2003, the Claimant began working for Tri Township Park District in Troy, Illinois. In this capacity, he was a maintenance and grounds keeper. His duties included general plumbing, electrical work, construction work, cutting grass, utilizing lawnmowers, riding lawnmowers and tractors to maintain the park system. The park system consisted of 72 acres of park and land, and he was also responsible for maintaining a petting zoo, mixing animal food, and preparing the athletic fields for use. He worked 30 to 40 hours a week and worked there for the next $21 / 2$ years.
3. Claimant went to work at the Southern Illinois University at Edwardsville from April 2006 to September 2006, again in a maintenance capacity using lawnmowers, picking up trash, trimming shrubs and performing mulching and landscape duties.
4. In approximately 1969, Claimant began his career as a laborer at Ameren UE. In this capacity, he would sweep floors, empty trash, and jackhammer in the coal yards when the trains came in. Claimant then went to work for two years as a porter/laborer at the Ameren's Meramec plant cleaning locker rooms and restrooms, mopping, sweeping, and then transferred to the apprentice electrician program. After three years as an apprentice, he became a journeyman electrician.
5. For the next part of his career, Claimant worked performing motor work, taking transformers apart, taking panels apart using wrenches, box wrenches, socket wrenches, open wrenches, manipulating bolts and screws, all of which exerted stress and pressure on his wrists and hands.
6. In the eleven years prior to retiring, Claimant worked as a supervisor and testified it was less physically demanding than that of the electrician job he previously held. He would occasionally help out with electrician duties but most of his job duties were managerial although they did involve entering information on a computer.
7. Claimant testified that he noticed hand problems beginning back in the 1970s. He first began having hand problems when he would work 16 hours a day cracking rocks with a jackhammer. Claimant's hands would recover overnight and he never mentioned it because he was in a probationary period and so he lived with the discomfort. There was no explanation offered why he did not mention the problems after the probationary period. Claimant testified that his hands would get numb and complaints intensified over the years as a journeyman electrician, especially when he tried to open junction boxes or when he was working overhead.
8. Claimant testified that when he was a supervisor he reported his hand problems to his immediate supervisor, Charlie Defenbaum, and specifically recalls telling Charlie Defenbaum that he thought his problems were work related. This was during his last year working for the company. He did not ask for medical care.
9. As a supervisor responsible for numerous electricians, Claimant was well aware of how to report a work related injury.