Edward Dunn v. Astoris

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-057255

Employee: Edward Dunn, Jr.

Employer: Astoris (Settled)

Insurer: Travelers Indemnity Co. of America (Settled)

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

Date of Accident: February 12, 2001

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 May 3, 2007. The award and decision of Administrative Law Judge Suzette Carlisle, issued May 3, 2007, 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 $\qquad 2^{\text {nd }}$ day of November 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: February 12, 2001
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:

Claimant injured his right shoulder while lifting a lid on a metal container. 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: 47.5 % referable to the right shoulder 15. Compensation paid to-date for temporary disability: $\ 19,774.41 16. Value necessary medical aid paid to date by employer/insurer? $\ 56,988.16

Employee: Edward Dunn, Jr. Injury No.: 01-057255 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: $\ 1,153.85 19. Weekly compensation rate: $\$ 581.61 / \ 314.26 20. Method wages computation: Stipulated

1. Claimant received $\ 56,988.16 in medical benefits.

The issues for disposition in this case are:

1. Date Claimant reached maximum medical improvement (MMI).
2. The nature and extent of any SIF liability.

Claimant offered Exhibits A through P which were admitted into evidence without objection. It should be noted that reports for Drs. Wagner, Haupt and Strecker are combined in the same certification as they are all in the same office. However, the records have been distributed separately from the certifications. SIF offered no exhibits. Any notations found on the exhibits were present when admitted into evidence.

1. Claimant was 56 years old at the time of the February 2001 work injury. Claimant has been married 29 years and has four children. He completed tenth grade at St. Mary's High School, but did not graduate high school. Claimant does not possess a GED, or any formal education beyond the tenth grade.
2. Prior to working for Employer, Claimant was employed as a shipping clerk for four years with Schroeder/Tremaine and eleven years as a press operator and quality control clerk with Leonco Container. Claimant later mixed prescription drugs for KV Pharmaceuticals.
3. Claimant began working for Employer in 1981. The company name changed during a series of buyouts. Claimant began as a general laborer, sweeping and emptying trash for three years. Claimant moved to soap production where he worked for nine months. Claimant later transferred to the Pyran Department and lifted bags weighing up to 100 pounds and blended material for two years.
4. He transferred to the Cal-Packer Department where he "swung" 60 pound bags onto pallets, stood four hours a day and worked overtime. He transferred because the pay was better, not because he could not perform the work. He worked in the Cal-Packer Department for four years and used a forklift to move heavy items. Claimant lifted up to two bags weighing 60 pounds each; using his left side to lift; before becoming short of breath. Claimant testified he experienced shortness of breath when climbing stairs.
5. Claimant's initial right shoulder injury occurred in 1982. Following treatment, Claimant continued to perform his regular duties and testified he was not aware of any work restrictions imposed by any doctor.
6. In the early 1990's lifting became more difficult so Claimant transferred to the control room for better pay and the absence of dust. Claimant controlled all the switches for three buildings in one room. He assigned duties to other employees, and monitored temperature control switches. The heaviest item he lifted was a clipboard. He performed his duties mainly from a seated position three out of eight hours each day.
7. Before February 2001, it took longer for Claimant to complete work assignments due to his heart and breathing problems. Claimant required rest every thirty minutes when walking due to his back. It took longer to grocery shop with his wife due to his need to rest.

1. On February 12, 2001, Claimant, attempted to pull open a lid which would not open. He leaned in, pushed harder and felt his right shoulder give and strain.
2. Claimant testified that following the injury, he worked off and on with restrictions until April 2002 but never returned to his regular job duties. He was able to perform his work duties for several weeks after Dr. Haupt released him on April 22, 2002, although he worked at a slower pace.
3. During this time, Claimant did not perform overhead lifting. Nor did he lift more than 10 pounds. Claimant's helper assisted with valves as they were located near the top of the equipment and two hands were required to operate them.
4. After April 22, 2002, Claimant testified he could no longer perform the work due to age, problems walking, breathing

and his heart.

1. Claimant testified Employer had no jobs within his restrictions after he was released. On cross-examination, Claimant testified the control room job was still available but he did not think he could perform the job as well as he did prior to February 2001.
2. Claimant also testified that he has not sought employment with any employer due to breathing problems and inability to keep up.
3. Claimant believed he could obtain another position with Employer within Dr. Haupt's restrictions; but he was not interested in doing so.
4. Claimant testified he voluntarily retired; and was not released by Employer.
5. Claimant has not received a pension.

1. Claimant testified his shoulder and back hurt when he sleeps. In the morning, he "slings" his right arm out of bed because it has fallen asleep. Claimant testified he is unable to woodwork; wash the outside of his house, hunt, or bowl because of his right shoulder. It takes him two days to mow the lawn on a riding mower due to arm and back problems. Claimant cannot keyboard long because his hands and arms fall asleep. Claimant breathes hard and his heart pounds after walking up stairs. Claimant can stand 15 to 20 minutes before needing a break. He drives mainly with his left hand and cannot drive very far. Claimant keeps changing positions due to pain. He "catnaps" during the day because he does not get enough rest at night.
2. Claimant testified he worked for nineteen years with no known restrictions imposed by a doctor except to wear a respirator when outside the control room.
3. Claimant testified that his heart and COPD problems have remained the same since February 2001.

1. In 1982 Claimant injured his right shoulder; Dr. Wagner performed two surgeries, and Claimant missed eight to nine months of work.
2. After a lifting incident in 1986, Claimant testified his disc "collapsed or slipped" and he received temporary relief from cortisone injections. Claimant found new ways to lift 100-pound bags to avoid more injections. Leisure activities were limited due to his back. He took breaks when grocery shopping or climbing stairs. Claimant missed two to three days at a time when his back problems increased. ${ }^{[1]}$
3. Claimant's left knee was injured in 1991 when he slipped on a ladder and hung upside down by his knee. Dr. Wagner performed two surgeries and Claimant was off work about nine months. Complaints include: a pulling sen