Alfred Leuthauser v. Southside Temporaries

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-042877

Employee: Alfred Leuthauser

Employer: Southside Temporaries

Insurer: American Protection Insurance Co.

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

Date of Accident: Alleged May 1, 2003

Place and County of Accident: Alleged 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 December 27, 2007, and awards no compensation in the abovecaptioned case.

The award and decision of Administrative Law Judge Margaret D. Landolt, issued December 27, 2007, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 12th day of June 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: alleged May 1, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? N/A
8. Did accident or occupational disease arise out of and in the course of the employment?
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:

Employee alleged he contracted carpal tunnel syndrome from loading and unloading portable toilets.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: N/A
3. Nature and extent of any permanent disability: None
4. Compensation paid to-date for temporary disability: None
5. Value necessary medical aid paid to date by employer/insurer? $\ 884.61

Employee: Alfred Leuthauser

Injury No.: 03-042877

1. Value necessary medical aid not furnished by employer/insurer? $\ 9395.00
2. Employee's average weekly wages: $\ 536.13

Injury No.: 03-042877

Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Checked by: MDL

A hearing was held on November 6, 2007 at the Division of Workers’ Compensation in the City of St. Louis. Alfred Leuthauser (Claimant) was represented by Mr. Jeff Estes. Southside Temporaries (Employer) and American Protection Insurance Company c/o Gallagher Bassett (Insurer) were represented by Ms. Loretta Simon. The Second Injury Fund (SIF) was represented by Assistant Attorney General Michael Finneran.

The parties stipulated that: Claimant’s average weekly wage was 536.13, resulting in rates of 357.44 for Permanent Total Disability (PTD) benefits and $340.12 for Permanent Partial Disability (PPD) benefits; Claimant was an employee of Employer; venue is proper in the City of St. Louis; and the claim was timely filed. The parties further stipulated Employer paid no TTD benefits, and paid $884.61 in medical expenses.

The issues for resolution by hearing are: whether Claimant sustained an occupational disease arising out of and in the course of employment; medical causation; liability of Employer for past medical expenses in the amount of $9,395; liability of Employer to provide future medical treatment; liability of Employer for past TTD benefits for the period between May 14, 2003 and December 19, 2003; nature and extent of PPD; whether Claimant is permanently and totally disabled; and liabilitiy of SIF.

Claimant lives in Robertsville, Missouri with his wife, Betty, and two children, ages 10 and 17. Claimant has no other dependents. The family resides in a mobile home on 5 acres. Claimant testified his wife takes care of the yard. Claimant left school at age 16, at which time he was in the 7th grade. Claimant attempted to obtain a GED, but was unable to do so. Claimant is functionally illiterate, and has very little skill in arithmetic. Claimant has a commercial driver's license (CDL) he obtained by taking the written test verbally.

Claimant went to work for Traffic Control Co., when he was 17 or 18, and worked there for approximately 20 years. At Traffic Control, Claimant installed barricades, signs, and warning barrels as needed at road construction sites. One of the other places Claimant worked was Tree Court Builders Supply where he stocked shelves, loaded and unloaded trucks, and made deliveries. Between 2000 and 2002 Claimant did not work. "Johnny on the Spot" or Onyx employed Claimant on an as needed basis from July to December 2002.

Claimant began working for Employer around December 20, 2002. He was assigned to work at "Johnny on the Spot" or "Onyx." Claimant's job was to deliver, service, and pick up portable toilets at construction job sites and special event locations. Claimant continued at this job for the duration of his employment with Employer until May 13, 2003. Claimant reported to Glen Schaefer, who was a supervisor for Johnny on the Spot. Claimant worked 40 hours a week plus overtime.

The portable toilets were around 4 feet square, and had a tank and urinal. They were usually on wood or plastic skids. Claimant estimated when full, a portable toilet weighed 300 to 350 pounds. Claimant drove a truck and trailer with a tank, hose and wand, to service the portable toilets. Claimant testified some trucks had lift gates, but some did not, and if a trailer was attached to the truck, the lift gate could not be used.

Claimant testified in the course of his work, he regularly dragged the toilets from their location to his truck to service them, often across construction sites. Claimant testified to move a toilet, he scooted them from side to side, pulling them towards him, and moved his arms in a back and forth motion. Claimant testified the longest distance he dragged a toilet was about 100 feet.

When delivering or picking up toilets, Claimant stated he generally lifted the toilets and placed them on the truck, or unloaded them from the truck, by himself. Claimant testified most of the time he used a truck without a lift gate.

Claimant testified before going to work for Employer he had no problems with his hands. Nor did he have any problems with his hands during the several months in 2002 when he worked directly for Johnny on the Spot.

Claimant testified he first noticed problems with his hands about two months after he started working for Employer. His hands began getting tired easily, and he noticed this more at night. His hands began to get numb, and fell asleep at night. He began to experience pain in his hands. Claimant testified these symptoms increased with his activity at work and got worse over time. Claimant stated before this, he had no problems with his hands, never received any treatment for his hands, and had never been told he had any nerve related problems or carpal tunnel syndrome.

Claimant testified he reported his hand problems to Glen Schaefer, and to the office staff at Johnny on the Spot. Claimant testified he was not offered any medical treatment, nor did he ask for any, although he thought his problems were work related.

Claimant testified he went to his personal physician, Dr. Vargas, in early May 2003. Dr. Vargas referred him to St. Joseph's Hospital for nerve conduction studies, which confirmed he had carpal tunnel syndrome. Claimant testified he reported this to Johnny on the Spot, and was told to contact Employer, who sent him to Concentra, where

he was given wrist splints. Claimant was also seen by Dr. Rotman, but received no further treatment from Employer despite his request for further treatment.

Claimant testified on or about May 13, 2003, he was informed by Johnny on the Spot that he was no longer needed. Claimant received no other assignments from Employer.

Claimant saw Dr. David Strege who performed bilateral carpal tunnel releases on December 11, 2003. Claimant was eventually released from Dr. Strege's care, and has received no further treatment to his hands or wrists.

Claimant testified he presently has no grip and drops things easily. He has difficulty distinguishing between hot and cold on his fingers bilaterally, and he experiences numbness and tingling. Claimant experienced some improvement from the surgery, but his symptoms persist. Claimant is uncertain how much he can lift.

Claimant testified to various preexisting conditions. In 1992 he injured his neck while lifting a manhole, and continues to have problems with range of motion in his neck. In 1995, he injured his right shoulder while lifting a door onto a truck which resulted in shoulder surgery. Claimant received a workers' compensation settlement following this injury. Claimant testified he re-injured his right shoulder in 1999, this time unloading a truck. Claimant received conservative treatment from Dr. Petkovich. Claimant testified to a variety of ongoing problems referable to his right shoulder. Claimant injured his left knee, which gave out. Both of his knees are painful, and as a result he had to adjust how he worked.

Claimant was diagnosed with breathing problems and sleep apnea in 2000. He treated with Dr. Ojile. He was given inhalers for asthma, and a CPAP machine for sleep apnea. Claimant is often fatigued due to the effects of his breathing problems and sleep apnea.

Claimant was first diagnosed with heart disease in 2002. He underwent a cardiac catheterization in February, 2002 and was diagnosed with congestive heart failure. He was evaluated for a heart transplant at Washington University School of Medicine, but was not eligible due to his weight. Clamant becomes fatigued easily due to his heart condition, and it severely limits the distance he is able to walk. Claimant also testified he has an irregular heartbeat.

Claimant sought vocational rehabilitation, but was told there was nothing available for him.

Brian Williams is the facility manager for Veolia Environmental Services, the parent company of Johnny on the Spot, and manages its day to day operations. Mr. Williams was Claimant's supervisor during the time Claimant worked at Johnny on the Spot thr