Skip to content
Ott Law Firm

Delbert Lewis v. Gerstner Electric, Inc.

Decision date: June 24, 20088 pages

Summary

The Commission affirmed the administrative law judge's award of workers' compensation benefits for Delbert Lewis, who sustained an occupational disease injury to both wrists from repetitive motions in his employment. The Second Injury Fund was held liable for 65.01 weeks of permanent partial disability compensation totaling $22,561.72.

Archive Notice

This archive contains published Missouri Labor and Industrial Relations Commission workers' compensation decisions reproduced for research convenience. Official source links remain authoritative where provided. Joseph Ott, Attorney 67889, Ott Law Firm - Constant Victory - Personal Injury and Litigation maintains these public legal archives to support Missouri case research and to help prospective clients connect that research to the firm's courtroom practice.

Related Legal Help

Practical guidance for this decision

Third-Party Injury Check

This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
  • The injury involved a vehicle, unsafe premises, defective equipment, or a non-employer vendor.
  • A serious injury or death may need both benefits review and civil-claim analysis.

Caption

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-145940

Employee: Delbert Lewis

Dependent: Jeanine Lewis

Employer: Gerstner Electric, Inc. (Settled)

Insurer: Transportation Insurance Co. (Settled)

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

Date of Accident: June 24, 2004

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 November 13, 2007. The award and decision of Administrative Law Judge Margaret D. Landolt, issued November 13, 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 24th day of June 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee:Delbert LewisInjury No.: 04-145940
Dependents:Jeanine LewisBefore the
Employer:Gerstner Electric Inc. (settled)Division of Workers’
Additional Party:Second Injury FundCompensation
Department of Labor and Industrial
Relations of Missouri
Insurer:Transportation Insurance Co.Jefferson City, Missouri
Hearing Date:September 5, 2007Checked by: MDL: ms

FINDINGS OF FACT AND RULINGS OF LAW

  1. Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

  1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: June 24, 2004

- State location where accident occurred or occupational disease was contracted: St. Louis, Missouri

  1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
  2. Did employer receive proper notice? N/A
  3. Did accident or occupational disease arise out of and in the course of the employment? Yes

- Was claim for compensation filed within time required by Law? Yes

  1. Was employer insured by above insurer? Yes
  2. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee performed repetitive motions with his upper extremities.

  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: Both wrists

- Nature and extent of any permanent disability: 20\% PPD of each wrist with a 10\% multiplicity factor

  1. Compensation paid to-date for temporary disability: None
  2. Value necessary medical aid paid to date by employer/insurer? \$14,802.23

Employee: Delbert Lewis

Injury No.: 04-145940

  1. Value necessary medical aid not furnished by employer/insurer? N/A

- Employee's average weekly wages: \1,000.00

  1. Weekly compensation rate: \quad \$ 662.55 / \ 347.05
  2. Method wages computation: Pursuant to statutes

COMPENSATION PAYABLE

  1. Second Injury Fund liability: Yes

65.01 weeks of permanent partial disability from Second Injury Fund \$22,561.72

Total:

  1. Future requirements awarded: N/A

Said payments to begin 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: Mr. Dean Christianson

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Delbert Lewis

Dependents: Jeanine Lewis

Employer: Gerstner Electric Inc. (settled)

Injury No.: 04-145940

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Additional Party:Second Injury FundRelations of Missouri Jefferson City, Missouri
Insurer:Transportation Insurance Co.Checked by: MDL:ms

PRELIMINARIES

A hearing was held on September 5, 2007, at the Division of Workers’ Compensation in the city of St. Louis. Delbert Lewis (Claimant) was represented by Mr. Dean Christianson. Gerstner Electric Inc., and its insurer Transportation Insurance Company previously settled their liability with Claimant. This case proceeded to a hearing against the Second Injury Fund (SIF) which was represented by Assistant Attorney General Michael Finneran. Mr. Christianson requested a fee of 25% of Claimant’s award.

The parties stipulated that on or about June 24, 2004, Claimant was an employee of Employer, venue is proper in the city of St. Louis, and the claim was timely filed.

ISSUES

The issues for resolution by hearing are: occupational disease; medical causation; nature and extent of PPD sustained by Claimant; whether Claimant is permanently and totally disabled; rate of compensation; and liability of the Second Injury Fund.

SUMMARY OF EVIDENCE

Claimant is a 55 year old high school graduate with no additional education. Claimant has been married to his wife Jeanine Lewis for 35 years. Claimant and his wife have two sons, neither of whom were dependent upon him for support in June 2004, or at the present time. Claimant has fathered no other children. Claimant used his paycheck for household expenses for himself and his wife. In June 2004, his wife also worked outside the home, and used her paycheck for the support of her and Claimant.

Following high school, Claimant worked in the electrical field exclusively, except for occasional periods when he was laid off, at which time he temporarily worked for his father’s fence company.

Claimant was a groundman operator. His work as a groundman operator included operating a backhoe, boom truck, cranes, bulldozers, and high lifts. Claimant began working for Employer in 1998. The majority of his time was spent operating machines, although he did some shoveling and jack hammering. Claimant testified in June 2004, he made at least $25.00 per hour, which was the top operator’s scale. Claimant worked a forty hour week with occasional overtime.

Claimant occasionally operated a 75 to 100 pound jack hammer, and worked with shovels almost every day. He operated all of the equipment until the last couple of years when he operated a backhoe. Claimant constantly moved levers all day with his hands. The operation of the backhoe produced a lot of vibration. Also, on the boom truck there was some vibration while Claimant was operating the levers.

Claimant began experiencing symptoms in his hands in approximately 2001 or 2002. Claimant was referred to Dr. Crandall for treatment. Following a nerve conduction study which revealed severe left and right carpal tunnel syndrome, bilateral carpal tunnel releases were recommended. Dr. Crandall noted based upon Claimant’s description of his job, it was theoretically possible his job was considered hand intensive. Claimant underwent bilateral carpal tunnel releases in February and March 2006. Following a course of physical therapy, Dr. Crandall released Claimant at MMI with no restrictions on September 6, 2006. Dr. Crandall rated Claimant with a 10% PPD referable to each wrist.

At Claimant’s last physical examination by Dr. Crandall on September 6, 2006, Claimant reported a good result, but some residual symptoms including occasional symptoms when he drove. Upon examination, Dr. Crandall

found a negative Tinel sign, negative Phalen's test, and negative Finklestein's test on both hands. There was a negative provocative test bilaterally, and no evidence of ganglions, trigger fingering, or thenar muscle atrophy.

Claimant was evaluated by Dr. Lichtenfeld, a family practice physician on November 30, 2006. He complained to Dr. Lichtenfeld of extensive symptoms in each hand. He complained both wrists hurt all the time. Dr. Lichtenfeld's physical examination revealed equivocal Tinel's signs, positive reverse Phalen's tests and positive pressure tests. Dr. Lichtenfeld rated Claimant with a 37.5 % PPD referable to each wrist.

Claimant settled his claim with Employer for 20\% PPD of each wrist with a 10\% load factor, and three weeks disfigurement. Claimant resigned his job with Employer on June 24, 2004. Claimant was not pressured to resign, and he left Employer of his own volition.

Claimant states his hand and wrists began bothering him two or three years before he terminated his employment with Employer on June 24, 2004, but he never asked anyone for treatment until after he quit working for Employer and filed his Claim for Compensation.

Prior Injuries

In 1993, Claimant injured his back while using an auger. He filed a Workers' Compensation Claim alleging a lumbar strain. This claim settled for 14 % PPD of the body as a whole.

In 1995, Claimant strained his back again while using a jack hammer. He underwent conservative treatment, and during the course of treatment was diagnosed with severe chronic

degenerative joint disease. He settled a Workers' Compensation Claim for this injury for 3.5\% PPD of the body as a whole. Claimant was also involved in a motor vehicle accident in 1995, and alleged injury to his middle back as a result of the accident.

Claimant was injured in 1999 while he was working in a parked boom truck on the shoulder of Interstate 70. An automobile rear-ended his work truck, and Claimant dropped from the boom approximately eight feet to the windshield of the automobile. Claimant was taken to St. Louis University Hospital Emergency Room where he was treated with pain medication and released.

Claimant's back pain persisted, and he was treated several days later at St. John's Hospital in Washington, Missouri. X-ray's indicated he sustained fractures of the transverse processes at L1, L2, and L3. Claimant underwent conservative treatment, and was released to return to work on April 20, 1999.

Claimant complained of ongoing pain, and was referred to Dr. Chabot who recommended injection therapy, medication, and physical therapy. Claimant saw Dr. Chabot several times in 1999, and was eventually released from Dr. Chabot's care on December 20, 1999 with no work restrictions. Dr. Chabot opined Claimant's ongoing complaints were not associated with his work injury, but rather due to obesity and muscle deconditioning.

Claimant saw Dr. Jacob in 2000 with complaints of neck and shoulder pain. MRI and myelogram/CT scans of Claimant's cervical and lumbar spines revealed spondylosis and degenerative changes from C4 thru C7, and a possible herniation at C6-C7. Claimant was diagnosed with adhesive capsulitis of the left shoulder, and following a series of steroid injections and physical therapy, underwent an excision of calcific tendonitis in April 2000. Claimant was released to return to work with no restrictions in May 2000.

Claimant returned to Dr. Jacob in November 2000 with complaints of neck pain and progressive weakness in the right upper extremity. Claimant underwent a cervical spine decompression with foraminotomy and fusion at C5-6 and C6-7 in October 2000. Claimant had an excellent result from this procedure, and was released to return to work with no restrictions on January 24, 2001.

Claimant saw Dr. Feinstein in April 2001 with complaints of painful right shoulder rotation. Dr. Feinstein diagnosed a small, full thickness rotator cuff tear, a small ganglion cyst, and moderate degenerative changes. Claimant

underwent surgical repair of the right rotator cuff and impingement syndrome on May 3, 2001. Claimant was released to return to work full duty o

Full decision text continues in the plain-text archive copy.

Related Decisions

affirmed

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award allowing workers' compensation benefits for Jason L. Collins' occupational disease claim involving cumulative trauma to his back and right lower extremity sustained while employed as a truck driver/laborer. The Commission rejected the employer's argument that an untimely answer resulted in admission of all facts including legal conclusions about whether the injury arose out of employment.

occupational disease9,505 words
affirmed

The Labor and Industrial Relations Commission affirmed the administrative law judge's award of death benefits to the widow of Russell Hayes, a volunteer firefighter killed in the line of duty. The majority awarded death benefits at the statutory minimum wage rate of $40.00 per week, though a dissenting opinion argued for a higher wage determination based on the statutory provisions for calculating average weekly earnings.

occupational disease5,849 words
affirmed

The Labor and Industrial Relations Commission affirmed the administrative law judge's award of workers' compensation benefits to Elizabeth A. Steele for injuries sustained when a patient slammed his leg down on her head, neck, and shoulders while she was working as a critical care unit nurse. The Commission found the award was supported by competent and substantial evidence and determined the employee is entitled to permanent and total disability benefits.

occupational disease10,794 words
affirmed

The Labor and Industrial Relations Commission affirmed the administrative law judge's award denying compensation to Carl Hanes for an alleged occupational disease from radiation exposure at the Department of Corrections. The Commission found the employee failed to provide proper notice and that the injury did not arise out of and in the course of employment, resulting in no benefits awarded.

occupational disease6,305 words

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's Temporary or Partial Award in a workers' compensation case for employee Cynthia Porter, finding the award supported by competent and substantial evidence. The Commission upheld the ALJ's determination that the claimant's diabetes was well-controlled, rejecting the employer/insurer's challenge to this medical finding.

occupational disease7,008 words