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Joseph Banks v. Bridgford Foods

Decision date: July 9, 200811 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award allowing workers' compensation benefits for Joseph Banks, who sustained injuries to both shoulders and his cervical spine in a motor vehicle accident on September 13, 2000 while working. The employee was found to have permanent total disability with benefits payable by the Second Injury Fund.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-153572

Employee: Joseph Banks

Employer: Bridgford Foods (Settled)

Insurer: Legion Insurance Company (Settled)

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

Date of Accident: September 13, 2000

Place and County of Accident: St. Louis County, 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 January 7, 2008. The award and decision of Administrative Law Judge Suzette Carlisle, issued January 7, 2008, 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 9th day of July 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

Employee: Joseph Banks

Injury No.: 00-153572

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Before the

Employer:Bridgford Foods (Previously Settled)Division of Workers’ Compensation
Additional Party: Second Injury FundDepartment of Labor and Industrial
Insurer:Legion Insurance Company (Previously Settled)Relations of Missouri
Jefferson City, Missouri
Hearing Date:October 2, 2007Checked by: SC: JHP

FINDINGS OF FACT AND RULINGS OF LAW

  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: September 13, 2000
  5. State location where accident occurred or occupational disease was contracted: St. Louis County, 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? 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 was involved in a motor vehicle accident while working, and injured both shoulders and his neck.
  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: Bilateral shoulders and cervical spine
  14. Nature and extent of any permanent disability: Permanent Total Disability against the Second Injury Fund
  15. Compensation paid to-date for temporary disability: $\ 18,646.00
  16. Value necessary medical aid paid to date by employer/insurer? $\ 17,754.00
  17. Value necessary medical aid not furnished by employer/insurer? N/A
  18. Employee's average weekly wages: $\ 701.74
  19. Weekly compensation rate: $\$ 467.83 / \ 314.20
  20. Method wages computation: Stipulation
21.Second Injury Fund liability: YesPermanent total disability benefits from Second Injury Fund:Weekly differential of $153.63 payable by SIF for 188.4 weeks beginning October 7, 2002 through May 19, 2006, andthereafter, the sum of $467.83 for Claimant's lifetimeTotal:TO BE DETERMINED Future requirements awarded: As outlined in this awardSaid 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 percent of all payments hereunder infavor of the following attorney for necessary legal services rendered to the claimant:Daniel Walkenhorst
3.Employer and Claimant were operating under the provisions of the Missouri Workers’ Compensation Law.
4.Employer’s liability was fully insured by Insurer.
5.Employer had notice of the injury.
6.A Claim for Compensation was filed within the time prescribed by law.
7.Claimant’s average weekly wage was $701.74. The rate for Temporary Total Disability (TTD) and Permanent Total Disability (PTD) was 467.83, and the rate for Permanent Partial Disability (PPD) was 314.20.
8.Claimant received $18,646.00 in TTD benefits, representing 39 6/7 weeks (from February 21, 2001 to November 28, 2001).
9.Employer paid $17,754.00 in medical benefits.
10.SIF has a subrogation interest in a third party action arising out of Claimant’s work accident and is entitled to a portion of the funds held in escrow totaling $54,930.48.[1]
11.Claimant attained maximum medical improvement (MMI) on October 7, 2002.
ISSUES
The issues to be decided are:
1.The nature and extent of SIF liability, if any, for either PPD or PTD benefits, and
2.Whether the SIF is entitled to any portion of the $54,930.48 third party settlement?
EXHIBITS
Claimant’s Exhibits A-BB were admitted without objection. The SIF offered no Exhibits. Any notations contained in the records were present when admitted into evidence.
FINDINGS OF FACT
All evidence was reviewed but only evidence supporting this award is referenced below. Any objections not expressly ruled on in this award are overruled. Based upon a preponderance of the evidence, I find the following facts:
1.Claimant was fifty-five years old on October 13, 2000 when the work accident occurred. Claimant completed high school and earned 30 college credits in the 1960’s but did not graduate. Claimant served in the reserves from 1965-1971, but sustained no combat injuries.
2.During Claimant’s career, he worked as a route salesman/driver for the following employers:
1972 -1975 - Stewart Sandwiches -Claimant delivered boxed sandwiches.
1975 -1989 - Household Research - Claimant delivered rug shampoo and refilled stock in grocery stores.
1989- 2001 - Bridgford Foods - Claimant loaded and delivered products to stores, and set up in-store displays. Claimant was paid on commission and set his own hours.
3.Claimant last worked in February 2001.
4.Claimant used a laptop to retrieve information for work. He did not know how to program, use word processing, or access internet services. Claimant does not own a computer. Claimant has no supervisory experience.
5.On September 13, 2000, Claimant was injured while sitting in his car at a red light. Claimant injured both shoulders and his neck. A cervical spine x-ray revealed C5-6 degenerative disc disease, spurring, and foraminal encroachment. In November 2000, a sonogram revealed bilateral partial thickness rotator cuff tears.
6.Dr. Galatz repaired a partial thickness tear of the right rotator cuff on April 19, 2001. The left rotator cuff tear was not surgically repaired.
7.A cervical MRI in September 2001 revealed abnormalities at C3-4 and C4-5 and defects at C5-6 with encroachment. On October 1, 2001, Dr. Lange diagnosed bilateral surgical pathology and multilevel degeneration of the neck with spurs at C3-4, C4-5, and C5-6. Dr. Lange recommended conservative treatment. Claimant was unable to complete physical therapy due to neck and bilateral shoulder pain.
8.Claimant did not improve after surgery, physical therapy and injections. On October 2, 2001, Dr. Galatz ordered a
functional capacity evaluation (FCE).9.On October 16, 2001, Claimant refused to complete parts of the FCE, and exerted a sub-maximal and inconsistent effort on the completedsections. During the test Claimant complained of neck and right shoulder pain, dizziness and headache. Results revealed Claimant's active range of motion was inconsistent with his refusal to lift at shoulder height.10.Dr. Galatz noted muscle weakness, shoulder pain, and tenderness.Based on FCE results and examination, Dr. Galatz concluded she could not provide additional help for Claimant's right shoulder and recommended he seek a neck evaluation or a rating.11.In March 2002, Dr. Lange did not recommend cervical spine surgery. Noting no clear nerve root pattern, multi level degeneration, and symptommagnification, Dr. Lange placed Claimant at MMI.12.Dr. Matthew Gornet is an orthopedic spine surgeon. He initially examined Claimant on April 2, 2002 for neck and bilateral shoulder pain. X-rays revealed loss of disc height atC5-6 with spurring. A repeat cervical MRI revealed a herniated disc at C5-6.13.Dr. Gornet performed a cervical microdiscectomy and anterior fusion at C5-6 on May 8, 2002 and opined the injury was work related.14.Diagnostics revealed a solid fusion by October 7, 2002; however, Claimant was given the option of a foraminotomy to addressstenosis, but Claimant declined. Dr. Gornet released Claimant from care in October 2002 with no specific work restrictions.15.On January 29, 2007, Claimant settled the case with Employer and Insurer for 23.9% PPD of the cervical spine, 25% PPD of the right shoulder, and 15% PPD of the leftshoulder. Employer retained a subrogation interest in the third party claim.16.Claimant cannot work with his arms because of difficulty lifting. He has left shoulder pain and difficulty performing overhead work, loading or stackingboxes.17.Claimant cannot drive for work because sudden movements cause pain. He has difficulty sleeping, arm numbness, hard muscles, increased pain with lifting more than five pounds, inability to work a full day,difficulty driving due to limited cervical range of motion, neck and elbow pain when driving, and headaches twice a day. He uses heat and ice on a daily basis, and takes Aleve as needed. Certain medications cause stomach problems; and make him feel like a 'zombie.'Claimant has to lie down every two hours due to fatigue caused by inability to sleep. He naps three to four times a day.18.Claimant has difficulty buttoning his shirt. He stopped wearing pullover shirts due to shoulder and neck pain. Claimant's knees have gone out while getting in and out of the shower. His girlfriend cleans house and handleslaundry. He pays someone to perform yard work.19.A day in the life: Claimant sleeps off and on in a recliner. He drives a short distance to transport his granddaughter to and from school. Claimant naps when he returns. Claimant works with his granddaughter after school. Claimant meets friends at a localrestaurant once a week to socialize.20.Injury after 2000: Claimant injured his left elbow and neck in a motor vehicle accident in January 2003. Claimant's neck was surgically repaired. On redirect, Claimant testified the surgery moved a nerve at the top of his right shoulder, but he received no treatment to his neck. Before the 2003accident, he rated the neck pain four out of ten. Following the 2003 accident, the pain temporarily increased to seven, but returned to a four after treatment.21.Claimant filed a claim against the insurance company of the driver that hit him. The case settled for 100,000.00. Mr. John Anderson, Claimant's attorney, received a fee of 40,000.00. Expenses totaled 5,069.52. Claimant has not received any of the remaining balance totaling 54,930.48.The money is being held in an account by Mr. Anderson.

Pre-Existing Conditions

  1. In 1972, Claimant injured his neck in an automobile accident at work. He missed nine months from work

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

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