Damon Hosick v. Little Tykes Commercial Play Systems, Inc.

Employee: Damon B. Hosick

Injury No. 03-115266

Dependents: N/A

Employer: Little Tykes Commercial Play Systems, Inc.

Additional Party:

Insurer: Self-insured

(TPA: Corporate Claims Management, Inc.)

Hearing Date: December 11, 2007

Checked by: CS/kh

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? July 31, 2003
5. State location where accident occurred or occupational disease contracted: alleged Farmington, St. Francois County,

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? Denied
3. Did accident or occupational disease arise out of and in the course of the employment? No
4. Was claim for compensation filed within time required by law? Yes
5. Was employer insured by above insurer? Yes
6. Describe work employee was doing and how accident happened or occupational disease contracted: Due to continuous

lifting of heavy pipes and metal parts from June 2000 to July 31, 2003 for employer, the employee alleged that

he had

pain, clicking and popping in his right shoulder.

1. Did accident or occupational disease cause death? No
2. Parts of body injured by accident or occupational disease: alleged Right Shoulder
3. Nature and extent of any permanent disability: Denied
4. Compensation paid to date for temporary total disability: $\ 0.00
5. Value necessary medical aid paid to date by employer-insurer: $\ 795.00
6. Value necessary medical aid not furnished by employer-insurer: None
7. Employee's average weekly wage: $\ 494.40
8. Weekly compensation rate:

$\ 329.60 for temporary total disability, permanent total disability, \& permanent partial disability

1. Method wages computation: By Agreement
2. Amount of compensation payable: Denied
3. Second Injury Fund liability: Denied
4. Future requirements awarded: Denied

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

On December 11, 2007, the employee, Damon B. Hosick, appeared in person and by his attorney, Ray Gerritzen, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, R. Scott Reid. The Second Injury Fund was represented at the hearing by Assistant Attorney General Gregg Johnson. Prior to beginning the hearing, the employee dismissed his claim against the employer and the Second Injury Fund in injury \#02-150403. The parties proceeded to the hearing on injury \#03-024741, \#03-088603 \& \#03-115266. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows.

1. On or about July 31, 2003, Little Tykes Commercial Play Systems, Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was a self-insured employer with a third party administrator of Corporate Claims Management, Inc.
2. On or about July 31, 2003, the employee was an employee of Little Tykes Commercial Play Systems, Inc. and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. The employee's claim was filed within the time allowed by law.
4. The employee's average weekly wage was $\ 494.40, his rate for temporary total disability, permanent partial disability and permanent total disability is $\ 329.60.
5. The employer has furnished $\ 795.00 in medical aid to employee.

1. The employer has paid no temporary total disability benefits.

1. Accident;
2. Notice;
3. Medical Causation;
4. Additional Medical Aid;
5. Additional Temporary Total Disability;
6. Nature and Extent; and
7. Liability of the Fund.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A1. Deposition of Dr. Bruce Schlafly with Exhibits A-F dated September 1, 2004;

A2. Deposition of Dr. Bruce Schlafly with Exhibits A-B dated July 13, 2006;

B. Medical Records of Hand Therapy of Chesterfield;

C. Medical Records of Orthopedic Associates, L.L.C.; and

D. Medical Records of Parkland Health Center.

1. Deposition of Dr. Evan Crandall;
2. Deposition of Dr. David B. Fagan dated August 21, 2004;
3. Deposition of Dr. David B. Fagan dated October 3, 2006;
4. None;
5. MRI Report;
6. EMG Report;
7. 02-150403 Claim for Compensation;
8. 03-024741 Claim for Compensation;
9. 03-088603 Claim for Compensation;
10. 03-115266 Claim for Compensation;
11. Timeline;
12. Employee Payroll Records; and
13. Calendar.

Based on the testimony of Damon B. Hosick ("employee"), the testimony of the witnesses, the medical records and evidence admitted, I find as follows:

The employee graduated from High School in 1992 with 2 years of vocational training in electrical studies. Prior to starting work for Little Tykes Commercial Play Systems, Inc. ("employer") in 2000, the employee worked for Huffy as a line hanger and a paint stripper. Before being employed at Huffy, the employee worked for Wal-Mart, County Mart, Karsch’s Grocery Store, County Mart, Eagle Lake and B \& T Pallet. On cross examination, the employee admitted that he had changed 7 jobs in 9 years prior to starting work with the employer. As part of his job duties with the employer, the employee was required to hang metal parts on the line. While the weight of these parts ranged from a few ounces to 150 pounds, their size ranged from a few inches to 6 feet. The employee typically worked five to six days a week at eight hours per day as needed to complete the orders of playground equipment. On

March 10, 2003, the employee was dumping excess water from the parts washer when his wrist snapped and popped. At that time, Marty Allen, the supervisor over paint and weld, was present and witnessed the accident from approximately 20 to 30 feet away. The injury was reported to the employee's supervisor, Kenny Stricklin, and the employee was taken to Parkland Health Center. After examination and testing, the employee was diagnosed with a sprained right wrist and given Motrin and a split. The employee was initially released with a temporary weight restriction of lifting of no more than 30 pounds and then authorized to return to full work duty on March 15, 2003 (Employee Exhibit D).

At the time of the hearing, the employee testified that he was off work for 10 days due to the March 10, 2003 accident. However, the employee's time records only indicate that he missed three days of work following the accident and took vacation for the following week (Employer-Insurer Exhibit 12). After his return to work on March 24, 2003, he worked as a line hanger until there was a mass lay off on April 7, 2003. The employee filed his claim for compensation with the Division of Workers' Compensation regarding the March 10, 2003 injury on April 17, 2003. This claim was assigned injury \#03-024741 (Employer-Insurer Exhibit 8). The following day, the employee was examined by his own physician, Dr. Bruce Schlafly, who found no Tinel's sign over the median nerve. In addition to noting that the Phalen's test for carpal tunnel was negative at the right wrist, Dr. Schlafly found that all of the flexor tendons of the right hand were working properly despite the employee's complaints of pain. As a result of the examination, Dr. Schlafly opined that the employee had a case of tendonitis of the right wrist with no definite diagnosis of carpal tunnel established. Finally, Dr. Schlafly noted that the employee had an additional complaint of a click in his shoulder but did not have time to investigate it (Employee Exhibit A-1, Deposition Exhibit B, page 3). Upon his return to work with the employer around the end of May 2003, the employee was placed in a temporary position on the roto line. As part of his job duties on the roto line, the employee was required to pry parts out of molds and scrap off excess plastic from small and large playground parts. Each part on the roto line was approximately 8 to 10 feet wide and was suspended from a chain and hoist. In order to perform his job, the employee would have to lift and pull the parts while they were suspended in the air.

On July 22, 2003, the employee was working for the employer on the roto line. The employee testified at the hearing that on that date around 6:30 to 7:00 p.m. he pulled a heavy mold that caused his wrist to pop and shoot pain to his elbow. Further, the employee testified that he reported the accident immediately to his supervisor, Mike Debert, who sent him home. On July 29, 2003, the employee was terminated by the employer (Employer-Insurer Exhibit 11). Around September 20, 2003, the employee's deposition was taken and he testified that he had some pain but the clicking was the main problem in his shoulder. At that time, the employee did not mention range of motion problems or grinding in his shoulder. On September 22, 2003, the employee filed his claim for compensation with the Division of Workers' Compensation regarding the July 22, 2003 injury to his right wrist. This claim was assigned injury \#03088603 (Employer-Insurer Exhibit 9). On September 24, 2003, the employee returned to Dr. Schlafly for examination and reported that "the right wrist pain became worse after he performed lifting of heavy molds" at the employer shortly before he was fired. After examining the employee, Dr. Schlafly opined that the employee is in need of further evaluation and treatment and that his work at the employer was a substantial factor in the cause of the right wrist complaints with tendonitis and carpal tunnel syndrome. Finally, Dr. Schlafly noted that the employee still had right shoulder complaints that have not been evaluated (Employee Exhibit A-1, Deposition Exhibit C). On November 17, 2003, the employee filed his claim for compensation with the Division of Workers' Compensation regarding the July 31, 2003 occupational injury to his right shoulder. This claim was assigned injury \#03-115266 (Employer-Insurer Exhibit 10). At the time of the hearing, the employee testified that he re