Michael Doyle v. United Parcel Service

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-002087

Employee: Michael Doyle

Employer: United Parcel Service (Settled)

Insurer: Liberty Mutual Insurance Company (Settled)

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

Date of Accident: January 9, 2004

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 June 2, 2008. The award and decision of Administrative Law Judge Kathleen Hart, issued June 2, 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 20th day of November 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

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: January 9, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 low back and developed a hernia while lifting a package at work.
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: Body as a whole - low back and hernia
14. Nature and extent of any permanent disability: 13% body as a whole previously paid by Employer and

Said payments to begin immediately 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: Tom Liese

A hearing was held on the above captioned matter March 18, 2008. Michael Doyle (Claimant) was represented by attorney Tom Liese. The Second Injury Fund was represented by Assistant Attorney General Da-Neil Cunningham. Claimant’s case against Employer was settled before this hearing.

All objections not expressly ruled upon in this award are overruled.

STIPULATIONS

The parties stipulated to the following:

- On January 19, 2004, Claimant was injured by accident during the course and scope of his employment for Employer.

- Employer and Claimant were operating under the provisions of the Missouri Workers’ Compensation law. Employer’s liability was fully insured by Insurer. Employer had notice of the injury and a claim for compensation was timely filed.

- Claimant’s average weekly wage was sufficient to entitle him to the maximum rates of 662.55 for TTD and PTD, and 347.05 for PPD.

- Claimant received $26,312.70 in medical benefits and 39 5/7 weeks of TTD benefits totaling $70,394.68.

- On June 3, 2005, Claimant settled his case against Employer for 13% PPD to his low back.

ISSUES

The parties stipulated the sole issue for trial is Second Injury Fund liability. FINDINGS OF FACT

Based upon the competent and substantial evidence and my observations of Claimant at trial, I find:

- Claimant is a 51 year-old male with a 12th grade education. He has no other employment training, specialized education or military experience.

- While in high school, Claimant worked part time at a gas station. After graduation, he continued to work at the gas station and started working part time for Employer in September 1974. He continued working for Employer until his retirement December 1, 2004.

- His initial duties with Employer were to load and unload package cars. In 1978 he began driving package cars and making deliveries. As a package car driver, Claimant lifted up to 70 pounds on his own. This job involved a lot of bending, stooping, and lifting.

- Claimant had a number of injuries prior to his January 9, 2004, work injury.

- Claimant fractured his right ankle in 1977. This healed well following surgery and didn't affect his ability to work. His only current complaint is his ankle aches when it rains.

- In January 1988, Claimant injured his low back at work when lifting or carrying a package. He received conservative medical treatment and was off work a short time. This case settled for 5\% of the body as a whole (BAW) referable to the low back.

- In March 1989, Claimant again injured his low back when lifting a package. He was diagnosed with bulging discs at the L4-5 and L5-S1 levels and missed $224 / 7$ weeks of work during his treatment. He filed a claim, had no surgery and settled this case for 15 % of the BAW referable to the low back. Claimant testified he continued to have occasional low back pain after returning to work, and his back condition began affecting his ability to work.

- In April 1990, Claimant again injured his low back at work when lifting a package. He developed low back pain with pain into his lower extremities. He treated with Dr. Meadows and Dr. Cole. After conservative treatment failed, he had back surgery in October 1990 to repair a herniated nucleus pulposis at the L5-S1 level. This was his first back surgery. Claimant was unable to work for 45 6/7 weeks during this treatment. On January 21, 1991, Dr. Cole noted Claimant complained of intermittent low back pain, some restriction of movement in the lumbar area, and straight leg raising aggravated his low back pain. Dr. Cole released Claimant to return to work February 4, 1991. Claimant had difficulty at work following this injury due to low back pain. This case settled for 26\% BAW.

- In February 1993, Claimant injured his neck and settled this case for 5\% BAW. He currently has no neck complaints.

- In June 1994, Claimant injured his right shoulder when he was putting an oversized package on the top shelf. He had shoulder surgery by Dr. Lander. After he returned to work, Claimant continued to have popping and aching in his shoulder. He has less strength in this shoulder and has some loss of motion. He settled this case for 25 % of the right shoulder.

- In November 1996, Claimant again injured his low back when lifting a package at work. Dr. Robson performed a L5-S1 microdiscectomy in November 1996. This was Claimant's second back surgery. By March 1997, Claimant continued to have pain and inability to lift more than 30-40 pounds in physical therapy. Dr. Robson ordered a follow-up MRI which did not reveal a recurrent herniation. Claimant was off work $261 / 7$ weeks for this injury and was released to return to work April 1, 1997. When he returned to work, he continued to have stiffness and numbness in his right leg. His back bothered him all the time. The leg numbness got worse between his first and second surgery. Dr. Robson found Claimant at maximum medical improvement (MMI) in October 1997 and noted Claimant still had limited motion, stiffness and soreness in his back and numbness into his right foot. Claimant settled this case for 21 % of the BAW.

- In April 1998, Claimant injured his low back when lifting a package. Dr. Mirkin diagnosed a large L4-5 herniated disc with left-sided radiculopathy. He performed an L4-5 discectomy in May 1998. This was Claimant's third surgery. Claimant attended several weeks of work hardening. On September 14, 1998, Dr. Mirkin reviewed a work hardening report which he felt was equivocal as to whether or not Claimant could return to the type of work he had previously done for Employer, so he recommended a trial of full work. If Claimant was unsuccessful, Dr. Mirkin planned to provide permanent work restrictions. On October 12, 1998, Dr. Mirkin noted Claimant was doing well at work although he had occasional aches and pain into his buttock. Dr. Mirkin found Claimant had reached MMI and could return to work without restrictions. He also stated if Claimant developed recurrent problems, he should consider a different occupation. Claimant testified he returned to work, and his back continued to get worse. He had more numbness in his leg and felt his back was "getting shot". This case settled for 20 % of the BAW.

- In February 2000, Claimant developed bilateral carpal tunnel syndrome and had bilateral surgical releases. After returning to work, his complaints resurfaced in his left hand, and he continues to have numbness, tingling, and pain at night in his left hand. He has no ongoing complaints in his right hand. This case settled for 171 / 2 % of each hand plus a 10 % load factor.

- Claimant testified as a result of all these injuries and before his January 2004 work injury, he had difficulty performing his duties at work. He bid on and received a residential route with light packages and fewer commercial stops.

- On January 9, 2004, Claimant hurt his back while lifting a package during a delivery. He developed pain in his back and into his leg