Kirk Porter v. Johnson Controls, Inc.

Employee: Kirk A. Porter

Injury No.: 04-054162

Employer: Johnson Controls, Inc.

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

Insurer: Self-insured sco Underwriters’ Safety \& Claims

Hearing Date: December 18, 2007

Checked by: RBM

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: April 5, 2004.
5. State location where accident occurred or occupational disease was contracted: St. Joseph, Buchanan 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: Employee performed repetitive work for Employer including typing causing injury to his right wrist and right hand.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: right wrist and right hand.

1. Nature and extent of any permanent disability: 10 % permanent partial disability of the right hand at the 175 week level.
2. Compensation paid to-date for temporary disability: None.
3. Value necessary medical aid paid to date by employer/insurer? None.
4. Value necessary medical aid not furnished by employer/insurer? \$5,413.99.
5. Employee's average weekly wages: Sufficient to qualify for maximum compensation rates pursuant to stipulation of parties.
6. Weekly compensation rate: $\ 662.55 for temporary total disability and $\ 347.05 for permanent partial disability.
7. Method wages computation: Stipulated by parties.

1. Amount of compensation payable:

Unpaid medical expenses from Employer: $\ 5,413.99.

$171 / 2$ weeks of permanent partial disability from Employer (. 10 x 175 x \$347.05): \6,073.38.

21 / 2$ weeks of disfigurement from Employer (2.5 x \$347.05): \867.63.

TOTAL: \ 12,355.00.

1. Second Injury Fund liability: Not determined.
2. Future requirements awarded: None.

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: John R. Boyd.

FINDINGS OF FACT and RULINGS OF LAW:

A final hearing was held in this case on Employee’s claim against self-insured Employer on December 18, 2007 in St. Joseph, Missouri. Employee, Kirk A. Porter, appeared in person and by his attorney, John R. Boyd. Self-Insured Employer, Johnson Controls Inc., appeared by its attorney, Mark R. Bates. No one appeared on behalf of the Second Injury Fund. The Second Injury Fund is a party to this case but was not represented at the hearing since the parties agreed to bifurcate the Second Injury Fund claim. John R. Boyd requested an attorney’s fee of 25% from all amounts awarded. It was agreed that proposed Findings of Fact and Conclusions of Law would be due on January 4, 2008.

At the time of the hearing, the parties stipulated to the following issues: 1. On or about April 5, 2004, Kirk A. Porter (“Claimant”) was an employee of Johnson Controls, Inc. (“Employer”) and was working under the provisions of the Missouri Workers’ Compensation Law. 2. On or about April 5, 2004, Employer was an employer operating under the provisions of the Missouri Workers’ Compensation Law and was duly self-insured under the provisions of said Law. 3. Employer had notice of Claimant’s alleged injury. 4. Claimant’s Claim for Compensation was filed within the time allowed by law. 5. The rate of compensation for temporary total disability was $662.55 for temporary total disability and the rate of compensation for permanent partial disability was $347.05. 6. No compensation had been paid by Employer for temporary disability. 7. No medical aid had been paid or furnished by Employer. 8. The medical expenses incurred to treat Claimant’s carpal tunnel condition were reasonable and customary, and the medical treatment Claimant received was necessary to treat his carpal tunnel condition.

The parties agreed that there were disputes on the following issues:

1. Whether on or about April 5, 2004, Claimant sustained an injury by accident or occupational disease arising out of and in the course of his employment.
2. Whether Claimant's current condition is medically causally related to the alleged work injury of April 5, 2004.
3. What is Employer's liability, if any, for past medical expenses?
4. What is Employer's liability, if any, for permanent partial disability benefits?
5. What is Employer's liability, if any, for disfigurement?

Claimant testified in person. In addition, Claimant offered the following exhibits which were admitted in evidence without objection:

A. Claim for Compensation.

B. Answer to Claim for Compensation.

C. Contract of Employment.

D. Medical records and reports pertaining to Claimant.

E. Medical report of Dr. Gregory Walker dated October 2, 2007 and medical bills pertaining to Claimant.

F. Resume of Claimant.

G. Employer's job description for Safety Coordinator.

H. Missouri Division of Workers' Compensation Report of Injury.

I. Employer's pre-employment physical records pertaining to Claimant.

Employer called Brian Stewart as a witness. In addition, Employer offered the following Exhibits which were admitted in evidence without objection:

1. Medical reports of Dr. Anne Rosenthal.
2. Deposition of Dr. Gregory Walker taken on April 12, 2006.

A scar was viewed on Claimant's right wrist, and the Court advised that in the event that Claimant's Claim was found to be compensable, $21 / 2$ weeks of disfigurement would be assessed for the scar.

Claimant testified that he was 49 years old. He graduated from Emporia State University in 1981. He obtained a Masters degree in Industrial Safety Management in 1991. He is a certified HASMAT tech. He took safety classes at Missouri Western State College and is certified in first aid,

CPR, and emergency response. Before he began working for Employer, he worked for several other Employers between 1981 and 2000, except when he was in school. He testified that he had no recollection of receiving treatment for carpal tunnel during that time. He was responsible for safety and health for Snorkel from 1996 to 2000 and for United Rail Anchor Company from 1992 to 1996.

Claimant testified that he worked for Employer from February 2000 to May 2004. He worked in safety at both plants for Employer in St. Joseph. The plants had approximately 300-400 employees. His job title was Industrial Hygiene and Safety Coordinator. He did a lot of lead monitoring and recorded information and sent it to corporate. He also worked in the respirator program and was involved in monthly blood monitoring of employees. He stated that he worked a lot of uncompensated overtime his first year and spent 1,000 hours on the blood monitoring program. His hours were flexible but he worked at least 40 hours each week. He stated he did a lot of auditing which involved clipboard writing. He also entered data into a computer and did monthly reports. He stated that he spent at least an hour or two per day performing data entry, and at the end of the month, he spent most of his time performing data entry.

An employee who helped him became ill and left work. Claimant said that he spent between four to six months performing both jobs, including the blood-monitoring previously performed by the employee who left. That job required winding up hoses on the monitors, hanging the monitors on employees, handling buckets of monitors, and cleaning monitors. Claimant stated that he is right-handed, and he sometimes used a screwdriver with his right hand.

Claimant identified Exhibit G, his job description, and said that it accurately described the handintensive nature of his work and accurately reflected his duties for Employer. He said after the employee who had helped him became ill and left, a new coworker helped him and did some of the work, including daily audits. Claimant said he also performed other duties as assigned. Exhibit G did not describe the data entry or how he was to perform that work. Claimant stated that he currently worked for his wife's accounting firm.

Claimant stated that on April 5, 2004 his right hand finally quit working. It got so numb he could not work. He stated he was typing a new procedure on the computer. His hand started tingling while he typed. He continued typing when his middle finger went numb. The palm under his thumb also went numb, and then all his fingers went numb. He stopped typing and shook his fingers. He said that sensation went on for 10 to 30 minutes. He then took a ten-minute break. He said that before this, he had never experienced that sensation in his right hand.

Claimant stated that after this happened, he saw Greg Klein, Employer's plant nurse. He stated he had been told when hired to report a work injury to the plant nurse. He told the nurse that his right hand went totally numb. The nurse said he should see his doctor. Dr. Cathcart was Claimant's personal doctor. Claimant stated that he called Dr. Cathcart's office for an appointment after his conference with Greg Kline. He went to Dr. Cathcart's office on April 6, 2004. Dr. Cathcart was not at the office, and Claimant saw Dr. Cathcart's physician's assistant, who did an EMG test in the office. The physician's assistant referred Claimant to Dr.