Arthur Skidmore v. Gilster Mary Lee Corporation

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-141652

Employee: Arthur Skidmore

Employer: Gilster Mary Lee Corporation

Insurer: Self c/o Gallagher Bassett

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

Date of Accident: July 22, 2005

Place and County of Accident: Perry 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 May 14, 2008, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Lawrence C. Kasten, issued May 14, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 26th day of November 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Arthur Skidmore

Injury No. 05-141652

Employer: Gilster Mary Lee Corporation

Additional Party: Second Injury Fund

Insurer: Self c/o Gallagher Bassett

Appearances: Aaron Lefton for the employee. David Remley for the employer.

Hearing Date: February 11, 2008

Checked by: LK: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? There was an accident but not a compensable injury.
4. Date of accident or onset of occupational disease? July 22, 2005
5. State location where accident occurred or occupational disease contracted: Perry 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? Undetermined
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 happened or occupational disease contracted: The employee pulled a pin to release a trailer.
12. Did accident or occupational disease cause death? No.
13. Parts of body injured by accident or occupational disease: None.
14. Nature and extent of any permanent disability: None.

Murry, the next day. The employee did not think he told Dr. Murry about pulling the pin. The employee testified that the injury was to his neck and has always been to his neck. Dr. Murry asked him what was wrong. The employee told Dr. Murry what was wrong and why he was there. Dr. Murry did not physically examine or touch his low back and did not do any range of motion testing. The employee testified that Dr. Murry did not tell him to contact his office as needed. The employee did not go back to see Dr. Murry because Dr. Murry told him he would have to see another doctor.

Between the time he saw Dr. Murry and when he saw Dr. Walls on August 18, he did not go to any other healthcare provider. He continued to work and drive a truck including continuing to pull fifth wheel pins. He was able to do everything he did prior to the accident. He waited the approximate three weeks between Dr. Murry and Dr. Walls because he thought he had just pulled a neck muscle and thought he would get over it. It was during their busy season and he was waiting for a break to get in to a doctor. He took a lot of Aleve. He told Dr. Walls how he hurt himself pulling the fifth wheel. Dr. Walls thought he had a herniated disc and ordered an MRI. The employee then thought he might have more than a pulled muscle, and the day after his first visit with Dr. Walls, he called Russell Reinhart, the outgoing dispatch person and reported it. Dr. Walls referred the employee to Dr. Schultz, a neurosurgeon. Dr. Schultz performed injections, physical therapy, muscle relaxers and a discogram.

He worked for Hoosier Air until June 16, 2006 when Dr. Walls took him off work. On August 20, 2007, Dr. Walls put him back to work because he needed money. He worked for Hoosier until September 23, 2007. On September 23, the employee thought that the back of his head was going to blow out and he could not continue to work. Since then he has been unable to work and is on disability. As of the date of the hearing, he was still under active medical care.

On July 6, 2004 the employee saw a VA nurse for shooting pain in the upper right arm and X-rays were ordered. On July 7, the employee went to the VA clinic for pain in the right upper extremity between the shoulder and the elbow. The nurse practitioner noted that the x-rays were essentially normal. She did not believe it involved the joint and did not believe it to be neurological in nature. He was prescribed Etodolac for pain. On July16, x-rays of the right humerus showed degenerative changes.

On March 11, 2005 the employee went to the VA emergency room after falling on ice and landing on the left shoulder. The employee had severe pain and loss of use of his left arm and shoulder. He had restricted range of motion and was unable to sleep. The doctor prescribed ibuprofen and a Toradol injection for pain. The employee went to the VA emergency room on March 12 with a tender left shoulder in the dorsal left rotator cuff and decreased range of motion. The x-ray of the left shoulder showed degenerative changes of the acromioclavicular joint. The doctor diagnosed a rotator cuff strain, prescribed ibuprofen and referred the employee for an orthopedic consultation.

On March 25, 2005 the employee saw the doctor at the VA with a shoulder sprain/strain and chronic left shoulder pain with limitations of motion. The employee had ten out of ten pain with movement; tightness along the left upper trapezius; and tightness and tenderness in the left pectoralis minor muscle. The employee had limitation of motion secondary to pain. The employee was prescribed therapy for pain and lost motion. At the initial therapy consultation on March 25, it was noted that employee had limitation of motion; and tightness along the left upper trapezius and tightness and tenderness along the left pectoralis minor muscle. The employee had physical therapy several times in March and April. On April 7, the employee had chronic left shoulder pain with limitation of motion with spasms in the left upper arm.

The employee saw Dr. Murry, a chiropractor on July 23, 2005, and reported moderate pain between the shoulder blades, moderate low back pain, moderate low back muscle spasms and moderate restricted motion