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Nolan Tinnin v. Daimler Chrysler

Decision date: November 26, 2008Injury #05-0177689 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award of workers' compensation benefits for employee Nolan Tinnin for an occupational disease involving repetitive work activity affecting his cervical and lumbar spine, with 12.5% permanent partial disability awarded. The case involved the Second Injury Fund and was settled with the self-insured employer.

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Caption

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge)Injury No.: 03-097164
Employee:Nolan Tinnin
Employer:Daimler Chrysler (Settled)
Insurer:Self-Insured (Settled)
Additional Party:Treasurer of Missouri as Custodian of Second Injury Fund
Date of Accident:September 18, 2003
Place and County of Accident:St. Louis, 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 December 21, 2007. The award and decision of Administrative Law Judge Margaret D. Landolt, issued December 21, 2007, 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 26th day of June 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD
Before theDivision of Workers’Compensation
Department of Labor and Industrial Relations of MissouriJefferson City, Missouri
Employee:Nolan TinninInjury No.: 03-097164
Dependents:N/A
Employer:Daimler Chrysler (Settled)
Additional Party:Second Injury Fund
Insurer:Self-Insured (settled)
Hearing Date:October 30, 2007
Checked by: MDL: ms
FINDINGS OF FACT AND RULINGS OF LAW
1.Are any benefits awarded herein? Yes
- 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
- Date of accident or onset of occupational disease: September 18, 2003
- State location where accident occurred or occupational disease was contracted: St. Louis
6.Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7.Did employer receive proper notice? N/A
8.Did accident or occupational disease arise out of and in the course of the employment? Yes
- Was claim for compensation filed within time required by Law? Yes
10.Describe work employee was doing and how accident occurred or occupational disease contracted:
Employee performed repetitive work activity involving his back and neck.
12.Did accident or occupational disease cause death? No
  1. Part(s) of body injured by accident or occupational disease: Body as a whole - cervical and lumbar spine

- Nature and extent of any permanent disability: 12.5\% PPD of the body as a whole with respect to his cervical and lumbar spine as a result of the primary injury, and 12.5\% PPD body as a whole preexisting with respect to DVT.

  1. Compensation paid to-date for temporary disability: N/A
  2. Value necessary medical aid paid to date by employer/insurer? N/A

Employee: Nolan Tinnin

Injury No.: 03-097164

  1. Value necessary medical aid not furnished by employer/insurer? N/A

- Employee's average weekly wages: Unknown

  1. Weekly compensation rate: $\$ 662.55 / \ 347.05
  2. Method wages computation: Stipulation

COMPENSATION PAYABLE

  1. Second Injury Fund liability: Yes

15 weeks of permanent partial disability from Second Injury Fund

$\ 5,205.75

Total:

$\ 5,205.75

  1. 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: Mr. Shaun Falvey

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Nolan Tinnin

Injury No.: 03-097164

PREFERRED PROCEDURES

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: Daimler Chrysler (Settled)

Additional Party: Second Injury Fund

Insurer: Self Insured

Checked by: MDL: ms

PRELIMINARIES

A hearing was held on October 30, 2007, at the Division of Workers’ Compensation in the City of St. Louis. Nolan Tinnin (Claimant) was represented by Mr. Shaun Falvey. Daimler Chrysler (Employer) previously settled its liability with Claimant, and this claim proceeded to a hearing against the Second Injury Fund (SIF), which was represented by Assistant Attorney General Joseph Diekemper. Mr. Falvey requested a fee of 25 % of Claimant’s Award.

The parties stipulated that on or about September 18, 2003, Claimant was an employee of Employer; venue is proper in the City of St. Louis; and the claim was timely filed. The parties stipulated to applicable rates of compensation of $\ 662.55 for total disability (TTD) benefits and $\ 347.55 for permanent partial disability (PPD) benefits.

The issues for hearing are: whether Claimant sustained an occupational disease arising out of and in the course of employment; medical causation; nature and extent of permanent partial disability sustained by Claimant; whether Claimant is permanently and totally disabled; and liability of SIF.

At the request of SIF, the Court takes administrative notice of the stipulation for Compromise Lump Sum Settlement in Injury Number 95-067263. The Court also takes administrative notice of the claims in Injury Numbers 95-075898, and 99-097378.

SUMMARY OF EVIDENCE

Claimant is a 68 year old man who completed eleventh grade and later obtained a GED. He also took classes in personal management and American history. Claimant received a barber license in 1958 which is currently inactive, and also obtained a real estate license which is also currently inactive. Claimant began working for Employer in October 1973, and worked there continuously for thirty years, except during a shutdown from 1979 to 1982. Claimant last worked for Employer in 2003 when he retired.

During the plant shutdown from 1979 to 1982, Claimant had a job selling office supplies but was unsuccessful at that job. He also set up his own barber shop, and was in the process of building the business when the plant reopened. Claimant has not worked as a barber since that time, and he went back to work for Employer when the plant reopened.

Claimant testified he developed carpal tunnel syndrome and fractured his thumbs in 1973. He never had surgery to correct his thumbs, and he testified it has affected his entire body. Claimant testified he is unable to hold anything, he cannot grip, and he drops things. He is unable to hold a knife or fork, and has difficulty eating. He is unable to hold scissors, a comb, or clippers anymore, and he planned to work as a barber when he retired. His thumbs have grown crooked, and cause him constant pain. Claimant testified this pain was present leading up to 2003.

Claimant has a twenty year history of blood clots. Claimant testified he can get surface blood clots at any

time, and has also had deep clots. His clots produce swelling and pain. He was hospitalized several times for the clots. Claimant is on a blood thinner, and has to get a monthly blood test. In Claimant's opinion, his clots would interefere with his ability to perform a sedentary job because he would have to elevate his legs. He wears support stockings, and wore them to work when he was working for Employer. If he goes to work and thinks he has a blood clot, he has to get off his feet and elevate his legs.

Claimant testified in 1999 he injured his back when he lifted a seat, and his back went out from his shoulders to his low back. That condition continued to affect him leading up to 2003.

The primary injury arose out of Claimant's last job assignment before he retired. Claimant is asserting a claim for occupational disease arising out of the repair job he performed for a few weeks or months before he retired. The repair job required Claimant to straddle the line while holding a gun overhead and installing a hinge. It required duck walking along the side front fender of the vehicles, and also crawling in the back and lift gate to install seats. Claimant worked eight to ten hours, five to six days a week. Claimant testified he began to experience symptoms in his back when he was placed on the repair job. He felt like everything in his back exploded from lifting the seats, straddling the line, and holding the overhead gun. He felt lifting the seats, which weighed 150 to 200 pounds, and holding the gun, exacerbated his neck and back conditions. Claimant had to move the seats by himself around 15 to 20 times during the shift.

Claimant testified in September 2003, he started having neck and back problems and started losing time from work. He lost several months of work, and tried numerous times to return to the plant. He was never cleared to return to the assembly line. October 1, 2003, is the last day he physically worked at the plant.

Claimant testified he had shots in his neck which were performed by Dr. Youkilis, a spine surgeon, and had physical therapy three times a week for six weeks. Dr. Youkilis performed MRI's and X-rays, but advised Claimant surgery was risky because he was on a blood thinner.

Claimant testified he currently experiences excruciating pain even while taking pain killers. He is unable to grip or hold anything. He cannot lift 10 pounds. He experiences grinding in his neck, and his back is full of pain. He is unable to sit because it hurts his back and down his hips. He has pain if he walks up steps, and he is unable to sit for prolonged periods. He is unable to drive because he cannot hold the steering wheel and cannot turn his neck. His wife and son drive him around. He is unable to lift his grandson. Claimant testified he was hoping to work when he retired.

Claimant testified he has been experiencing memory loss for a few years, and it has gotten worse since he retired. Claimant testified his memory problems started before he left work for Employer, but have accelerated since then. Claimant testified for the past few years he has been monitored for diabetes.

Claimant does not believe he is able to return to work at Employer because of the constant pain in his neck, back, and hands. Claimant is unable to do things around the house, and cannot use a computer. He does not believe he could perfrom a sit down job because his back and neck are painful, and he cannot sit or stand for long. He does not believe he has any skills that would make him a candidate for an office job. He is unable to garden or do yard work. Claimant is no longer able to do wood working because he cannot hold anything, and he is no longer able to garden.

In a typical day, Claimant gets out of bed, gets coffee, and is unable to do much because of pain. He gets cold easily because of his blood thinner medication so he can't go out when it's cold. Claimant currently takes 800 milligrams of Ibuprofen, codeine, and a blood thinner.

Dr. Youkilis examined Claimant on October 30, 2003. Claimant's chief complaints were neck and back pain with bilateral shoulder and bilateral lower extremity pain. Dr. Youkilis noted a past medical history of bilateral deep venous thrombosis and pulmonary embolism approximately ten years before. Claimant reported no previous surgeries on his back or neck.

With regard to Claimant's upper and lower extremities

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

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