James Wilford v. Allied Systems

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 October 20, 2008. The award and decision of Administrative Law Judge Linda J. Wenman, issued October 20, 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 1st day of April 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: April 22, 1995

- State location where accident occurred or occupational disease was contracted: Callaway County, MO

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? Yes
3. 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

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: While returning to St. Louis from a delivery, Employee's tractor-trailer rear-ended another tractor-trailer on I-70 in Callaway County, MO.
3. Did accident or occupational disease cause death? No
4. Part(s) of body injured by accident or occupational disease: Multiple injuries involving the body as a whole.

- Nature and extent of any permanent disability: 110 % left eye; 40 % BAW referable to cranial, spinal and upper extremity injuries; and 25 weeks disfigurement.

1. Compensation paid to-date for temporary disability: $\ 81,920.16, representing 172 weeks.
2. Value necessary medical aid paid to date by employer/insurer? $\ 111,291.70

Employee: James Wilford Injury No.: 95-047776

1. Value necessary medical aid not furnished by employer/insurer? None

- Employee's average weekly wages: Sufficient for maximum rates

1. Weekly compensation rate: $\$ 476.28 / \ 249.48
2. Method wages computation: Stipulated

1. Amount of compensation payable:

$434 / 7 th weeks of temporary total disability overpayment

(20,751.99)

314 weeks of permanent partial disability from Employer

\ 78,336.72

25 weeks of disfigurement from Employer

$\ 6,237.00

1. Second Injury Fund liability: Voluntarily Dismissed

Total:

$\ 63,821.73

1. Future requirements awarded: Pursuant to award

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 in favor of the following attorney for necessary legal services rendered to the claimant: Harry J. Nichols

Employee: James Wilford

Injury No.: 95-047776

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Before the

Division of Workers'

A hearing for final award was held regarding the above referenced Workers’ Compensation claim by the undersigned Administrative Law Judge on August 20, 2008. Post-trial briefs were allowed to be received until September 10, 2008. Attorney Harry Nichols represented James Wilford (Claimant). Allied Systems (Employer) is self-insured, and represented by attorney Robert Hendershot. Claimant voluntarily dismissed the Second Injury Fund at the start of hearing.

Prior to the start of the hearing, the parties identified the following issues for disposition in this case: liability of Employer for permanent total disability (PTD) or permanent partial disability (PPD) benefits; future medical care; and a temporary total disability (TTD) overpayment.

Claimant offered Exhibits A-M, Employer offered Exhibits 1-2, and the exhibits were admitted into the record without objection. Any markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit. Any objections not expressly ruled on in this award are overruled.

All evidence presented has been reviewed. Only testimony and evidence necessary to support this award will be reviewed and summarized.

1. Claimant is currently 68 years old, and was 54 years old on the date of injury. Claimant has a 12th grade education, and has not received any vocational or technical training. Following high school, Claimant worked as a warehouseman, construction worker, a self-employed mechanic, and truck driver. Claimant has worked as a truck driver since 1973.
2. Prior to April 22, 1995, Claimant had no preexisting disabilities, and only saw a physician when required for his DOT physical.
3. On April 22, 1995, Claimant was returning to St. Louis County after completing a delivery in Columbia, MO. Although Claimant has no independent recollection surrounding the accident, Claimant was informed he drove his tractor-trailer into the rear of another tractor-trailer on I-70. Claimant was air-lifted from the accident scene to the University of Missouri Hospital & Clinics (UMC), and came under the care of the UMC trauma team.
4. While at UMC, Claimant underwent surgery on consecutive days. On April 22, 1995, Claimant’s initial surgery included the following: reconstruction of anterior cranial fossa with split calvarial bone graft; cranialization of frontal sinus; obliteration of frontal duct with bone chips; reconstruction of $2 / 3$ rds of orbital rim with split calvarial bone graft; placement of a pericranial flap to anterior cranial fossa; open reduction internal fixation (ORIF) of left lateral orbital rim; ORIF of left zygomatic arch fracture; ORIF of left quidripod fracture; ORIF of left orbital floor fracture; bone graft of left orbital floor; ORIF of left maxillary buttress; ORIF of left alveolar fracture; evacuations of intraparenchymal and subdural hematomas; and closure of multiple extensive facial lacerations. On April 23, 1995, Claimant underwent a second surgery for left globe enucleation (removal of his left eye).
5. When stable, Claimant was discharged and transported to St. Louis for further treatment. Claimant came under the care of Dr. Kennedy, a neurosurgeon, and Dr. Nguyen, a rehabilitation specialist. On May 24, 1995, Claimant presented to Dr. Nguyen with complaints of severe bilateral hand pain, inability to completely close his right hand in a

fist, and bilateral shoulder pain. Dr. Nguyen ordered a cervical spine CT scan, and bilateral EMG studies. Claimant was placed on Prednisone.

1. On May 25, 1995, Claimant was examined by Dr. Kennedy, who noted Claimant's neurological examination was within normal limits, and Claimant did not require immediate neurological treatment. Claimant was reexamined on July 12, 1995, and Dr. Kennedy noted a repeat head CT scan demonstrated post-traumatic changes, but no acute changes.
2. On July 18, 1995, Dr. Nguyen noted Claimant's joint pain had decreased, and his range of motion was improving. Claimant complained of back muscle tremors, and Dr. Nguyen noted Claimant's cervical spine MRI demonstrated small bulging at C4-5 and C5-6 without significant cord compression. Dr. Nguyen ordered strengthening exercises and occupational therapy.
3. On September 22, 1995, Dr. Nguyen noted Claimant's pain was decreased, his shoulder and upper extremity range of motion continued to improve with therapy, but Claimant continued to experience stiffness and contractures of his middle, ring and small fingers due to pain and non-use. Dr. Nguyen diagnosed reflex sympathetic dystrophy of Claimant's upper extremities. Claimant was encouraged to continue supervised and home exercise programs. Dr. Nguyen noted Claimant had good potential for functional use of his hands.
4. During October 1995, Claimant was evaluated by Dr. Custer, an ophthalmologist, regarding left ocular revision surgery and left eyelid ptotsis. Dr. Custer advised fitting a left ocular prosthesis due to Claimant's lack of ocular muscle function. On April 17, 1996, Dr. Custer noted Claimant's prosthesis was in place, and advised against further surgery. On July 9, 1997, Dr. Custer opined Claimant should not work in situations that might damage his right eye.
5. On August 8, 1997, Claimant complained of occasional cramping sensation to his right forearm that was relieved with pain medication and relaxation. Upon examination, Dr. Nguyen noted slight stiffness of Claimant's fingers; normal range of motion involving Claimant's shoulders, elbows, and wrists; normal muscle strength of his upper extremities; and normal sensation of Claimant's hands and fingers. Dr. Nguyen noted Claimant was independent in all activities of daily living, able to perform self-care, and was able to drive his own car. Dr. Nguyen opined Claimant could return to work performing a job that did not require two eyes.
6. On October 6, 1997, Dr. Nguyen opined Claimant's progress had plateaued. Dr. Nguyen listed Claimant's functional disabilities as: loss of his left eye and left eye vision; left facial fractures and left facial deformity; loss of left facial sensation; occasional headaches and left facial pain; and stiffness of his fingers due to reflex sympathetic dystrophy. Dr. Nguyen's permanent restrictions included: no further work as a truck driver; no heavy labor or operation of heavy machinery; no ladder climbing; no work in high places or narrow walkways. Dr. Nguyen rated Claimant's disability due to the April 22, 1995 injury as 70 % PPD.
7. On July 15, 1998, Dr. Custer opined: Claimant would require yearly eye exams; his prosthesis would require yearly polishing; his prosthesis would require replacement approximately every five years; and Claimant may need future surgery, but Dr. Custer could not predict if surgery would be necessary.
8. On June 10, 1999, at the request of his attorney, Claimant was evaluated for cervical spine complaints by Dr. Gornet, an orthopedic spine surgeon. Dr. Gornet diagnosed disc herniations at C4-5 and C5-6 with significant stenosis at both levels. Dr. Gornet recommended Claimant undergo a new CT scan with myelogram.
9. On October 12, 1999, Claimant was evaluated by Dr. Kenn