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Robert Hemp v. Christy Minerals Company

Decision date: July 29, 200932 pages

Summary

The Commission affirmed the Administrative Law Judge's decision denying additional workers' compensation benefits to Robert Hemp for a work-related injury sustained on August 8, 2001, while tightening a bolt at Christy Minerals Company. Although the injury to the right shoulder and associated conditions were deemed compensable, no additional compensation was awarded as all benefits had been previously settled.

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Caption

FINAL AWARD DENYING COMPENSATION (Affirming Award and Decision of Administrative Law Judge)Injury No.: 01-087227
Employee:Robert Hemp
Employer:Christy Minerals Company (Settled)
Insurer:RTW, Inc. (Settled)
Additional Party:Treasurer of Missouri as Custodian of Second Injury Fund

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 18, 2008, and awards no compensation in the abovecaptioned case.

The award and decision of Administrative Law Judge Ronald Harris, issued November 18, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 29th day of July 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Robert HempInjury No. 01-087227
Before the DIVISION OF WORKERS' COMPENSATION Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri
Dependents: N/A
Employer: Christy Minerals Company (Settled)
Additional Party: Second Injury Fund
Insurer: RTW Inc. (Settled)
Hearing Date: August 5, 2008 and September 4, 2008
Checked by: RFH:lw
FINDINGS OF FACT AND RULINGS OF LAW
1. Are any benefits awarded herein? No additional benefits awarded.
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: August 8, 2001
5. State location where accident occurred or occupational disease was contracted: High Hill Montgomery 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
  1. Was employer insured by above insurer? Yes
  2. Describe work employee was doing and how accident occurred or occupational disease contracted: Tightening bolt/screw
  3. Did accident or occupational disease cause death? No Date of death? N/A
  4. Part(s) of body injured by accident or occupational disease: Right shoulder; BAW

Re neck and Psychiatric

  1. Nature and extent of any permanent disability: Settled 20\% right shoulder; 5\% BAW (neck); 5\% BAW (psychiatric)
  2. Compensation paid to-date for temporary disability: - 0 -
  3. Value necessary medical aid paid to date by employer/insurer? \$3083.89
  4. Value necessary medical aid not furnished by employer/insurer? N/A
  5. Employee's average weekly wages: N/A
  6. Weekly compensation rate: $\ 365.52 PTD; $\ 329.42 PPD
  7. Method wages computation: Stipulation

COMPENSATION PAYABLE

  1. Amount of compensation payable:

SIF: None

TOTAL: None

  1. Future Requirements Awarded: N/A

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 20 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

PRELIMINARIES

On August 5, 2008, Robert Hemp ("Employee") appeared in person and by his attorney Mark Moreland, for a hearing for a final award on this claim. Assistant Attorney General Amber Jordan represented the Second Injury Fund ("SIF"). At the same time this case was heard, evidence was also taken on Employee's three

other claims with Injury Numbers of 02-048940; 02-048937 and 02-158934. Separate awards will be issued for those claims. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

STIPULATIONS

  1. The parties agreed the appropriate compensation rate for Permanent Total Disability (PTD) is $\ 365.52 and the compensation rate for Permanent Partial Disability (PPD) is $\ 329.42;
  2. The Employer/Insurer have paid Temporary Total Disability (TTD) benefits in the amount of $\ 4930.50 for the period of May 9, 2002 through August 19, 2002.

ISSUE TO BE RESOLVED

The parties requested the Division to determine:

  1. The nature and extent of SIF liability, PTD or PPD, if any.

EXHIBITS

Employee offered Exhibits 1 through 21 into evidence. There were no objections to Employee Exhibits 1, 2, 4, 5, 6, 10 or 12 through 21 and those exhibits were admitted into evidence. The SIF objected to Employee's Exhibits 3, 7, 8, 9 and 11 on the grounds those exhibits were not certified as required by 287.140.7 RSMo. The record was left open for thirty (30) days to allow the Employee to submit certified copies of those exhibits. Employee did, within thirty (30) days, submit certified copies of Exhibits 7, 9 and 11 and those exhibits are admitted into evidence. Employee did not submit certified copies of Exhibits 3 or 8. The objections to Employee's Exhibits 3 and 8 are sustained and those exhibits are not admitted into evidence. The SIF offered SIF Exhibit A and with no objection it was admitted into evidence. The record was closed on September 4, 2008.

In the interest of avoiding duplication, the above exhibits have been admitted into evidence with respect to all of the four cases noted earlier.

Any exhibits containing markings, highlighting, etc. were submitted in that manner. The undersigned has made no markings of any kind on any of the evidence. Any objections not specifically addressed in this award are overruled. Only evidence necessary to support this award will be summarized below.

FINDINGS OF FACT

Employee testified that he is 56 years of age and that he graduated from the 8th grade and dropped out of school in the 9th grade. He testified that he repeated kindergarten or the 1st grade. He testified that school was difficult and he often made C's, Ds and F's.

His first job, after dropping out of school, was at a gas station. His duties included pumping gas as well as changing oil and tires. Thereafter, he obtained his GED and went into the Army. He reports that he served in the Armed Forces between 1971 and 1973. He testified that, during this time, he was trained to string telephone poles but was used as a courier and driver. He also testified that during this time, he used crystal meth, marijuana and LSD. He reports, however, that he ceased his drug use in the 1970s and has now not used illegal drugs in more than 30 years.

Following his honorable discharge from the military, Employee obtained jobs at several feed stores and a bottling plant. He also obtained a job for a time as an assistant manager in a service station and convenience store. He testified that this was in the mid-70s and, at that time, they did not use any computers or cash registers. He testified that he would pump gas, stock shelves and use a calculator.

After that job, he obtained work at Christy Minerals in 1977. He started there as a bagger/operator. This required him to lift large bags, weighing 50 pounds to 100 pounds. These bags contained material that was used in the making of cement. He described this work as heavy and repetitious, requiring a great deal of bending, stooping and lifting.

In 1979, he became a maintenance man and an electrician's assistant. This job required him to run conduit, pull wire, install equipment, repair old equipment and trouble shoot electrical problems. He performed this job between 1979 and 2002. He described this as heavy work, requiring him to bend, stoop, walk, climb and get into awkward positions as well as to frequently lift heavy objects and tools.

During that time, the employer sent the Employee to the Mexico Vocational Technical School where he attended classes on Electricity I and II and also reading blueprints and schematics.

In addition, Employee also trained as a police officer. He reported that he took approximately 120 hours of training at the St. Charles Police Academy in or around 1992 or 1993. Thereafter, in addition to his job at Christy Minerals, he became a reserve deputy at the Montgomery County Sheriff's Department from approximately 1993 to 2002. He testified that, in that capacity, he worked county fairs and performed road patrols. He believes that he worked about 16 hours a month in that capacity.

From 1995 through 2001 he also served as the Chief of Police in High Hill, Missouri. He believes that he worked an average of 30 to 40 hours a month. This required him to patrol, hand out speeding tickets and work various traffic accidents or crime scenes. He gave up his police work in 2002 after his last back injury.

He testified that he has never really worked in an office and has no computer or typing skills but acknowledged that he will send e-mails to his daughter.

Employee sustained his first work-related accident at Christy Minerals on or about August 8, 2001. At that time, he injured his right shoulder while pulling on a commercial wrench as he attempted to tighten a bolt. He reported that he felt something pop in his right shoulder and neck. The employer sent him to Dr. Michael Nogalski and, ultimately, to Dr. Ronald Carter.

Dr. Nogalski described this as a right shoulder rotator cuff strain. Employee was treated conservatively with physical therapy, anti-inflammatory medications and, for a time, light duty work.

Although Dr. Nogalski released him on September 10, 2001, with a resolved right shoulder strain, he complained of continuing burning, pinching and a sharp sticking feeling in his right shoulder and neck. Therefore, he went to Dr. Ronald Carter on March 13, 2002. Dr. Carter also noted complaints of neck pain and a history of intermittent pain and numbness in Employee's right hand, post the shoulder injury. Dr. Carter diagnosed a possible rotator cuff tear and glenoid labrum tear. Subsequent to that, on March 15, 2002, an MRI ordered by Dr. Carter revealed an inflammatory degenerative process of the acromioclavicular joint with edema and joint fluid as well as subdeltoid bursal inflammation. There was also impingement of the rotator cuff.

On March 18, 2002 Employee suffered an injury to his low back while at work. At that time, he and a coworker were lifting a motor when he felt what he described as a snap in low back. He experienced low back pain as well as pain radiating down his right leg. He denied any prior back or shoulder injuries prior to the ones just described.

Employee received treatment for the back injury and was ultimately seen by Dr. Dennis Abernathie. On April 9, 2002 the doctor recommended an MRI and discussed the possibility of epidural steroid injections. During this time, Employee was released to work light duty with restrictions of no bending, stooping or lifting over 25 pounds.

On April 12, 2002 Employee suffered another low back injury as he was walking backwards while carrying a large steel trough, weighing approximately 250 pounds and tripped over a board. He felt severe pain in his low back, hip and right leg. Employee testified that this accident severely increased his low back pain and right leg radiculopathy.

Employee then returned to Dr. Abernathie who noted a large disk fragment at L

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

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