Michael Bartlett v. Siegel Roberts Automotive

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 February 17, 2009. The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued February 17, 2009, 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 September 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Bartlett, Michael

Injury No. 07-083116

Dependents: N/A

Employer: Siegel Roberts Automotive

Additional Party: N/A

Insurer: Self-insured c/o Hartford Specialty Risk Services

Appearances: For the employee, Mr. Kenneth Seufert

For the employer, Mr. Mark Anson

Hearing Date: November 12, 2008

Checked by: LCK/sm

- Are any benefits awarded herein? Yes

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

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

- Date of accident or onset of occupational disease? On or about August 7, 2007

- State location where accident occurred or occupational disease contracted: St. Francois County, Missouri

- Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

- Did employer receive proper notice? Yes

- 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

- Was employer insured by above insurer? Yes

- Describe work employee was doing and how accident happened or occupational disease contracted: Repetitive motion with right lower extremity

- Did accident or occupational disease cause death? No

- Parts of body injured by accident or occupational disease: Right foot and ankle

- Nature and extent of any permanent disability: 7.5 % of the right foot and ankle at the 155 week level.

- Compensation paid to date for temporary total disability: None

- Value necessary medical aid paid to date by employer-insurer: $\ 120.00

- Value necessary medical aid not furnished by employer-insurer: $\ 1,975.00

- Employee's average weekly wage: $\ 405.60

- Weekly compensation rate: $\ 270.37

- Method wages computation: By agreement

- Amount of compensation payable: Previously incurred medical $\ 1,975.00

Temporary total disability $\ 1,429.10

Permanent partial disability $\underline{\$ 3,143.05}

Total \ 6,547.15

- Second Injury Fund liability: Denied

- Future requirements awarded: None

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Kenneth Seufert

On November 12, 2008, the employee, Michael Bartlett, appeared in person and with his attorney, Ken Seufert, for a hearing for a final award. The employer was represented at the hearing by its attorney, Mark Anson. Also present for the employer was Human Resources Representative Angie Tessmer. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

- Siegel Roberts Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was duly qualified as a self-insured employer through Hartford Specialty Risk Services.

- On or about August 7, 2007, Michael Bartlett was an employee of Siegel Roberts, Inc. and was working under the Workers' Compensation Act.

- The employer had notice of the employee's alleged occupational disease.

- The employee's claim was filed within the time allowed by law.

- The employee's average weekly wage was $\ 405.60. The rate of compensation for temporary total disability and permanent partial disability is $\ 270.37 per week.

- The employer had paid $\ 120.00 in medical aid.

- The employer had not paid any temporary disability.

- The parties agreed that the employer is responsible for and shall reimburse the employee for medical mileage for the trip to Dr. Burke on December 4, 2007. The amount that is to be paid is $\ 126.10.

- Occupational disease

- Medical causation

- Claim for previously incurred medical

- Temporary total disability

- Nature and extent of permanent partial disability

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

- Medical records of Iron County Hospital

- Medical records of Dr. Duberstein, Dr. Krewet and Dr. Burke

- Notice of intent to submit into evidence a complete medical report

- Letter to Dr. Berkin from Ken Seufert.

- Curriculum vitae of Dr. Berkin

- June 16, 2008 report of Dr. Berkin

- Claim for compensation

- Medical records of Hinsdale Hospital

- Medical records of Dr. Burke concerning William Rice. (The employer objected to the admission of these records. The ruling on the admissibility of this exhibit was taken under advisement. The objections of the employer are sustained and Exhibit I is not admitted into evidence. Exhibit I shall be kept with the file for appellate purposes.)

- Medical records of Dr. Brown concerning William Rice. (The employer objected to the admission of these records. The ruling on the admissibility of this exhibit was taken under advisement. The objections of the employer are sustained and Exhibit I is not admitted into evidence. Exhibit I shall be kept with the file for appellate purposes.)

- Itemized statement of Dr. Duberstein

- Itemized statement of Iron County Hospital

- Itemized statement of Parkland Health Center

- Medical expense summary

Note: At the time of their admission, several of the employee's exhibits were highlighted.

Employer-Insurer's Exhibits

- Diagram of gate

- Diagram of acrylic mold degating process

- Attendance record of the employee

- Medical records of Dr. Burke

- Deposition of Dr. Burke

- DVD of acrylic mold degating

WITNESSES: Michael Bartlett, the employee; Angie Tessmer, for the employer; and Curtis Stout, for the employer.

BRIEFS: The employer filed its' brief on the day of the hearing. The employee did not file a brief.

The employee is 38 years old. He testified that prior to working at Siegal Roberts he had no problems or treatment to his right foot, ankle or leg. About 10 years ago, he had a bulging disc in his low back and was treated with epidural steroid injections. The epidurals fixed the problems with his low back.

The medical records regarding the low back show that the injury occurred in 1996. In May of 1996, the employee noted that initially after the accident he had right leg numbness but it had resolved. The employee had right leg pain if he sat too long. His right lower back pain radiated into his hip and into his right lateral

thigh. Testing showed a disc bulge at L5-S1. In June of 1996, the employee stated that after two epidural injections he had complete relief of pain and his only symptom was occasional minimal backache. His right leg pain and numbness had resolved. In October of 1997, the employee had the onset of the same low back pain that radiated into his buttocks but no symptoms in either lower extremity. Another epidural steroid injection was given and in December of 1997, the employee was noted to have another exceptional response and the low back pain was gone.

The employee testified that the problem to his right lower extremity was to his leg and not his right foot and ankle, and the epidurals resolved his low back problems.

In June of 2006, the employee started working for Pro-Staff and was assigned to work at Siegal Roberts in the acrylic molding department. In January of 2007, Siegal Roberts picked up his option and he started working directly for Siegal Roberts in the acrylic molding department. As an employee of Siegel Roberts, he performed the same job as he did when he worked for Pro-Staff.

The employee testified that Siegal Roberts manufactures parts for automobiles including plastic Chevrolet emblems. Machines molded the parts and a robot put the parts on a conveyor belt. The parts were attached to a gate and the parts were cut off by a degater. The degater machine used a saw to cut the parts off the gate. To operate the saw, an employee stands up and uses pressure to push the pedal down with their foot. The pedal is pressed down and held until all of the parts are cut off the gate. The parts are then packaged for shipment.

The employee testified that the conveyor belt was not super fast or super slow and the parts came by in less than $1 / 2$ minute. His foot was not constantly on the foot pedal. Sometimes he would have to take his foot off the pedal to get the parts. Sometimes he waited to have a stack of parts to pack them. When the parts were packed, he took his foot off the pedal. Most of the time it was a pretty fast operation. Some people used their right foot and others used their left foot. Once his foot was on the pedal, he kept it pressed down until all the parts on the gate were cut. Each gate had either 2 or 4 parts. If needed, he used his hands to use an air hose to clean the part.

The employee testified that in the month or two prior to August of 2007, he would switch machines once a night approximately halfway through the shift. He could be switched to a machine which had no degater. There was a conveyor belt for every machine but not every machine had a manual degater. Some had a robotic heat degater. Some shifts he would only work $1 / 2$ the shift on a machine with a degater. The employee thought that there were 10-12 molding machines in his unit. The conveyor belt ran at different speeds for different parts. If he ran two lines, the employee would run one degater. The day he left work on August 7, 2007, he was not operating a degater but was trimming flash off of parts which was a sit down job.

Angie Tessmer testified that she has been the employer's Human Resources representative since August 27, 2007. Prior to that, she was at Siegal Roberts as an on site staffing specialist for Manpower employees. She videotaped a degater being operated in the molding department which is Employer-Insurer Exhibit 6. She had a worker who had been employed for several years perform the process. The conveyor belt was running at the normal speed and there was no difference in the process that was filmed and how the process actually worked. The gates would either have two or four parts. The worker was not doing anything more or less than normal and was not performing the job either faster or slower than normal. Sometimes employees would run two machines at a time due to the slow pace of the work. Every part had a