Garold Savage v. Breckenridge Materials

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-044669

Employee: Garold Savage

Dependent: Cheryl Savage, Spouse

Employer: Breckenridge Materials (Settled)

Insurer: Liberty Mutual Insurance Company (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 June 17, 2009. The award and decision of Administrative Law Judge Kathleen M. Hart, issued June 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 $7^{\text {th }}$ day of October 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Garold Savage

Departments: Cheryl Savage

Employer: Breckenridge Materials (previously settled)

Additional Party: Second Injury Fund (only)

Insurer: Liberty Mutual Insurance Company (previously settled)

Hearing Date: March 31, 2009

Injury No.: 07-044669

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

1. Are any benefits awarded herein? Yes
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: May 3, 2007
5. 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? 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
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured left knee during the course and scope of his employment.
12. Did accident or occupational disease cause death? No Date of death? n/a
13. Part(s) of body injured by accident or occupational disease: Left knee
14. Nature and extent of any permanent disability: 15 % left knee previously paid by Employer and Permanent and Total Disability benefits from the Second Injury Fund beginning September 7, 2007, due to a combination of the primary injury and the pre-existing injuries and disabilities.
15. Compensation paid to-date for temporary disability: $\ 4,795.05
16. Value necessary medical aid paid to date by employer/insurer? $\ 6,744.98

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 619.81 / \ 376.55
4. Method wages computation: Stipulation

1. Amount of compensation payable:

24 weeks of permanent partial disability from Employer

(previously paid)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential of $\ 243.26 payable by SIF for 24 weeks beginning

September 7, 2007, and, thereafter, $\ 619.81 per week as provided by law

TOTAL:

TO BE DETERMINED

1. Future requirements awarded:

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:

Michael Gerritzen

Employee: Garold Savage

Departments: $\mathrm{n} / \mathrm{a}$

Employer: Breckenridge Materials (previously settled)

Additional Party: Second Injury Fund (only)

Injury No.: 07-044669

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Innurer: Liberty Mutual Insurance Company (previously settled)

Checked by: KMH

A hearing was held on the above captioned matter March 31, 2009. Garold Savage (Claimant) was represented by attorney Michael Gerritzen. The Second Injury Fund (SIF) was represented by Assistant Attorney General Kristen Frazier. The case against Employer was settled November 3, 2008.

All objections not expressly ruled upon in this award are overruled to the extent they conflict with this award.

Claimant submitted numerous certified medical records as exhibits. By agreement of the parties, Claimant's attorney returned to paginate these records and specify the relevant pages to offer into evidence. Claimant listed the pages he offered in a letter dated April 30, 2009, directed to the Court and to the SIF. The SIF reviewed these pages and responded they had no additional pages to be offered. Claimant's exhibits are all admitted into evidence. By agreement of the parties, only the following pages from these exhibits are considered as evidence:

- Exhibit B: Pages 8,9, 10 and 13

- Exhibit M: Pages 102 and 252

- Exhibit R: Pages 12 and 13

- Exhibit X: Pages 8 and 9

- Exhibit BB: Pages 5 and 6

- Exhibit CC: Pages 5-6, 14-17, 18-20, 21-23, 50-51, and 118-121

- Exhibit LL: Pages 5,9,13,46,and 47

- Exhibit RR: Pages 16-18

- Exhibit TT: Pages 10, 13-19, 54, 71-74, 193, 194, 198, 199, 203 and 204

- Exhibit UU: Pages 34, 35, 44, 45, 52, 53, 56 and 57

The parties stipulated to the following:

1. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law on the date of the alleged injury.

1. Employer's liability was fully insured by Liberty Mutual Insurance Company.
2. Employer had notice of the alleged injury and a claim for compensation was timely filed.
3. Claimant's average weekly wage was sufficient to entitle him to TTD/PPD rates of $\$ 619.81 / \ 376.55.
4. Employer paid $\ 4,795.05 in TTD benefits. Additional TTD was paid with the settlement to account for an underpayment of TTD.
5. Employer paid $\ 6,744.98 in medical benefits.
6. Claimant and Employer reached a compromise settlement of 15 % of the left knee plus an underpayment of TTD in the amount of $\ 6450.00. This settlement was approved by the Division of Workers' Compensation on November 3, 2008.

The parties stipulated the issues for trial are as follows:

1. Whether Claimant sustained an accident arising out of and in the course of his employment.
2. Whether Claimant's left knee condition was medically and causally related to his alleged work injury.
3. The nature and extent, if any, of Claimant's permanent disability.
4. The liability of the Second Injury Fund.

Based upon the competent and substantial evidence and my observations of Claimant at trial, and the reasonable inferences to be derived therefrom, I find:

1. Claimant is a 55 year-old male who attended school through the $10^{\text {th }}$ Grade. He then earned his GED while serving in the Army from 1972-1974. He also attended truck driving school in 1976.
2. Claimant is married to Cheryl Savage, and they have no children.
3. While in the Army, Claimant received Basic and Generator Repairman training. His duties involved repairing field generators for camps and electric generators that supplied

power to the units. He was ranked E4 and earned an honorable discharge. Claimant did not pursue any electrical or mechanical work after his discharge. Claimant has not tried to get a job using his army training due to the advances in technology. He testified he does not even know how to do basic electrical work around his home.

1. After his discharge from the Army, Claimant was unemployed until he attended truck driving school. This was an eight week course where he learned the Department of Transportation regulations and became an over the road tractor/trailer driver.
2. Claimant worked for a trucking company from 1976-1979. He drove, picked up lumber and steel, and hauled freight throughout the Midwest. His routine was to check out a truck, load the truck, bind and tarp the load, complete the paperwork for the route and drive to the destination. In order to secure or bind the load, he climbed over the load and secured it with steel chains that weighed 100-125 pounds. The tarps weighed about 75 pounds. The ratchet binders weighed approximately 25-30 pounds. After the load was secured, Claimant often drove two to three days, typically six hours at a time behind the wheel.
3. Claimant was laid off as a truck driver and began working for the County Highway Department in 1980. He drove dump trucks, snow plows, performed general road maintenance and repair, and completed some paperwork. This job was more physical than his next job with Employer. He also had more paperwork to complete and did a lot more walking and standing than his job with Employer. Claimant was laid off from the Highway Department in 1992 and was unemployed for about ten weeks.
4. Claimant worked for Employer from 1992 through May 3, 2007. At the time he was hired, he passed the DOT physical without any difficulties. His prior right hand, neck and left shoulder injuries did not cause him any restrictions when he began working for Employer. He drove a concrete mixer. In the morning, he checked his truck and loaded it at the plant. To load the concrete mixer, he carried 100 pound sandbags and 50 pound cement bags up to 250 feet. He then drove to the job site, climbed the back of the truck, mixed and delivered the concrete. At the job site, he hooked the chutes onto the truck. The chutes weighed approximately 50-60 pounds. He poured out the concrete load, washed down the truck and chutes, and returned to Employer for another load. Claimant testified he spent one to two hours a day carrying 50 pounds or more. He also did light paperwork consisting of completing the load ticket, time, customer signatures, DOT inspection forms, and noting any truck deficiencies.
5. Claimant had a number of injuries before his 2007 work injury. In 1973 he injured his right hand when a tool broke. A bone in his hand came through the top of his hand behind his first knuckle. In 1979, while playing football, he fell and broke his right hand and sprained his wrist. Claimant is right handed. He still has difficulty making a tight fist and grasping. He uses his middle finger and thumb to grab objects. His hand gets tired and sore, and he can't write for a long time. These injuries affected his work and make grasping and holding tools tightly difficult. He had to use both hands to lift.
6. In 1984 he began having neck problems. He woke up with pain radiating into his left arm. He was admitted to the hospital and underwent a cervical manipulation under general anesthesia, injections, and physical therapy. This helped his pain somewhat, but

he still had discomfort, stiffness, decreased range of motion on the left, and pain in his left arm. He could not hold his arm overhead or reach his arm out at work. When driving, he had to turn his whole body to the left in order to look out the rearview mirror. Claimant aggravated this injury in 2008 when he stood up to stretch and developed increased pain in his neck and down his left arm.

1. Claimant has a number of prior left knee injuries.

- On July 10, 1992, Claimant injured his l