Arlandis Kelleybrew v. Plastene Supply Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-167196

Employee: Arlandis Kelleybrew

Employer: Plastene Supply Company (Settled)

Insurer: Hartford 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 August 17, 2009, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued August 17, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $4^{\text {th }}$ day of December 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Arlandis Kelleybrew Injury No. 01-167196 \& 01-169117

Dependents: N/A

Employer: Plastene Supply Company (Settled)

Additional Party: Second Injury Fund

Insurer: Hartford Insurance Company (Settled)

Appearances: James Turnbow for the employee. Frank Rodman for Second Injury Fund.

Hearing Date: Commenced December 3, 2008

Completed December 11, 2008

Checked by: LCK/kh

1. Are any benefits awarded herein? No.
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? On or about January 8, 2001 and on or about May 30, 2001.
5. State location where accident occurred or occupational disease contracted: Pemiscot 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 happened or occupational disease contracted: The employee sustained a low back injury due to repetitive work and sustained a lung injury due to chemical exposure.
3. Did accident or occupational disease cause death? No.
4. Parts of body injured by accident or occupational disease: Low back and body as a whole in Injury Number 01-167196 and body as whole referable to lungs in Injury Number 01169117 .
5. Nature and extent of any permanent disability: 12.5 % permanent partial disability of the body as a whole referable to the low back in Injury Number 01-167196. 3.95\% of the body as a whole referable to the lungs in Injury Number 01-169117.
6. Compensation paid to date for temporary total disability: None.
7. Value necessary medical aid paid to date by employer-insurer: None.
8. Value necessary medical aid not furnished by employer-insurer: None.
9. Employee's average weekly wage: $\ 318.66.
10. Weekly compensation rate: $\ 212.44.
11. Method wages computation: By agreement.
12. Amount of compensation payable: None.
13. Second Injury Fund liability: None.
14. 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: N/A.

On December 3, 2008, the employee, Arlandis Kelleybrew, appeared in person and with his attorney, Jim Turnbow, for a hearing for a final hearing. The claims against the employerinsurer were settled and approved on August 22, 2007. The Second Injury Fund was represented at the hearing by Assistant Attorney General Frank Rodman and Cliff Verhines. 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 summary of evidence and findings of fact and rulings of law, are set forth below as follows:

1. Plastene Supply Company was operating under and subject to the provision of the Missouri Workers' Compensation Act and its liability was fully insured by Hartford Insurance Co.
2. On or about January 8, 2001 and May 30, 2001, Arlandis Kelleybrew was an employee of Plastene Supply Company, Inc. and was working under the Workers' Compensation Act.
3. On or about January 8, 2001 and May 30, 2001, the employee sustained occupational diseases arising out of and in the course of his employment.
4. The employer had notice of the employee's occupational diseases.
5. The employee's claims were filed within the time allowed by law.
6. The employee's average weekly wage was $\ 318.66. The rate of compensation for permanent total disability and permanent partial disability is $\ 212.44 per week.
7. The employee's injuries were medically causally related to the occupational diseases.
8. The employer-insurer did not pay medical aid in either case.
9. The employer-insurer did not pay temporary disability in either case.

1. Liability of the Second Injury Fund for either permanent partial disability or permanent total disability in injury number 01-167196 (Date of injury January 8, 2001).
2. Liability of the Second Injury Fund for either permanent partial disability or permanent total disability in injury number 01-169117 (Date of injury May 30, 2001).

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

A. Medical records (At the hearing, the Second Injury Fund reserved the right to make objections on the records of Cardiovascular Consultants, Research Belk Hospital, St. Luke's Hospital, Pemiscot Primary Care Center, Pemiscot Memorial Hospital, and Headache and Pain Center. There were no objections to the other records in the Exhibit. The record was left open for 14 days for objections.)

On December 11, 2008, the Division received a letter from the Second Injury Fund which stated that it did not object to the medical records from Pemiscot Primary Care Center (75 pages), Pemiscot Memorial Health System (10 pages), Research Belton Hospital (42 pages) and St. Luke's Hospital (46 pages). These records are therefore admitted into evidence.

The Second Injury Fund objected to 200 pages of records from Dr. Greenfield because there was no certificate of authenticity and they were not offered into evidence. On July 20, 2009, there was a telephone conference between myself, the attorney for the employee and the attorney for the Second Injury Fund. The parties agreed that the 200 pages of records from Dr. Greenfield were not offered into evidence at the hearing. The parties agreed that Dr. Greenfield's records were offered into evidence as part of the records of the Headache and Pain Center (92 pages and 43 pages).

The Second Injury Fund objected to the records from the Headache and Pain Center (92 pages and 43 pages) on the basis that only 13 pages were provided. I find that there were 13 pages of records with the Headache and Pain Center caption and the remaining pages were records from various physicians at the Headache and Pain Center. The Second Injury Fund objection is overruled and those records are admitted into evidence.

The Second Injury Fund objected to the Pemiscot Memorial Health System records because the certificate of authenticity stated there were 115 pages but there were only 111 pages of records. On July 20, 2009, there was a telephone conference between myself, the attorney for the employee and the attorney for the Second Injury Fund. I advised the parties that there were 111 pages contained in those records and not 115 as set forth in the certificate of authenticity, and that the objection would be sustained. However, the employee would have 14 days to send the Court a corrected affidavit that there were 111 pages of records or the complete 115 pages with a new affidavit. On July 27, 2009, the Division received a letter from the employee's attorney with a corrected affidavit that the records contained 111 pages. The objection is now overruled and those records are admitted into evidence. (Note: The corrected affidavit is attached to the records behind the original affidavit.)

The Second Injury Fund objected to the records from Midwest Pulmonary Consultants because the certificate of authentication stated that there were 28 pages and only 25 pages were provided. The Second Injury Fund also objected to 3 pages from Cardiovascular Consultants because there was no certificate of authenticity for that health care provider. I find that the records from Midwest Pulmonary Consultants totaled 28 pages which included a 3 page letter from Cardiovascular Consultants to Midwest Pulmonary due to a referral. The Second Injury Fund's objections are overruled and those records are admitted into evidence.

B. Deposition of James England (subject to objections in the deposition).

C. Deposition of Dr. Volarich (subject to objections in the deposition).

D. Current medication list.

Judicial notice of the contents of the Division's files was taken.

WITNESSES: Arlandis Kelleybrew, the employee and Sonya Kelleybrew for the employee

BRIEFS: The Second Injury Fund filed its brief on February 26, 2009. The employee waived the filing of his brief.

The employee testified that he is 36 years old and was born in August of 1972. He employee completed the $10^{\text {th }} grade and started the 11^{\text {th }}$ grade. He tried two times to get a GED but was not successful. He cannot read or write very well. He can add and subtract by counting on his hands but is not good at multiplication and division. He cannot operate a computer. Prior to 2001, he liked to work on cars including changing oil and brakes. A couple of years ago, the employee got a driver's license. He took the test multiple times and took an oral and not a written test. His wife helped him study. His first job was at a city market in Indiana when he was 17 years old. He bagged and carried groceries and then went to produce. He wanted to get a promotion but needed a GED. He worked there for 4-5 years.

The emergency room records from Elkhart Hospital in June showed that the employee had trouble breathing. In August, the employee went to the emergency room due to shortness of breath and feeling light headed. The employee was felt to have hyperventilation syndrome. He had essentially the same symptoms in June which had been felt to be anxiety. The emergency room doctor stated that anxiety was probably a role in the hyperventilation syndrome. At the end of December, the employee was at the emergency room with difficulty breathing.

In March, the employee went to the emergency room at Elkhart Hospital and was diagnosed with an acute lumbar strain. In September, the employee went to Elkhart Hospital emergency room for back and chest pain from lifting at work. He had been breathing a lot of dust fumes at work and had not been wearing a mask. In December the employee went to Elkhart Hospital for shortness of breath with numbness of the extremities and anxiousness. The symptoms subsided after breathing into a paper bag. He was diagnosed with hyperventilation.

In March, the employee went to the emergency room at Elkhart Hospital for lumbar and thoracic back pain. He performed a lot of lifting at work and had prior back problems. Bilateral straight