Ronald Michael v. United Parcel Service

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-141615

Employee: Ronald Michael

Employer: United Parcel Service (Settled)

Insurer: Liberty Mutual Fire 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 July 24, 2009. The award and decision of Administrative Law Judge Victorine R. Mahon, issued July 24, 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 $14^{\text {th }}$ day of January 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

1. Part(s) of body injured by accident or occupational disease: Bilateral wrists.
2. Nature and extent of any permanent disability: Settled as to Employer/Insurer; Liability for enhanced disability from Second Injury Fund.
3. Compensation paid to-date for temporary disability: $\ 11,882.00.
4. Value necessary medical aid paid to date by employer/insurer? $\ 13,613.58.
5. Value necessary medical aid not furnished by employer/insurer? Not applicable.
6. Employee's average weekly wages: Sufficient to yield maximum rate of compensation.
7. Weekly compensation rate: $\ 662.55 PTD/\$347.05 PPD.
8. Method wages computation: By agreement.

1. Amount of compensation payable: Employer previously settled its risk of liability.
2. Second Injury Fund liability: For Permanent Partial Disability the sum of $\mathbf{\$ 9 , 6 1 7 . 6 2}.

Preexisting disability =

+ Primary disability =

Total:

50 weeks

\frac{134.75 \text { weeks }}{184.75 \text { weeks }}

\frac{x 15 \% \text { load }}{27.7125 \text { weeks } x \$ 347.05=\$ 9,617.62}$

1. Future requirements awarded: None.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 percent of all payments to Claimant in favor of the following attorney for necessary legal services rendered to Claimant: John Newman.

Employee: Ronald Michael

Injury No. 03-141615

Dependents: N/A

Employer: United Parcel Service (Settled)

Additional Party: Treasurer of the State of Missouri as custodian of The Second Injury Fund

Insurer: Liberty Mutual Group (Settled)

Hearing Date: June 1, 2009

Reviewed by: VRM/mb

The undersigned Administrative Law Judge conducted a final hearing between Ronald Michael (hereafter Claimant) and the Second Injury Fund on June 1, 2009. This case was tried simultaneously with Injury Number 02-148781, which pertains to a work injury sustained on December 17, 2002. The instant case pertains to a diagnosis of bilateral carpal tunnel syndrome made August 11, 2003, from work-related repetitive trauma. The claims against the Employer and its Insurer in both cases have settled.

Claimant was an employee within the meaning of the Workers' Compensation Law. Employer was fully insured and subject to the Law. There is no issue with respect to accident, occupational disease, course and scope of employment, notice, jurisdiction, venue, or statute of limitations. Claimant's Permanent Partial Disability rate is $\ 347.05. His Permanent Total Disability rate is $\ 662.55. The sole issue is the nature and extent of any liability by the Second Injury Fund. Claimant seeks Permanent Total Disability.

The following exhibits were admitted without objection:

Exhibit A Deposition of Dr. David T. Volarich, with exhibits

Exhibit B Deposition of Mr. Wilbur Swearingin, with exhibits

Exhibit C Stipulation in Injury No. 02-148781

Exhibit D Stipulation in Injury No. 03-141615

Claimant is a 54 year old man who has been married 32 years. He is a high school graduate. His work career has been in manufacturing and labor. He became a driver for United Postal Service in February 1986, and continued to work for that company until April 28, 2003. Claimant said he had no on-the-job injuries prior to his work for UPS. He described no non-work-related preexisting disabilities or conditions.

Claimant sustained his first injury with UPS in the early 1990s. After delivering some rolls of material, Claimant stepped up into the truck and suffered a pull in his lower back. He was treated conservatively and returned to full duty. There is no evidence of a residual disability from this incident.

A few weeks later, Claimant sustained his second work injury, this time to the upper portion of his back. He again was treated conservatively with medications and therapy. The injury resolved and he returned to work full time, averaging more than nine hours a day five days a week.

On December 17, 2002, Claimant backed his UPS truck to a loading dock. He placed a heavy package on the edge of the dock. As he reached down to push the box forward, he

experienced a pull in his neck and left shoulder girdle. Although this accident occurred in December during a busy work time for Claimant, he continued to work full time. He declined Employer's initial offer of medical treatment, and did not go to a physician until sometime in March 2003; that was after Claimant started having symptoms of carpal tunnel syndrome. Claimant said he was prompted to obtain medical help because "my hands were hurting so bad I couldn't get a cup of coffee to drink it." Claimant's last day of work was April 28, 2003.

As Claimant's examining physician Dr. David Volarich relates in his report, Claimant's job as a UPS driver required that he lift packages weighing up to 70 pounds without assistance and 150 pounds with assistance. Dr. Volarich further notes that Claimant operated an electric hand-held computer and used his thumbs to input information thousands of times per day.

Claimant eventually came under the care of Dr. Cole in Joplin, Missouri. An MRI revealed multi-level degenerative disc disease in the cervical spine and a disc protrusion at C6-7 on the left. Claimant was provided heat applications and steroid injections. No physician has recommended surgical intervention.

Claimant related that his hands started going numb in February or March 2003. The numbness woke him at night. When asked whether he ever had problems with his hands prior to that time, Claimant emphatically answered, "No." Prior to the numbness appearing in his hands, Claimant had worked his normal duties, full time. It was only after Claimant's hands started going numb and he needed to alternate his hands on the steering wheel that he sought medical attention from a physician. This occurred in March 2003. Claimant continued to work until April 28, 2003. Employer provided treatment, and the diagnosis of bilateral carpal tunnel syndrome was made on or about August 11, 2003. When conservative care did not provide

favorable results, Claimant underwent bilateral carpal tunnel release. The surgery relieved some of the symptoms such as nighttime numbness, but not all of the symptoms.

Claimant still suffers tingling and aching in his hands and fingers. He said his left hand is much worse than his right (dominant) hand. Claimant now has difficulty grasping, gripping, writing, typing, holding a paper cup, turning pages, or wringing out a wash cloth. He needs assistance in opening jars or pulling things apart. He is unable to load and unload groceries because he is unable to lift items such as soft drinks, water, or dog food. While he can mow his lawn over a period of days, the bouncing "up and down" hurts his neck and his hands. He can no longer hunt by himself because he needs assistance in pulling a deer out of the woods. He can still fish, but bouncing in rough water bothers him. He no longer accompanies his wife when she goes shopping because he is unable to stand for long periods of time. Claimant states that he only obtains about two hours of solid sleep per night because he wakes up multiple times. With respect to his neck and left shoulder, Claimant testified that he has constant pain sufficient to wake him up "many times" at night. He stated that if he drives, he is unable to look back over his left shoulder. Claimant's wife testified credibly that Claimant "constantly" rubs his neck and hands trying to get comfortable.

After leaving his employment with UPS, Claimant worked two weeks in the summer of 2005 for a Ford automobile dealership. He washed and vacuumed cars. After working a total of 26 hours over a period of two weeks, Claimant found the job duties too physically demanding. He qualified for Social Security Disability in 2005.

Claimant is not on any prescription medications for his hands or neck.

Claimant settled each of his cases with Employer prior to this hearing against the Second Injury Fund. In Injury Number 02-148781, Claimant settled his claim for 12.5 percent of the body as a whole. With respect to Injury Number 03-141615, even though Claimant testified that the left hand was much worse than the right, the settlement with Employer does not reflect such contention. Claimant settled his claim in Injury Number 03-141615 for 15 percent of the right arm at the 175 week level and five percent of the left arm at the same level. In addition to these lump sum amounts, Employer paid $\ 3,580.41 in Medicare Set-Aside funds, which Claimant is to self-administer for the purpose of providing future medical care if it is needed.

Dr. David Volarich first evaluated Claimant on April 14, 2004. He found the requisite causal connection between Claimant's job and his neck injury. He assigned a 30 p