Kevin Dilks v. U-Haul

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-119894

Employee: Kevin Dilks

Employer: U-Haul (Settled)

Insurer: Bankers Standard Insurance Co. (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 6, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued July 6,2009 , is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $3^{\text {rd }}$ day of February 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: November 9, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis 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
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was using a torch to cut off the top of a barrel when the barrel exploded and fractured two bones in his left hand.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left hand, Psychiatric-Body as a whole
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to-date for temporary disability: $\ 42,938.77
16. Value necessary medical aid paid to date by employer/insurer? $\ 150,511.69

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Dilks

Injury Number: 02-119894

Employee: Kevin Dilks

Injury No.:02-119894

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 556.62
3. Weekly compensation rate: $\$ 371.08 / 340.12$
4. Method wages computation: Stipulated

1. Amount of compensation payable:

144.7 weeks of permanent partial disability from Employer

(Previously paid)

1. Second Injury Fund liability: No

TOTAL:

NONE

1. Future requirements awarded: N/A

Said payments to begin 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: James Hoffmann

Employee: Kevin Dilks

Injury No.: 02-119894

Dependents: N/A

Employer: U-Haul (Settled)

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Bankers Standard Insurance Co. (Settled) Checked by: SC

A hearing was held for a final award at the Missouri Division of Workers' Compensation ("DWC") St. Louis office at the request of Kevin Dilks, ("Claimant"), on April 1, 2009, pursuant to Section 287.450 RSMo (2000). ${ }^{1}$ Attorney James Hoffmann represented Claimant. Attorney DaNiel Cunningham represented the Second Injury Fund ("SIF"). The record closed after presentation of evidence. Venue is correct and jurisdiction properly lies with the DWC.

Prior to the hearing, U-Haul, ("Employer") and Bankers Standard Insurance Co. ("Insurer") settled with Claimant prior to the start of the hearing for 57 % PPD of the left elbow and 25 % of the body as a whole for depression. ${ }^{2}$

Claimant's Exhibits A-F and SIF's Exhibit I were admitted without objection. Any notations contained in the records were present when admitted. Any objections contained in the depositions but not addressed in this award are overruled.

The parties stipulated that on or about November 9, 2002: Claimant was employed by Employer and sustained an accident that arose out of and in the course of employment in St. Louis County; Claimant and Employer operated under the Missouri Workers' Compensation Law; Insurer fully insured Employer's liability; Employer received proper notice; a Claim for Compensation was timely filed; Claimant's average weekly wage was $\ 556.62; the rate for Temporary Total Disability ("TTD") and Permanent Total Disability ("PTD") was \$371.08; the rate for Permanent Partial Disability ("PPD") was \$340.12; Employer paid \42,938.77 in TTD benefits and \ 150,511.69 in medical benefits; and Claimant achieved maximum medical improvement ("MMI") on April 1, 2005.

The parties identified the following issues for disposition: 1 . What is the nature and extent of SIF liability for PPD, if any? 2. What is the nature and extent of SIF liability for PTD, if any?

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[^0]: ${ }^{1}$ All references in this award are to Missouri Revised Statute 2000 unless otherwise noted.

${ }^{2}$ All references to Employer in this award also include the Insurer.

All evidence was reviewed, but only evidence discussed below is considered to establish the following facts based on competent and substantial evidence:

Claimant is a 48-year-old, right-hand dominant, high school graduate. Claimant married his wife, Christine, 18 years ago. Claimant has one dependent child, Justin, age 17.

From 1976 to 1979, Claimant worked for Jersey Community Hospital as a maintenance man. He mowed lawns, cleaned floors, repaired beds, tested boilers, painted, and removed trash. He worked one month for Laclede Steel shoveling excess furnace lining. Claimant worked two years for his father cutting, tying and dragging timber by cable. He drove a truck and picked apples for an orchard until 1984.

In 1988, Claimant graduated with a four year degree in automotive training from Lewis and Clark College. After graduation, Claimant became self-employed for a short time. From 1988 to 1995, he worked for Alton Shopping Center, where he drove a sweeper, mowed lawns, painted, set up demonstrations, shoveled snow, operated a snow blower and provided general maintenance. In 1995, Employer hired Claimant as a mechanic. He was scheduled to work more than 40 hours per week.

On October 23, 1989, a laminectomy was performed at L4-5. After recovery, Claimant continued to work without permanent medical restrictions. Claimant was diagnosed with diabetes in 1995 and takes oral medication. Prior to 2002, Claimant became weak and shaky with strenuous work. To relieve symptoms, he took daily breaks, ate candy or drank soda. In 1999, Claimant developed right foot drop which caused him to trip over small things, use caution carrying small items, and slow down climbing ladders. On February 11, 2002, an arthrotomy was performed to remove plantar nodules and ankle bone spurs. Residual complaints include decreased range of motion. On March 25, 2002, surgery was performed to release peroneal nerve entrapment of the right knee. In June 2002, Claimant fractured his left small finger at the distal phalanx with a nail bed avulsion. The nail bed was debrided and reconstructed. Residual complaints include pain when bumped and cold weather.

On November 9, 2002, Claimant was using a torch to cut off the top of a barrel when the barrel exploded and fractured two bones in his left hand.

Claimant received emergency room treatment and extensive medical care for his left hand. Dr. Buenger and Dr. Chang suggested Claimant return to work. Temporary benefits ended April 1, 2005. Employer informed Claimant no work was available and hired someone else. Claimant submitted applications for mechanic jobs but received no offers.

Jersey Motors hired Claimant to detail cars, which included waxing, washing, sweeping, cleaning underneath the hood, dashboard, interior and trunk. He worked 30 hours a week and earned $\ 6.30 to $\ 7.00 per hour. Work affected Claimant's complex regional pain syndrome ("CRPS"), back, and diabetes. Claimant worked for Jersey Motors from April 2005 until June 2005 when Bierman Automotive ("Bierman") offered him more money and hours.

At Bierman, Claimant worked at a higher hourly rate for 40 hours per week. Working more hours, Claimant experienced increased hand pain and became irritable with family. Bierman released Claimant in November 2005 when business slowed down. Claimant unsuccessfully applied for work in auto parts stores and other businesses. Claimant became a self-employed detailer when he could not find employment.

Claimant worked through low back pain, took unscheduled breaks to control low blood sugar, and used caution when walking on wet floors. Left hand complaints include limited range of motion, pain, irritability, swelling, a shiny appearance, 60 to 70 % loss of strength, and inability to straighten his ring and small fingers. He cannot clean cars as quickly as other detailers. Claimant takes pain medication daily, and continues to treat with Dr. Buenger for hand flare-ups. Also, Claimant had pain with bending to clean cars or standing on concrete 8 hours a day.

In April 2006, Claimant was involved in a motor vehicle accident and suffered a left pelvis fracture, which required three plates to the left hip. He was hospitalized 21 days, and received 10 weeks of physical therapy. After the accident, Claimant developed a left foot limp and started walking with a cane. Also, left retinal surgery was performed as a result of the car accident.

X-rays taken at St. John's Hospital on November 9, 2002, revealed "slightly comminuted fractures at the base of the fourth and fifth metacarpals with mild angulation and lateral displacement. The $4^{\text {th }}$ metacarpal fracture appears dorsally displaced and slightly dorsally angulated. An old fracture appeared at the tip of the terminal phalanx of the $5^{\text {th }}$ finger."

Bruce Reid, M.D. diagnosed CRPS, a chronic pain condition. After a course of conservative treatment, Dr. Reid placed Claimant at MMI in November 2003, with permanent restrictions to perform "very light duties left hand only to tolerance," and referred Claimant to Dr. Buenger for pain management.

James Fernandez, M.D. examined Claimant for ringing in the left ear and sensitivity to sound. A December 20, 2002 audiogram revealed "normal to profound asymmetrical high frequency SNHL for the left ear, and very mild high frequency SNHL on the right." On November 10, 2003, Dr. Fernandez related the condition to the work injury, recommended yearly audiograms, hearing protection around noise, and found Claimant had achieved MMI.

On June 18, 2003, Dr. Daniel Phillips diagnosed "significant underlying sensory motor diabetic type peripheral neuropathy..." involving the ulnar nerve at the elbow and wrist. Dr. Phillips opined the neuropathy was so severe the condition remained guarded even with decompression.

Injury Number: 02-119894

In October 17, 2003, a Functional Capacity Evaluation ("FCE") showed Claimant was able to work at the Medium Demand Level. Claimant demonstrated a 50-60% strength deficit on the left, although he carried 25 pounds bilaterally, 15 pounds in the left hand, and lifted from floor to overhead. Symptoms increased with different uses of the left hand or when he reached for items. Claimant demonstrated consistent effort and no symptom magnification.

On December 15, 2003, **Christine Cheng, M.D.** diagnosed healed fractures of the left ring and small finger metacarpals with mild angulation, late stage left CRPS, type I, left ulnar nerve compression at the elbow and wrist, and diabetic peripheral neuropathy. On January 8, 2004, Dr. Cheng transposed the left ulnar nerve and decompressed the left Guyon's canal. On November 10, 2004, she discharged Claimant with no restrictions. Dr. Cheng warned activity, trauma, and surgery could reactivate CRPS.

**Wynndel Buenger, M.D.** treated Claimant for CRPS with injections and physical therapy, and Neurotin for anxiety. On March 1, 2004, Dr. Buenger diagnosed "significant reactionary depression" and prescribed Paxil and Lodine. During treatment, Claimant had periodic CRPS flare-ups with activity. Dr. Buenger found Claimant's depression had resolved in February 2005, but returned in April 2005 due to CRPS flare up. In June 2005, Claimant reported increased discomfort and difficulty sleeping after detailing cars.

Dr. Cheng diagnosed left ulnar nerve deficit, and on February 2, 2005, performed surgery on Claimant's 3rd and 4th web digital nerve. Dr. Cheng released Claimant to full duty on July 13, 2005, and placed him at MMI on October 12, 2005, with a 55-pound lifting restriction.

On November 9, 2005, Dr. Buenger diagnosed CRPS, ulnar neuropathy, and depression caused by the November 2002 work injury. On March 2, 2006, Dr. Buenger recommended Claimant receive medical care every 3 to 6 months for life for CRPS.

**David Volarich, M.D.**, a board certified examiner, provided an independent medical examination ("IME") on November 8, 2006, at the request of Claimant's attorney. He opined the work accident was the "substantial contributing factor" that caused Claimant's November 9, 2002 work injury.

Dr. Volarich placed Claimant at MMI and returned him to work with no use of the left hand, and rated 75% PPD of the left elbow for reflex sympathetic dystrophy ("RSD"), causalgia, and left ulnar neuropathy. He noted the left hand was primarily used for support and lacked ability to grasp or lift.

For pre-existing disabilities, Dr. Volarich rated 7.5% PPD of the left hand for a small finger fracture, 25% PPD of the body as a whole for low back surgery at L4-5, 20% PPD for a surgically repaired right knee, 50% PPD of the right ankle for plantar fasciitis and advanced arthritis. Dr. Volarich imposed restrictions for the spine and lower extremities. He found the pre-existing conditions were a hindrance to Claimant's employment or re-employment and the combination of disabilities created a synergistic effect.

³ RSD is also known as chronic regional pain syndrome ("CRPS") and complex regional pain syndrome.

Dr. Volarich deferred to a vocational expert to determine if work was available that Claimant could perform. If no work was found, Dr. Volarich opined Claimant to be PTD due to a combination of the primary and pre-existing injuries.

Dr. Volarich found Claimant sustained psychiatric disability but deferred to a psychiatrist regarding disability. He deferred to an ear, nose and throat doctor for an opinion on hearing loss.

Dr. Wayne Stillings, M.D., a board certified psychiatrist, examined Claimant on April 4, 2007, at the request of Claimant's attorney. Claimant reported "I am depressed,"(6/10), low moods, loss of interest and pleasure in life, irritability, fatigue, poor concentration, indecisiveness, slowed thinking, weight gain, insomnia, feelings of hopelessness, helplessness, uselessness, morbid thoughts that life is not worth living, and occasional suicidal ideation but no plans."

Dr. Stillings opined the MMPI-II test was invalid because Claimant over- reported symptoms in a "cry for help" caused by psychological pain. Dr. Stillings diagnosed Axis I: 1. Mood disorderwhere the primary work injury is the substantial factor that caused the condition and 30 % permanent partial psychiatric disability, and 2. Pain disorder associated with psychological factors and the primary work injury, resulting in 15 % permanent partial disability for the pain disorder. Dr. Stillings found both conditions were related to the work accident.

Dr. Stillings opined "...from a psychiatric standpoint, it's unlikely that he is employable and is not a good candidate for vocational rehabilitation." In reaching this conclusion, Dr. Stillings did not consider the impact of the motor vehicle accident. He found Claimant achieved psychiatric MMI but needed psychiatric treatment and psychotropic medications or antidepressants and sleep aids for life. Dr. Stillings opined the need for medication was due to the November 2002 work accident.

Mr. Timothy Lalk, a vocational expert, examined Claimant on February 7, 2007, at his attorney's request. Based on Dr. Stillings' opinion, Mr. Lalk opined Claimant could not secure or maintain employment in the open labor market due to his psychiatric condition and left upper extremity disability related to the work accident. Mr. Lalk stated:

"I believe that before his motor vehicle accident Mr. Dilks could function in some jobs that required only minimal physical exertion with his right upper extremity such as working in detailing as long as he was not required to work with the public or respond to more than routine, simple problems." Claimant could perform "some type of work where he has full control. He was able to do that when he worked in self employment doing detailing and some minor repairs to cars. He indicated that he could work on about three cars per week. He put in about 25 hours doing that, so it took him most of the day to work on each car. Considering the type of activities that he was doing, I would - well, and what he was charging people, I would have to conclude that he was not working at a competitive rate. In other words, his work performance would not have been acceptable to most employers. And secondly, the amount of money that he was charging for that work, if it was comparable to his work, he was working for less than minimum wage." (Emphasis added)

Mr. Lalk believed left hand exacerbations would continue to occur when Claimant detailed cars at his own pace. Further, Mr. Lalk predicted employers would be reluctant to hire Claimant if

they knew he would miss work due to exacerbations and took medication for pain and depression. If hired, exacerbations may cause him to miss work and lead to discharge. Although Claimant may be hired, Mr. Lalk believed he would likely to be the first released during slow periods because of an inefficient production rate. Based on test scores, Mr. Lalk concluded Claimant was not a candidate for post-secondary training.

However, on cross-examination, Mr. Lalk testified Claimant's inability to compete in the open labor market as a matter of fact, not conjecture, occurred after his motor vehicle accident.

After giving careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented, and the applicable law of the State of Missouri, I find Claimant is PTD from the last injury alone for the reasons stated below:

Claimant asserts he is PTD as a result of his pre-existing medical conditions combined with the November 2002 work accident. SIF contends if Claimant is PTD, it is due to the motor vehicle accident which occurred after the work accident. In a workers' compensation proceeding, the employee has the burden to prove by a preponderance of credible evidence all material elements of his claim, including Second Injury Fund Liability. Meilves v. Morris, 422 S.W.2d 335, 339 (Mo. 1968).

Section 287.020.7 defines "total disability" as the inability to return to any employment and not merely inability to return to the employment the employee was engaged in at the time of the accident. The test for PTD is the worker's ability to compete in the open labor market. Karoutzos v. Treasurer of State, 55 S.W. 3d 493, 499 (Mo.App. 2001) (Citations omitted). (Overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). ${ }^{4}$ The "crucial question is whether or not an employer can reasonably be expected to hire the claimant in his present physical condition and can reasonably expect him to perform the work successfully." Muller v. Treasurer of Missouri, 87 S.W.3d 36 (Mo. App. 2002). Before SIF liability can be determined, Employer's liability must be determined for the last injury alone. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240 (Mo. 2003) (Citations omitted). If the last injury alone rendered Claimant PTD, then SIF has no liability and Employer is responsible for the entire amount of compensation. Id.

I find Claimant's testimony is generally credible. I find Dr. Cheng's opinion is not credible that Claimant could perform unrestricted work when he was discharged in October 2005. During the last examination, Dr. Cheng found wasting ulnar muscles, flexed left small and ring fingers at rest, and no sensation of the small finger. She did not expect significant improvement in sensation.

Dr. Cheng performed two surgeries on Claimant's left hand. Dr. Volarich rated 75\% PPD of the left elbow, no use of the hand, and deferred to a vocational opinion about Claimant's ability to compete in the open labor market. Dr. Stillings rated 30\% permanent partial psychiatric

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[^0]: ${ }^{4}$ Several cases herein were overruled by Hampton on grounds other than those for which the cases are cited. No further reference will be made to Hampton.

disability for mood disorder, and 15\% PPD for pain disorder. Dr. Stillings recommended medication for life to prevent a psychological relapse, like the one that occurred in 2004 after medication stopped. I find Dr. Stillings's opinion credible that Claimant is unemployable and not a good candidate for vocational rehabilitation as a result of the November 2002 work accident, from a psychiatric perspective.

I find credible Mr. Lalk's opinion that Claimant is unable to secure and maintain employment in the open labor market, for competitive jobs, due to his psychiatric condition and physical limitations related to the left upper extremity.

Based on Dr. Stillings' opinion, Mr. Lalk eliminated a number of jobs Claimant could have performed with one hand. He concluded Claimant's physical and psychiatric disability required jobs with minimal physical exertion of the right upper extremity, like detailing cars, and jobs that involve simple routine problems, but no work with the public.

Mr. Lalk found Claimant worked competitively for seven months at Jersey Motors and Bierman. However, Claimant experienced depression, difficulty sleeping, and increased hand pain while detailing cars for both companies. Bierman may have sought Claimant, but I find it difficult to believe his performance did not contribute to the decision to release him three months later when the when work slowdown occurred. Mr. Lalk believed Claimant would continue to be hired and released from similar jobs due to his inability to meet employer standards.

After leaving Bierman, Claimant was unable to find work when he disclosed his medical conditions. Mr. Lalk did not believe Claimant worked at a competitive pace as a detailer after he left Bierman. He believed the change in work hours from 30 to 40 then 25 per week, reflected Claimant's inability to perform more work while controlling his symptoms. As a self-employed detailer, Claimant worked 25 hours during a "good week," detailed 3 cars, and earned $\ 120.00. Mr. Lalk found this work level did not meet industry standards or employer expectations. Despite working at his own pace, detailing cars exacerbated Claimant's left hand, which caused difficulty sleeping, lost time from work, and frustration. These symptoms are consistent with The Work Center's finding that Claimant's left hand grip and strength had decreased within four months after therapy ended.

Claimant testified he has limited left hand movement, swelling, a shiny look to the hand, and significant loss of strength. Dr. Buenger diagnosed depression and anxiety secondary to the pain disorder after Claimant became tearful and frustrated with increased hand complaints after detailing for 8 hours.

Prior to the motor vehicle accident, no expert found Claimant unable to compete in the open labor market. However, I find credible Dr. Stillings's opinion that Claimant was unemployable from a psychiatric standpoint, as a result of the November 2002 work accident. I find Claimant unsuccessfully attempted to return to work after the November 2002 work accident. Mr. Lalk's testimony during cross-examination is not persuasive that Claimant became unable to compete in the open labor market after the motor vehicle accident. Mr. Lalk explained that his opinion was based on Dr. Stillings's opinion that Claimant is unemployable due to the work accident. I find Claimant is not PTD due to the subsequent automobile accident.

Based on the credible expert testimony of Dr. Stillings and Mr. Lalk, medical records, reports and Claimant's credible testimony, disability from the primary injury, education and vocational skills, I find no employer in the usual course of employment would reasonably be expected to hire Claimant in his physical condition after the November 2002 work accident, and reasonably expect him to perform the work successfully. I find Claimant is PTD from the last injury alone, which he settled with Employer for 57 % of the left elbow and 25 % of the body for depression prior to the hearing. No additional benefits are awarded.

Claimant is permanently and totally disabled as a result of the last injury alone. Claimant reached a compromised settlement with Employer prior to hearing. SIF is not liable for PPD or PTD benefits.

Date: $\qquad Made by: \qquad$

Suzette Carlisle

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest: