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 n