Samuel Watson v. City of Kirkwood

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-126761

Employee: Samuel Watson

Employer: City of Kirkwood (Settled)

Insurer: Self-Insured - Corporate Claims Management, Inc. (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 14, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued August 14, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $4^{\text {th }}$ 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: December 22, 2006
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 fell and injured his left thumb while working.
12. Did accident or occupational disease cause death? No
13. Part of body injured by accident or occupational disease: Left thumb
14. Nature and extent of any permanent disability: 25 % PPD of the left thumb
15. Compensation paid to-date for temporary disability: $\ 32,408.68
16. Value necessary medical aid paid to date by employer/insurer? $\ 10,419.10
17. Value necessary medical aid not furnished by employer/insurer? N/A

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: Cynthia Hennessey

Employee: Samuel Watson

Departments: N/A

Employer: City of Kirkwood(Settled)

Additional Party: Second Injury Fund

Insurer: Self-insured Corporate Claims Management Inc. (Settled)

Injury No.: 06-126761

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC

A hearing for a final award was held at the Missouri Division of Workers' Compensation (DWC) St. Louis office at the request of Samuel Watson, (Claimant), on May 21, 2009, 2009, pursuant to Section 287.450 RSMo (2005). ${ }^{1}$ Attorney Cynthia Hennessey represented Claimant. Assistant Attorney General Toni Camp represented the Second Injury Fund (SIF). The record closed after presentation of evidence. Jurisdiction properly lies with DWC.

Prior to the start of the hearing, the City of Kirkwood, a self-insured Employer, settled with Claimant for 25 % of the thumb on December 10, 2007.

Claimant submitted three claims for disposition: 06-099389, 06-126761, and 07-078535. Although some evidence overlaps in each case, separate awards will be issued.

Claimant's Exhibits A through R were admitted without objection. SIF offered no exhibits. Any notations contained in the records were present when admitted. Any objections not addressed in the award are overruled.

The parties stipulated that on or about December 22, 2006, Employee was employed by Employer in St. Louis County; ${ }^{2}$ Employer and Claimant operated under the Missouri Workers' Compensation Law; Employer's liability was fully self-insured; a Claim for Compensation was timely filed; Claimant's average weekly wage was $\ 1,297.00; the rates were $\ 718.87 for Temporary Total Disability (TTD) and Permanent Total Disability (PTD) and $\ 376.55 for Permanent Partial Disability (PPD); Employer paid \32,408.68 in medical benefits and \ 10,419.10 in TTD benefits; and Claimant achieved maximum medical improvement (MMI) on July 21, 2007.

The parties presented the following issue for disposition: What is the nature and extent of SIF liability, if any, for PPD or PTD benefits?

[^0]

[^0]: ${ }^{1}$ All references are to the 2005 Revised Statutes of Missouri unless otherwise stated.

${ }^{2}$ References to the Employer also include the Insurer.

Claimant is 63 years old and lives with his sister. In 1963, Claimant graduated from Kirkwood High School. Employer hired him in 1964. Claimant left work to serve in the U.S. Air Force refueling aircraft from 1965 until 1969, when he received an honorable discharge.

After discharge, Claimant returned to work for the Employer in the Forestry Division, where he planted and cut trees, drove a truck, operated noisy equipment, and placed logs in a chipper.

Claimant transferred to the Street Department, where he shoveled asphalt, repaired streets, operated heavy equipment, drove trucks, and lifted up to 90 pounds. Duties required Claimant to bend, squat, crawl, pull weeds, and supervise a helper during street cleaning.

On December 22, 2006, while on light duty for an earlier back injury, Claimant tripped and fell at work, and injured his left thumb and right knee. Two surgeries were performed to repair Claimant's thumb.

Claimant is left handed and has difficulty writing since the accident. He uses his right hand to support large items because of decreased grip strength. It feels like he is about to drop small items such as pens, screwdrivers and bolts.

Diabetes: Claimant has taken insulin since he was diagnosed with diabetes in 1970. Claimant gained weight and missed time from work because of diabetes. In the mid-1990's Claimant developed bilateral foot neuropathy, which caused him to lose sleep and develop foot blisters. He was hospitalized at least 5 times and missed 2 weeks from work due to foot blisters. Claimant can stand up to 2 hours before getting leg cramps. Claimant has cataracts in both eyes. His right eye hemorrhaged from diabetic retinopathy. On March 1, 1991, a right eye implant was performed to improve vision.

Right Shoulder: In 1999, Claimant injured his shoulder, but did not receive immediate treatment. Symptoms included inability to lift his arm overhead. On March 25, 1999, Richard Lehman, M.D., diagnosed a frozen right shoulder. X-rays revealed spurring and degenerative changes. An MRI dated April 1, 1999, revealed a rotator cuff tear. Dr. Lehman recommended surgery, which was not performed.

On April 27, 2006, Claimant fell and reinjured his shoulder. A May 2006 MRI showed tears of the supraspinatus and infraspinatus, cystic degenerative change in the humeral head and inferior glenoid, subacromial/subdeltoid fluid and advanced degenerative changes with spurring in the acromioclavicular joint. Dr. Haupt diagnosed a chronic and preexisting rotator cuff tear, aggravated by an April 2006 injury.

On July 19, 2006, Dr. Haupt found Claimant had made "impressive improvement" after physical therapy and work hardening and released him to full duty. Complaints included shoulder pain, decreased range of motion, and inability to lay on his right side. However, the day Claimant returned to work, he developed a foot blister and missed work until October 4, 2006.

In October 2007, Dr. Cantrell restricted Claimant's lifting to 20 pounds because of shoulder limitations.

Right Achilles tendon: On August 2, 2005, Andrew M. Rouse, M.D., repaired Claimant's ruptured Achilles tendon. Claimant missed work from June 2005 until February 2006.

Low Back: Two days after Claimant returned to work from the foot blister, he injured his back while working. BarnesCare treated Claimant's low back with physical therapy and medication, imposed sedentary restrictions, a 10-pound weight limit and frequent changes in position. An MRI dated November 20, 2006, revealed degenerative changes and a small disc protrusion, at L3-4.

St. Joseph's Emergency Room provided initial treatment and referred Claimant to BarnesCare, where he was diagnosed with a strained left thumb, possible Gamekeeper's thumb, mild contusion of the right elbow, abrasion to the right knee, and a right knee contusion. Conservative treatment was provided. The therapist recommended a hand evaluation due to significant problems.

Richard F. Howard, D.O., diagnosed an ulnar collateral ligament rupture of the left thumb and repaired the ligament on January 10, 2007. After surgery, physical therapy was prescribed. On April 23, 2007, Dr. Howard concluded the ulnar collateral ligament repair failed. On May 16, 2007, Dr. Howard performed reconstructive thumb surgery using a tendon graft.

On July 24, 2007, Dr. Howard opined Claimant reached MMI and released him to full duty, no restrictions. Residual complaints included thumb tenderness.

On May 30, 2008, David Volarich, M.D. examined Claimant at the request of his attorney and rated 30 % PPD of the left hand as a result of the December 2006 work accident. Dr. Volarich recommended Claimant avoid awkward use of the left hand, wrist and elbow, limit repetitive gripping, pinching, squeezing, pushing, pulling, twisting, rotation, avoid vibration, and lifting more than 3 pounds away from the body or more than 15 pounds close to the body.

For preexisting injuries; Dr. Volarich rated 50\% PPD of the body for insulin-dependent diabetes, 15 % of the right shoulder, 35 % PPD of the right ankle, and 20 % PPD of the body as a whole for the low back. Dr. Volarich opined the preexisting disabilities were a hindrance or obstacle to employment or reemployment. He further opined Claimant's multiple disabilities created "substantially greater disability than the simple sum or total of each separate injury/illness and a loading factor should be added."

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 did not meet his burden to show SIF liability for PPD for the reasons stated below.

Claimant seeks either PPD or PTD benefits from S