David Martinez v. NPC Acquisition Corp. d/b/a Bidco Sealants, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-128437

Employee: David Martinez

Employer: NPC Acquisition Corp. d/b/a Bidco Sealants, Inc.

Insurer: Hartford Insurance Company of the Midwest

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 October 28, 2009. The award and decision of Administrative Law Judge Carl Strange, issued October 28, 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 $\qquad 8^{\text {th }} \qquad$ day of June 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: David Martinez

Injury No. 03-128437

Dependents: N/A

Employer: NPC Acquisitions Corp. DBA Bidco Sealants, Inc.

Additional Party: Second Injury Fund

Insurer: Hartford Insurance Company of the Midwest

Hearing Date: August 15, 2009

Checked by: CS/kh

1. Are any benefits awarded herein? Yes
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? October 30, 2003
5. State location where accident occurred or occupational disease contracted: St. Francois 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 happened or occupational disease contracted: In order to get a core box, the employee was standing on the ramp railing and leaning out. The ramp railings broke causing the employee to twist and fall onto the

concrete ramp and onto the floor injuring his head, right eyebrow, left shoulder, and body as a whole.

1. Did accident or occupational disease cause death? No
2. Parts of body injured by accident or occupational disease: left shoulder, right eyebrow and psychiatric condition (See Findings)
3. Nature and extent of any permanent disability: 80 % referable to left upper extremity, 20 % body as a whole referable to the employee's psychiatric condition, and 25 weeks of disfigurement. (See Findings)
4. Compensation paid to date for temporary total disability: $\ 18,811.80
5. Value necessary medical aid paid to date by employer-insurer: $\ 43,100.79
6. Value necessary medical aid not furnished by employer-insurer: See Stipulation 10
7. Employee's average weekly wage: $\ 382.50
8. Weekly compensation rate:

$\ 255.00 for temporary total disability

$\ 255.00 for permanent partial disability

1. Method wages computation: By Agreement
2. Amount of compensation payable:

265.6 weeks of permanent partial disability and 25 weeks of disfigurement: $\ 74,103.00

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund beginning November 9, 2012 (See Findings)

1. Future requirements awarded: Employer-insurer directed to pay future medical aid pursuant to Section 287.140 RSMo (See Findings).

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: Attorney Kenneth Seufert

On August 15, 2009, the employee, David Martinez, appeared in person and by her attorney, Kenneth Seufert, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, John Palombi. The Second Injury Fund was represented at the hearing by their attorney, Assistant Attorney General Gregg Johnson. 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 findings of fact and rulings of law, are set forth below as follows.

1. On or about October 30, 2003, NPC Acquisitions Corp. DBA Bidco Sealants, Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by Hartford Insurance Company of the Midwest.
2. On or about October 30, 2003, the employee was an employee of NPC Acquisitions Corp. DBA Bidco Sealants, Inc. and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about October 30, 2003, the employee sustained an accident or occupational disease during the course of his employment.
4. The employer had notice of employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 382.50, his rate for temporary total disability, permanent total disability, and permanent partial disability is $\ 255.00.
7. The employee's injury is medically causally related to the work injury on or about October 30, 2003.
8. The employer has furnished $\ 43,100.79 medical aid to employee.
9. The employer has paid temporary total disability benefits for $733 / 7 weeks at a rate of \ 255.00 per week for a total of $\ 18,811.80.
10. The employer-insurer shall reimburse the employee directly for his expenses for medication and Dr. Lum's medical bills totaling $\ 1,640.00.
11. The employee is permanently totally disabled and entitled to permanent total benefits beginning April 15, 2007.

1. Future Medical Aid
2. Liability of the Employer
3. Liability of the Second Injury Fund

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Report of Bruce Schlafly, M.D. dated January 31, 2006;

B. Curriculum Vitae of Bruce Schlafly, M.D.;

C. Correspondence from Ken Seufert to Bruce Schlafly, M.D.;

D. Medical Records of

1. Scott A. VanNess, D.O.;
2. Richard Howard, D.O.;
3. James Emanuel, M.D.;
4. Mitchell Rotman, M.D.; and
5. Farmington Sports and Rehabilitation Center.

E. Medical Records of Daniel Phillips, M.D.;

F. Operative Report dated March 17, 2004;

G. Report of Mitchell Rotman, M.D. dated November 29, 2004;

H. Medical Records of James P. Emanuel, M.D. dated January 11, 2005;

I. Operative Report dated February 2, 2005;

J. Medical Records of James P. Emanuel, M.D. dated October 17, 2006;

K. Report of James England dated November 14, 2006;

L. Report of James England dated August 22, 2007;

M. Curriculum Vitae of James England;

N. Correspondence from Ken Seufert to James England;

O. Records from North County High School dated 1982 to 1983;

P. Records from North County High School dated 1971 to 1983;

Q. WAIS-R Report dated November 6, 2006;

R. WRAT3 Report dated November 6, 2006;

S. Test 2 Reading Comprehension;

T. Report of Wayne Stillings, M.D.;

U. Curriculum Vitae of Wayne Stillings, M.D.;

V. Correspondence from Ken Seufert to Wayne Stillings, M.D.;

W. Exhibit List;

X. Deposition of Bruce Schlafly, M.D.;

Y. Deposition of Wayne Stillings, M.D.;

Z. Deposition of James England;

AA. Correspondence from Ken Seufert to Donald Murphy;

BB. Physicians Statement of Ability to Work by Laurence Lum, D.O.;

CC. Supplemental Medical Records;

DD. Records of Southeast Missouri Community Treatment Center, Inc.;

EE. Walmart Pharmacy Records;

FF. Medical Bill of Laurence Lum, D.O.; and

GG. CD of Left Shoulder with Hardware.

Employer-Insurer's Exhibits

1. Deposition of Gregg Evan Bassett, M.D.; and
2. Deposition of James Emanuel, M.D.

Second Injury Fund Exhibits:

I. Deposition of Robert F. Morgan, M.D.;

II. Curriculum Vitae of Robert F. Morgan, M.D.; and

III. Report of Robert F. Morgan, M.D.

Based on the testimony of David Martinez ("employee") and the medical records and reports admitted, I find as follows:

At the time of the hearing, the employee was 44 years old and lived in Park Hills at his current address for the past twenty years. He is currently married to Glenda Martinez and has three adult children and two grandchildren. In 1983, the employee graduated North County High School. Although he received his diploma, the employee was in special education classes throughout high school and was far behind his peers (Employee Exhibits O \& P). Following his graduation, the employee worked in law care, at a green house, and at a grocery store.

In 1988, the employee began working for NPC Acquisitions Corp. DBA Bidco Sealants, Inc. ("employer"). The employee's primary job was a roller where he would apply spacers and cores and then roll the sheet metal up with the use of a machine. Additionally, he would also cut up batches, clean floors, clean machines, and box up fiber strings. The employee left the employer for a short time to work at Killark, a big factory in St. Louis. After three days, the employee quit since he could not complete the paperwork and the amount of people made him nervous. After a few months, the employee returned to employment with the employer.

On October 30, 2003, the employee was working for the employer and went to retrieve a box of the cores to do his job. The core boxes were stacked in the space between the wall and ramp. In order to get a box, the employee had to stand on the ramp railing and lean out. At that time, the ramp railings were made of wood and broke under the employee's weight. As a result, the employee twisted and fell onto the concrete ramp and onto the floor injuring his head, right eyebrow, and left shoulder. The employee was immediately taken to Parkland Health Center in Bonne Terre for treatment. While at the emergency room, the employee provided the details of the work accident and was given sutures and medication. Additionally, the employee was taken off work and followed up with Dr. Laurence Lum on the next day. Dr. Lum examined the employee and kept the employee off work for another week. After the employee returned to work, he was able to work for three or four days until he had to return to the emergency room at Mineral Area Regional Medical Center on November 14, 2003. At that time, the emergency room doctor noted that the employee has obvious deformity of left shoulder and has reported pain in shoulder is getting worse (Employee Exhibit CC).

After following up with Dr. Lum and having an MRI completed, the employee was referred to Dr. Scott VanNess who examined him on December 17, 2003. Dr. VanNess diagnosed brachial plexopathy as a result of traction neuropraxia and subsequent axillary nerve palsy and deltoid atrophy of the left shoulder. In addition to placing the employee on light duty restriction, sedentary work, right handed work only avoiding any climbing or use of the left arm, Dr. VanNess referred the employee to physical therapy and to Dr. Howard for an upper extremity second opinion. On his next visit, Dr. VanNess deferred all further treatment to Dr. Howard (Employee Exhibit D, Part 2).

On January 19, 2004, Dr. Richard Howard examined the employee, noted the MRI was unremarkab