Byron Proffer v. Federal Mogul Corp.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-108158

Employee: Byron Proffer

Employer: Federal Mogul Corp.

Insurer: St. Paul Travelers

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 January 28, 2010. The award and decision of Administrative Law Judge Matthew W. Murphy, issued January 28, 2010, 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 $1^{\text {st }}$ day of September 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Byron Proffer

Injury No.: 04-108158

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Federal Mogul Corp.

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

Insurer: St. Paul Travelers

Appearances: Mr. James Guirl for Claimant

Ms. Sabrina Merritt for Employer/Insurer

Mr. Clifton Verhines for Second Injury Fund

Hearing Date: October 29, 2009

Checked by: MM/rf

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 13, 2004.
5. State location where accident occurred or occupational disease contracted: Malden, Dunklin County, MO.
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.

On October 29, 2009, the employee, Byron Proffer, appeared in person and by his attorney, James Guirl, for a hearing for a final award. The employer, Federal Mogul Corp., was represented at the hearing by its attorney, Sabrina Merritt. 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. Covered Employer - Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Law, and liability was fully funded by: St. Paul Travelers.
2. Covered Employee - On or about the date of the alleged accident or occupational disease, the employee was an employee of Federal Mogul Corp. and was working under the Workers' Compensation Law.
3. Accident/Occupational Disease - On or about Wednesday, October 13, 2004 the employee sustained an accident arising out of and in the course of his employment.
4. Notice - Employer had notice of Employee's accident.
5. Statute of Limitations - Employee's claim was filed within the time allowed by law.
6. Average Weekly Wage and Rate - Employee's average weekly wage rate was $\ 902.70. The rate of compensation for temporary total disability and permanent total disability is $\ 601.80. The rate for permanent partial disability is $\ 354.05.
7. Medical Aid Furnished - Employer/Insurer has paid medical aid in the amount of $\ 53,608.51.
8. Temporary Total Disability Paid - Employer/Insurer has paid $\ 8,252.91 as temporary total and temporary partial disability benefits for the following periods: 10/21/04 1/17/05 ( $125 / 7$ weeks of TTD benefits) and 1/17/05 - 2/10/05 (3 3/7 weeks of TPD benefits).
9. Mileage or other medical ( $\mathbf{2 8 7 . 1 4 0} RSMo) - There is no claim for mileage or other medical expenses under \S 287.140$ RSMo.
10. Additional or Future Medical - There is no claim for additional or future medical aid.

1. Medical Causation - There is a dispute as to whether the employee's injury was medically causally related to the accident.
2. Previously Incurred Medical - Employee is claiming previously incurred medical in the amount of $\ 71,064.63. There is a dispute as to authorization, reasonableness, necessity, and casual relationship. Employer is claiming a credit for amounts that are not the responsibility of the employee.
3. Additional TTD or TPD - Employee is claiming additional TTD or PTD in the amount of $\ 15,045.00 for the period from 3/8/05 - 9/15/05.

1. Permanent Total Disability - Employee is claiming permanent total disability benefits.
2. Permanent Partial Disability - Employee is claiming permanent partial disability benefits.
3. Second Injury Fund Liability - Second Injury Fund liability for permanent partial benefits or permanent total benefits.

Judicial notice has been taken of the entire division file. Additionally, the following exhibits were offered and admitted into evidence:

Employee's Exhibits

Employer-Insurer's Exhibits

Second Injury Fund Exhibits

Byron Proffer, hereinafter referred to as "Claimant" testified on his own behalf at the hearing of this matter.

Claimant is 59 years old and lives in Malden, Missouri. Claimant is not currently employed and has not worked full-time since October 13, 2004. Claimant last worked for the employer, Federal Mogul. Employee obtained his high school diploma in 1968 in Campbell, Missouri at the age of 18. Immediately thereafter, he began working at Federal Mogul Corp. Claimant has never worked for any other employer. Claimant has no other vocational training.

Claimant first started working for Employer in the finishing department using saws to make pistons. He manufactured pistons for cars, trucks, etc. This was essentially assembly line work. After a couple of years at this position, Claimant began using fork trucks, turning lathes, and working in maintenance. While working in general maintenance, Claimant would periodically repair furnaces, replace commodes, pick up channel iron and other scrap metal, move 80 pound bags of dry lime, and other various heavy lifting type work.

In 1981, Claimant injured his lower back. He was filling a liquid propane gas tank which required picking up a 25-30 pound part. While picking up this part, he was twisting his back resulting in an injury. In October of 1991, Claimant underwent a laminectomy at the L4/5 with a good result. Claimant returned to work 6-8 weeks after the surgery.

In 1997, Claimant aggravated his lower back. He was lifting something heavy when he strained his back. He went to the hospital and was given pain pills. He believes he missed one day of work. No MRI was performed and no surgery was required. He returned to work and resumed his usual work activities.

In November of 1997, Claimant injured his right knee when he tripped over some metal. In January of 1998, Claimant underwent arthroscopic medial menisectomy. In March of 1998, Claimant had to undergo a second surgery to his knee. A third procedure was performed in August of 2000. Claimant testified that he did not receive complete relief until after the third surgery. After his third surgery, Claimant resumed normal function. He does not recall missing anytime after the third procedure. Claimant testified that the knee was not a hindrance or obstacle to employment. Claimant resumed his normal duties after the third procedure.

In October of 2004, Employee was unloading 55 gallon drums of oil from a truck. Claimant was pushing these drums with a two-wheeled dolly. As he was pushing one of the drums, the dolly hit a rut in the concrete causing it to stop abruptly. This resulted in Claimant twisting and straining is back. Employer took Claimant to Malden Medical Center. After undergoing diagnostic studies, the doctor instructed Claimant to return if he was still experiencing pain on the following day. On the following day, Claimant was experiencing numbness down his right arm and shooti