Orville Caupp v. American Airlines

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-120480

Employee: Orville Caupp

Employer: American Airlines (Settled)

Insurer: American Home Assurance (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 May 20, 2010. The award and decision of Administrative Law Judge John A. Tackes, issued May 20, 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 $4^{\text {th }}$ day of November 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Orville Caupp

Departments: N/A

Employer: American Airlines (Settled)

Additional Party: Second Injury Fund

Insurer: American Home Assurance (Settled)

Hearing Date: February 3, $2010^{1}$

Injury No.: 04-120480

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JAT

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 21, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Lifting and moving boxes .
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 20 % (BAW)
15. Compensation paid to-date for temporary disability: $\mathrm{n} / \mathrm{a}$
16. Value necessary medical aid paid to date by employer/insurer? $\mathrm{n} / \mathrm{a}$

[^0]

[^0]: ${ }^{1}$ The record was closed on February 10, 2010.

Employee: Orville Caupp Injury No.: 04-120480

1. Value necessary medical aid not furnished by employer/insurer? $\mathrm{n} / \mathrm{a}
2. Employee's average weekly wages: \ 855.49
3. Weekly compensation rate: $\$ 570.33 / \ 354.05
4. Method wages computation: Agreement

1. Amount of compensation payable: Settled

$(\ 15,062.00)

1. Second Injury Fund liability:

16 weeks of permanent partial disability from Second Injury Fund

$\ 5,664.80

TOTAL:

$\ 5,664.80

1. Future requirements awarded: None

Said payments to begin immediately 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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Dean Christianson

Employee: Orville Caupp

Departments: N/A

Employer: American Airlines

Additional Party: Second Injury Fund

Insurer: American Home Assurance

Hearing Date: February 3, 2010

Injury No.:04-120480

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JAT

On February 3, 2010, a hearing in this Matter was held in the City of St. Louis at the Division of Workers' Compensation by Administrative Law Judge John A. Tackes. Orville Caupp (Claimant) personally appeared and testified. Claimant was represented by attorney Dean Christianson. Assistant Attorney General Kevin Nelson appeared on behalf of the Second Injury Fund. The Employer /Insurer did not appear. The record of the hearing was left open for certification of exhibits H, I, and J. The record was closed on February 10, 2010.

Claimant Exhibits A-L and SIF Exhibit Roman Number I were admitted.

All objections not expressly ruled upon in this award are overruled to the extent they conflict with this award.

The parties stipulated prior to hearing that the Missouri Division of Workers' Compensation has jurisdiction to hear this matter; Venue in the City of St. Louis is proper; Claimant's average weekly wage is the maximum rate ( $\ 855.49 ) resulting in a compensation rate of $\ 570.33 for temporary benefits (TTD), and permanent partial disability rate of $\ 354.05.

The parties stipulated the issues to be resolved are as follows:

1. What is the nature and extent of the PPD?
2. Does the Second Injury Fund have any liability?

Based on the competent and substantial evidence and my observations of Claimant at trial, I find:

Claimant was born November 14, 1948, and currently lives in St. Charles, Missouri. He worked with Employer forty years at Lambert International Airport in St. Louis. In December 2004 he became a Crew Chief. His duties included the supervising and directing of items being loaded on and taken off airplanes.

On November 23, 2004, Claimant filed an original Claim for Compensation with the Division for an injured back occurring October 21, 2004while working for American Airlines. He filed a claim against the Fund for PPD based on pre-existing disabilities to his left arm (1962); left foot (1963); concussion (1964); left arm (1988); broken cheek bone (1992); and neck (2000).

On October 21, 2004, Claimant was at work organizing and sorting baggage on a departing flight when he felt a pain on the left side of his low back. Claimant felt his back tighten as he continued to work and his pain and numbness was felt down his left leg to his toes. Claimant was prescribed medication at the emergency room of Barnes-Jewish hospital. He received more treatment including physical therapy for several weeks.

On November 18, 2004, Claimant was sent to Gateway Spine, LLC where he was seen by orthopedic specialist Tom Reinsel, M.D. In November he complained of low back and left buttock pain with radiating pain to his calf and toes as well as left leg weakness. An MRI from a week earlier revealed a small herniated disc on the left side at L2-3. The symptoms were resolving and Claimant was put on light duty with physical therapy.

On December 2, 2004, Claimant reported that his complaints continued to improve but he still had left side low back pain. Dr. Reinsel assessed the herniated disc was resolving and Claimant was released to return to full duty work at maximum medical improvement (MMI) on December 7, 2004. After this injury Claimant stopped working overtime. He worked a full forty hour week with no extensions.

Prior to his last injury, Claimant had pre-existing injuries to his cervical spine, left wrist, and left foot.

In 2000, Claimant injured his neck at a non work related sporting event. Claimant experienced an acute onset of neurological symptoms. On August 28, 2000, anterior cervical discectomy and fusion at C5-C6 was performed by Dr. Carl Lauryssen. The next day, a cervical spine exam post fusion revealed essentially no change in the appearance of cervical spine. In September, 2001 an examination of the cervical spine exam fusion at C5-6 revealed partial resorption with no motion of the fused segment.

In September, 2002, a cervical spine exam revealed anterior fusion at C5-6 with increased incorporation of the bone graft and no abnormal motion. Claimant still complains of periodic numbness in his hands and has some fine motor skills problems in his thumb, index and middle

finger. He complains of some neck discomfort and weakness in his hands. Claimant cannot do his work as quickly because of his condition and sometimes seeks help from others. As of October 21, 2004 and February 1, 2007, Claimant was working full duty without any restrictions referable to his neck and was able to perform his physically demanding work duties.

Claimant first broke his left arm when he was about 14 years old. His arm healed with no lasting problem. In May, 1989 he broke his left arm again playing in a non work related sporting event. The bone was reset by an orthopedic surgeon and had a 20 degree offset. The arm was put in a cast and then a splint before undergoing physical therapy and returning to work on August 1, 1989. He complains of weakness greater in his left wrist compared to the right wrist.

In his report of October 5, 2005, Dr. Cohen provided no permanent disability rating referable to the left wrist. On his February 2, 2009 report, he rated the PPD of the left wrist at 35\%.

While in high school during the mid-1960's, Claimant injured his foot (3 metacarpals) which was cast without surgical intervention. Claimant developed plantar fasciitis. He sought periodic medical care for his foot which still angled outward toward the left. Claimant complaints of lost flexibility and range of motion in his left foot. No disability rating was given by Dr. Cohen referable to the left foot in his October 5, 2005 report. Dr. Cohen however rated 35\% PPD at left foot in his February 2, 2009 report. There was no change to the foot medically between 2005 and 2009 .

Claimant lists among his pre-existing injuries a concussion in 1964 and facial fractures in 1996. Claimant recovered from both injuries with no evidence of any permanency. Claimant was able to work full duty without restriction. There is no competent evidence that either injury caused a hindrance or obstacle to employment or re-employment. There is no competent evidence of permanent percentage of disability for either of these injuries.

On June 25, 2009 the deposition of Raymond F. Cohen, D.O. was taken on behalf of the employee. Dr. Cohen evaluated Claimant on October 5, 2005 and February 2, 2009. Regarding the October 21, 2004 injury, Dr. Cohen diagnosed the injury to the low back as a lumbar disc herniation on the left at L2-3-4, and lumbar radiculopathy on the left. Claimant had pre-existing disabilities status post cervical surgery for cervical myelopathy with persistent upper extremity upper motor neuron findings.

On October 5, 2005, Dr. Cohen gave Claimant a physical and neurological exam. He noted bilateral loss of sensation on both C6 and C7 dermatomes to pain and temperature. The C6 dermatome primarily innervates the bicep muscles in addition to the brachial radialis muscle in the forearm below the elbow. Based on his exam he found the results not profound but significant because of the complaints. No loss of range of motion of the cervical spine was noted other than where the segment was fused (emphasis mine).

In his report dated October 5, 2005, Dr. Cohen noted complaints of deep pain in Claimant's low back, bilateral knee pain, plantar fasciitis in the left foot and a left heel spur. On examination

Claimant had full range of motion with no weakness or impingement in either shoulder. He was working full duty with no restrictions up to the 2004 injury. Claimant was taking no prescription medication or muscle relaxers. His grip strength was the same in both but he complained of weakness in the left.

Dr. C