| FINAL AWARD ALLOWING COMPENSATION (Reversing Award and Decision of Administrative Law Judge) |
| Employee: | James Toebben |
| Employer: | Fred Weber Construction (Settled) |
| Insurer: | Self-Insured (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 § 287.480 RSMo. We have reviewed the evidence, read the parties’briefs, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of Administrative Law Judge Kevin Dinwiddie dated March 16, 2010. |
| Preliminaries |
| On October 25, 2005, employee suffered an injury by accident arising out of and in the course of his employment. Employee settled his claim against employer/insurer. The administrative law judge heard this matter to consider the nature and extent of permanent disability and the liability (if any) of the Second Injury Fund.The administrative law judge found that employee sustained permanent partial disability as a result of the October 25, 2005, work injury, but also found that employee was already permanently and totally disabled due to a pre-existing back injury. The administrative law judge concluded that employee failed to prove that permanent disability from the work injury combined with any prior permanent disabilities to create a greater degree of permanent disability. Given these findings and conclusions, the administrative law judge denied employee’s claim against the Second Injury Fund.Employee filed an Application for Review with the Commission alleging that the administrative law judge’s award is not supported by the evidence and is contrary to the overwhelming weight of the evidence. Employee argues that he was permanently and totally disabled due to the combined effect of his pre-existing disabilities and the October 25, 2005, work injury.The issues currently before the Commission are the nature and extent of permanent disability and the liability of the Second Injury Fund. |
| Findings of Fact |
| Preexisting conditions |
| Employee was sixty years old at the time of the hearing before the administrative law judge. Employee finished high school but has no further education or training. Employee served three years in the military as a combat engineer. He ran over a landmine in Vietnam and injured his back. After he was honorably discharged from the military, employee worked for Missouri Limestone Incorporated until 1983. In March 1983, employee went to work for employer, a quarry and processing enterprise that |
produces commercial rock for heavy construction projects. Employee worked for employer until January 2007. Employee's last position for employer was plant maintenance man. Employee's duties involved keeping plant machinery in good working order. This was physically demanding work which involved replacing heavy machine parts on a daily basis, welding, hammering stuck parts with sledgehammers, carrying heavy tools and equipment, operating pneumatic tools, working frequently above shoulder level, and contorting into awkward positions to reach confined spaces in the machinery.
In 1980, employee injured his left ring finger when it was caught in a conveyor belt at work. Employee was hospitalized for 27 days and the finger was amputated above the proximal interphalangeal joint. As a result of the 1980 left finger injury, employee is unable to carry small objects and has difficulty grasping items with his left hand.
Beginning in 1997, employee sought medical treatment for bilateral hand complaints. The nature of employee's work involved his hands in frequent high-impact activities. In March 2004, employee saw Dr. James Schaberg, who diagnosed advanced arthritis in both hands and prescribed medication. In May 2004, employee saw a hand surgeon, Dr. Subbarao Polineni, who treated employee with injection therapy and the use of splints. In August 2005, Dr. Polineni performed an arthroplasty of the right index finger at the metacarpophalangeal joint; in 2008 employee underwent a similar procedure for the left hand. Surgery improved the pain in employee's hands, but they remained stiff and were painful with increased use. Employee's fine motor skills also remained poor following surgery and employee had trouble grasping objects and frequently dropped tools at work.
In 2003, employee was diagnosed with avascular necrosis when he sought treatment for intermittent sharp pains in his right hip. Employee ultimately underwent a right hip replacement performed by Dr. James Schaberg. Employee's hip pain improved after surgery but he experienced stiffness and a diminished capacity to stand, sit, and walk. Employee was able to continue performing his usual duties at work, but he had to slow down and adapt to his right hip condition, especially when walking up and down stairs. Employee frequently climbed stairs at work and occasionally even had to run up the stairs to attend to malfunctioning machinery.
On January 28, 2005, employee injured his right shoulder when he was pulling on a beam at work. Employee saw Dr. Mitchell Rotman, who diagnosed a massive tear of the right rotator cuff. Dr. Rotman performed a surgical repair on March 18, 2005. Employee was released for full duty on September 13, 2005. After he was released for full duty, employee was able to complete his work tasks, but he experienced increased difficulty due to ongoing pain and discomfort in his right shoulder. After the injury to his right shoulder, employee relied heavily on his left shoulder to perform duties such as sweeping, welding, changing screens, and carrying items. Employee also occasionally asked for help from other workers to complete his tasks. Dr. Rotman performed a second surgery on May 19, 2006, to repair a re-torn rotator cuff.
Beginning in 1993, employee sought medical treatment for low back pain with occasional sharp shooting pains into his right leg. Employee saw a chiropractor and received ice pack, hot pads, and electrical stimulation treatments for thirteen years. Employee also saw his
primary care physician and an orthopedic specialist. In 2005, x-rays revealed degenerative disc disease at L5-S1. Treatment was conservative with medication and exercises. An MRI on January 13, 2006, revealed multi-level degenerative changes with central canal stenosis. On February 7, 2006, employee's orthopedic doctor sent him to Dr. Stanley Martin, a neurosurgeon, for evaluation based on employee's continuing complaints of low back pain. After additional evaluation including x-rays and another MRI, Dr. Martin diagnosed chronic low back pain without neurological involvement. Dr. Martin determined that employee was not a surgical candidate for his back condition.
Employee was able to perform his work duties despite his back pain, although he occasionally had to lie down after heavy work. If employee was doing particularly heavy work, he might lie down five or six times in one day. Other days, he would not have to lie down at all. Employee's back pain interfered with his ability to stand, sit, and walk for long periods of time. Going up and down the stairs at work caused his back to hurt a lot. Toward the end of his employment with employer, employee had to ask people to assist him with his work due to his back pain, but employee was always able to do the job if he needed to. Employee's back pain has been better since he has been off work; employee is still sore but he does not experience the throbbing and stabbing pains like before. Employee's functional limitations, however, are approximately the same as when he was working: employee still has difficulty walking, sitting, and standing for prolonged periods due to low back discomfort.