James Harris v. Advanced Auto Parts

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-008324

Employee: James Harris

Employer: Advanced Auto Parts (Settled)

Insurer: Fidelity \& Guaranty Insurance Company c/o Sedgwick Claims Management Services (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 9, 2010. The award and decision of Administrative Law Judge John K. Ottenad, issued August 9, 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 $\qquad 9^{\text {th }} \qquad$ day of February 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

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: February 6, 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: Claimant worked as an auto parts delivery driver for Employer, when he slipped and fell on ice while making a delivery, injuring his right ankle.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right Lower Leg and Ankle
14. Nature and extent of any permanent disability: 65 % of the Right Leg at the 160 week level
15. Compensation paid to-date for temporary disability: $\ 38,932.07
16. Value necessary medical aid paid to date by employer/insurer? $\ 195,748.39

Employee: James Harris

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient to result in the following applicable rates of compensation
3. Weekly compensation rate: $\ 191.56 for TTD/ $\ 191.56 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Employer previously settled its risk of liability

1. Second Injury Fund liability:

$\ 191.56 per week for Claimant's lifetime starting $03 / 10 / 10$, subject to review and modification by law

1. Future requirements awarded: As awarded

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: Thomas M. Kendrick.

On April 28, 2010, the employee, James Harris, appeared in person and by his attorney, Mr. Thomas M. Kendrick, for a hearing for a final award on his claim against the Second Injury Fund. The employer, Advance Auto Parts, and its insurer, Fidelity \& Guaranty Insurance Company C/O Sedgwick Claims Management Services, were not present or represented at the hearing since they had previously settled their risk of liability in this case. The Second Injury Fund was represented at the hearing by Assistant Attorney General Karin Schute. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about February 6, 2004, James Harris (Claimant) sustained an accidental injury arising out of and in the course of his employment that resulted in injury to Claimant.

2) Claimant was an employee of Advance Auto Parts (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage sufficient to result in applicable rates of compensation of $\ 191.56 for total disability benefits and $\ 191.56 for permanent partial disability (PPD) benefits.

7) Employer paid temporary total disability (TTD) benefits in the amount of $\ 38,932.07, or a total of $2032 / 7 weeks.

8) Employer paid medical benefits totaling \ 195,748.39.

9) Claimant reached maximum medical improvement on March 10, 2008.

1) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury?

2) What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A. Deposition of Dr. David Volarich, with attachments, dated February 1, 2010

B. Deposition of Mr. James England, with attachments, dated March 29, 2010

C. Certified records of the Division of Workers' Compensation for Injury Number 04-008324

D. Certified medical treatment records of St. John's Mercy Medical Center

E. Certified medical treatment records of St. Louis University Health Sciences Center-Des Peres Medical Arts

F. Certified medical treatment records of St. Louis University Health Sciences Center-Doctors' Office Building

G. Certified medical treatment records of St. Louis University Hospital

H. Certified medical treatment records of St. Louis University Health Sciences Center-Doctors' Office Building

I. Certified medical treatment records of Patterson Medical (Dr. Mel Lucas)

J. Certified medical treatment records of Arthritis Consultants, Inc. (Dr. Andrew Baldassare)

K. Certified medical treatment records of Christian Hospital

L. Certified medical treatment records of Northland MidAmerica Orthopedics

M. Certified medical treatment records of SSM DePaul Health Center

N. Certified medical treatment records of Christian Hospital

O. Certified medical treatment records of St. Louis Orthopedic, Inc.

P. Certified medical treatment records of Christian Hospital

Nothing offered or admitted at the time of trial

Notes: 1) Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on April 28, 2010.

2) Some of the exhibits were admitted with objections contained in the record. Unless otherwise specifically noted below, the objections are overruled and the testimony fully admitted into evidence.

Based on a comprehensive review of the substantial and competent evidence, including Claimant's testimony, the expert medical and vocational opinions and depositions, the medical records, and the Stipulation for Compromise Settlement, as well as based on my personal observations of Claimant at hearing, I find:

1) Claimant is a 71-year-old, currently unemployed individual, who last worked for Advance Auto Parts (Employer) in 2004 as an auto parts delivery driver.

2) Claimant testified that his highest level of education was twelfth grade. He has worked in the auto industry for most of his career. He worked as an auto mechanic from 1965 to 1977. He worked at JCPenny, Venture and K-Mart in the automotive departments as the Service Manager. Then he worked in automotive service writing at Western Auto, Parts America and Advance Auto.

3) In terms of pre-existing injuries and disabilities, Claimant testified that he suffered a back injury in 1970 when he was working as an auto mechanic. He had collapsed to the floor after getting up in the morning and had to be taken by ambulance to the hospital. He had low back surgery performed by Dr. Dash at Incarnate Word Hospital. He was out of work for approximately five months. He returned to work with no permanent restrictions from the doctor, but he changed the way that he worked. He would use his legs more for lifting instead of bending over and lifting.

4) In 1973, Claimant was putting a large tire and wheel on a truck, when he felt pain and burning in his right shoulder. He had right shoulder surgery performed by Dr. Powell and he missed approximately five and a half months of work. As a result of his injury, Claimant testified that he was slower at work and he had no strength in the right arm. He basically had to do everything left-handed, with only slight help from the right arm. He was unable to use the right arm for any overhead lifting.

5) Claimant testified that in the early 1990s, he treated with Dr. Baldassare for rheumatoid arthritis. Claimant testified that he was having pain in the left knee as well as swelling. He, then, came under the care of Dr. Mel Lucas in 1996, who referred him to Dr. Strickland for his knees in 1996. Claimant testified that he had left knee and right knee arthroscopic procedures in 1996, after which he missed a total of six months of work. Claimant testified that after the knee surgeries, he was unable

to squat like before, and he would have to have something to pull himself up on if he did squat down. It also slowed down his ability to do the job as fast as he once did.

6) Claimant testified that the rheumatoid arthritis affected his knees, hands and left hip. He said that he had to modify everything that he did, because the condition was very painful. He participated in clinical trials and blind drug trial studies for the rheumatoid arthritis. He said that he took Darvocet and Vicodin. He also received cortisone shots in the left hip. Claimant testified that his hands would swell and he would have to soak them in the morning before he was able to use them. Likewise, his left knee swelled up a couple times, resulting in the doctor having to drain it.

7) Medical records from Arthritis Consultants, Inc. and Dr. Andrew Baldassare (Exhibit J), document that according to a letter dated April 23, 1990, Claimant was being treated for rheumatoid arthritis. He was taking Imuran with fairly good relief until the past several weeks when he noticed increasing synovitis i