William Cook v. Buckley Powder Company

An acquaintance told employee about the material handling job opening at employer. The acquaintance told employee it was supposed to be an easy job. Employee admitted he was stir crazy staying at home and pursued the job to "see if [he] could go back to work." Employee testified that after a two-week training period, the job was a part-time job only requiring employee to work $21 / 2-3$ hours in the morning and 2 hours in the afternoon. Employee's job was to pass out explosive supplies to miners that weighed 5 pounds or less.

Employee only had to lift significantly heavier weight on two occasions when a trailer load shifted and tipped over stacks of bags containing supplies. On both occasions, employee testified that he injured his arm lifting the bags to re-stack them. On the second occasion, employee told his co-worker that he "was done," and he "couldn't do it."

At most, employee worked the part-time materials handler position for 2 weeks. Yet within that short span, employee had to double his dosage of Darvocet in order to tolerate the pain caused by the performance of his work duties. In addition, employee hurt himself both times he had to lift over a nominal weight.

We are not persuaded by the opinion of Mr. Dreiling, employee's vocational expert, that employee's hiring by employer was an example of an employer in the open labor market hiring employee in his then-present physical condition. Mr. Dreiling was not aware that employee withheld information from employer during the hiring process including information about the severity of employee's chronic back pain and employee's need to take narcotic pain relievers to cope with the pain of his back condition. Mr. Dreiling conceded that typically vocational experts do not encourage the use of narcotics while working.

We affirm the award of the administrative law judge as supplemented herein.

Given at Jefferson City, State of Missouri, this $17^{\text {th }}$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

CONCURRING OPINION FILED

John J. Hickey, Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based upon my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I agree with the decision of the majority of the Commission to deny compensation in this matter. However, I would affirm the award of the administrative law judge without supplementation.

John J. Hickey, Member

Employee: William Cook

Injury No: 07-100923

Dependents: None.

Employer: Buckley Powder Company

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

Insurer: Commerce \& Industry Insurance Company

Hearing Date: May 24, 2010

Briefs Filed: June 25, 2010

1. Are any benefits awarded herein? No
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: July 6, 2007
5. State location where accident occurred or occupational disease was contracted: Greenwood, Jackson 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 occurred or occupational disease contracted: Employee was lifting a heavy bag when he felt a tear in his left shoulder.
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: Left shoulder
14. Nature and extent of any permanent disability: 22.5 % permanent partial disability assessed against the Employer by compromise settlement agreement.
15. Compensation paid to-date for temporary disability: $\ 19,663.07 paid from July 20, 2007 through June 1, 2008.

Issued by DIVISION OF WORKERS' COMPENSATION Employee: William Cook

1. Value necessary medical aid paid to date by employer/insurer? $\ 24,323.62
2. Value necessary medical aid not furnished by employer/insurer? N/A
3. Employee's average weekly wages: $\ 648.27
4. Weekly compensation rate: $\ 432.20 for TTD and PTD. $\ 389.04 for PPD
5. Method wages computation: By stipulation
6. Amount of compensation payable:

Medical Expenses

Medical already Incurred. $\ 24,323.62

Less credit for expenses already paid. $\ 24,323.62)

Total medical owing. $\ 0

Temporary Disability

45.43 weeks (07/20/2007 through 6/1/2008) ..... $\ 19,663.07

Less credit for benefits already paid. $\ 19,663.07)

Total TTD owing. $\ 0

Permanent Partial Disability

$\ 21,207.89 previously paid by Employer by Stipulation for Compromise Settlement.

Total Award Against Employer. $\ 0

1. Second Injury Fund liability None
2. Future requirements awarded None

Employee: William Cook

Injury No: 07-100923

Dependents: None

Employer: Buckley Powder Company

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

Insurer: Commerce \& Industry Insurance Company

Hearing Date: May 24, 2010

Briefs Filed: June 25, 2010

On May 24, 2010, the employee and Second Injury Fund appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Mr. William Cook, appeared in person and with counsel, Michael Haight. The Second Injury Fund appeared through Assistant Attorney General Andrew Dickson.

The parties requested the Division determine the nature and extent of disability and the liability of the Second Injury Fund for that disability. Employee alleges he is permanently and totally disabled as a result of the combination of the disability from his July 6, 2007 injury to his left shoulder in combination with pre-existing disabilities to his right shoulder, low back, and left knee. For the reasons noted below, I find that Mr. Cook was permanently and totally disabled before the work-related injury and therefore no liability is attributable to the Second Injury Fund.

The parties stipulated that:

1. On or about July 6, 2007 ("the injury date"), Buckley Powder Company ("Buckley") was an employer operating subject to Missouri's Workers' Compensation law with its liability fully insured by Commerce \& Industry Insurance Company;
2. Mr. Cook was its employee working subject to the law in Greenwood, Jackson County, Missouri;
3. On or about July 6, 2007, Mr. Cook sustained an injury by accident arising out of and in the course of his employment;

Issued by DIVISION OF WORKERS' COMPENSATION Employee: William Cook

1. The Employer had notice of the injury and a Claim for Compensation was filed within the time prescribed by law;
2. The average weekly wage was $\ 648.27 and the applicable compensation rate is $\ 432.20 for temporary and permanent total disability benefits and $\ 389.04 for permanent partial disability benefits;
3. Compensation has been paid by the Employer for temporary total disability benefits in the amount of $\ 19,663.07 commencing on July 20, 2007;
4. Medical aid was provided by the Employer in the amount of $\ 24,323.62; and
5. The Employee and Employer settled the claim regarding the Employer's liability for a lump sum of $\ 24,207.89. This reflects a 22.5 % disability of the left shoulder with additional benefits paid to resolve a disputed compensation rate.

The parties requested the Division to determine:

1. What is the nature and extent of disability?
2. Whether Mr. Cook's permanent total disability is a result of his July 6, 2007 injury in combination with his pre-existing disabilities.
3. What is the liability, if any, for the Second Injury Fund?

Mr. Cook testified on his own behalf and presented the following exhibits which were admitted into evidence by the employee without objection:

Exhibit A - Deposition transcripts of P. Brent Koprivica, M.D. and attached exhibits (January 4, 2010 and March 26, 2010).

Exhibit B - Deposition transcript of Michael J. Dreiling and attached exhibits (March 22, 2010).

The Second Injury Fund did not call any witnesses but presented the following exhibit which was admitted into evidence without objection:

Exhibit 1 - Deposition transcript of William Cook (April 17, 2009).

Based on the above exhibits and the testimony offered at trial, I make the following findings. Mr. Cook is a 62-year-old high school graduate. Following high school, in 1966, Mr. Cook worked for Frisco Railroad through the Machinist Union. Mr. Cook next worked for Armco Steel beginning in 1970. Following this, Mr. Cook worked for his father's concrete company in Springfield, Missouri for approximately a year. Mr. Cook then moved to Kansas City and joined the Concrete Finisher's Union. Mr