Rodney Northcross v. Painters District Council No. 2

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-093780

Employee: Rodney Northcross

Employer: Painters District Council No. 2

Insurer: TIG Insurance Company

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 February 5, 2010. The award and decision of Administrative Law Judge Matthew D. Vacca, issued February 5, 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 $14^{\text {th }}$ day of April 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: August 29, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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 alleged employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Injured in an auto accident.
12. Did accident or occupational disease cause death? No Date of death?
13. Part(s) of body injured by accident or occupational disease: Right shoulder, neck, head and psyche
14. Nature and extent of any permanent disability: 30 % shoulder, 5 % BAW
15. Compensation paid to-date for temporary disability: $\ 17,888.85
16. Value necessary medical aid paid to date by employer/insurer? $\ 31,773.34

TOTAL: $46,011.68

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: Robert Merlin, Jr. and Ray Marglous

Employee: Rodney Northcross

Departments: N/A

Employer: Painters District Council No. 2

Pursuant to 8 CSR 20-3.050 (1), (2), and (3) these two claims are consolidated for hearing but two separate awards will issue. The master proceeding is designated in the earlier file and the entire transcript will remain in that file.

In the earlier claim, Injury Number 03-093780, the issues presented for resolution are the subrogation interest of the Employer and the Second Injury Fund in Claimant's third party settlement, unpaid medical bills, the nature and extent of any permanent disability versus the Employer and Second Injury Fund. In the later case the issues presented for resolution are the nature and extent of any disability versus the Second Injury Fund, the primary case having been previously settled.

1. Claimant was born March 11, 1950. He has been married to Pamela Northcross for 23 years. He has six children, one of whom lives at home, Tari Ashland Northcross, age 21. The Claimant received his GED from Beaumont High School in the 1970s. He had dropped out previously as a sophomore in 1966. He underwent union and foreman training as a drywaller and taper. He also has taken some basic computer classes for starters and has had some blueprint reading training. Claimant believes that he reads and writes averagely and has basic math skills. He is 6'3" tall and 255 pounds. Claimant applied for Social Security disability in 2005 and was awarded benefits in 2007. Claimant worked until the end of 2004 as a drywaller/taper.
2. When Claimant was 21 years old he was accepted into an apprentice union program. It was called the drywall finisher program. It was through the Painters Union and began in November of 1969. Claimant apprenticed for two years and became a journeyman in 1971 as a drywall finisher. Claimant's job duties are essentially to hang drywall, tape and finish walls for the painters to paint. He has worked in that capacity for 38 years prior to the events that transpire here. Claimant would cover walls from the floor to the ceiling with drywall as well as the ceiling itself. The Claimant would use joint compound and

tape to finish seams. He would make three applications with sanding in between in preparation for the painters.

1. Claimant's job duties would require him to stand all day, eight hours a day. They would have to cover every inch of the drywall including covering up screws. It would require him to walk on and utilize steep angles, walk on ladders, climb up ladders, stand on benches, scaffolding and reach, grasp, perform overhead work and the work was extremely physically demanding within the time limits that were required by the Employer.
2. Claimant generally worked out of a union hall. From March 1 to January 2, 2002, he worked for TJ Weiss and then became a union organizer for the union where he would recruit nonunion drywallers into the union. This is a much easier job especially as Claimant got older. He was the first African American to hold the job of union organizer. In this capacity, Claimant's job was driving to various job sites and talking to drywallers and tapers and trying to persuade them to join the union. Every three years the union had an election and Claimant lost his job with the last election. The new union boss came in and eliminated the old union organizers and picked new people.
3. Prior to this job as a union organizer, Claimant had injuries to his left knee, right wrist and left wrist. Claimant ceased being a union organizer in October of 2003, and went to work for Accent Development as a foreman in January of 2004. Foreman was a less physical job. Claimant worked three months for Accent as a drywaller foreman but found the work difficult to perform. He had shoulder surgery for the first injury in April of 2004, and planned to go back to work but never did. Claimant worked for approximately three months in this foreman capacity.
4. Prior to the claimed primary injuries herein, Claimant injured his right wrist in the early 1990s. He developed carpal tunnel syndrome and had surgery. It took his right wrist a long time to heal but he came back to work able to work as before, except he experienced numbness and tingling. His hands were a little bit weaker than they were prior to the surgery and the numbness and tingling slowed Claimant down. He became a little bit anxious about how this disability affected his job. Claimant experienced left knee bursitis with swelling of the knee and underwent a surgery for a tear and removal of fluid in the 1980s. He also developed a Baker's cyst as a teenager. The knee became painful when Claimant would climb, kneel, step up on the bench or use scaffolding and Claimant worried about his physical ability to continue his job.
5. Claimant had not been reprimanded up to the time of his knee surgery or hassled in any way due to his slowness but testified that he was "questioned" about his work performance. Claimant says he was depressed before he became the union organizer. His son had killed his daughter-in-law and went to prison and Claimant's son-in-law committed suicide on Claimant's front porch. Claimant was depressed and said that he went to work to escape from his problems.

1. In the August 2003 claim, Claimant was working in his capacity as a union organizer driving to a job site to persuade drywallers to join the union. He was driving on West Florissant Road on a rainy day when a lady crossed in front of Claimant from the left and stopped in the intersection. Claimant testified he was reaching for his cell phone at the time and was distracted. His eyes were on the phone looking away from the road when the two vehicles collided. Claimant was taken by ambulance to Barnes-Jewish Emergency Room. He was provided x-rays and pain prescriptions and was told to follow-up with his primary physician and continues to report regularly to his job. He injured his neck, head and back.
2. In his 2003 claim, Claimant requests medical benefits past due in the amount of $\ 4,296.00. Claimant had asked the Employer for treatment and told the Employer about the emergency room visit and asked for further treatment on his neck, forehead and knee. The Employer did not send Claimant for further treatment right away to any physician so he went to Dr. Droege for about one month from September 10, 2003 to September 27, 2003, and incurred a bill of $\ 1,153.00.
3. Dr. Droege wasn't alleviating Claimant's symptoms and the Employer sent him to see Dr. Hulsey who recommended an MRI and surgery. Dr. Hulsey's treatment caused Claimant to incur $\ 2,638.00 in medical bills from Forest Park Hospital. By the time Claimant saw Dr. Hulsey he was no longer working as a union organizer and had gone to work for Accent Development.
4. When Claimant was working overhead for Accent he would develop pain in his neck and back. It was typical to work overhead especially at angles and with ceilings. Claimant found work very difficult. He could perform no overhead lifting and underwent shoulder surgery on April 15, 2004. The Claimant thought he would be able to heal and go back to work but the surgery did not solve his problem. He was not able to reach and stretch as he was able to before the surgery. Dr. Hulsey released the Claimant nine months later in the fall of 2004, but Claimant still experienced neck popping, weakness, difficulty lifting, and the shoulder had atrophied with regard to the opposite shoulder. He experienced pain on any overhead lifting and had very decreased range of motion. Claimant's head, back and neck continued to bother him as they had prior to the surgery and then when combined with the shoulder surgery as a result of the accident, Claimant was unable to