Justin Smallwood v. J.E. Dunn Construction

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-108901

Employee: Justin Smallwood

Employer: J. E. Dunn Construction

Insurer: American Home Assurance c/o AIG Domestic Claims, Inc.

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 27, 2010. The award and decision of Administrative Law Judge Lisa Meiners, issued August 27, 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:

Secretary

Employee: Justin Smallwood

Injury No. 08-108901

Dependents: N/A

Employer: J.E. Dunn Construction

Insurer: American Home Assurance c/o AIG Domestic Claims, Inc.

Additional Party: N/A

Hearing Date: June 28, 2010

Checked by: LM/1h

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: December 8, 2008.
5. State location where accident occurred or occupational disease was contracted: Kansas City, 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 using a tag line to steady a 55,000 pound wall while the wall was being transported by a crane and suffered a hernia.
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: Hernia/body as a whole.
14. Nature and extent of any permanent disability: Permanent Partial Disability.
15. Compensation paid to-date for temporary disability: -0-.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Justin Smallwood

Injury No. 08-108901

1. Value necessary medical aid paid to date by employer/insurer? -0-
2. Value necessary medical aid not furnished by employer/insurer? \22,247.87
3. Employee's average weekly wages: \ 1,225.37.
4. Weekly compensation rate: $\$ 772.53 / \ 404.66.
5. Method wages computation: By agreement.

1. Amount of compensation payable from the Employer:

Temporary total disability: 3 weeks, totaling $\ 2,317.59

Permanent partial disability: 10 % body as a whole, totaling $\ 16,186.40

Past Medical: $\ 22,247.87

Total: $\ 40,751.86

1. Second Injury Fund liability: N/A.
2. Future requirements awarded: None

Said payments to begin as of the date of the award 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. Mark E. Kelly.

Employee: Justin Smallwood

Injury No. 08-108901

Dependents: N/A

Employer: J.E. Dunn Construction

Insurer: American Home Assurance c/o AIG Domestic Claims, Inc.

Additional Party: N/A

Hearing Date: June 28, 2010

Checked by: LM/1h

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and liability is fully insured by American Home Assurance c/o AIG Domestic Claims, Inc;
2. On or about December 8, 2008, Justin Smallwood was an employee of J.E. Dunn Construction;
3. Employer had notice of employee's accident;
4. Employee's claim was filed within the time allowed by law;
5. Employee's average weekly wage was $\ 1,225.37, resulting in a maximum compensation rate of $\ 772.53 for temporary total disability benefits and $\ 404.66 for permanent partial disability benefits; and
6. Employer and Insurer stipulated the past medical care expenses were as listed in Employee's Exhibit E but do not stipulate that they were related to the accident.

The issues to be determined by the hearing are as follows:

1. Whether on or about December 8, 2008, the employee suffered an accident arising out of and in the course and scope of his employment;
2. Whether the employee is entitled to permanent partial disability benefits; and
3. Whether the employee is entitled to temporary total disability benefits.

A hearing was held on June 28, 2010, before the Honorable Lisa Meiners. Claimant appeared in person and was represented by Mark E. Kelly. J.E. Dunn and American Home Assurance were represented by John Jurcyk.

During the morning of December 8, 2008, Justin Smallwood reported to work for J.E. Dunn Construction (hereinafter "J.E. Dunn") as an ironworker, where he had worked on and off for the past eleven years. During the morning of December 8, 2008, he was working with a group placing pre-cast walls on the upper level of a development. The pre-cast walls were $10 \times 30$ feet in size and weighed approximately 55,000 pounds. The walls were hooked to a crane using four "swivels" and four "burks." The burks weighed approximately 15 to 20 pounds and slid into a hole in the pre-cast wall and hooked the crane to the wall. Mr. Smallwood also used spreaders to hook onto the wall which he carried two at a time, weighing approximately 30 pounds apiece.

After the walls were attached to the crane, Mr. Smallwood used a rope attached to the bottom corner of the wall, called the tag line, which was used to steady the wall. Mr. Smallwood applied tension to the rope to ensure the wall did not swing out of control, a task that required application of roughly 100 to 300 pounds of force. This task usually required up to four men but Mr. Smallwood did not have such help on December 8, 2008. Additionally, the walls that were placed had to be moved approximately 100 feet to the desired position.

Mr. Smallwood testified once the walls were set, the welders would weld plates to them. Mr. Smallwood would get the galvanized plates they welded to the wall and would grind them to prepare them for welding. On December 8, 2008, Mr. Smallwood assisted with getting the wall in place and then picked up 4' x 4' plates in order to walk them up the hill where the generator was located to grind them. After guiding the first wall, Mr. Smallwood bent down to pick up a stack of plates to carry to the generator and felt a pinch in his lower abdomen. Despite feeling the pinch, he continued to pick up the plates and carry them to the grinder. He went back down the hill to pick up additional plates and when he bent down to grab another set, he felt another sharp pinch in his side. However, he picked the plates up and carried them up the hill to grind.

After grinding the plates, Mr. Smallwood went to the restroom to check the area of pain and noticed he had lump located a couple of inches below his belt line that had not previously been there. On the first break, Mr. Smallwood notified his foreman, Gary Clary, about the bulge and the foreman advised him to fill out an accident report.

Justin was subsequently referred to OHS Compcare for examination. The records reflected Mr. Smallwood was picking up steel plates that morning when he developed the stinging sensation in his left lower quadrant and abdomen. Dr. Payne noted this persisted when he bent at the waist to pick up other objects weighing approximately 30 lbs . The records reported Mr. Smallwood mentioned this to his supervisor and he was sent for evaluation. Dr. Payne noted Justin was not suffering nausea or vomiting and he placed his discomfort at a 4 on a scale of 1 to 10 . Justin denied any similar problem previously. Dr. Payne performed a physical examination and diagnosed a left inguinal with possible inguinal muscle strain. He placed him on restricted duty of no lifting or carrying more than 25 lbs and prescribed Relafen to relieve his pain.

Justin was seen by Dr. Payne on December 12, 2008, for follow-up. Justin was still suffering a burning sensation and reported the bulge to Dr. Payne. Dr. Payne noted on physical examination there was a bulge in the left inguinal area but no definite herniation which was palpable. Dr. Payne diagnosed an inguinal hernia and recommended referral to a general surgeon for follow-up care. He modified the lifting limit to 10 lbs in the interim.

Justin was subsequently seen by Dr. Joseph Petelin on December 17, 2008. Dr. Petelin diagnosed a left inguinal hernia and referred him for hernia repair. It was noted on both Dr. Payne's records as well as Dr. Petelin's that Justin began feeling the pain when he was lifting plates and apparently someone at J.E. Dunn concluded that could not be the mechanism for injury and; therefore,

denied liability for a compensable injury. Dr. Petelin however, subsequently performed the laparoscopic hernia repair on January 27, 2009, at Shawnee Mission Medical Center. Dr. Petelin's Form 9 medical report indicated Justin could return to light duty in three (3) weeks following the surgery or full duty in six (6) weeks after the surgery.

Dr. Michael J. Poppa performed an independent medical evaluation of Mr. Smallwood on January 12, 2010. Dr. Poppa took a history of the injury, reviewed all the medical records and performed a physical examination. Dr. Poppa noted Mr. Smallwood did not have any prior significant injuries requiring treatment involving his left groin/abdomen prior to his work accident on December 8, 2008. On physical examination, Dr. Poppa reported Mr. Smallwood had a well healed surgical incision with evidence of several well healed laparoscopic portals secondary to recent left inguinal hernia repair. There was no evidence of recurrent left inguinal hernia on digital exam or abdominal/inguinal palpation. Mr. Smallwood reported pain on palpation to his lower abdominal muscles.

Dr. Poppa testified Mr. Smallwood reported the duties of working the wall, following the wall and then holding it and maintaining it was a strenuous process. Although Mr. Smallwood noted he hurt all over, he did not let it stop him from working. Dr. Poppa testified Mr. Smallwood first noticed the pain in his abdomen when he was bending over to pick up the plates. Dr. Poppa testified it was his medical opinion that Mr. Smallwood was injured while stabilizing the large pre-cast wall. However, he completed that task and it was sometime shortly thereafter, while bending over, Mr. Smallwood noticed the pain. Dr. Poppa testified Mr. Smallwood suffered a left inguinal hernia.

Dr. Poppa opined the activities of flying the wall was the probable and reasonable cause of Mr. Smallwood's inguinal hernia. Dr. Poppa explained there was a lot of force involved to stabilize the large wall that was inherent in the "flying" process of the crane, picking it up and moving it as it twisted and turned and pivoted and rotated. Because the wall could go in any direction at anytime, it required exerting not only a lot of body pressure but specifically abdominal pressure in the ingui