Delbert Pruett v. Federal Mogul Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-105014

Employee: Delbert Pruett

Employer: Federal Mogul Corporation

Insurer: Travelers Commercial Casualty

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 July 14, 2010. The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued July 14, 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 $27^{\text {th }}$ day of April 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Delbert Pruett

Injury No. 05-105014

Dependents: N/A

Employer: Federal Mogul Corporation

Additional Party: Second Injury Fund

Insurer: Travelers Commercial Casualty

Appearances: James Guirl, attorney for employee, Sabrina Merritt, attorney for employer/insurer, and Cliff Verhines, attorney for Second Injury Fund.

Hearing Date: February 3, 2010

Checked by: LCK/rf

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? On or about August 4, 2005.
5. State location where accident occurred or occupational disease contracted: Malden, 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.

On February 3, 2010, the employee, Delbert Pruett, appeared in person and with his attorney, James Guirl. The employer-insurer was represented at the hearing by its attorney, Sabrina Merritt. The Second Injury Fund was represented by Assistant Attorney General Cliff Verhines. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Federal Mogul Corporation was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its' liability was fully insured by Travelers Commercial Casualty.
2. On or about August 4, 2005, Delbert Pruett was an employee of Federal Mogul Corporation and was working under the Missouri Workers' Compensation Act.
3. The employer had notice of the employee's alleged accident.
4. The employee's claim was filed within the time allowed by law.
5. The employee's average weekly wage was $\ 787.29. The rate of compensation for temporary total disability and permanent total disability is $\ 524.86 per week. The rate of compensation for permanent partial disability is $\ 365.08 per week.
6. The employer-insurer furnished $\ 4,064.90 in medical aid.
7. The employer-insurer did not pay any temporary total disability.

1. Accident
2. Medical Causation
3. Previously Incurred Medical Expenses.
4. Additional Temporary Total Disability
5. Nature and Extent of Permanent Disability.
6. Liability of the Second Injury Fund for Permanent Partial or Permanent Total Disability.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Medical records of Malden Medical Center

B. Medical records of Missouri Southern Healthcare

C. Medical records of Poplar Bluff Regional Medical Center

D. Medical records of Dr. Hatfield/Dexter Medical Center

E. Medical records of St. Francis Medical Center

F. Medical records of St. Francis Medical Center

G. Medical records of Dr. Yingling

H. Medical records of HealthSouth

I. Deposition of Dr. Musich

J. Deposition of James England

K. Billing Statement from Poplar Bluff Regional Medical Center

L. Billing Statement from St. Francis Medical Center

M. Billing Statement from Missouri Southern Healthcare

N. Billing Statement from Cape Neurosurgical Associates

O. Billing Statement from HealthSouth

Employer-Insurer's Exhibits

1. Deposition of Dr. Lange
2. Deposition of Donna Abram
3. Payment History of Employer-Insurer
4. Medical Payment History of Employer-Insurer
5. Medical Records of Johns J. Pershing VA Medical Center
6. Medical Records of Dr. Ted Hatfield/Dexter Medical Center
7. Medical Records of Southeast Hospital
8. Medical Bill Spreadsheet

Employer-Insurer's Exhibits 8 through 12 were withdrawn. The employee objected to Employer-Insurer's Exhibit 14, certified business records of Federal Mogul, based on foundation and format. The objection was taken under advisement. Section 490.682.2 RSMO states that "No party shall be permitted to offer such business records into evidence pursuant to this section unless all other parties to the action have been served with copies of such records and such affidavit at least seven days prior to the day upon which trial of the cause commences." The employee and the Second Injury Fund were provided the business records on the day of the hearing. The employee's objection to Exhibit 14 is sustained and it is not admitted into evidence. Exhibit 14 shall be retained in the Division's file for purposes of appellate review.

The Second Injury Fund did not offer any exhibits into evidence. Judicial notice of the contents of the Division's file was taken.

WITNESS: Delbert Pruett, the employee.

BRIEFS: The employee and the employer-insurer's briefs were received on March 26, 2010. The Second Injury Fund's brief was received on April 7, 2010.

FINDINGS OF FACT: The employee is 64 years old and was born on September 26, 1945. He went to school until the $7^{\text {th }}$ grade. When he was 13 years old he started working for his father on a farm. He went into the Army in 1968 and was an ammunition sergeant in an artillery unit. He served two tours of duty in Vietnam. After Vietnam he was stationed in Germany, Texas and Kentucky. In 1976, he received a GED. He took college classes at Elizabethtown Community College studied science and made all A's. The employee was honorably discharged.

The employee came back to Southeast Missouri and took a year off before starting to work at Federal Mogul on January 3, 1977. He worked there for 29 years. He received perfect attendance awards in 1990 and from 1994 through 1996. He was a grinder operator for a couple of years and became a machine operator. As a machine operator he made 1,000 pistons a day. He had knowledge of setting and reading gauges. He stood on his feet all day and did a lot of squatting, bending, twisting and lifting. The pistons were not heavy but he would have to frequently lift "chucks" which weighed 20-30 pounds. He worked a lot of overtime and worked a 12 hour shift 7 days a week. As part of the process, the floor around the machines got wet with cutting oil which is a mixture of water and oil. Prior to August 4, 2005, he was never hurt at Federal Mogul.

The employee testified that he was diagnosed with diabetes in 1996. From 1996 through August of 2005, he took oral medications and did not miss working due to that condition. It did not affect his ability to work. Prior to August of 2005, he had burning and numbness in his feet. He was diagnosed with a 30 % hearing loss while in the military, which was confirmed by an audiologist in 2003. While in the Army, he did not injure his back but did have some back complaints and was treated once for it in 1972. He saw horrific things in the Vietnam War. When returned, he experienced flashbacks and had some trouble sleeping. While working at Federal Mogul, he left his station and went to the bathroom to take medication for his headaches but not for the flashbacks. He was diagnosed with post traumatic stress disorder due to Vietnam.

In 1997, Dr. Hatfield noted the employee had just been diagnosed with diabetes. In February of 2001, the employee saw Dr. Boyd for an eye exam. He stated that the employee was doing quite well and showed no signs of diabetic eye disease. In September of 2001, the employee saw Dr. Hatfield. The employee was doing well and had been an excellent patient with all of his home glucose monitor readings basically acceptable except for a couple of times.

In April of 2003, the employee saw an audiologist for left ear tinnitus that has been present for the past two months. The employee had a hearing problem since 1970. The past 27 years he had worked in a manufacturing plant with occupational noise exposure. The audiogram showed a mild to moderate hearing loss through the 2000 Hz and a moderately severe to severe hearing loss above 2000 Hz in the right ear. The employee had a mild to moderate left-sided hearing loss through 3000 Hz and a moderately severe to severe hearing loss above 3000 Hz . The employee's word recognition was fair bilaterally. Due to tinnitus in his left ear, the employee should be referred to a doctor. The employee would benefit from hearing aids. In May of 2003, Dr. Hatfield stated that his home glucose readings were within normal limits. In July of 2003, Dr. Hatfield noted that the employee's home glucose readings were within normal limits.

On May 12, Dr. Hatfield noted the employee had been doing well except for complaints of low back pain with radiculopathy symptoms in the left lower extremity with no specific history of injury. The deep tendon reflexes were symmetrical in the patella and Achilles. The

straight leg raising was equivocal on the left at about 75