Mitchel Freeman v. General Motors

(Affirming Award and Decision of Administrative Law Judge With Correction)

Injury No.: 01-161933

Employee: | Mitchel Freeman |

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have read the briefs, reviewed the evidence and considered the whole record. We find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge, as corrected herein.

On page 14 of the Award, at Finding 2, the administrative law judge states: "Total weeks for preexisting disabilities: 327.25." We correct the sentence to read: "Total weeks for preexisting disabilities: 257.25" The administrative law judge used the correct sum 257.25 - in his subsequent calculations.

We approve and affirm 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.

The award and decision of Chief Administrative Law Judge Grant C. Gorman, issued January 12, 2011, is attached and incorporated by this reference, except as corrected herein.

Given at Jefferson City, State of Missouri, this $\qquad 3^{\text {rd }} \qquad$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., 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: May 21, 2001
5. State location where accident occurred or occupational disease was contracted: St. Charles 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: Claimant performed repetitive tasks with his hands in the course and scope of employment which led to the development of bilateral carpal tunnel syndrome.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right and left upper extremities at the wrists.
14. Nature and extent of any permanent disability: 20 % of the right and left upper extremities at the wrists.
15. Compensation paid to-date for temporary disability: Not applicable
16. Value necessary medical aid paid to date by employer/insurer? Not applicable

Employee: Mitchel Freeman Injury No. 01-161933

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: Sufficient to reach maximum rates
3. Weekly compensation rate: $\ 314.26 for PPD/ $\ 599.96 for total disability benefits
4. Method wages computation: Stipulation

1. Amount of compensation payable: (Settled)
2. Second Injury Fund liability: Yes

49.1 weeks of permanent partial disability from Second Injury Fund $\ 15,430.16

TOTAL:

$\ 15,430.16

1. Future requirements awarded: None

Said payments to begin as of the date of this 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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Evan Beatty

Employee: | Mitchel Freeman |

Hearing on the above-referenced case was held before the undersigned Administrative Law Judge on October 12, 2010 at the Division of Workers' Compensation in St. Charles, Missouri. Mitchel Freeman (Claimant) was present, and represented by Evan Beatty. The liability of General Motors (Employer), which is self-insured, was previously settled. Assistant Attorney General Caroline Bean represented the Second Injury Fund. Mr. Beatty requested a fee in the amount of 25 %. The parties submitted post-trial briefs.

The parties entered into the following Stipulations:

1. On or about May 21, 2001, Claimant sustained an occupational disease arising out of and in the course of employment that resulted in injury to Claimant. The injury occurred in St. Charles County, Missouri.
2. Claimant was an employee of Employer, had an average weekly wage that qualified Claimant for permanent partial disability (PPD) benefits at the rate of $\ 314.26 per week and total disability benefits at the rate of $\ 599.96 per week.
3. Claimant filed his claim in a timely manner and Employer had received proper notice of Injury.
4. Venue is proper in St. Charles County.

The following issue was presented for resolution:

1. Liability of the Second Injury Fund (SIF).

Only evidence necessary to support this award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. All of the exhibits offered by the parties were received into evidence without objection. Certain exhibits offered into evidence may contain handwritten markings, underlining and/or highlighting on portions of the documents. Any such markings on the exhibits were present at the time they were offered by the parties. Further, any such notes, markings and/or highlights had no impact on any ruling in this case.

Claimant's date of birth is March 8, 1960 and therefore at the time of the hearing he was 50 years of age. Claimant is married but separated and is currently living alone at his mother's house because his mother is presently in a nursing home. The house is a ranch style home on approximately one quarter of an acre. Claimant pays someone to perform any maintenance on the house and cutting the grass. He does have a number of pets including parrots, as well as, three dogs. With regard to his education, Claimant completed high school and is a certified paramedic and fireman. He also took some classes at Jefferson Community College.

Claimant was employed by General Motors from 1985 until March 11, 2005. At that point he was placed on permanent disability by General Motors and his sources of income include disability benefits through General Motors, as well as, a pension. Claimant's previous employment includes work as a paramedic and volunteer firefighter from 1991 until 1998. He was also previously an estimator for a sod company for approximately seven months in 1988 and was a Deputy County Assessor appraising houses from 1981 until 1985.

While working for General Motors, Claimant's job duties included absentee relief in which he would perform a number of different jobs on the line, using air tools, wrenches, electric guns, hand tools and was required to bend, stoop, kneel, crawl, reach, push and pull on a repetitive basis. Claimant also worked as a repairman for four to five years in which he worked 12 hours a day, 6 days a week. Claimant acted as a team leader for several periods of time while working at General Motors but this did not include any type of supervisory duties but rather, required Claimant to cover jobs on the line for employees when they would have to take time away from their shift.

As a result of the repetitive nature of Claimant's various jobs, he was diagnosed with bilateral carpal tunnel syndrome. Eventually, Claimant underwent surgery by Dr. Feliciano on July 25, 2003 on the left hand and wrist and September 12, 2003 on the right hand and wrist. Following the surgeries, Claimant was placed on light duty and was given one hand work only sorting metal for approximately six to eight weeks. Prior to surgery, Claimant suffered from pain and numbness in his hands which woke him up at night. The pain was constant and was aggravated by activity. The symptoms in his hands continued to worsen between 2001 up until

the two surgeries in 2003. Claimant noticed improvement with the surgeries with less pain and numbness but his symptoms continued to worsen with any type of activity. Claimant's pain would be anywhere from a 4 up to a 10 depending on activity, on a scale of 1 to 10 .

Claimant continues to notice weakness in his grip and a subsequent nerve conduction study was still positive for bilateral carpal tunnel syndrome. Any use of his hands aggravated his symptoms of pain and numbness and he had difficulty lifting. Claimant also experienced problems with dexterity and couldn't hold on to small parts. Claimant testified his symptoms were always worse at the end of the work day. Claimant was given a restriction of no lifting greater than 15 pounds and was given a hoist to help on certain jobs. Claimant settled the claim involving his hands and wrists for 20 % permanent partial disability of the left wrist and 20 % permanent partial disability of the right wrist with a 10 % multiplicity factor.

Claimant began experiencing symptoms in his lower back in 1988 or 1989. Claimant received conservative treatment both through the plant including physical therapy, as well as, narcotic pain medication, such as Darvocet and chiropractic treatment once every other week for several years leading up to 2001. Claimant also indicated he would use a heating pad in an attempt to alleviate the pain. Claimant testified he would miss work at least two days a month leading up to 2001 because of back pain. Claimant continues to have symptoms in his low back which is constantly sore but he also has an occasional sharp stabbing pain in the low back radiating down both legs. The pain was aggravated by any activity at work which included bending, lifting, use of force with tools, as well as, walking on concrete. Claimant attempted to adjust his job duties because of back pain and eventually gave up the repair job because of the physical requirements. The severity of Claimant's pain on average is anywhere from a 1 up to a 7 but two to three times a month will go up to a 10 . Claimant can tolerate sitting for up to an hour depending on the chair but is constantly shifting positions. Claimant can stand up to 25 minutes but is either shifting his weight or walking around. Claimant's symptoms are aggravated by bending or lifting and can only lift up to 50 pounds on a one time basis. In order to alleviate his pain, Claimant takes narcotic pain medication including Opana, 20 milligrams twice a day, as well as, Darvocet. Claimant also takes the anti-inflammatory Skelaxin, as well as, Aleve every four hours. He has worn a back brace since 1998. While at General Motors, Claimant