Walter Braggs v. Federal Mogul Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-052662

Employee: | Walter Braggs |

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 7, 2011. The award and decision of Administrative Law Judge Suzette Carlisle, issued February 7, 2011, 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 $17^{\text {th }}$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Walter Braggs

Departments: N/A

Employer: Federal Mogul Corporation (Settled)

Additional: Second Injury Fund

Insurer: Travelers Commercial Casualty (Settled)

Injury No.: 07-052662

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Hearing Date: November 1, 2010

Checked by:SC

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 18, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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 injured his left shoulder when he used his left arm to pull himself onto the sweeper at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left shoulder
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 5,300.00

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 542.91
3. Weekly compensation rate: $\ 361.94 (PPD, PTD, \& TTD) ${ }^{1}$
4. Method of wage computation: Stipulation

1. Amount of compensation payable:

34.8 weeks of permanent partial disability from Employer (Previously settled)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential (\$361.94) payable by SIF for weeks beginning

November 19, 2008 and thereafter, for Claimant's lifetime

TOTAL:

TO BE DETERMINED

1. Future requirements awarded: Pursuant to this award

Said payments to begin 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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Gary Wolfe

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[^0]: ${ }^{1}$ PPD stands for permanent partial disability, TTD-temporary total disability, and PTD- permanent total disability WC-32-R1 (6-81) 07-052662

Employee: Walter Braggs

Departments: N/A

Employer: Federal Mogul Corporation (Settled)

Additional: Second Injury Fund

Insurer: Travelers Commercial Casualty (Settled)

Injury No.: 07-052662

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

A hearing was held at the Missouri Division of Workers’ Compensation (DWC), St. Louis office at the request of Walter Braggs (Claimant), on November 1, 2010, pursuant to Section 287.450 RSMo (2005). ${ }^{2}$ Claimant seeks a final award against the Second Injury Fund for either permanent partial or permanent total disability. Attorney Gary Wolfe represented Claimant. Assistant Attorney General Karietha Osborne represented the Second Injury Fund (SIF). Venue is proper and jurisdiction lies with the DWC. The record closed after presentation of the evidence.

Prior to the hearing, Federal Mogul Corporation (Employer) and Travelers Commercial Casualty (Insurer) settled their claim with Claimant for 15 % of the left shoulder, and did not participate in the proceeding. ${ }^{3} Claimant's Exhibits A - O and the SIF's Exhibits I-III were admitted. { }^{4}$

The parties stipulated that on or about May 18, 2007:

1. Claimant was employed by Employer in St. Louis City located in the State of Missouri;
2. The Employer and Claimant operated under the Missouri Workers’ Compensation Law;
3. Employer's liability was fully insured;
4. Employer had proper notice of the injury;
5. The Claim for Compensation was timely filed;
6. Claimant's average weekly wage was $\ 542.91;
7. Claimant's rate of compensation was $\ 361.94 for TTD, PPD, and PTD;
8. Employer paid no TTD benefits;
9. Employer paid medical benefits totaling $\ 5,300.00; and
10. Claimant achieved maximum medical improvement (MMI) on March 19, 2008.

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[^0]: ${ }^{2}$ All references in this award are to the 2005 Revised Statues of Missouri unless otherwise stated.

${ }^{3} All references in this award to the Employer also include the Insurer.

{ }^{4}$ Exhibit II was admitted over objection by the Claimant that it is an abandoned claim.

The parties identified the following issues for disposition:

1. Did Claimant sustain an occupational disease?
2. If so, did the occupational disease arise out of and in the course of Employment?
3. Was the occupational disease medically, causally related to Claimant's work activities?
4. What is the nature and extent of SIF liability; if any; for PPD or PTD benefits?

Based on the entire record, Claimant's testimony, demeanor during hearing, medical records, expert testimony and the applicable laws of the State of Missouri; I find Claimant met his burden to prove he sustained an occupational disease that arose out of and in the course of employment and was medically, causally related to his work activities. Furthermore, Claimant is unable to compete in the open labor market based on his primary injury, preexisting disabilities, work experience, education, academic skills, and medical restrictions.

All evidence was reviewed but only evidence supporting this award is discussed below:

1. Claimant is 62 years old and married with no dependent children living at home. He graduated from Lincoln Senior High School and received no additional education.
2. During Claimant's career, he held two jobs and both were physically demanding. After high school, Claimant first worked at a steel factory, as a ladder-liner, where he knocked out stoppers and put in new lines.
3. In 1973, Employer hired Claimant under the company name Cooper \&Wagner. Claimant worked as a laborer, molder, brick layer, foundry worker, overhead crane operator, furnace helper, and repair person. He lifted up to 60 pounds, carried metal, climbed, and walked around the facility.
4. In April of 2006 Employer assigned Claimant to work on a floor sweeper, which was used to clean the factory. The sweeper was about the size of a pickup truck. The step used to climb onto the sweeper was located 18 inches above the floor. Claimant could not climb onto the step because of his knees and right shoulder, so he used his left arm to pull himself up. He reversed the process to descend.
5. Claimant worked 8-10 hours per day, Monday through Friday, with two breaks and one lunch period each day, and an occasional Saturday. Claimant climbed on and off the sweeper 12-15 times a day. He does not recall telling Dr. Cohen he only climbed onto the sweeper 5 times a day.

1. Claimant believes his left shoulder injury was due to overuse because his right shoulder and knee were weak and not fully functional, although he did not wear a knee brace.
2. Dr. Yamaguchi surgically repaired Claimant's left rotator cuff on September 24, 2007.
3. Claimant worked for Employer for $341 / 2$ years, until June 22, 2007 when Employer moved to China. He has not looked for work because he believes he cannot work.
4. Claimant cannot perform yard work. His wife does practically everything around the house. Claimant cannot sit in a chair or stand for more than an hour. He cannot walk more than 15 minutes. Claimant cannot crouch, if he kneels, he has difficulty getting up. It hurts to lift a gallon of milk. He sleeps about five hours and turns frequently due to pain. Claimant lies down about 2:00 p.m. to rest for a couple of hours.
5. Claimant does not read much. He is superintendant of Sunday school at his church and each Sunday he delegates assignments to four teachers and an assistant. He is also a deacon which requires him to stand in front of the congregation for 15 minutes per month.
6. Claimant is a poor historian due to memory loss which believes occurred after he hit his head at work in the past. He does not remember when he saw Drs. Chu and Baumer or what he told them, however he does not dispute information contained in the medical records regarding his back, knees and shoulders.

1. In 1990 Claimant injured his low back while operating a crane when he pulled on an electrode and fell on his back. He sought medical treatment and took medication. A year later, he began driving a fork-lift, because the crane job ended and the fork-lift was easier to operate. Claimant saw a doctor for his back took medication and kept working. There was no settlement for the low back case. He limited the amount he lifted after the back injury. He had ongoing pain, but no longer had pain into his right leg.
2. A radiology report dated August 14, 2004 showed complaints of low back pain radiating into Claimant's right leg. An x-ray revealed advanced degenerative disc disease at L2-3 and mild spondylosis throughout the spine. An MRI of the low back revealed similar findings but no herniations.
3. In 2004 Claimant fell on a steel plate and injured both knees. Kevin Baumer, M.D., treated Claimant for right knee pain, injected the right knee in September 2004, and provided a brace.
4. An x-ray of the right knee dated August 16, 2004 was unremarkable. A right knee x-ray, three views standing, dated August 26, 2004 showed excellent preservation of the joint space. An MRI of the right knee dated September 3, 2004 revealed a small chronic tear at the posterior horn of the medial meniscus, Baker's cyst, and a large cyst near the medial femoral condyle. Dr. Baumer diagnosed arthritis, injected the right knee, and provided a brace.

1. In September 2005 Claimant returned to Dr. Baumer with complaints to both knees. Xrays revealed arthritis in both knees, more on the left, and spurring. Dr. Baumer injected the right knee. Claimant had bilateral knee pain when he pulled himself onto the sweeper at work.
2. In October 2004 Claimant injured his right shoul