Carl Douthit v. Bi-State Development Agency

Injury No.: 09-036335

Employee: Carl Douthit

Employer: Bi-State Development Agency

Insurer: Self-Insured

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 heard oral argument, reviewed the evidence and briefs, 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 §286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 7, 2011, as corrected below.

In the case headings on pages 1 and 3 of the administrative law judge's award, she indicates that both employer and insurer have "previously settled." While employer and insurer may have previously settled with employee with respect to Injury Number 08-117825, it is clear from the body of the administrative law judge's award and the record as a whole that employer and insurer did not settle with employee with respect to this matter, Injury Number 09-036335. Therefore, we find that the administrative law judge's award shall be corrected and every occurrence of the words "previously settled" shall be deleted from the headings on pages 1 and 3.

Based upon the foregoing, the award and decision of Administrative Law Judge Kathleen M. Hart, issued March 7, 2011, is affirmed, as corrected herein, and 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 $8^{\text {th }}$ day of November 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

CONCURRING OPINION

Curtis E. Chick, Jr., Member

I write separately to disclose the fact that I did not participate in the September 14, 2011, oral argument in this matter. I have reviewed the evidence, read the briefs of the parties, and considered the whole record. I concur with the decision of the majority of the Commission.

Curtis E. Chick, Jr., Member

Employee: Carl Douthit

Departments: $\mathrm{n} / \mathrm{a}$

Employer: Bi-State Development Agency (previously settled)

Additional Party: Second Injury Fund (only)

Insurer: Self (previously settled)

Hearing Date: December 13, 2010

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

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 20, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 tripped over a piece of metal while carrying a door and injured his right upper extremity.
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: right upper extremity
14. Nature and extent of any permanent disability: 50 % right upper extremity from the primary injury, and permanent and total disability benefits as a result of the combination of his primary and pre-existing injuries.
15. Compensation paid to-date for temporary disability: $\ 6,998.42
16. Value necessary medical aid paid to date by employer/insurer? $\ 46,358.82

Employee: Carl Douthit

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 923.60
3. Weekly compensation rate: $\$ 615.73 / \ 404.66
4. Method wages computation: Stipulation

1. Amount of compensation payable:

116 weeks of permanent partial disability from Employer

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential of $\ 211.07 payable by SIF for 116 weeks beginning

April 1, 2010, and, $\ 615.73 weekly thereafter, for as long as provided by law

TOTAL:

1. Future requirements awarded:

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:

Thomas J. Gregory

Employee: Carl Douthit

Dependents: $\mathrm{n} / \mathrm{a}$

Employer: Bi-State Development Agency (previously settled)

Additional Party: Second Injury Fund (only)

Insurer: Self (previously settled)

Injury No.: 09-036335

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter December 13, 2010. Carl Douthit (Claimant) was represented by attorney Thomas Gregory. Metro/Bi-State Development Agency (Employer) was represented by attorney Jay Lory. The SIF was represented by Assistant Attorney General Da-Niel Cunningham. Employer and Claimant reached a settlement on Claimant's two 2008 injuries before trial. The case proceeded to trial against the SIF only regarding Injury Number 08-117825, and against Employer/Insurer and the SIF regarding Injury Number 09-036335.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

The parties stipulated to the following:

1. Claimant sustained an injury by accident while in the course and scope of his employment on May 20, 2009.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law.
3. Employer's liability was self insured.
4. Employer had notice of the injury and a claim for compensation was timely filed.
5. Claimant's average weekly wage yields a TTD/PTD rate of $\ 615.73 and PPD rate of $\ 404.66.
6. Employer paid TTD and TPD benefits for $113 / 7 weeks totaling \ 6,998.42. Employer paid medical benefits of $\ 46,358.82.

The parties stipulated the issues to be resolved are as follows:

1. Nature and extent of permanent partial or permanent total disability.
2. Liability of the Second Injury Fund.

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 62 year-old, right handed male, who has an eleventh grade education and completed his GED while in the service in the late 1960's. He has been married to his wife, Helen, for 42 years. He has four children, none of whom are financially dependent on him.
2. After his service in Korea, Claimant attended a Painter Apprentice Program from 19711972. He then went to Bailey Technical School and earned certification as an auto and diesel mechanic. He spent the next few years working as a laborer where he was required to lift 40-50 pounds on a regular basis.
3. From October 1974-April 1, 2010, Claimant worked continuously for Employer as a mechanic, and he worked in various departments over the years. He worked in the outside garage for the first five years. He changed oil, batteries and tires, and repaired starters and air compressors. This was heavy work and involved extensive lifting and repetitive use of his upper extremities.
4. Claimant worked in the Body Shop for the next two years doing body repairs after bus accidents. Claimant then worked a few years in the Engine Department. He removed, replaced, and rebuilt engines. He spent most of his time working in the pit under the buses, and reaching overhead. This was hand intensive work, and involved heavy lifting from 30-60 pounds on a frequent basis. Claimant then worked a few years in the Transmissions Department rebuilding transmissions. This was not overhead work, but it was hand intensive and involved heavy lifting.
5. From 1987-1991, Claimant worked in the East St. Louis garage performing general maintenance, repairs, and heating and air conditioner repairs. This involved a lot of overhead work and heavy lifting. In 1991, Claimant injured his left shoulder when removing the cage on a blower motor. He was off work nearly a year and had physical therapy, work hardening and injections. Dr. Ravi and Dr. Gragnani released Claimant to return to a desk job or bench work. Both agreed he should permanently avoid any overhead work or jobs that would strain his left shoulder.

1. In 1992 Claimant was transferred to the Body Shop to accommodate his restrictions. He had a bench job and all his work was in front of him. He did not have to work overhead, but used both hands repetitively. His job involved drilling, chiseling, and grinding. All his tools were air operated.
2. Leading up to his 2008 injuries, Claimant continued to have problems with his left shoulder. Employer accommodated his left shoulder problems by changing his job duties. He had popping and discomfort in the shoulder. His shoulder fatigued easily, and he dropped things. He could not sleep on his left side and had pain on a regular basis. He avoided any overhead work and did not lie on his left side to work on a vehicle. His coworkers helped him when needed.
3. On October 2, 2008, Claimant reported to Employer that he injured his low back the day before. He was picking up a 30 pound door when he had an onset of low back pain on his right side. He had burning and numbness in his right leg and requested treatment. He told his supervisor he also had problems with his hands, and his supervisor instructed him to fill out a report so the doctor could look at his hands and low back.
4. Claimant completed a Report of Injury (Exhibit A) indicating he had problems with both hands. He reported he was dropping things, had to switch hands while driving, his hands went numb and hurt, and he felt tingling in his arms and hands. He attributed this to repetitive use of air tools in the body shop. He had these problems for a number of years, but had not sought treatment or missed work yet.
5. Employer sent Claimant to Dr. Crandall November 14, 2008. Dr. Crandall noted Claimant's job duties, complaints and that his borderline diabetes was diet controlled. After reviewing a CD of Claimant performing his job, Dr. Crandall recommended a left ulnar nerve transposition and right carpal tunnel release. He opined Claimant's work was the prevailing factor in causing his arm conditions and need for treatment.
6. Employer hired a consultant to video tape Claimant doing his job and prepare a Job Analysis Report. Following that report, Dr. Crandall changed his opinion on causation, and Employer would not authorize surgery. Claimant hired an attorney to pursue treatment.
7. Employer did not provide treatment for Claimant's low back and he did not see a doctor on his own. He continues to have sharp pain in his low back on the right side with numbness into the front of his right leg. He again hired an attorney to pursue treatment.
8. Claimant testified his attorney sent him to Dr. Volarich to be examined for both his low back and his hand and arm injuries. He saw Dr. Volarich April 29, 2009. Dr. V