Danny Bell v. Stanley Muffler Company, Incorporated

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-048468

Employee: Danny E. Bell

Employer: Stanley Muffler Company, Incorporated (Settled)

Insurer: Hawkeye Security Insurance (Settled)

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 § 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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated May 3, 2011. The award and decision of Administrative Law Judge Gary L. Robbins, issued May 3, 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 $1^{\text {st }}$ day of February 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Danny E. Bell

Injury No. 06-048468

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Stanley Muffler Company Incorporated

Additional Party: Second Injury Fund

Insurer: Hawkeye Security Insurance

Hearing Date: February 7, 2011 Checked by: GLR/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? May 30, 2006.
5. State location where accident occurred or occupational disease contracted: Mississippi County, Missouri.
6. Was above employee in employ of above employers at time of alleged accident or occupational disease? Yes.
7. Did the employers receive proper notice? Yes.
8. Did the accidents or occupational diseases arise out of and in the course of the employment? Yes.
9. Were the claims for compensation filed within time required by law? Yes.
10. Were the employers insured by above insurers? Yes.

On February 7, 2011, the employee, Danny E. Bell, appeared in person and by his attorney, D. Andrew Weigley, for a hearing for a final award. The employer-insurer was not represented at the hearing as they had already settled their case with the employee. Assistant Attorney General Frank A. Rodman represented the Second Injury Fund at the trial. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. 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 a statement of the findings of fact and rulings of law, are set forth below as follows:

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by Hawkeye Security Insurance.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of Stanley Muffler Company Incorporated and was working under the Workers' Compensation Act.
3. On or about May 30, 2006 the employee sustained an accident or occupational disease that arose out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage is $\ 312.22. His rate for all purposes is $\ 208.15 per week.
7. The employee's injury was medically causally related to his accident or occupational disease.
8. The parties agreed that the employer-insurer paid $\ 28,999.07 in medical aid.
9. The parties agreed that the employer-insurer paid $\ 9,158.60 in temporary disability benefits.
10. The employee has no claim for previously incurred medical bills.
11. The employee has no claim for mileage.
12. The employee has no claim for future medical care.
13. The employee had no claim for any temporary disability benefits.
14. The employee has no claim for permanent partial or total disability in this case as to the employer-insurer.
15. The parties agree that the employee reached maximum medical employment on May 2, 2007.

1. Liability of the Second Injury Fund for permanent partial disability or permanent total disability.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

A. Deposition of Thomas F. Musich, M.D.

B. Deposition of Wayne A. Stillings, M.D.

C. Deposition of Ms. Delores Gonzalez.

D. Medical records from Washington University Department of Orthopedic Surgery, 8/25/06.

E. Medical records from Washington University Department of Orthopedic Surgery, 6/7/07.

F. Medical records of Richard F. Howard, D.O.

G. Records from Mid America Rehab.

H. Division of Workers' Compensation records.

I. Medical records from Community Counseling Center, 7/2/08.

J. Medical records from Community Care Center, 6/20/08.

K. Medical records of Allen L. Spitler, M.D./Cardiovascular Consultants.

L. Medical records from Orthopaedic Associates.

M. Medical records of Riyadh J. Tellow, M.D.

Second Injury Fund Exhibits

The Second Injury Fund submitted no exhibits/evidence.

Danny E. Bell, the employee, was the only witness to provide live testimony in this case. All other evidence was presented in the form of written reports, medical records or deposition testimony.

This is another case where the Second Injury Fund presented absolutely no evidence or exhibits. Specifically they offered no evidence to question, challenge or confirm, or attack the credibility of the medical/professional opinions presented by Dr. Musich, Dr. Stillings or Delores Gonzalez. They chose not to retain a physician to conduct a "records review" which is allowed by statute.

The employee testified that he was forty-nine years of age and that his last employer was Stanley Muffler. He began working there in May of 2000. He worked initially as a painter and later as a machine operator.

The employee testified that he sustained an injury to his left thumb and hand on May 30, 2006. He was operating a machine when it apparently malfunctioned, causing severe injury to his

thumb. He was seen by a physician in East Prairie, Missouri and then by Dr. Trueblood in Cape Girardeau, Missouri. The initial diagnosis was a comminuted fracture of the proximal phalanx of the thumb with vascular insufficiency. According to the employee, Dr. Trueblood recommended that he travel to St. Louis to be seen by Dr. Boyer, a hand specialist.

The employee underwent his first surgery on May 31, 2006 at Barnes Hospital. Dr. Boyer performed a closed reduction and percutaneous pinning of the left thumb relative to a proximal phalanx fracture with irrigation and debridement. The employee continued to treat with Dr. Boyer and on January 31, 2007 underwent additional surgery. Dr. Boyer performed a bone grafting of the left thumb proximal phalanx nonunion. The employee underwent a functional capacity evaluation/FCE at Mid America Rehab on April 19, 2007.

The employee settled his claim against the employer-insurer on February 19, 2008 for 20\% permanent partial disability of the left hand.

The employee had long standing, pre-existing physical and psychiatric injuries/conditions. On November 19, 2001, the employee sustained an injury to his right shoulder while working for Stanley Muffler. He was working at that time as a painter. He was pushing a 55 gallon drum off a paint pallet when he felt a sudden onset of pain is his right shoulder. He treated with Dr. Ritter at Orthopaedic Associates in Cape Girardeau, Missouri. The employee underwent an MRI and injection into the shoulder in January of 2002. When his symptoms failed to improve, he underwent surgery on March 1, 2002 at Southeast Missouri Hospital.

The employee settled his right shoulder claim with the employer-insurer on December 7, 2002 for 20 % permanent partial disability of the right shoulder. The employee testified that after he was released by Dr. Ritter, he did not go back to the painting department at Stanley Muffler. He indicated that he became a machine operator because painting with his right arm was too painful due to the injuries to his right shoulder in 2001.

The employee testified that he had a heart condition and other cardiovascular issues which predated the primary injury of May 30, 2006. Treatment records were submitted into evidence from Dr. Spitler, the employee's cardiologist. The employee testified that he began seeing Dr. Spitler in 1997. Treatment records from Dr. Spitler from 1998 revealed physical complaints of sharp chest pain, mid sternal, non-radiating. Dr. Spitler treated the symptoms with medication. On September 2002, the claimant underwent a quadruple bypass at Southeast Missouri Hospital. Dr. Spitler's office records of January 6, 2003 states in part: "Mr. Bell is a patient of Dr. Douglas who was seen for a follow-up stress echo. Interestingly, he had mild disease five or six years ago. February of last year he had a negative stress echo, but in September underwent CABG including LIMA to LAD/LADD, vein graft to marginal and vein graft to right by Dr. Ramsey because of multi-vessel disease with increasing chest pain".

The employee testified that since the primary injury, he underwent additional heart surgery in 2008 and 2009. Mr. Bell takes a number of medications for coronary artery disease and complains of regular chest pain.

The employee testified that he has had a long history of depression. Treatment records were submitted from Community Counseling Center corroborating his testimony. He has treated since 1996 with Dr. Rohatgi. A report from Dr. Rohatgi dated November 4, 1996 diagnosed major depressive disorder recurrent, moderate, partner relations problems, alcohol dependency by history. The employee testified that he has treated at Community Counseling Center three or four times a year since the 1990s. He has taken medication for depression and anxiety since the mid 1990s.

The employee also testified that in the 1980s he underwent inpatient treatment for alcoholism.

The employee has a high school education. His employment history dating back to the early 1980s is limited to machine operator, assistant pressman and some construction. He testified that he has not worked since