Jerry Dillon v. Architectural Materials Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-067980

Employee: Jerry Dillon

Employer: Architectural Materials Company

Insurer: Accident Fund National Insurance Company

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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 5, 2011, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Margaret Ellis Holden, issued August 5, 2011, is attached and incorporated by this reference.

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:

Secretary

Employee: Jerry Dillon

Injury No. 09-067980

Dependents: N/A

Employer: Architectural Materials Company

Additional Party: N/A

Insurer: Accident Fund National Insurance Company

Hearing Date: $\quad 5 / 5 / 11$

Checked by: MEH

1. Are any benefits awarded herein? NO
2. Was the injury or occupational disease compensable under Chapter 287? NO
3. Was there an accident or incident of occupational disease under the Law? N/A
4. Date of accident or onset of occupational disease: N/A
5. State location where accident occurred or occupational disease was contracted: N/A
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? N/A
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: LIFTING A DOOR.
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: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? 0

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,109.13
3. Weekly compensation rate: $\$ 739.46 / \ 422.97
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses:0

0 weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning N/A, for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: 0

Permanent total disability benefits from Second Injury Fund:

weekly differential (0) payable by SIF for N/A weeks, beginning N/A

and, thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded:

Said payments to begin N/A 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

ROBERT HILL

Employee: Jerry Dillon

Injury No. 09-067980

Dependents: N/A

Employer: Architectural Materials Company

Additional Party: N/A

Insurer: Accident Fund National Insurance Company

Hearing Date: 5/5/11

Checked by: MEH

The parties appeared before the undersigned administrative law judge on May 5, 2011, for a final hearing. The claimant appeared in person represented by Robert Hill. The employer and insurer appeared represented by Patricia Musick. Memorandums of law were filed by June 3, 2011.

The parties stipulated to the following facts: On or about August 13, 2009, Architectural Materials Company was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by Accident Fund National Insurance Company. On the alleged injury date of August 13, 2009, Jerry Dillon was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. The alleged accident occurred in Polk County, Missouri. The claimant notified the employer of his injury as required by Section 287.420 RSMo. The claimant's claim for compensation was filed within the time prescribed by Section 287.430 RSMo. At the time of the alleged accident, the claimant's average weekly wage was $\ 1,109.13, which is sufficient to allow a compensation rate of $\ 739.46 for temporary total disability compensation, and a compensation rate of $\ 422.97 for permanent partial disability compensation. No temporary disability benefits have been paid. The employer and insurer have paid no medical benefits. The attorney fee being sought is 25 %. The parties

further agree that if the claim is found to be compensable, the total amount of fair and reasonable charges for medical expenses related to the on the job injury is $\ 28,529.51.

1. Whether the claimant sustained an accident which arose out of the course and scope of employment.
2. Whether the accident caused the injuries and disabilities for which benefits are being claimed.
3. Whether the employer is obligated to pay past medical expenses.
4. Any temporary total benefits owed to the claimant.
5. The nature and extent of permanent disabilities.

The employer is a business which manufactures and installs store fronts, glass, commercial doors, and curtain walls. They perform work all over the state of Missouri, primarily in schools and businesses. The installations vary. Tim and Todd Smith are co-owners of Architectural Materials. Todd Smith is president. Tim Smith is vice president.

Claimant started with the employer on December 1, 2008. His position was a glazer. His duties included installing commercial glass, store fronts, curtain walls, doors, etc. This job physically required heavy lifting and carrying of materials, sometimes for a long distance. He was required to climb ladders and to set glass. In order to get to the job sites, he would have to drive all over the state.

Claimant had treated with a chiropractor for pain before June 2009. He said he went to Walters Chiropractic. Dr. Walters' records show he treated the claimant on July 12, 2006, for pain in his neck, shoulder pain, and pain and stiffness between his shoulder blades. He was treated for his rib, shoulder, back, and general soreness. He last treated before the alleged injury on November 2008. He also treated with his family doctor, Dr. Kendel Klein. He saw him on

April 26, 2005 for low back pain. He complained of sharp pains in his back and weakness in his legs but no numbness or tingling. He diagnosed a back strain/muscle spasm and prescribed muscle relaxers. The claimant testified he healed and returned to work.

Prior to the date of the accident, on June 16, 2009, claimant moved a refrigerator his wife had purchased. His father and the man he purchased it from helped the claimant. He borrowed a dolly and tie downs from his employer. The door to their home was too narrow and he had to take the door facing off to get the refrigerator in the house. He said he had no medical problems or medical treatment after the move. He took the next day off to finish installing the refrigerator. Claimant admitted on cross-examination that he might have told Tim at the employer that he was taking off because his back hurt. The next day, he crawled under the house to work on the water lines and put the door back together. He testified that he went into work that morning. He said the next Monday he worked a full shift and had no physical problem. He saw no reason to see a chiropractor or a doctor.

Claimant testified that in August 2009 they were building curtain walls. These would be constructed at the shop and then hauled to the site for installation. A crew of four would lift and move the curtain wall. One would be on each corner. They would lean it on the fence until it was loaded onto a trailer to take it to the site. Claimant said that after moving the curtain wall he had soreness and was worn out. He said he was sure he was talking and said he had low back pain.

Howard Zeigenbein testified by deposition. He is a job foreman and supervisor at Architectural Materials. He worked with the claimant about three days a week. He testified that he worked with the claimant on August 12, 2009, at Miller school. They were measuring and caulking that day. Mr. Zeigenbein described an incident that occurred when they stopped for fuel and a snack at a convenience store on the way out of town that morning. He said the claimant

slipped on an oil spot on the driveway and fell. He said the only thing the claimant said was that he wasn't too graceful. He also said that the claimant was complaining of back pain on the job at Miller school and had been for about a month or month and a half before that day when he slipped at the convenience store. Claimant was also holding his back. He also said the claimant commented he would have to take off work to go to the doctor. Mr. Zeigenbein testified he next talked to the claimant the following Saturday and he asked him how he was doing. Claimant told him he and his wife had been sitting on a porch swing and the back of it had collapsed. Claimant did not give Mr. Zeigenbein any indication he was hurt from the swing.

Claimant saw another chiropractor, Hunter Greenwood, on August 7, 2009, with complaints of sharp constant pain, mild to moderate to moderate to severe. Claimant testified that this was lower back soreness due to lifting the curtain walls. He said he had no pain down his legs.

On August 13, 2009, claimant was working on a project in Humansville, Missouri. He was the first on his crew to arrive. He testified that he was setting a door side light. He said he tore out the temporary material and went to unload the door. He said there were supposed to be others coming but he did not know when they would show up.

Claimant said he set up the side light and frame. He got the door out of the truck and had it in his right arm when he turned and felt a pop and pain. He set the door down. He said he called the office and told Tim or Todd that he had pulled the door out and felt a pop in his back, to find out where the crew was because he needed help and couldn't do the job because he hurt his back. Tim Smith testified that he received a call from the claimant about whereabouts of the rest of the crew that day but the claimant did not talk about an injury. He said that he had talked to the claimant about his back but he could not say when. He described seeing the claimant walking and standing and seemed to be struggling from about June on. He also said they had

several discussions about claimant's back. They discussed claimant needed to get it taken care of but he did not have insurance. He said they also tried to accommodate him with caulking and working with cylinders. Todd Smith testified that he also observed the claimant from June on seeming to not move well. He also discussed his back with the claimant and the fact he needed to get it taken care of. He also confirmed that they were trying to provide lighter work to the claimant.

Jim Boatman, a co-worker of claimant at employer testified. He had worke