Thomas Skornia v. American Mechanical, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-122965

Employee: Thomas Skornia

Employer: American Mechanical, Inc.

Insurer: Secura Insurance

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 briefs and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) 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 ALJ dated December 13, 2011, as corrected below.

On page 11 of the ALJ's award under "4. Liability of the Second Injury Fund," the ALJ states that "All experts agree [employee] cannot return to the only vocation he has ever had: ironworking." It is clear from the remainder of the award and the record as a whole that the ALJ incorrectly listed "ironworking" in this sentence instead of "sheet metal worker." Therefore, we find that the ALJ's award shall be corrected and the term "ironworking" shall be deleted from the aforementioned sentence and "sheet metal worker" shall be substituted in its place.

Based upon the foregoing, the award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued December 13, 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 $6^{\text {th }}$ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, 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: August 29, 2008
5. State location where accident occurred or occupational disease was contracted: Fenton, 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 engaged in repetitive activities involving his left shoulder and arm.
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: 371 / 2 % of the left shoulder; PTD due to combination
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 650.49

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,422.55
3. Weekly compensation rate: $\$ 772.53 / \ 404.66
4. Method wages computation: By agreement.

1. Amount of compensation payable:

87 weeks of permanent partial disability from Employer:

$\ 35,205.42

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential (\$367.87) payable by SIF for 87 weeks beginning

October 27, 2009 and, thereafter, the weekly benefit of $\ 772.53 for Claimant's lifetime

TOTAL:

INDETERMINATE

1. Future requirements awarded: Evaluation for surgery, and the surgical procedure, if necessary (as per Award).

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: Dean Christianson

The matter of Thomas Skornia ("Claimant") proceeded to hearing to determine the compensation due Claimant on account of his August 29, 2008 work injury. Attorney Dean Christianson represented Claimant. Attorney Dennis Lassa represented American Mechanical, Inc. ("Employer") and Secura Insurance Company ("Insurer"). Assistant Attorney General Carol Barnard represented the Second Injury Fund. The instant case, which involves an alleged occupational disease/injury to the left shoulder (the "Left Shoulder Case"), was tried concurrently with Injury No. 08-08-087731, which involves an undisputed injury to the right shoulder (the "Right Shoulder Case").

The parties stipulated that on or about August 29, 2008, Claimant was working for Employer as a sheet metal worker, at which time he earned an average weekly wage of $\ 1,422.55, with corresponding rates of compensation of $\ 772.53 for total disability benefits and $\ 404.66 for permanent partial disability benefits. Employer paid no temporary total disability benefits, but did pay $\ 650.00 in medical benefits. Employment, notice, timeliness of the claim, and coverage of the Act are not at issue. The parties stipulated to the St. Louis Division of Workers' Compensation as being the proper venue for this matter. The issues for determination are occupational disease arising out of and in the course of employment (raised by the Second Injury Fund only); the nature and extent of permanent disability; Employer's liability for future medical care; liability of the Second Injury Fund; and dependency. Claimant seeks to recover permanent total disability ("PTD") benefits.

Claimant is a sixty year-old, right-handed man with a high school diploma. He has no other training, other than his apprenticeship as a sheet metal worker. He is not able to type on a keyboard, and does not know how to operate a computer. He has never been in the military. Claimant tried to start his own company, but proved to be a poor businessman, and his nerves

prevented him from selling insurance. He is currently taking prescription medications for high blood pressure and high cholesterol, along with over-the-counter medications for pain.

Claimant has been married to Sheila Skornia for the thirty-nine years (Exhibit I). They have two grown children together, though neither child was living with or dependent upon him on the date of this accident.

Claimant's vocational history consists primarily of sheet metal work for the last thirty years. Since he obtained his work through a union hiring hall, he worked for a variety of contractors. At the time of the accident, Claimant had been working for Employer for approximately five years. His work for Employer, as well as his past sheet metal work, required him to install ductwork weighing between 15 and 100 pounds, generally working overhead. He works with a variety of power tools and hand tools. He last worked on or about August 29, 2008, at which time he stopped working due to a surgical procedure on his right shoulder.

Claimant testified the injury in the Left Shoulder Case occurred over time, culminating on his last day of work: August 29, 2008. He attributed the development of symptoms in his left shoulder to the use of his hands and arms at work in lifting heavy ductwork while working overhead. Over time, he developed symptoms of pain and lost motion in his left shoulder. Dr. Emanuel also evaluated him for his left shoulder, but advised him not to undergo any further surgery because of the severity of the damage in the shoulder. Claimant therefore sought the opinion of another orthopedic surgeon, Dr. Yamaguchi. Dr. Yamaguchi ordered an MRI of the left shoulder and discussed surgical options, but Claimant decided not to proceed due to concerns that he might actually be worse following such procedure.

Claimant continues to have problems with his left shoulder that he relates to his years of working as a sheet metal worker. His left shoulder is actually more painful than the right shoulder, depending on which shoulder he favors. The pain is similar to that with the right shoulder, but it does not extend to the neck, as it does with the right shoulder. The range of motion in his left shoulder is a bit better than that of the right, as he can move it up and down. However, he still cannot lift a gallon of milk in front of him.

Claimant had pre-existing medical problems. The circumstances surrounding, related treatment and description of the effects of his April 9, 2008 right shoulder injury are set forth in the Award in Claimant's companion claim, the Right Shoulder Case (Injury No. 08-122965). He has lost of strength, cannot raise his arm completely, hold a gallon of milk out from his body, or move his neck fully.

In 2006, Dr. David Brown performed carpal tunnel syndrome surgery on his right wrist. He thereafter had lost strength in his right wrist, which made it more difficult for him to grip his tools and to push. After the April 2008 accident, he had to tie tools to his belt when working above ground, as he would sometimes drop his tools. He also has difficulty writing with a pen and paper because of his right hand complaints. His right hand and wrist were swollen at the time of the trial.

He was diagnosed with hypertension approximately thirty years ago. He was hospitalized for two to three days because of this. He currently has to take medication and watch his diet.

He has had back problems for some time, especially with heavy lifting. He has seen a chiropractor on several occasions and went to an emergency room. He said this sometimes affected his work.

Ten years ago, he had a left biceps rupture that was not repaired. He modified his work for the first year after the injury, and then he was much better. However, while he did not thereafter have any formal accommodations placed on his activities, his left arm would not extend as far away from his body as his right arm.

The records from Patient's First Health Care (Exhibit C) include a December of 2008 xray of Claimant's right hand, done due to pain, revealing some minor arthritic changes. An April 20, 2009 MRI of the left shoulder showed a full-thickness tear of the supraspinatus tendon with tendon retraction and mild to moderate loss of muscle bulk. It was thought to be a chronic tear. A degenerative tear of the superior and posterior labrum was also noted. Claimant was also diagnosed with a previous rupture of the biceps tendon, which was thought to now be stable.

On April 29, 2009, Claimant presented to his primary care physician for a thorough exam in support of his early retirement. Chronic problems included carpel tunnel syndrome, hemorrhoids, hypertension and bilateral rotator cuff injuries. Dr.