Michael Hutson v. Ultimate Electronics, Inc.

[^0] [^0]: ${ }^{1}$ In reaching its conclusion, the Court also considered our August 26, 2011, Order denying employee's Motion for Reconsideration of the award.

At the time of his report, Dr. Volarich discussed employee's pre-existing medical conditions. Dr. Volarich stated, "It is my opinion that the following permanent industrial disabilities exist and are a hindrance to his employment or reemployment: There is a 7.5 % permanent partial disability of the body as a whole rated at the lumbrosacral spine due to his mild lumbar strain syndrome. This rating accounts for some intermittent low back discomfort leading up to 4/18/03." There is no mention that employee had any shoulder complaints at the time Dr. Volarich examined employee, with the exception of complaints employee attributed to his cervical condition. Under the heading of his report entitled Upper Extremity and Joint Exam, Dr. Volarich recorded, "[t]he upper extremity examination is deferred."

Dr. Volarich recited that employee reported his job duties as follows:

[H]e delivered TV's, entertainment centers, and furniture which included heavy lifting, bending, twisting, reaching, pulling, pushing, carrying heavy TV's and heavy furniture in his hands, carrying big heavy items that were clumsy or difficult to hold, twisting, turning. He was unloading and loading the truck. He stated that he crawled behind entertainment centers while hooking up equipment and setting up the entertainment centers. He did bending, kneeling, crawling, reaching, stretching, turning, twisting, pushing, pulling, and gripping. He stated that he also dealt with climbing up steps, driveways, walking on uneven surfaces and cracked surfaces while holding very heavy items, walking on loose gravel, walking distances from the truck to the point of delivery, dealing with driving in bad weather conditions.

Mr. Hutson described that he worked with his hands and arms constantly. He was either loading or unloading the truck, driving the truck, or loading and unloading at the homes delivering furniture, setting up furniture, moving furniture. He reported that his job required him to be in all types of abnormal positions and awkward positions such as bending, kneeling, crawling, reaching, stretching, turning, twisting, pushing, pulling, going up stairs, reaching and bending over furniture.

Mr. Hutson's job required him to lift heavy objects constantly. He lifted large TV's and furniture. He stated that the maximum he would lift at one time would be approximately 200 pounds. Mr. Hutson stated that they averaged putting together and delivering three to five entertainment racks daily and his job again, included delivery, set up, and working in the warehouse.

Employee testified that before the 2003 work injury he missed work due to his shoulder condition and that he was not able to do overhead work.

Employee testified that he told Dr. Volarich "everything" about the physical problems he had performing his job.

Dr. Volarich's report was prepared almost six years before trial and did not mention or rate a pre-existing shoulder condition. Considering Dr. Volarich's detailed description of employee's arm-intensive work activities, we find it beyond belief that Dr. Volarich simply overlooked or forgot to notate employee's mention that his right shoulder condition was such that employee was unable to perform any activities over his head. If that were the case, we would expect to see some indication in the record that employee or his counsel brought this alleged significant omission to the attention of Dr. Volarich, so he could include the shoulder condition in his opinions.

We think the reason Dr. Volarich's report includes no mention of an alleged right shoulder condition is obvious. We do not believe employee told Dr. Volarich that his shoulder condition caused him problems with performing his work activities. And the absence of such a report to Dr. Volarich leads us to conclude that, at the time Dr. Volarich examined employee, employee's right shoulder was not causing him significant difficulty in the work place.

We believe employee's proven ability to perform arm-intensive activities beyond the restrictions of Dr. Cohen shows that Dr. Cohen's 20 year-old opinion regarding the extent of employee's shoulder disability was not borne out by reality.

Considering the evidence summarized above, we believe that at the time employee suffered the 2003 work injury, employee had a 5\% permanent partial disability at the level of the right shoulder ( 11.6 weeks). Employee also had a 7.5 % permanent partial disability of the body as a whole referable to the low back ( 30 weeks). Employee's preexisting permanent partial disabilities total 41.6 weeks and do not meet the threshold to trigger Second Injury Fund liability. See § 287.220.1 RSMo. Employee has not proven he is entitled to permanent partial disability from the Second Injury Fund.

For the foregoing reasons, we affirm the administrative law judge's denial of compensation in this matter.

Given at Jefferson City, State of Missouri, this $15^{\text {th }}$ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

STATE OF MISSOURI

DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS

DIVISION OF WORKERS' COMPENSATION

3315 WEST TRUMAN BLVD, P.O. BOX 58, JEFFERSON CITY, MO 65102 (573) 751-4231

JANUARY 21, 2011

03-042139

Scan Copy

Injury Date : 04-18-2003

Insurance No. : 442554535

*Employed : MICHAEL HATSON

18928725 8 4473 E SWALLEN RD

IMPERIAL, MO 63052

*Anst. Ally General: ATTY GENERAL CHRIS KOSTER

18928724 1 815 OLIVE ST STE 200

PO BOX 861

ST LOUIS, MO 63188

*Employed: ALLOHOUY EVAN J BEATTY

2025 S BRESTRONG BLVD

SUITE 20

ST LOUIS, MO 63144

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) calendar days of the date of the award. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address.

Labor and Industrial Relations Commission

PO Box 599

Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) calendar days of the date of the award, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Please visit our website at www.labor.mo.gov/wc

W1-142(07-09)

AWARD ON BEARING

NLP

Issued by DIVISION OF WORKERS' COMPENSATION

**Employee:** Michael Hutson

**Dependents:** N/A

**Employer:** Ultimate Electronics, Inc. (Settled)

**Additional Party:** Second Injury Fund

**Insurer:** Liberty Mutual Fire Insurance Co. (Settled)

**Hearing Date:** October 19, 2010

**Injury No.:** 03-042139

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

**Checked by:** JKO

1. Are any benefits awarded herein? No
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: April 18, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 worked as a delivery and warehouse employee for Employer, when he fell down stairs while delivering a big screen television and injured his neck, low back and body as a whole.
12. Did accident or occupational disease cause death? No

**Date of death:** N/A

1. Part(s) of body injured by accident or occupational disease: Body as a Whole—Neck, Low Back and Psychiatric Disability
2. Nature and extent of any permanent disability: 20% of the Body as a Whole—Cervical Spine, 20% of the Body as a Whole—Lumbar Spine and 26% of the Body as a Whole—Psychological Disability
3. Compensation paid to-date for temporary disability: $3,246.36
4. Value necessary medical aid paid to date by employer/insurer? $9,173.81

Revised Form 31 (3-17)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 03-042139

Employee: Michael Hutson

Injury No.: 03-042139

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: Sufficient to result in the applicable rates of compensation

1. Weekly compensation rate: $282.14 for TTD/ $282.14 for PPD

1. Method wages computation: By agreement (stipulation) of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer previously settled its risk of liabil