Ronald Porter v. Waste Corporation of America

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-089590

Employee: Ronald Porter

Employer: Waste Corporation of America (Settled)

Insurer: New Hampshire Insurance Company (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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 31, 2012, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Vicky Ruth, issued January 31, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 14^{\text {th }} \qquad$ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Ronald Porter

Dependents: N/A

Employer: Waste Corporation of America (SETTLED)

Additional Party: Second Injury Fund

Insurer: New Hampshire Insurance Company (SETTLED)

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Hearing Date: November 1, 2011

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: September 17, 2007.
5. State location where accident occurred or occupational disease was contracted: Rolla, 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 injured his left upper extremity/shoulder when he lifted trash cans that were heavier than he expected.
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: Left upper extremity/shoulder.
14. Nature and extent of any permanent disability: 10 % of the left upper extremity at the shoulder.
15. Compensation paid to-date for temporary disability: $\ 3,943.90.
16. Value necessary medical aid paid to date by employer/insurer? $\ 4,927.04.
17. Value necessary medical aid not furnished by employer/insurer? N/A.
18. Employee's average weekly wages: N/A.

1. Weekly compensation rate: $\$ 368.08 / \ 358.54.
2. Method of wages computation: By agreement.

1. Amount of compensation payable from employer: Previously settled.
2. Second Injury Fund liability: None.
3. Future medical awarded: N/A.

Employee: Ronald Porter

Injury No: 07-089590

Dependents: N/A

Employer: Waste Corporation of America (SETTLED)

Additional Party: Second Injury Fund

Insurer: New Hampshire Insurance Company (SETTLED)

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On November 1, 2011, Ronald Porter and the Second Injury Fund appeared for a final award hearing in Rolla, Missouri. Mr. Porter, the claimant, was represented by attorney Michael Korte. The Second Injury Fund was represented by attorney Cara Harris. Claimant testified in person at the trial. Dr. David Volarich, Mr. Gary Weimholt, and Dr. Brent Koprivica testified by deposition. The claimant and the Second Injury Fund submitted their briefs/proposed awards on November 17, 201, and the record closed at that time.

The parties stipulated to the following:

1. On or about September 17, 2007, Ronald Porter (the claimant) was an employee of Waste Corporation of America (the employer) when he sustained an injury by accident arising out of and in the course of his employment. The accident injured his left upper extremity/left shoulder.
2. The employer was operating subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was insured by New Hampshire Insurance Company.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Phelps County is proper.
5. Notice is not an issue.
6. Claimant filed a Claim for Compensation within the time prescribed by law.
7. At the time of the accident, claimant's compensation rate for permanent total disability was $\ 368.08 per week, and for permanent partial disability it was $\ 358.54 per week.
8. The employer/insurer provided medical aid in the amount of $\ 4,927.04.
9. The employer/insurer paid $\ 3,943.90 in temporary total disability benefits.
10. Claimant's attorney requested an attorney's fee of 25 %.

The parties agreed that the issues to be resolved in this proceeding are as follows:

1. Nature and extent of claimant's permanent partial or permanent total disability;
2. Liability, if any, of the Second Injury Fund.

On behalf of the claimant, the following exhibits were entered into evidence without objection:

Exhibit A Curriculum vitae of Dr. David T. Volarich.

Exhibit B Report (7/23/07) from Dr. Volarich.

Exhibit C Report (1/21/09) from Dr. Volarich.

Exhibit D Report (6/15/10) from Dr. Volarich.

Exhibit E Curriculum vitae of Gary Weimholt.

Exhibit F Report (6/11/09) of Mr. Weimholt.

Exhibit G Deposition of Dr. Volarich.

Exhibit H Deposition of Mr. Weimholt.

Exhibit I Stipulation for Compromise Settlement, 06-027348.

Exhibit J Stipulation for Compromise Settlement, 07-089590.

Exhibit K Records from Springfield Neurological \& Spine Institute.

Exhibit L Records from Phelps County Regional Medical Center.

Exhibit M Records from St. John's Clinic - Rolla.

Exhibit N Records from Dale Family Medical.

Exhibit O Records from TCMH Family Clinic.

Exhibit P Records from Cox Occupational Medicine.

Exhibit Q Records from TCHMH Internal Medicine.

Exhibit R Records from Ferrell Duncan Clinic.

Exhibit S Records of Cox Medical Center.

Exhibit T Records from TCMH Physical Therapy.

On behalf of the Second Injury Fund, the following exhibit was admitted into the record:

Exhibit 1 Deposition of Dr. Brent Koprivica.

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence. The depositions were admitted with objections contained in the record; those objections are overruled.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings:

1. Claimant is 60 years of age and his birth date is July 6, 1951. At the time of the injury he was 56 years old. He lives in Edgar Springs, Missouri.
2. Claimant quit school in the $10^{\text {th }}$ grade. He does not have a G.E.D., nor does he have any specialized or vocational training.
3. Claimant's employment history largely consists of positions as a driver. Claimant has also worked in the restaurant business, in landscaping, and in construction work. He worked briefly in a furniture factory as a production worker.
4. Claimant worked for the employer as a trash truck driver. His duties included driving a trash truck by himself on a regular route, making 150 to 225 stops each day. This work required claimant to continuously climb in and out of the trash truck, move trash cans to the rear of the truck (some trash cans were on wheels), and manually lift the trash cans to dump the trash. He testified that the trash cans weighed up to 100 pounds each.
5. Claimant indicated that he worked about 11 hours per day, with a 30 -minute break for lunch and two 15 -minute breaks.
6. On September 17, 2007, claimant sustained an injury at work (the primary injury) when he was lifting two heavy trash cans into his truck. He felt immediate pain. On the same date, he treated with Dr. Thomas Pirrote. Dr. Pirrote imposed work restrictions, recommended that claimant wear a sling and take ibuprofen or oxycodone, requested the claimant's previous medical records, and recommended physical therapy. ${ }^{1}$
7. Claimant was referred to Dr. Ted Lennard. The doctor examined claimant on October 16, 2007, imposed work restrictions, ordered physical therapy, recommended an injection (which the claimant declined) and prescribed a CT arthrogram. That test revealed a subacromial enthesophyte. Despite physical therapy, claimant continued to experience pain, but again declined an injection. Dr. Lennard referred claimant to an orthopedist, who recommended surgery. Claimant declined to have the surgery.
8. On February 19, 2008, Dr. Lennard released the claimant at maximum medical improvement. ${ }^{2}$

1. Claimant was injured in March 2006, when he jumped onto the rear of the thrash truck to avoid being hit by an oncoming vehicle. Claimant injured his left shoulder in this accident. He treated at Phelps County Regional Medical Center, with Dr. Furr at Texas County Family Medical Clinic, and with Dr. Weisfeld, who performed left shoulder surgery. Following the surgery, claimant had physical therapy and some injections.
2. As a result of the March 2006 injury, claimant was off work for about six months.

[^0]

[^0]: ${ }^{1} Claimant's Exhibit P.

{ }^{2}$ Claimant's Exhibit K.

Although he did later return to employment with the employer, claimant testified that he was not 100 %. He continued to have pain and weakness in his left shoulder. He stated that he would use his right side more than his left, and that he was unable to use his left arm like he had before.

1. Claimant settled his Workers' Compensation claim for the March 2006 injury with the employer/insurer for 17.5 % permanent partial disability to the left shoulder.
2. In July 2007, claimant began to experience extreme fatigue and sought medical treatment. It was determined that he had a low heart rate and a third degree heart block. On or about July 31, 2007, Dr. Steven Rowe performed surgery to install a pacemaker to help regulate his heart rate. Claimant was off work for approximately six weeks for the surgery and recovery. Dr. Rowe released claimant on September 12, 2007 to return to work full duty.
3. Claimant did return to work on or about September 14, 2007. Claimant testified that after the pacemaker was installed, he was "one-half the man in strength."

1. Claimant testified that he has not looked for work since leaving his job with the employer on September 17, 2007. He does not believe he is physically capable of performing the job he had with the employer, and he does not think that he can physically do any other job. Claimant has applied for and is receiving Social Security Disability benefits.
2. Claimant is largely left-handed, although he had always performed some tasks (like writing) with his right hand. Claimant testified that he avoids carrying with his left arm and he does not use it for overhead work. He believes that his grip is weaker in his left hand. He has pain and weakness in the left shoulder, and sometimes numbness in his left arm. He has difficulty sleeping because of the pain in his left shoulder.
3. Claimant stated that he does not use a telephone because of "electrical pollution." Until the hearing day, claimant had not left his 10 -acre property since July 2011, a period or three or four months.
4. Claimant acknowledged that there are animals on his farm, such as chickens, a cow, a coup