Charles Hager v. Steelweld Equipment Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-134451

Employee: Charles Hager

Employer: Steelweld Equipment Company (Settled)

Insurer: Liberty Mutual 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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated October 4, 2011, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued October 4, 2011, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 9^{\text {th }} \qquad$ day of August 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

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: May 1, 2003
5. State location where accident occurred or occupational disease was contracted: Franklin County, 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: The claimant, a commercial painter, sustained an abdominal hernia while pushing heavy objects at work.
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: abdominal hernia
14. Nature and extent of any permanent disability: 71 / 2 % Permanent partial disability to the body as a whole referable to an abdominal hernia
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: None

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Charles Hager

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 477.56
3. Weekly compensation rate: $\ 318.37
4. Method wages computation: By agreement

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: No

None

TOTAL: None

1. Future requirements awarded: None

Said payments to begin as of December 28, 2004, 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: Ronald D. Edelman, Esq.

Employee: Charles Hager

Injury No.: 03-134451

Dependents: N/A

Employer: Steelweld Equipment Company (Settled)

Additional Party: Second Injury Fund

Insurer: Liberty Mutual Insurance Company (Settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/ch

This workers' compensation case requires a determination of Second Injury Fund liability arising out of a work related injury in which the claimant, a commercial painter, sustained an abdominal hernia while moving a heavy object at work. The issues for determination are (1) Accident, (2) Occupational disease, (3) Medical causation, and (4) Second Injury Fund liability. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered depositions of Robert P. Poetz, M.D., and James M. England, medical reports from Raymond F. Cohen, D.O., public records from the Missouri Workers' Compensation, and voluminous medical records. The defense offered depositions of the claimant and Russell C. Cantrell, M.D.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

This claimant, a commercial painter, is now 66 years of age. He testified that in May 2001, about ten years ago, he felt a pop and pain in his groin area while pushing on a heavy truck body. In late 2001 and early 2002, both Dr. Enkvetchakuhl and Dr. Bennett, who surgically repaired the claimant's left inguinal hernia, did not diagnose a right hernia. On May 19, 2003, he went to his personal physician, Dr. Modad, and a nurse practitioner, Tammy Watz, who assessed and verified that the claimant had a right inguinal hernia. See Exhibit G.

On June 6, 2003, the claimant's employer terminated his employment. See Exhibit G. The claimant testified that after repeated requests to his supervisor to see a doctor he was "written up" for not painting the trucks properly on 3 consecutive days and then fired. He testified that in the 22 years that he had worked for this employer, he had never been previously cited or written up for job performance. The claimant testified that he applied for and received unemployment compensation for 6 months. During this time he applied for employment but was not hired. He testified that he had no medical insurance and was unable to secure medical treatment for his injury. He applied for and received Social Security disability and qualified for Medicare. He was then able to obtain medical treatment.

On September 27, 2004, Dr. Michalik diagnosed right inguinal hernia and performed surgery to repair the right hernia with mesh on October 15, 2004. He listed a medical history: "The patient is a 59 year-old-male with a known right inguinal hernia over the past four years. It is slowly increasing in size and is occasionally hurting." See Exhibit F. He released the claimant from medical care on December 28, 2004. See Exhibits E, F. The claimant settled the instant claim on the basis of a 71 / 2 % permanent partial disability referable to the right inguinal hernia alleged in this claim. See Exhibit B.

The claimant had multiple pre-existing permanent partial disabilities based on his testimony, medical records, records from the Division of Workers' Compensation, and testimony and reports from Dr. Poetz and Dr. Cantrell. In 1979, the claimant underwent a C4-5 hemilaminectomy and decompression of the nerve root and testified that he had ongoing neck and left arm complaints over the years thereafter. In 1983, the claimant suffered injuries in a motor vehicle accident. He suffered fractured ribs, chest contusion, fractured clavicle, and head of the left humerus. He underwent a spleenectomy as a result of the injuries. He testified that he had chest and left arm pain thereafter. He had heightened susceptibility to disease and took precautions to avoid illness.

In 1993, the claimant suffered a work related injury, and Dr. Boland ultimately performed discectomy for a herniated disc at C6-7. See Exhibits A, Injury No. 93-177235; L, M. The claimant settled his workers' compensation claim on the basis of a 20 % permanent partial disability to the neck and 2 % of left shoulder. The Second Injury Fund claim settled based on pre-existing disability of 15 % of the left shoulder. Apparently no pre-existing disability was recognized for the 1979 C4-5 discectomy surgery.

In 1997, the claimant injured his right shoulder and right elbow suffering a right shoulder impingement and right lateral epicondylitis. Dr. Koo performed a right lateral epicondylar debridement and epicondylectomy. Further surgery was recommended, but the claimant declined. The primary claim was settled on the basis of a 16 % permanent partial disability to the right shoulder and a 20 % permanent partial disability to the right elbow. The claimant settled his Second Injury Fund claim on the basis of pre-existing permanent partial disabilities of 20 % of the neck and 15 % of the left shoulder. See Exhibit A, Injury No. 97-079395, Injury date 7/16/1997.

On May 12, 1999, the claimant injured his left leg and knee suffering a left medial meniscus tear. See Exhibit A, Injury No. 99-057906. On October 7, 1999, Dr. Nogalski performed a partial menisectomy and chondroplasty of the medial femoral condyle and lateral tibial plateau. He had physical therapy at ProRehab in Sullivan. See Exhibits T, U, V. The claimant settled the primary claim on the basis of a 22.5 % permanent partial disability to the left knee. The Second Injury Fund claim was settled on the basis of a pre-existing disability of 16 % permanent partial disability to the right shoulder, 20 % permanent partial disability to the right elbow, 20 % permanent partial disability to the neck and 15 % permanent partial disability to the left shoulder. See Exhibit A.

On September 15, 2000, the claimant injured his arms at work and was diagnosed with bilateral epicondylitis and bilateral carpal tunnel syndrome. He settled his workers' compensation claim on the basis of a 15 % permanent partial disability to each elbow and an additional 10 % for multiplicity. See Exhibit A, Injury No. 00-118804.

On June 5, 2001, the claimant suffered a work related injury to the left groin and left shoulder from pushing on truck bodies. See Exhibit A, Injury No. 01-058556. From June 5, 2001, to August 9, 2001, the claimant received medical advice from Unity Corporate Health for a bilateral groin strain. See Exhibit I. On September 18, 2001, Dr. Michalik examined him for left inguinal pain and assessed the claimant with bilateral inguinal hernias. See Exhibit E. On December 19, 2001, Dr. Enkvetchakuhl diagnosed left inguinal hernia and stated "No hernia on the right." See Exhibit J (12/19/2001 visit.) On December 21, 2001, Dr. Bennett examined the claimant and stated, "His left groin was hurting him, and he saw at least four doctors over the past six months. He finally has been diagnosed with a left inguinal hernia. ... His examination shows a reducible, left inguinal hernia. ... In my opinion, he has a left inguinal hernia." See Exhibit H. Dr. Bennett surgically repaired the hernia on January 2, 2002. See Exhibit H.

He also complained of neck and left shoulder pain to Dr. Enkvetchakuhl. He was seen by Dr. Boland his prior treating physician and surgeon. Dr. Boland diagnosed a C5-6 disc herniation based on an October 16, 2001 MRI. He recommended continued follow-up on February 11, 2002. In July 2002, he ordered physical therapy. See Exhibit L. The workers' compensation claim was settled on the basis of a 12.5 % permanent partial disability to the body as a whole and stated that the "settlement includes any injuries to the neck/left shoulder through date of settlement". The primary settlement did not indicate an apportionment or designate whether it was for the left ingui