Donald Shelton v. Alliance Water Resources

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: December 6, 2002
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 field maintenance operator for a water company, suffered a severe right shoulder right clavicle non-union and hardware failure while turning off a fire hydrant.
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: Right clavicle
14. Nature and extent of any permanent disability: 50 % permanent partial disability of the right shoulder
15. Compensation paid to-date for temporary disability: $\ 36,961.85
16. Value necessary medical aid paid to date by employer/insurer: $\ 94,211.28

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 557.48
3. Weekly compensation rate: $\$ 371.65 / \ 340.12
4. Method wages computation: By agreement

1. Amount of compensation payable:

116 weeks of permanent partial disability from Employer $\ 39,453.92

1. Second Injury Fund liability: Yes

45.6 weeks of permanent partial disability from Second Injury Fund $\ 15,509.47

TOTAL: $\ 54,963.39

1. Future requirements awarded: See Additional Findings of Fact and Rulings of Law.

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: Preston E. Roskin, Esq.

Employee: Donald K. Shelton

Injury No.: 02-157512

Dependents: N/A

Employer: Alliance Water Resources

Additional Party: Second Injury Fund

Insurer: ACE American Insurance Company \& Insurance Company of North America

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/lsn

This workers' compensation case raises several issues arising out of a work related injury in which the claimant, a field maintenance operator for a water company, suffered a severe right shoulder right clavicle non-union and hardware failure while turning off a fire hydrant. The issues for determination are (1) Future medical care, (2) Temporary Disability, (3) Permanent disability, and (4) Second Injury Fund liability. The evidence compels an award for the claimant for permanent partial disability benefits and future medical care.

At the hearing, the claimant testified in person and offered depositions of David T. Volarich, D.O., and Timothy G. Lalk, and voluminous medical records. The claimant also offered medical reports from John A. Garcia, M.D., but objections were sustained based on the rule against hearsay. The defense offered depositions of Michael P. Nogalski, M.D., and Karen Kane-Thaler and medical records from Robert L. Pierron, 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.

On December 6, 2002, this 46 year old claimant injured his right shoulder while attempting to close off a water hydrant. As he pulled forcefully on the wrench, the claimant felt a "pop" and severe pain in his right mid-clavicle with pain, numbness, and tingling radiating into his hands and fingers. The claimant's wife drove him home from work where he rested for the weekend while applying heat and ice to the painful area. The pain worsened however, and he reported his injury when he returned to work.

The claimant went to Unity Corporate Health, and on December 9, 2002, x-rays revealed a fracture of multiple screws holding the stabilization bar of his right shoulder and a united fracture of the mid aspect of the right clavicle. He consulted Dr. Pierron, an orthopedic surgeon, who put the claimant on light duty due to a failure of the internal fixation of his non-union right clavicle. On January 14, 2003, Dr. Pierron performed an open reduction internal fixation with Flexon bone graft to the right clavicle non-union. See Exhibit A. Dr. Pierron ordered physical

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donald K. Shelton

Injury No.: 02-157512

therapy. On May 6, 2003, Dr. Pierron recommended applying an Exogen bone stimulator to try

to boost the amount of new bone formation at the interface and that the claimant delay

unrestricted heavy physical labor until he developed better bone. On June 16, 2003, Dr. Pierron

ordered an exercise program with a one to two pound progression per week. On August 4, 2003,

Dr. Pierron found that the claimant had pain when trying to lift more than three pounds due to the

persistent non-union fracture. On August 18, 2003 Dr. Pierron performed a bone marrow and

bone-void filler ignite injection to the right clavicle non-union. On September 22, 2003, the

claimant still had pain lifting over five pounds, popping around the shoulder blade and straining

and pulling on the muscles around the shoulder, and Dr. Pierron ordered additional physical

therapy. On January 12, 2004, x-rays showed persistent non-union, and Dr. Pierron opined that

additional surgical intervention was indicated. On February 16, 2004 Dr. Pierron performed an

open bone grafting with autograft, both cancellous and corticocancellous bone from the right

pelvis. The claimant had additional physical therapy after the surgical procedure.

On August 2, 2004, Dr. Pierron examined the claimant and found shoulder instability and

persistent pain. The claimant reported shooting pains and numbness in his arm and Dr. Pierron

opined that further surgery was only indicated in the event of failure of the plate and/or screws.

On August 10, 2004, an EMG revealed bilateral carpal tunnel syndrome with loss of the sensory

nerve function with the maintenance of the other nerves involved in the brachial plexus. On

August 30, 2004, Dr. Pierron examined the claimant and found that the claimant had a 30%

weaker shoulder in the right compared to the left. He had significant pain and limitation of

motion and radiographic incomplete healing of the clavicle non-union and needed to continue

with physical therapy. On September 27, 2004, the claimant had increased swelling around the

right clavicle and shoulder and residual weakness of the right scapula. X-rays revealed loosening

around two of the three lateral screws without failure of the plates. The claimant continued the

ultrasound stimulation and physical therapy. On November 29, 2004, Dr. Pierron examined the

claimant and found that the claimant had more pain with increased shoulder activity, radiating

pain around the shoulder itself, and clicking behind the shoulder blade. There was snapping of

the scapula not directly related to his clavicle other than the residual weakness and change in the

muscular balance of the shoulder after prolonged limitation of use of the right upper extremity.

On November 29, 2004 Dr. Pierron opined that no further surgical intervention was indicated,

because the claimant had not had complete failure of the hardware. Dr. Pierron opined that the

claimant had reached maximum medical improvement “to date.”

On March 7, 2005, Dr. Pierron examined the claimant and found loosening and continued

motion of the screws. The claimant could not return to physical labor activities that require

forceful use of the right arm. On July 25, 2005, the claimant reported increasing pain during a

long drive. On March 20, 2006, Dr. Pierron indicated that if the x-rays showed complete failure

or fracture of the screws, then the claimant would need surgery for the revision of the internal

fixation hardware. On April 12, 2006, the claimant had a nerve conduction study of the right arm

which showed chronic degeneration in the C6-7 and 8 innervated muscles consistent with mild,

early median neuropathy at the wrist/carpal tunnel and suggestive of chronic mild middle cervical

radiculopathy. On May 3, 2006, Dr. Pierron took x-rays that revealed a failure of the plate with

distal screws pulling up allowing the plate to disassociate from the distal clavicle. Dr. Pierron, at

that time, suggested repeat surgery. Dr. Pierron also indicated that the chronic nerve

degeneration from the neck was probably causing numbness. The claimant did not want to

consider cervical surgery at that time. On May 23, 2006, Dr. Pierron performed a surgical

WC-32-B1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Donald K. Shelton

Injury No.: 02-157512

procedure removing the h