Kenneth Schaffer v. Associated Electric Cooperative, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 11-058029

Employee: Kenneth A. Schaffer

Employer: Associated Electric Cooperative, Inc.

Insurer: Associated Electric Cooperative, Inc.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480$ RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated October 10, 2012.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

The award and decision of Administrative Law Judge Maureen Tilley, issued October 10, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 6^{\text {th }}$ day of March 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

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? July 12, 2011.
5. State location where alleged accident occurred or occupational disease contracted: New Madrid 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 happened or occupational disease contracted: Employee was doing repetitive work with left and right upper extremities resulting in bilateral carpal tunnel syndrome.

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease: Left and right upper extremities.
3. Nature and extent of any permanent disability: N/A.
4. Compensation paid-to date for temporary total disability: 0.00.
5. Value necessary medical aid paid to date by employer-insurer? 0.00.
6. Value necessary medical aid not furnished by employer-insurer? 0.00.
7. Employer's average weekly wage: 1,203.20.
8. Amount of compensation payable? N/A.
9. Weekly compensation rate: **TTD $802.13/ PPD $425.19**
10. Method wages compensation:

- Unpaid medical expenses: N/A.

- Medical mileage or travel expenses: N/A.

- Weeks of temporary total disability: N/A.

- Weeks of permanent partial disability: N/A.

- Weeks of disfigurement:

1. Second Injury Fund liability: N/A.
2. Future Requirements Awarded:

This award is only temporary and partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

On July 17, 2012, the employee, Kenneth A. Schaffer, appeared in person and by his attorney, Stephen Taylor, for a temporary or partial award. The employer-insurer was represented at the hearing by their attorney, Joseph Page. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the facts that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. That on July 12, 2011 the Employer, Associated Electric Cooperative Inc., was operating under and subject to the provisions of the Missouri Workers' Compensation Act.
2. That on July 12, 2011, Kenneth A. Schaffer was an employee of Associated Electric Cooperative Inc., and was working under and subject to the Missouri Workers' Compensation Act.
3. That the average weekly wage for the injuries that occurred July 12, 2011 was $\ 1,203.20 and the rate of compensation for purposes of temporary total disability is $\ 802.13 and permanent partial disability is $\ 425.19.
4. That no medical aid has been furnished by the employer/insurer.
5. No temporary total disability has been paid by the employer/insurer.

1. Accident/Occupational disease;
2. Notice to Employer;
3. Statute of Limitations;
4. Medical Causation; and
5. Future Medical.

Employee's Exhibits:

A. Medical Records;

B. Dr. Annamarie Guidos Independent Medical Examination Report; and

C. Dr. Annamarie Guidos Curriculum Vitae.

1. Deposition of Employee, Kenneth A. Schaffer; and
2. Email from Tammy Ludwig to Theresa Crossfield.

All Exhibits were admitted without objection.

The Court also took judicial notice of the Division file in this matter.

Kenneth A. Schaffer, Employee, is a 59 year-old resident of New Madrid, Missouri. He resides with his wife Susan. He has two children who no longer live at home. Employee graduated from high school and received an Associates degree after two years in college.

Employee testified that he first went to work for his uncle, BJ Schaffer, as a general farm laborer in 1974, driving tractors and combines. He testified that he had no illnesses or injuries while working there. Employee testified thereafter he went to work for Fred Rowe from 1976 to 1978 as an equipment operator driving a bulldozer. He testified he had an injuries or illnesses while working there. Employee testified that in 1978 he began farming for his family and his father, RB Schaffer in Mississippi and he continued farming that operation until 1991. He testified that as a farmer he drove a tractor and a combine and did general repair work. He testified he had no injuries or illness while working there on or off the job during that period of time. Employee testified that he moved back to Missouri and rented a farm and farmed from 1991 to 1999 doing general farm work, driving a tractor, a combine and doing maintenance on equipment. He testified he had no injuries while working that job either on or off the job.

Employee testified in the year 2000 he purchased a tire repair and sales shop in the name of a corporation, KASCO along with his wife which he continues to operate until the present. Employee testified that he is the manager of the store and that he has two to three employees not including his wife. He testified that his duties were to sell and repair tires and to service vehicles. He testified that he had no illness or injuries while working for the tire store. Employee testified that he also began farming his uncle's land in 2000 which consists of 600 acres. He testified that he is the manager and has the same employees that work at the tire shop also working the farm. He testified that he generally does management duties but during the planting season in the spring he may spend as many as forty hours driving a tractor planting and that during the harvest in the fall he may spend a week to two weeks driving a combine to assist in the harvest. Employee testified that at all other times he only did management work and did not have to do maintenance on the equipment. Employee testified that he had had no illness or injuries while working as the farm manager since 2000.

Employee also testified that first went to work for Associated Electric Cooperative, Inc. in 2001 and worked there for about 6 months. He indicated that his job duties was driving a

bulldozer, driving a scraper and driving a truck. Employee testified that he had no illnesses or injuries while working at Associated Electric Cooperative, Inc. during that period of time either at work or away from work. Employee testified that in 2003 he went back to work at Associated Electric Cooperative, Inc. on a part time basis again as an equipment operator where he drove a bulldozer, drove a scraper and also drove a truck. Employee testified that he had no illnesses or injuries while working there or away from work during that period of time. Employee also testified that he had a couple of short term jobs between 2003 and 2006 but he had no injuries or illnesses while working those short term jobs.

Employee testified that he went to work full time at Associated Electric Cooperative, Inc. in 2006. Employee indicated that his full time job title was Yard Equipment Operator. Employee testified that his job duties were driving a bulldozer, driving a scraper, driving trucks, dumping trains and running a jackhammer. Employee testified that while at work his job requirements were hand intensive using both hands to operate levers while driving the bulldozer, operating levers while driving a scraper, shifting gears while driving a truck and using levers when dumping the train as well as hand intensive work using a jackhammer. The employee testified that his jobs required pulling levers, squeezing levers and he demonstrated consistent arm movements while operating the machinery during his work shifts. When asked about his hours employee testified that he would work, eighty hours every two weeks, one week doing four 12 hour shifts and one 8 hour shift and after three days off he would do two 12 hour shifts. Employee testified that during those shifts he would work as much at 10.5 hours using his hands consistently in a repetitive manner operating the machinery.

Employee testified he had an injury to his foot while working at Associated Electric Cooperative, Inc. which was treated and the claim was settled in 2011.

Employee testified that in approximately 2009 he had the onset of numbness, tingling, burning sensations and loss of use of his hands that was gradual in onset. Employee testified that the symptoms came on when he was using his hands and upper extremities in a repetitive fashion while at work at Associated Electric Cooperative, Inc. with repetitive use of his hands driving the heavy equipment. Employee testified that in 2010 during a visit to Dr. David Pfefferkorn on October $7^{\text {th }}$ he complained of problems with his hands and was prescribed Voltaren gel. Employee testified that Dr. Pfefferkorn prescribed a nerve conduction study. Employee testified that thereafter he saw Dr. Riyadh Tellow for a nerve conduction study on October 18, 2010. Employee testified that Dr. Tellow reported moderate to severe bilateral carpal tunnel syndrome after the studies were completed. Employee testified that he did not have any conversation with Dr. Pfefferkorn again about his bilateral hand complaints until June 17, 2011. Employee testified that he asked the doctor about the nerve conduction studies but the doctor indicated they had lost employee's medical records. Employee testified that he saw Dr. Pfefferkorn again shortly thereafter and the records from Dr. Tellow indicate that the nerve conduction studies were faxed to Ferguson Medical Group on June 27, 2011 as confirmed by the fax transmission information on