Darrell Hager v. Daimler Chrysler

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 07-131425

Employee: Darrell G. Hager

Employer: Daimler Chrysler (Settled)

Insurer: Old Carco LLC (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480 RSMo. Pursuant to \S 286.090$ RSMo, we issue this final award and decision modifying the September 21, 2012, award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties stipulate that we modify the administrative law judge's award by the inclusion of the following language:

Employee's wife, Phyllis Hagar, is entitled to receive Employee's Permanent Total Disability benefits in the event she remains married to Employee and Employee predeceases her while they remain married. Her entitlement to Permanent Total Disability benefits shall cease upon her death or remarriage.

We accept the stipulation and we modify the award accordingly.

We approve and affirm the administrative law judge's allowance of attorney's fee as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Margaret D. Landolt, issued September 21, 2012, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $23^{\text {rd }}$ day of January 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

VACANT

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Darrell G. Hager

Departments: Phyllis Hager

Employer: Daimler Chrysler (Settled)

Additional Party: Second Injury Fund

Insurer: Old Carco LLC (Settled)

Hearing Date: June 19, 2012

Injury No.: 07-131425

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: MDL

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 7, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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: Employee was opening a lid on a container when he injured his right shoulder.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right Shoulder
14. Nature and extent of any permanent disability: 36.5 % PPD of a reduced right shoulder previously settled with Employer and permanent total disability for which Second Injury Fund is liable.
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\$ 742.72 / \ 389.04
4. Method wages computation: By stipulation

1. Amount of compensation payable:

SETTLED

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential (\353.68) payable by SIF for 64 weeks beginning September 9, 2008

and, thereafter \ 742.72, for Claimant's lifetime

TOTAL:

TO BE DETERMINED

1. Future requirements awarded: None

Said payments to begin 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: Ms. Diane L. Sandza

Employee: Darrell Hager

Departments: Phyllis Hager

Employer: Daimler Chrysler (Settled)

Additional Party: Second Injury Fund

Insurer: Old Carco LLC (Settled)

Injury No.: 07-131425

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on June 19, 2012 at the Division of Workers' Compensation in the City of St. Louis, Missouri. Darrell Hager ("Claimant") was represented by Ms. Diane L. Sandza. Daimler Chrysler ("Employer") and its insurer Carco LLC previously settled their liability with Claimant, and this matter proceeded to a hearing against the Second Injury Fund ("SIF") which was represented by Assistant Attorney General Rachael Houser. Ms. Sandza requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about December 7, 2012 Claimant sustained an accidental injury arising out of and in the course of employment; Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri; Employer received proper notice of the injury; the claim was timely filed; Claimant's rates of compensation are $\ 742.72 for Permanent Total Disability ("PTD") benefits and $\ 389.04 for Permanent Partial Disability ("PPD") benefits; and Claimant reached maximum medical improvement on September 9, 2008, and in the event Claimant is found to be permanently and totally disabled, PTD benefits should commence on that date.

The issues for determination by hearing are whether the SIF is liable for either PPD or PTD benefits; and whether Claimant's wife is a dependent and entitled to PTD benefits in the event of Claimant's death.

Claimant is 61 years of age, right hand dominant and a high school graduate. He is able to read, write and perform basic math calculations. He has difficulty with reading retention and comprehension and suffers from optical migraines and tinnitus. (Exhibit I \& J) He uses a computer on a daily basis to check and send e-mails. Claimant must limit his time on the computer to 20 to 30 minute intervals because of pain in his low back and right upper extremity. Claimant has not worked since February 2008. Prior to his retirement Claimant worked for 13 years as an assembler for Employer. Claimant began receiving Social Security Disability benefits in August, 2008.

In December, 2007 Claimant was working as an assembler for Employer performing the right seal build up job. His job duties required constant and repetitive bending, lifting, lifting overhead, twisting, standing, reaching, reaching overhead, pushing, pulling and carrying of parts.

On December 7, 2007, Claimant was opening a lid on a tub container when he felt a sharp shooting pain in his right shoulder. On February 26, 2008, he sought treatment from Dr. Mark Belew. (Exhibit D) He was diagnosed with a possible rotator cuff tear and an MRI was ordered. The MRI revealed a full thickness tear of the right rotator cuff and on March 11, 2008, Dr. Belew performed an open rotator cuff repair with subacromial decompression, acromioplasty and insertion of on-cue pain pump. Dr. Belew noted in his records that Claimant's tear was acute and as a result of the December 7, 2007 work incident. (Exhibit D)

On May 5, 2008 Claimant presented to Dr. Belew complaining of ongoing pain and new soreness in his right shoulder. An incident occurred in physical therapy in May, 2008 where the electrical stimulation machine was turned up too rapidly causing his right arm to jerk severely. An MRI on May 23, 2008 revealed a small partial thickness bursal surface tear of the posterior portion of the distal supraspinatus tendon without retraction. He continued with physical therapy and on June 16, 2008 a positive impingement sign with dysesthesias was noted. On July 29, 2008 Dr. Belew noted a 30 % tear of the rotator cuff with positive impingement sign and weakness and administered an injection. He imposed the following permanent work restrictions: avoid any lifting at arm's length, any overhead lifting and no lifting greater than 30 pounds. In addition, Dr. Belew cautioned Claimant against any rapid reaching with the right arm, any heavy lifting, any reaching at arm's length or any reaching overhead or behind him. Dr. Belew further opined that due to Claimant's significant shoulder injuries he would be at a risk for re-injury and as such it would be reasonable for Claimant to apply for disability. (Exhibit D)

Following his release from Dr. Belew Claimant continued to suffer from problems with his right shoulder. He experienced constant pain in his shoulder radiating into the bicep, and occasional tingling in the bicep with activity. Claimant was unable to perform any overhead work or carry or lift items with his arms extended away from his body. He was limited to lifting and carrying only 15 pounds close to his body. Claimant had significant weakness in his shoulder and his arm fatigued easily.

On September 22, 2004, a chain on the hoist Claimant was moving broke, causing a sudden severe downward jerking of his right arm. Claimant was diagnosed with a right shoulder strain and received Aleve and ice from the plant medical dispensary. (Exhibit K) Claimant settled this claim with Employer on January 23, 2012 for 5\% PPD of the right shoulder. (Exhibit C)

In August, 2006, Claimant noted a gradual increase in right shoulder pain culminating in a sharp stabbing like pain in the right shoulder. On August 29, 2006 an MRI revealed an undersurface tear of the rotator cuff tendons in the supraspinatus region, a partial tear of the ulnar surface of the supraspinatus with irregularity of the bursal surface, and AC joint hypertrophy with

impingement. (Exhibit D) Dr. Belew diagnosed chronic rotator cuff tendonitis, or full thickness tear, along with the possibility of medial epicondylitis and cubital tunnel syndrome. On November 1, 2006, Dr. Belew performed an open rotator cuff repair with acromioplasty and subacromial decompression. (Exhibit D \& E) On May 8, 2007, Claimant retuned to Dr. Belew complaining of ongoing pain in the right shoulder aggravated by work. Dr. Belew diagnosed residual rotator cuff tendonitis and administered a cortisone injection. (Exhibit D)

As a result of his two prior injuries, Claimant had problems with his right shoulder leading up to his December 7, 2007 work injury. He suffered from a sharp pain in his right shoulder that came and went with activity. Lifting, overhead work, and reaching caused pain in his right shoulder. Occasionally he would have pain and tingling radiating into his bicep. He had limited range of motion and had problems when he was required to perform duties with his arms extended in front of him or above his head. As a result of his pain and limitations he worked at a much slower pace and occasionally was unable to complete the number of jobs required per hour by his employer. Claimant settled this claim with Employer on January 23, 2012 for 20 % permanent partial disability of a reduced right shoulder. (Exhibit B)

Leading up to December 7, 2007, Claimant suffered from low back pain. X-rays performed in 1999 showed narrowing of the L4-5 intervertebral disc space and minimum degenerative facet hypertrophy at L4-5 and L5-S1. (Exhibit H) He suffered from episodes of muscle spasms in the low back and was treated with manipulation and duragesics from 1999 to 2002. (Exhibit H \& K) In July, 2002, he complained of severe low back pain which promp