Allen Mills v. MEMC Electronic Materials

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-087751

Employee: Allen Mills

Employer: MEMC Electronic Materials (Settled)

Insurer: Liberty Mutual Insurance (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 May 14, 2012. The award and decision of Chief Administrative Law Judge Grant C. Gorman, issued May 14, 2012, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this $29^{\text {th }}$ day of January 2013.

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? 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: September 6, 2005
5. State location where accident occurred or occupational disease was contracted: St. Charles 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: Claimant injured his left shoulder while loosening a bolt in the course and scope of employment.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left Shoulder
14. Nature and extent of any permanent disability: 45 % of the left shoulder/combination PTD.
15. Compensation paid to-date for temporary disability: $\ 11,749.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 62,038.61

Employee: Allen Mills Injury No. 05-087751

1. Value necessary medical aid not furnished by employer/insurer? Undetermined
2. Employee's average weekly wages: Undetermined, parties agree wage rate is sufficient to reach max rates
3. Weekly compensation rate: $\ 365.08 PPD/\$696.97 Total Disability
4. Method wages computation: Stipulation

1. Amount of compensation payable: (Settled)
2. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

Weekly differential (\$331.89) payable by SIF for 104 3/7 weeks beginning

May 10, 2006 and, thereafter, beginning May 10, 2008 the weekly

benefit of $\ 696.97 for Claimant's lifetime.

TOTAL: SEE AWARD

1. Future requirements awarded: See Award

Said payments to begin as of the date of this award 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 20 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Ann Dalton

Employee: Allen Mills

Employee: Allen Mills

Injury No: 05-087751

Dependents: None

Employer: MEMC Electronic Materials (settled)

Additional Party Second Injury Fund

Insurer: Liberty Mutual Insurance (settled)

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: GCG/ch

Hearing on the above referenced case was held before the undersigned Administrative Law Judge on November 15, 2011 at the Division of Workers' Compensation in St. Charles, Missouri. Allen Mills (Claimant) was present, and represented by Ann Dalton. The liability of MEMC (Employer) and Liberty Mutual Insurance Company (Insurer) was previously settled. Assistant Attorney General Caroline Bean represented the Second Injury Fund. Ms. Dalton requested a fee in the amount of 20 %. The evidentiary hearings for Injury Numbers 05-087751 and 05-141594 were held simultaneously, in conjunction with each other. The parties submitted post-trial briefs.

The parties entered into the following stipulations:

1. On or about September 6, 2005, Claimant sustained an accident arising out of and in the course of his employment resulting in injury to Claimant's left shoulder. The accident occurred in St. Charles County, Missouri.
2. Claimant was an employee of employer pursuant to Chapter 287 RSMo.
3. Venue is proper in St. Charles County, Missouri.
4. Employer received proper notice of the claim.
5. Claimant filed a claim within the time allowed by law.
6. The rates for temporary total and permanent total disability are $\ 696.97 and $\ 365.08 for permanent partial disability.
7. Temporary total disability benefits were paid in the amount of $\ 11,749.00 and medical paid amounted to $\ 62,038.61.
8. The Claimant reached maximum medical improvement with regard to his left shoulder injury on May 10, 2006.

The sole issue presented for determination by this hearing is:

1. Liability of the Second Injury Fund for permanent partial or permanent total disability benefits.

Only evidence necessary to support this award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. Certain exhibits offered into evidence may contain handwritten markings, underlining and/or highlighting on portions of the documents. Any such markings on the exhibits were present at the time they were offered by the parties. Further, any such notes, markings and/or highlights had no impact on any ruling in this case.

Claimant offered the following exhibits, which were received into evidence without objection:

A. Deposition of Dr. David Volarich w/ attached exhibits (August 23, 2010)

B. Deposition of Sherry Browning w/ attached exhibits (October 26, 2010)

D. Assimilated records of 9-6-05 claim (right shoulder)

- Stipulation for Compromise Settlement

- Paul Spezia, M.D.: 8-10-05, 8-24-05, 9-2-05, 11-16-05 (9 pages)

- Open MRI: 8-18-05 (1 page)

- Barnes Care: 10-31-05 (2 pages)

- Mark Miller, M.D.: 5-9-07, 5-17-07, 6-25-07, 7-24-07, 8-21-07, 10-3-07, 11-7-07 (12 pages)

- Imaging Partners: 5-17-07 (2 pages)

- Timberlake Surgery Center: 6-8-07 (3 pages)

- Physical Therapy: 10-31-05 through 11-7-05 ( 2 pages)

E. Assimilated records of 10-19-82 (left lower extremity)

- St. Peters Hospital: 10-19-82 (1 page)

F. Assimilated records of 9-1-97 claim (right carpal tunnel)

- Stipulation for Compromise Settlement (primary claim) 5-12-04

- Stipulation for Compromise Settlement (second injury fund claim) 6-14-05

- Evan Crandall, M.D.: 10-20-98, 11-23-98, 12-7-98, 12-14-98, 1-5-99, 9-28-99 (9 pages)

- David Peeples, M.D.: 11-4-98 (3 pages)

G. Assimilated records of 2-19-94 claim (low back)

- Stipulation for Compromise Settlement (primary claim) 9-22-98

- Stipulation for Compromise Settlement (second injury fund claim) 10-15-98

- Report of Injury 3-1-94

- Barnes-St. Peters Hospital: 3-31-94 (2 pages)

H. Assimilated records of 1999 (right hand and fingers Dupuytrens disease)

- Subbarao Polineni, M.D.: 1-18-99, 2-5-99, 2-15-99, 3-10-99, 4-5-99, 4-26-99, 5-2499, 7-12-99, 6-7-01 (9 pages)

- Barnes St. Peters dated -4-99, 6-7-01 (4 pages)

I. Assimilated records of 1999 (right trigger thumb)

- Evan Crandall, M.D.: 9-28-99, 11-24-99, 12-21-99, 6-12-00 (6 pages-right trigger thumb)

J. Assimilated records of 2000 (right foot)

- Theodore Rummel, M.D.: 9-15-00, 9-29-00, 10-12-00, 11-17-00 (3 pages)

- Dr. Bauman: 2-7-01, 3-8-01, 6-19-01 (2 pages)

- Open MRI: 10-3-00 (1 page)

K. Assimilated records of 2000 (left carpal tunnel)

- Evan Crandall, M.D.: 6-12-00, 7-22-02, 9-30-02, 10-28-02, 11-4-02, 11-25-02, 8-603 (9 pages)

- Daniel Phillips, M.D.: 8-7-02 (3 pages)

L. Assimilated records of 2003 (right trigger thumb)

- Evan Crandall, M.D.: 2-7-03, 3-11-03, 4-16-03, 8-6-03 (6 pages)

M. Assimilated records of 2007 (low back)

- Brett Taylor, M.D.: 8-21-07, 9-5-07 (6 pages)

- Imaging Partners: 8-24-07 (1 page)

N. Assimilated records 2007 (right knee)

- Mark Miller, M.D.: 8-21-07, 9-5-07, 11-7-07, 12-19-07, 12-31-07, 1-28-08, 3-3-08 (11 pages)

- Timberlake Surgery Center: 12-10-07 (4 pages)

O. Assimilated records Dr. Mark Hingst dated 6-21-04 through 9-18-06

The Second Injury Fund offered the following exhibits which were received into evidence without objection:

I. Deposition of vocational expert James M. England

II. Pages 79 and 80 from the Claimant deposition taken on the part of the Second Injury Fund

III. Dr. Piper's Medical Records

The records of Dr. Piper, SIF Exhibit III, were not available on the date of trial. The parties, by consent, agreed to leave the hearing record open until the records were obtained from Dr. Piper's office. There was an unexpected delay in receiving the records which, in turn, left the record of the evidentiary hearing open until February 10, 2012.

Claimant testified that he was born on May 15, 1952, that he is married and is the legal guardian of two young grandsons ages 6 and 7. Claimant is right handed, graduated from high school in 1970 and is able to read, write and do basic math. Claimant has certifications in vacuum systems, hydraulic systems and emergency response. Claimant uses the computer for internet only. Claimant is not currently working and was last employed by MEMC where he worked for the past 17 years. Claimant has not worked his full duty job since September 6, 2005. He last received temporary total disability benefits on May 10, 2006 when he was released from Dr. Miller's care with permanent restrictions. He was subsequently terminated because the employer could not accommodate his permanent restrictions. Claimant is currently receiving Social Security Disability benefits and also supports his family with his 401 K retirement. At the time of his left shoulder injury, Claimant was working as a maintenance team technician repairing industrial equipment and trouble shooting. He used hand tools and test equipment and was required to work in a variety of awkward positions, including lying on the floor, climbing up on equipment, pushing, pulling, kneeling, and squatting. The job also required constant and repetitive use of his hands and his arms away from his body and overhead. He worked 12 hour days, 4 days a week and overtime. Leading up to his last day of work, he was on light duty which consisted of office work and allowed him to get up and leave at any time.

On September 6, 2005, Claimant was performing his regular job duties as a maintenance team technician when he was loosening a bolt and heard a snap in his left shoulder. Claimant testified that there was an immediate onset of pain in the left shoulder.

Claimant filed a Workers' Compensation claim against MEMC (Employer)