Thomas Cummiskey v. Martin C. Heck Brick Contracting

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 10-054278

Employee: Thomas Cummiskey

Employer: Martin C. Heck Brick Contracting (Settled)

Insurer: Secura 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 18, 2012. The award and decision of Administrative Law Judge John K. Ottenad, issued October 18, 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 $\qquad$ 1st day of February 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

James Avery, 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: June 4, 2010
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 was employed as a bricklayer, tuck-pointer and acid washer for Employer and injured his right knee, as a result of the leg-intensive, repetitive job duties he performed for Employer, including kneeling, squatting and climbing up and down ladders.
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 Knee
14. Nature and extent of any permanent disability: 25 % of the Right Knee
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Thomas Cummiskey

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient to result in the applicable rates of compensation
3. Weekly compensation rate: $\ 635.00 for TTD/\$422.97 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Employer previously settled its risk of liability

1. Second Injury Fund liability:

10.125 weeks of permanent partial disability

$\ 4,282.57

TOTAL: $\ 4,282.57

1. Future requirements awarded: None.

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: Sam W. Eveland

Employee: Thomas Cummiskey

Departments: N/A

Employer: Martin C. Heck Brick Contracting (Settled)

Additional Party: Second Injury Fund

Insurer: Secura Insurance Company (Settled)

Injury No.: 10-054278

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On June 19, 2012, the employee, Thomas Cummiskey, appeared in person and by his attorney, Mr. Sam W. Eveland, for a hearing for a final award on his claim against the Second Injury Fund. The employer, Martin C. Heck Brick Contracting, and its insurer, Secura Insurance Company, were not present or represented at the hearing since they had previously settled their risk of liability in this case. The Second Injury Fund was represented at the hearing by Assistant Attorney General Da-Niel Cunningham. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about June 4, 2010, Thomas Cummiskey (Claimant) sustained an occupational disease arising out of and in the course of employment that resulted in injury to Claimant.

2) Claimant was an employee of Martin C. Heck Brick Contracting (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage sufficient to result in applicable rates of compensation of $\ 635.00 for total disability benefits and $\ 422.97 for permanent partial disability benefits.

7) Employer paid no temporary total disability (TTD) benefits in this case.

8) Employer paid no medical benefits in this case.

9) Claimant sustained permanent partial disability of 25 % of the right knee, as a result of the June 4, 2010 (primary) injury.

10) Claimant sustained pre-existing permanent partial disabilities of 17.5 % of the right wrist and 17.5 % of the left wrist, prior to the June 4, 2010 injury.

11) A load factor of 10 % for the combination of the primary and pre-existing disabilities is applicable.

1) Does an occupational disease claim trigger Second Injury Fund liability as an "injury" under Mo. Rev. Stat. § 287.220 ?

2) What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A. Stipulation for Compromise Settlement in Injury Number 10-054278 between Claimant and Employer

B. Independent medical report of Dr. Shawn Berkin dated August 22, 2011

C. Certified medical treatment records of Dr. Stephen Benz

D. Stipulation for Compromise Settlement in Injury Number 09-030821 between Claimant and Employer

Nothing offered or admitted at the time of trial

Note: Some of the records submitted at hearing contain handwritten comments or other marks. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on June 19, 2012.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions, the medical treatment records and the Stipulations for Compromise Settlement between Claimant and Employer in this case and the pre-existing injury, as well as based on my personal observations of Claimant at hearing, I find:

1) Claimant is a 54-year-old bricklayer, tuck-pointer and acid washer, who was employed by Martin C. Heck Brick Contracting (Employer) on or about June 4, 2010. Claimant had been working in this position for Employer for approximately ten years, but was unemployed as of the time of the hearing. Claimant's job duties for Employer included constant and repetitive kneeling, squatting and climbing up and down ladders to perform the bricklaying, tuck-pointing and acid washing.

2) Leading up to June 4, 2010, Claimant developed right knee pain and tenderness when performing his various work activities. He treated with Dr. Stephen Benz (Exhibit C), who diagnosed Claimant with an extensive amount of degenerative arthritis, mostly in the medial compartment of the right knee. On June 4, 2010, Dr. Benz took Claimant to surgery to treat his right knee complaints. He performed a partial right knee replacement (unicondylar knee replacement and Oxford knee).

3) Claimant reported that he continues to have ongoing problems with the right knee since the onset of this condition and his surgical treatment for it. He said that he has pain and swelling in the knee, aggravated by climbing stairs. He reported weakness in the right leg and said that he is unable to squat.

4) Claimant and Employer resolved their portion of this June 4, 2010 case (Injury Number 10-054278) by Stipulation for Compromise Settlement (Exhibit A) for the payment of $\ 23,268.80, or 25 % permanent partial disability of the right knee and 10 weeks of temporary total disability (TTD). The Second Injury Fund Claim was left open on the Stipulation. This Stipulation for Compromise Settlement was approved by Chief Administrative Law Judge Lee B. Schaefer on December 5, 2011.

5) Prior to the June 4, 2010 occupational disease, Claimant sustained a pre-existing injury to his bilateral wrists, resulting in pre-existing disabilities to those body parts.

6) Claimant testified that he suffered an injury on the job for Employer leading up to March 20, 2009. As a result of his hand-intensive, repetitive work activities for Employer as a bricklayer, tuck-pointer and acid washer, he developed bilateral carpal tunnel syndrome and bilateral Guyon's canal syndrome.

7) Claimant treated with Dr. Stephen Benz (Exhibit C), who first tried a period of conservative treatment, which did not alleviate Claimant's complaints. Eventually, he performed surgery on Claimant's right wrist on April 23, 2009 and on Claimant's left wrist on May 5, 2009. He performed carpal tunnel releases and Guyon's canal releases in each wrist, to treat Claimant's bilateral carpal tunnel and Guyon's canal syndromes.

8) Following his wrist treatment and leading up to the time of the June 4, 2010 injury, Claimant reported that he continued to have wrist pain and tingling in his hands.

9) Claimant and Employer resolved their portion of the March 20, 2009 case (Injury Number 09-030821) by Stipulation for Compromise Settlement (Exhibit D) for the payment of $\ 28,500.00, or 17.5 % permanent partial disability of each wrist, with a 10 % load for multiplicity, 2 weeks of disfigurement and $\ 426.71 in past temporary total disability (TTD) benefits. This Stipulation for Compromise Settlement was approved by Administrative Law Judge John A. Tackes on June 22, 2010.

10) Claimant was examined by Dr. Shawn Berkin (Exhibit B) on June 22, 2011 at the request of his attorney for an independent medical examination. Dr. Berkin issued his report on August 22, 2011, following his physical examination and his review of the medical treatment records. Medically causally related to Claimant's work activities for Employer leading up to June 4, 2010, Dr. Berkin diagnosed overuse syndrome of the right leg with traumatic tendinitis of the right knee, status post partial right knee replacement. Dr. Berkin assessed permanent partial disability for Claimant's primary right knee and pre-existing bilateral wrist injuries/conditions. He opined that the preexisting disabilities represent a hindrance or obstacle to employment or reemployment. Finally, he opined that the combination of the disabilities creates a significantly greater disability than the simple sum or total of each separate injury/illness, and so a loading factor should be applied.

11) Claimant testified that the combination of the injuries made it more difficult for him