Gregory Meredith v. Ice Cream Specialties, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-079086

Employee: Gregory Meredith

Employer: Ice Cream Specialties, Inc. (Settled)

Insurer: Fidelity \& Casualty 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 2, 2012. The award and decision of Administrative Law Judge Suzette Carlisle, issued August 2, 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 $\qquad 13 1^{\text {th }}$ day of February 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

James Avery, Member

Attest:

Employee: Gregory Meredith

Departments: N/A

Employer: Ice Cream Specialties, Inc. (Settled)

Additional: Second Injury Fund

Insurer: Fidelity \& Guaranty Insurance Company

c/o Broadspire Services, Inc. (Settled)

Hearing Date: May 1, 2012

Injury No.: 09-079086

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checking Date: May 1, 2012

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: October 9, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis 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 chest and left shoulder when a garage door pinned him between the door and a forklift.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Body as a Whole (back \& ribs, and left shoulder)
3. Nature and extent of any permanent disability: 15 % BAW (Body as a Whole), 5 % left shoulder (Settled)
4. Compensation paid to-date for temporary disability: $\ 12,168.15
5. Value necessary medical aid paid to date by employer/insurer? $\ 70,613.64

Employee: Gregory Meredith

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient for the rate listed in \#19 below
3. Weekly compensation rate: $\$ 529.05 / \ 422.97
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Settled with Employer prior to hearing.

1. Second Injury Fund liability: Yes

35.6875 weeks of permanent partial disability benefits from Second Injury Fund \$15,094.74

TOTAL:

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: D. Andrew Weigley

Employee: Gregory Meredith

Dependents: N/A

Employer: Ice Cream Specialties, Inc. (Settled)

Additional : Second Injury Fund

Insurer: Fidelity \& Guaranty Insurance

Company, c/o Broadspire Services Inc. (Settled)

Injury No.: 09-079086

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

The parties appeared before the undersigned administrative law judge on May 1, 2012, for a final hearing to determine liability of the Second Injury Fund ("SIF") at the request Greg Meredith ("Claimant"). Attorney D. Andrew Weigley represented Claimant. Assistant Attorney General Michael Finneran represented SIF. Venue is proper and jurisdiction properly lies with the Division of Workers' Compensation. The record closed after presentation of the evidence.

Prior to the start of the hearing, Employer Ice Cream Specialties, Inc. and their Insurer Fidelity \& Guaranty Insurance Company, settled with Claimant for 15 % of the body as a whole, and did not participate in the hearing. ${ }^{1}$

The parties stipulated that on or about October 9, 2009:

1. Claimant was employed by Employer;
2. Claimant sustained an accident that arose out of and in the course of employment in St. Louis County, Missouri;
3. Venue is proper in St. Louis;
4. Employer and Claimant operated under the Missouri Workers' Compensation Law; ${ }^{2}$
5. Employer's liability is fully insured;
6. Employer had notice of the injury;
7. A Claim for compensation was timely filed;
8. Claimant's average weekly wage was sufficient for a benefit rate for temporary total disability ("TTD") and permanent total disability ("PTD") of $\ 529.05; and $\ 422.97 for permanent partial disability ("PPD") benefits;
9. Employer paid TTD benefits totaling $\ 12,168.15 and medical benefits totaling $\ 70,613.64; and

[^0]

[^0]: ${ }^{1} All references in this award to the Employer also refer to the Insurer.

{ }^{2}$ All statutory references in this award are to Section 287 of the Revised Statutes of Missouri (2005), unless otherwise stated.

1. Claimant reached maximum medical improvement ("MMI") on May 6, 2010.

The sole issue to be decided is the nature and extent of SIF liability for either PPD or PTD benefits, if any.

All of the evidence was reviewed but only evidence that supports this award will be summarized below. Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights in the exhibits, they were made prior to becoming part of this record, and were not placed there by the undersigned administrative law judge.

Claimants Exhibits A through L were admitted into evidence without objection. The SIF offered no additional exhibits.

1. At the time of the hearing, Claimant was 49 years old. He was married and had 4 children living at home. While in school Claimant was a "C" student. In 1978, Claimant left school in the $10^{\text {th }}$ grade.
2. After Claimant left school he worked at a full-service gas station. In 1979 Claimant enlisted in the Air Force where he served until 1980. He was honorably discharged for medical limitations related to his left ankle.

1. In the 1970s Claimant dislocated his left ankle while playing baseball. Later, Dr. Perry Sheddinger surgically repaired the ankle. No medical records are in evidence.
2. While in the military, Claimant reinjured his left ankle, and received an honorable discharge because he was physically unfit for military duty. At work, the ankle hurt.
3. On May 22, 1995, Claimant sustained a herniated disc to his low back when he slipped and fell. Dr. Frank Petkovich performed a lumbar laminotomy with decompression on September 14, 1995. Later, Claimant received physical therapy. Claimant missed 16 weeks from work. Claimant also treated with a chiropractor once a week which helped "somewhat."
4. Claimant settled the case for 27.5 % of the body for the low back. After treatment ended, Claimant missed time from work, could not drive the forklift, and stacking product jarred his back.

1. On March 21, 1996, Claimant fell after he felt a sharp back pain and fractured a bone near his right elbow. Treatment included a cast and physical therapy. Claimant settled the case for 17.5 % of the right elbow.
2. In 2003 Claimant saw Dr. David Fagan for hand tingling and loss of strength. (The same part of the upper extremity as the 1996 injury). Dr. Fagan decompressed the right cubital tunnel on June 16, 2003. Claimant missed a month from work. The surgery was not helpful. He returned to work with the same symptoms. Claimant dropped products due to decreased grip strength. He is right-handed.
3. In 2004 Claimant received treatment at Cedar Hill Medical Center from Dr. Goodell for blood passed in his stool. Two surgical procedures were performed in August 2004. A large polyp was surgically removed from his colon and he was hospitalized for five days. Claimant was readmitted on August 23, 2004 for exploratory laparotomy, revision of sigmoid resection, and construction of a diverting ileostomy. He was discharged on September 2, 2004. Claimant missed work for 4 to 6 months. Ongoing complaints included cramping and diaherra. Claimant was embarrassed to talk about the condition.
4. About 2004 Claimant was diagnosed with diabetes. Claimant's energy level decreased after abdominal surgery, and he could barely make it to work. Since 2005 Claimant has taken insulin, pills, and used diet to control his diabetes. Complaints include tingling and pain in his feet and hands, loss of grip strength, numbness in his fingers and feet. Diabetes affected Claimant at work and caused him to miss work.
5. Five years before Claimant left work, he occasionally took medication for depression as a result of his health issues.
6. Before October 9, 2009, Claimant had no permanent work restrictions related to his preexisting conditions. He successfully performed all aspects of his physical job leading up to October 2009. Claimant did not receive complaints from his supervisors about the quality of his work prior to October 9, 2009.
7. Claimant worked for Employer from July 11, 1983 until May 2010. The company made ice cream novelties. Claimant worked in a warehouse freezer and stacked products all day with the use of a forklift. The temperature in the warehouse was 30 to 35 degrees to below zero. Claimant worked in the freezer and operated a stand-up forklift for 27 years.

1. On October 9, 2009, Claimant was closing the garage door while standing on the forklift. The forklift moved into reverse and crushed him against the door. He became trapped between the fork lift and the garage door. Claimant injured his left ribs and left shoulder.
2. Claimant was hospitalized at St. John's Hospital until October 15, 2009. He received oxygen, pain management, and learned how to use a walker because he had difficulty walking. He missed six months from work.

1. After Claimant's release from the hospital, he treated with Orthopedic and Sports Medicine from November 2009 to May 2010.
2. Claimant returned to work for five weeks, and Employer honored Dr. Cantrell's restrictions. However, Claimant voluntarily left work at age 47 because he had difficulty performing his duties because of problems with his ribs, left ankle, knees, arms, feet, and back.
3. Claimant settled the case with Employer for 15 % of BAW for the ribs and 5 % of the left shoulder. The case was settled on March 13, 2010.
4. Current complaints from the primary injury include: pain with breathing and his shoulder is aggravated when he twists or lifts.
5. Claimant reviewed a list of medications that were reviewed in Exhibit L. He took all the medications in May 2010 when he left Employer, except for morphine. Sertraline is a medication prescribed by the VA Hospital after he stopped working for Employer. It is used to t