Mark Cerutti v. Missouri Department of Corrections

Injury No.: 08-091923

Employee: Mark Cerutti

Employer: Missouri Department of Corrections

Insurer: C A R O

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 September 28, 2012, as corrected herein. The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued September 28, 2012, is attached and incorporated by this reference to the extent it is not modified by this award.

The administrative law judge inadvertently referred to employee's left hand instead of employee's right hand on two occasions. We correct those errors.

The paragraph beginning at the bottom of page 10 of the administrative law judge's award is corrected to read:

Based on a review of the evidence, I find that as a direct result of the work related left carpal tunnel syndrome and left long trigger finger including surgery the employee sustained a 18\% permanent partial disability of the left hand and wrist at the 175 week level ( 31.5 weeks) and as a direct result of the right carpal tunnel syndrome including surgery the employee sustained a 15\% permanent partial disability of the right hand and wrist at the 175 week level ( 26.25 weeks). The employee is therefore entitled to 57.75 weeks of compensation for permanent partial disability.

The fifth paragraph on page 14 of the administrative law judge's award is corrected to read:

I find that the employee's pre-existing bilateral hand condition was of such seriousness as to constitute a hindrance or obstacle to employment or obtaining re-employment. I find that the pre-existing bilateral hand condition resulted in an 18\% permanent partial disability of the left hand and wrist at the 175 week level and 15\% permanent partial disability of the right hand and wrist at the 175 week level for a total of 57.75 weeks of compensation.

In all other respects, we affirm the administrative law judge award.

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 $28^{\text {th }}$ day of March 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: | Mark Cerutti |

Employer: Missouri Department of Corrections

Additional Party: Second Injury Fund

Insurer: Self c/o CARO

Appearances: Doug VanCamp, attorney for employee.

Gregg Johnson, attorney for the employer-insurer.

Kevin Nelson, attorney for Second Injury Fund.

Hearing Date: June 27, 2012 Checked by: LCK/rmm

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? On or about September 28, 2008 and July 20, 2010.
5. State location where accident occurred or occupational disease contracted: St. Francois 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.

On June 27, 2012, the employee, Mark Cerutti, appeared in person and with his attorney, Doug VanCamp for a hearing for a final award. The employer was represented by Assistant Attorney General Gregg Johnson. Representing the Second Injury Fund in the 2010 case was Assistant Attorney General Kevin Nelson. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

1. The Missouri Department of Corrections was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self-insured employer.
2. On September 28, 2008 and July 20, 2010 Mark Cerutti was an employee of the Missouri Department of Corrections and was working under the Workers' Compensation Act.
3. On July 20, 2010 the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's alleged accident or occupational disease in Injury Number 08-091923 and the accident in Injury Number 10-063790.
5. The employee's claims were filed within the time allowed by law.
6. The rate of compensation in Injury Number 08-091923 is $\ 368.74 per week and in Injury Number 10-063790 is $\ 376.46.
7. In Injury Number 10-063790, the employee's injury was medically causally related to the July 20, 2010 accident.
8. The employer paid medical aid in the amount of $\ 20,341.04 in the 2008 case and $\ 5,737.88 in the 2010 case.
9. The employer paid $\ 52.68 in temporary disability benefits for $1 / 7$ of a week in the 2008 case. The employer did not pay any medical aid in the 2010 case.

1. Accident or Occupational Disease in Injury Number 08-091923.
2. Medical Causation in Injury Number 08-091923.
3. Permanent Partial Disability in Injury Number 08-091923.
4. Permanent Partial Disability in Injury Number 10-063790.
5. Liability of the Second Injury Fund for Permanent Partial Disability in Injury Number 10063790 .

A. Report of Dr. Schlafly dated February 23, 2010.

B. Report of Dr. Schlafly dated August 24, 2011.

C. Report of Dr. Schlafly dated June 25, 2012.

D. Medical records of Mid Missouri Hand \& Orthopedic Surgery, Inc.

E. Medical records of Parkland Health Center.

F. Medical records of Medical Center.

G. Medical records of Orthopedic Associates, LLC.

H. Medical records of Jefferson City Medical Group.

I. Medical records of Orthopedic Associates LLC.

J. Medical records of David M. Brown, M.D.

K. Medical records of Neurological and Electrodiagnostic Institute.

L. Medical records of Midwest Imaging Center.

M. Medical records of Pro Rehab.

N. Medical records of Farmington Hand \& Physical Therapy.

O. Medical records of St. Louis Orthopedic, Inc.

P. Medical records of Orthopedic Associates, LLC.

Q. Medical records of Farmington Hand \& Physical Therapy.

R. Medical records of Midwest Spine Surgeons.

S. Medical records of Midwest Imaging Center.

T. Medical records of Parkland Health Clinic.

U. Photograph of keys.

V. Van Camp Law Firm expenses.

W. Report of David Robson, M.D. dated March 2, 2011.

The Employer and the Second Injury Fund did not offer any exhibits.

Judicial notice of the contents of the Divisions' files for the employee was taken.

WITNESS: Mark Cerutti.

BRIEFS: The employee filed his Proposed Award on July 27, 2012. The employer and the Second Injury Fund filed their Briefs on July 30, 2012.

The employee testified that lives in Farmington and has worked at the Department of Corrections as a Correctional Officer I since 2001. He is responsible for maintaining security which includes the accountability of offenders; securing and unlocking doors; policing; and observing offenders.

The employee testified that he thought in November of 2006 he started working in the B dining hall but it was possible that he could have started in September of 2006. The B dining hall is 40-50 yards long and is wide as a football field. It contains a lot of doors with locks. When he starts his shift he will search the dining hall before anyone comes in. As he is searching the area he is opening, unlocking, and locking each of the doors. He has to perform paperwork and also pulls brooms, mops, and parts to hold trays for the inmates to use. He is supposed to have a partner but 80 % of time he does not because they assign his partner somewhere else. He is usually without his partner 3 or 4 days out of a 5 day work week. As he is going through the

building, he is on a continuous basis locking and unlocking the doors. The locks and keys are varied from small to large. Exhibit U is a picture of keys he is using on a daily basis. The small keys are for master locks and the larger keys are for big metal doors and closets. Some turn quickly but most are hard to manipulate and he has to twist the doors because the locks catch. The minimum number of times he is putting a key and turning a lock on an easy day is 75-100 times. On a busy day 150-200 times he will have to insert keys into locks and apply force to unlock. Sometimes the force used is substantial and sometimes it is not. He is right handed and he used his right hand to lock and unlock the locks.

On September 5, 2006, the employee saw Dr. Hoff for hand numbness and tingling. The history showed swelling and tight muscles in his right hand with an onset of three to four weeks. It was noted the employee was cutting firewood with a chain saw and splitter. There was no loss of sensation; the right hand and forearm was a bit swollen; and there was crepitus with finger flexion and extension which was felt in the forearm muscles. Dr. Hoff diagnosed tenosynovitis of the right forearm and paresthesia of the right hand and prescribed Prednisone.

The employee saw Dr. Folz on March 6, 2007 after being referred by Dr. Baskett for an EMG/NCS. The employee had pain in the right forearm and hand with a sub acute onset occurring in an intermittent pattern