Tyler Kelsey v. Loy Lange Box Co.

(Affirming Award and Decision of Administrative Law Judge with Correction)

Injury No.: 08-114802

Employee: Tyler Kelsey

Employer: Loy Lange Box Co.

Insurer: Accident Fund Insurance Co.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, reviewed the evidence and considered the whole record. We find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge by this supplemental opinion.

We offer this correcting award to replace the references to $\S 287.160 .1$ RSMo on pages 7 and 8 of the administrative law judge's award with references to $\S 287.120 .6$ RSMo.

In other respects, we affirm the award and decision of the administrative law judge. We approve and affirm 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.

The November 1, 2012, award and decision of Administrative Law Judge Kathleen M. Hart, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $16^{\text {th }}$ day of May 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

[^0]

[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2008, unless otherwise indicated.

Employee: Tyler Kelsey

Departments: $\mathrm{n} / \mathrm{a}$

Employer: Loy Lange Box Co.

Additional Party: n/a

Insurer: Accident Fund Insurance Co.

Hearing Date: August 14, 2012

Injury No.: 08-114802

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

Checked by: KMH

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 30, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 upper extremity when his hand was crushed in a machine.
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: left upper extremity at the elbow
14. Nature and extent of any permanent disability: 60 % left upper extremity at the elbow
15. Compensation paid to-date for temporary disability: $\ 2,641.89
16. Value necessary medical aid paid to date by employer/insurer? $\ 65,011.54

Employee: Tyler Kelsey

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 623.38
3. Weekly compensation rate: $\$ 415.60 / \ 404.66
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Underpayment of temporary total disability

$\ 2,641.89

126 weeks of permanent partial disability from Employer

$\ 50,987.16

15 weeks of disfigurement from Employer

$\ 6,069.90

1. Second Injury Fund liability: No

TOTAL:

$\ 59,698.95

1. Future requirements awarded:

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:

Employee: Tyler Kelsey

Departments: $\mathrm{n} / \mathrm{a}$

Employer: Loy Lange Box Co.

Additional Party: n/a

Insurer: Accident Fund Insurance Co.

Injury No.: 08-114802

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter August 14, 2012. Tyler Kelsey (Claimant) was represented by attorney James Fox. Loy Lange Box Co. (Employer) was represented by attorney John Fox. The SIF claim was dismissed prior to hearing.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

Claimant injured his left hand at work. Employer provided treatment and TTD. Employer asserts a 50 % drug penalty applies to reduce Claimant's TTD, PPD, and medical benefits.

The parties stipulated to the following:

1. Claimant was injured by accident December 30, 2008 while in the course and scope of his employment.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law.
3. Employer's liability was fully insured by Accident Fund Insurance Co.
4. Employer had notice of the injury and a claim for compensation was timely filed.
5. Claimant's average weekly wage was $\ 623.38. Claimant's rates for TTD and PPD are $\ 415.60 and $\ 404.66 respectively.
6. Claimant was paid TTD benefits totaling $\ 2,641.89. This represents TTD from 12/31/08 through 2/24/09, and 5/20/09 through 5/24/09. Employer assessed a 50\% drug penalty against Claimant's TTD benefits.
7. Employer paid $\ 65,011.54 in medical benefits.

The parties stipulated the issues to be resolved are as follows:

1. Future medical care.
2. Permanent partial disability.
3. Applicability of a 50 % drug penalty to past and future benefits.

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 32 year-old male who worked for Employer approximately 4 years as a Shipping Supervisor, Forklift Operator, and Machine Operator producing corrugated board and cardboard boxes. Claimant last worked for Employer in February 2012. He is not currently working for reasons unrelated to his work injury. Claimant is left hand dominant, but writes with his right hand.
2. On December 30, 2008, Claimant was working the 3:20 p.m. through 11:50 p.m. shift. At approximately 7:30 p.m., a co-worker's machine malfunctioned. The vacuum belt that pulls paper into the machine slipped off the roller. Claimant had operated that machine before, and was taught how to manually fix the machine. He got down on his back into the crawl space under the machine, and reached up to loosen the bolts and take tension off the belt. He had his left hand on the belt, and his hand got sucked into the machine up to his mid forearm. His arm was stuck in the machine for two to three minutes before he and a co-worker could loosen some bolts in order to remove his arm.
3. Claimant was taken to the Emergency Room at St. Alexius Hospital. The records indicate Claimant was cooperative, well groomed, and had normal speech. Given the extent of damage to his arm, he was soon transferred to Barnes Hospital and began treating with Dr. Goldfarb.
4. Dr. Goldfarb immediately performed surgery consisting of compartment release and repair of tendons that were avulsed from the muscle belly from his index through small fingers. Dr. Goldfarb referred Claimant to Dr. Dave for pain management before he started a physical therapy program. Claimant followed up with Dr. Goldfarb and attended physical therapy for several months. Throughout this time, Dr. Dave treated him with various medications to relieve his pain.
5. Claimant returned to light duty, but continued to have problems with his left arm. In order to give Claimant more function and motion in his thumb, Dr. Goldfarb performed a second surgery in May 2009 to transfer a tendon from his little finger to his thumb and to separate the web space between his thumb and index finger. After a functional capacity evaluation, Dr. Goldfarb released Claimant from treatment in August 2009. He imposed

permanent work restrictions to include "limitation of gripping of 25 pounds with the affected hand, limitation in lifting more than 30 pounds from waist to overhead. He should avoid climbing heights and repetitive grasping/fine manipulative skills, require more frequent breaks than normal." He noted Claimant had decreased grip strength, decreased sensation, and decreased mobility. He rated Claimant's disability at 40 % of the left upper extremity.

1. Claimant continues to treat with Dr. Dave for management of chronic pain due to nerve damage. He takes Oxycodone four times a day. He sees Dr. Dave every 2-3 months and believes this treatment will continue indefinitely. Claimant testified he is able to work and function well with his current medications.
2. Employer paid for Claimant's treatment with Dr. Dave until last year. Since then, Claimant has been paying for this treatment on his own. He pays a discounted bill of $\ 95 per visit and pays approximately $\ 75 per month for prescriptions.
3. Claimant was able to return to work full duty, but at a less strenuous position. He could not do the heavy manual work of a machine operator. He was not able to lift heavy items and could not manipulate his hand as required to operate a machine. He returned to work in shipping, which is a lighter job. He drove a forklift all day and set up a machine for others to operate. He was able to run the bander machine because it involved mostly pressing buttons to band boxes and put on labels.
4. Claimant continues to have significant symptoms in his left upper extremity. He can close his hand, but can't make a complete fist. He has lost pinch strength, grip strength and dexterity. He lost independent motion in the fingers, and has to move all four fingers together to flex and extend them. He has limited range of motion in his thumb. He has no feeling in his thumb and middle and index fingers. His hand always feels cold. He has a constant throbbing and pulsing pain that is generally manageable with medications, but increases with any activity. He does not have much motor skill or fine movement with his hand. Repetitive activity causes pain. He needs to take frequent breaks at work to rest his hand. He can't write, use hand tools, button a shirt cuff, or squeeze a toothpaste tube. He can't tie his shoes, and wears slip on shoes now. He can no longer play the guitar, participate in sports, or tie a lure to go fishing. Claimant has extensive scarring on his hand and forearm.
5. Claimant's expert, Dr. Schlafly, noted significantly reduced grip strength and pinch strength. He noted Claimant's thumb tendon transfer was working well, but he still had weak thumb opposition. He opined Claimant had a severe crush injury which caused injury to his muscles, tendons, and the median nerve of the left hand, wrist, and forearm. He recommended Claimant continue treating with Dr. Dave so he could continue to work. He agreed with Dr. Goldfarb's permanent restrictions and rated Claimant's disability at 75 % of the left elbow.
6. Dr. Goldfarb also noted the severity of Claimant's injury. He testified it is unusual that one tendon is pulled out from the muscle, and Claimant had multiple tendons pulled out from the muscle. This could lead to complete loss of function. He opined Claimant

worked hard in therapy, and made excellent progress. He rated Claimant's disability at 40 %, and specified the disability should be at the entire extremity given Claimant's le