Ronald McKinley v. Atlas Glass & Door, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-017967

Employee: Ronald McKinley

Employer: Atlas Glass \& Door, Inc. (Settled)

Insurer: Commerce \& Industry 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 August 8, 2012. The award and decision of Administrative Law Judge Kenneth J. Cain, issued August 8, 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 $28^{\text {th }}$ day of July 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Ronald McKinley

Injury No. 09-017967

Dependents: N/A

Employer: Atlas Glass \& Door, Inc.

Insurer: Commerce \& Industry Insurance Company

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: June 5, 2012; Briefs filed July 3, 2012

Checked by: KJC/pd

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: March 4, 2009
5. State location where accident occurred or occupational disease was contracted: Leavenworth, Kansas with contract of hire in 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: Employee, while in the course and scope of his employment as a glazer for

Atlas Glass company was required to perform strenuous activities with hand and wrists. Employee developed bilateral DeQuervain's syndrome and trigger fingers.

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: both hands and wrists
3. Nature and extent of any permanent disability: 27 percent to body as a whole per stipulation with employer.
4. Compensation paid to date for temporary disability: N/A
5. Value necessary medical aid paid to date by employer/insurer? N/A
6. Value necessary medical aid not furnished by employer/insurer? N/A
7. Employee's average weekly wages: By agreement
8. Weekly compensation rate: $\$ 772.53 / \ 404.66
9. Method wages computation: By agreement

1. Amount of compensation payable: N/A
2. Second Injury Liability: Yes

19.5 weeks @ $\ 404.66 per week equals $\ 7,890.87

TOTAL: $\mathbf{\$ 7 , 8 9 0 . 8 7}$

1. Future requirements awarded: None

Said payments to begin as of dated of the 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 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Mr. Keith Yarwood

Employee: Ronald McKinley

Injury No. 09-017967

Dependents: N/A

Employer: Atlas Glass \& Door, Inc.

Insurer: Commerce \& Industry Insurance Company

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: June 5, 2012; Briefs filed July 3, 2012

Checked by: KJC/pd

Mr. Ronald McKinley (hereinafter referred to as Claimant) filed two claims for compensation on October 18, 2010. Injury Number 09-014630 was pled as an occupational disease with a date of March 3, 2009 for the occupational disease. Claimant alleged in the claim that he injured his left shoulder and body as a whole due to performing repetitive activities at work.

Injury Number 09-017697 was also pled as an occupational disease with a date of March 15, 2009 and all days worked prior thereto as the date for the occupational disease. Claimant alleged in that claim injuries to both of his upper extremities as a result of performing repetitive activities at work.

Claimant settled both of his cases against his employer on November 3, 2011. He settled Injury Number 09-014630 based on a permanent partial disability of 37.5 percent to his body as a whole. Neither the claim nor the stipulation for settlement specified any specific parts of the body injured other than his left shoulder. The stipulation for settlement did not show whether the 37.5 percent to the body as a whole settlement was based entirely on his shoulder injury or due to disability from his shoulder and some other part of the body.

Claimant settled Injury Number 09-017697 based on a permanent partial disability of 27 percent to his body as a whole. Again, the settlement was not specific as to the bases for the settlement other than for a bilateral hand impairment. Also, Claimant testified that he last worked at Atlas Glass \& Door, Inc. on March 4, 2009. There was no explanation as to why the claim was filed as an occupational disease for March 15, 2009 and all the days worked prior thereto.

The remaining party in both cases was the State Treasurer as Custodian of the Second Injury Fund. Prior to the hearings, the employee and the Second Injury Fund entered into

various admissions and stipulations. The remaining issues in Injury Number 09-014630 were as follows:

1. Whether the employee sustained an occupational disease;
2. Liability of the Second Injury Fund for compensation; and
3. Whether Second Injury Fund liability may be premised on an occupational disease.

At the hearing, Claimant testified that he was born on October 20, 1969. He stated that he graduated from high school in 1987. He stated that he was incarcerated from 1988 to 1993 for armed robbery. He indicated that he was heavily addicted to street drugs in 1988.

Claimant testified that he had not used drugs since 1988. He stated that his conviction was later expunged from his record. He stated that he had maintained good behavior for 20 years.

Claimant testified that after his release from prison he enrolled in college and obtained an AA degree in addiction counseling. ${ }^{1}$ He also stated that he had worked on a number of jobs since his release from prison. He stated that prior to 1999 he worked as a CNA and psych technician. He stated that in 1999 he became a glazer. He described the glazer job as strenuous. He stated that he had to lift in excess of 100 pounds and to climb ladders and scaffolds. He stated that he had to use large powerful industrial tools. He stated that he had to do a lot of bending and stooping. He stated that his hands hurt constantly while doing the work.

Claimant testified that prior to March 2009 he had sustained several injuries. He stated that in 1993 he sustained a closed head injury in a motor vehicle accident. He stated that afterwards he noticed a slight personality change and indicated that he became more irritable.

He testified that he had two hernia operations. He stated that due to his hernias he could no longer lift fee weights, do some of his hobbies, work on cars or play golf.

Claimant testified that in 2001 he fell down 30 to 40 stairs at work and "crushed" a nerve in his left elbow. He stated that he had surgery on his left elbow. He stated that his left arm was permanently crooked. He also stated that he was diagnosed with bilateral carpal tunnel syndrome at that time. He stated that he had surgery on his left hand. He stated that his doctor had recommended surgery on each hand, but that he was "afraid" to have surgery on both hands.

Claimant complained of continuing problems due to his 2001 injuries. He stated that his grip strength was about $1 / 2$ of what it was prior to his injury. He stated that his left hand was his

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[^0]: ${ }^{1}$ There were references in the medical records where Claimant had allegedly indicated that he had obtained his bachelor's degree from St. Mary's College and other references alleging that he was a few hours short of obtaining his degree.

dominant hand. He stated that after the accident he began using his right hand to do his job and to write.

Claimant testified that the surgery initially improved the numbness and tingling in his hands. He stated that his employer later increased his work load and that his hands went "downhill." He stated that the pain returned. He stated that his fingers began locking up at night. He stated that Dr. Ketchum recommended surgery for bilateral DeQuervain's syndrome. ${ }^{2}$

Claimant testified that he eventually had surgery on his left wrist and left index and middle fingers. He stated that he had surgery on his right wrist and middle and ring fingers. He complained of constant pain in his hands. He stated that he could no longer grip. He stated that Dr. Ketchum gave him a restriction of no repetitive gripping.

Claimant testified that his alleged March 3, 2009 "occupational disease" involved an injury to his left shoulder. There was no explanation as to why he pled the case as an occupational disease. Claimant testified that he injured his left shoulder on March 3, 2009 when he and several co-workers were carrying some large 600 to 800 pounds aluminum and steel frames. He stated that when one co-worker let go of the frames the weight shifted to him and his shoulder popped. He stated that he felt "extreme" pain in his shoulder.

Claimant testified that he went to work the next day despite his alleged pain. He stated that an MRI a few days later showed a rotator cuff tear. He stated that he had rotator cuff surgery. He stated that his doctor advised him that he was barely able to repair his shoulder.

Claimant testified that following his surgery he was given several lifting restrictions and placed on permanent light duty. He stated that he still had problems with his shoulder. He stated that he could not lift his shoulder. He stated that he had very limited motion in his shoulder. He stated that his shoulder was extremely painful. He stated that due to shoulder pain he could only get 2 to 3 hours of sleep per night. He stated that due to his shoulder problems his wife had to help him dress and with his personal hygiene.

Claimant complained of trouble walking which he attributed to his lack of sleep. He stated that he had become severely depressed and suicidal due to his pain. He stated that he was no longer able to engage in recreational activities. He stated that he had applied for 500 to 600 jobs and that he had been unable to obtain work. He stated that he had enrolled in vocational rehabilitation.

On cross-examination by the Second Injury Fund, Claimant admitted that he had not done any work since March 4, 2009. He admitted that in the 1990s he was a power weight lifter. He admitted that he had played computer games for about 15 years. He admitted that he still used a mouse to play the computer games. He admitted that he played on the

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[^0]: ${ }^{2}$ The surgery was to treat Claimant's alleged injuries from the alleged "Marc