Michael Williams v. Cassens Transport Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-114578

Employee: Michael Williams

Employer: Cassens Transport Company (award previously issued)

Insurer: Self-Insured (award previously issued)

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 July 9, 2012. The award and decision of Administrative Law Judge Kathleen M. Hart, issued July 9, 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 June 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Michael Williams

Injury No.: 07-114578

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

Before the

Injury

Injury

Date: April 23, 2012

Divisions of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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: November 29, 2007
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 right shoulder, right elbow, right knee, and psyche as a result of a fall at work.
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 shoulder, right elbow, right knee, psyche
14. Nature and extent of any permanent disability: 30 % right shoulder, 22.5 % right elbow, 25 % right knee, 12.5 % body as a whole referable to depression; and permanent and total disability benefits from the SIF
15. Compensation paid to-date for temporary disability: $\ 35,331.84
16. Value necessary medical aid paid to date by employer/insurer? $\ 117,637.03

Employee: Michael Williams

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 742.72 / \ 389.04
4. Method wages computation: Stipulation

1. Amount of compensation payable:

206.85 weeks of permanent partial disability from Employer

(previously paid)

1. Second Injury Fund liability: Yes

Indeterminate

Permanent total disability benefits from Second Injury Fund:

weekly differential of $\ 353.68 payable by SIF for 206.85 weeks beginning

December 4, 2008, and, thereafter, $\ 742.42 weekly for Claimant's lifetime

as provided by law.

TOTAL:

INDETERMINATE

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:

James J. Sievers, Jr.

Employee: Michael Williams

Injury No.: 07-114578

Dependents: n/a

Before the

Employer: Cassens Transport Company (award previously issued)

Division of Workers'

Additional Party: SIF Only

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Self c/o Broadspire (award previously issued)

Checked by: KMH

A hearing was held on the above captioned matter April 23, 2012. Michael Williams (Claimant) was represented by attorney James Sievers. The SIF was represented by Assistant Attorney General Kevin Nelson. Cassens Transport (Employer) and Claimant settled the primary claim prior to trial.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award. Any markings on the exhibits were present when admitted into evidence.

Claimant alleges he sustained an injury by accident November 29, 2007, while in the course and scope of his employment. He alleges he is permanently and totally disabled as a result of the combination of his primary and prior injuries and disabilities.

The parties stipulated to the following:

1. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law on the alleged date of injury.
2. Employer's liability was fully self-insured.
3. Employer had notice of the alleged injury and a claim for compensation was timely filed.
4. Claimant's average weekly wage yields rates for TTD/PTD of $\ 742.72 and PPD of $\ 389.04.
5. Claimant was paid TTD for 47.5 weeks totaling $\ 35,331.84. He received medical benefits of $\ 117,637.03.

1. On August 29, 2011, an award was issued finding Claimant sustained 30\% PPD to the right shoulder, 22.5 % PPD to the right elbow, 25 % PPD to the right knee, and 12.5 % to the body as a whole related to depression, all as a result of the primary injury.
2. If Claimant is permanently and totally disabled, the permanent total disability began December 4, 2008.

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

1. Whether Claimant sustained an accident that arose out of and in the course and scope of his employment.
2. SIF liability.

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 63 year-old male. He has a tenth grade education and earned a GED while in the Army. He served in Vietnam and was honorably discharged in 1970. He began working for Employer after his discharge.
2. Claimant worked for Employer as a laborer/yard man for 39 years. His duties included loading and unloading automobiles onto railroad cars, changing batteries and tires, and various other duties requiring a considerable amount of lifting and standing. Claimant worked five to seven days a week and worked overtime.
3. Claimant had a number of injuries and disabilities prior to his 2007 work injury.
4. Claimant first injured his low back in 1987. He had a number of strains and flare ups which eventually required treatment with a TENS unit. In 1994 an MRI showed a herniated disc at L4-5, and Claimant had a microdiscectomy at that level. His complaints did not resolve, and he underwent a redo lumbar microdiscectomy at L4-5 in August 1995. Claimant was able to return to work, but continued to have significant pain in his back and right hip. A 2003 MRI showed significant degenerative changes, multiple bulges and spinal stenosis. Leading up to and beyond his primary injury, he had pain and difficulties with his low back into his right leg. He could not lift as much as he had before his injuries. He is not able to sleep well due to back pain. Claimant continues to take anti-inflammatories.

1. Claimant settled his prior back injuries for a total of 60 % PPD.
2. Claimant injured his neck in November 1995. After conservative treatment failed, an MRI showed a herniated disc at C6-7. Surgery was considered but not performed. Leading up to and continuing beyond the primary injury, Claimant continued to have pain in his neck. Claimant testified he had difficulty loading trucks at work because he could not turn his head to the left when driving.
3. Claimant injured his right hand at work in 1989. He fractured his hand when it got caught in a railroad car door. He was treated with a splint and injections, but his complaints did not improve. He developed numbness in his fingers, and was diagnosed with carpal tunnel syndrome. In April 1991, he underwent a right open carpal tunnel release, trigger thumb release, and excision of a bone fragment of the triquetrum. Claimant testified he continued to have problems with his right hand leading up to his primary injury. He had pain and weakness in his hand, and difficulty performing many of his tasks at work.
4. He settled this injury with Employer for 26 % PPD of the right hand.
5. Claimant developed carpal tunnel syndrome in his left hand in the early 1990s. He had a carpal tunnel release, but continued to have pain and numbness in his hand leading up to his primary injury. His left hand was weak, and he had difficulty using his hand at work. He developed pain in his left elbow, and was diagnosed with left cubital tunnel syndrome in 1993. He had an ulnar nerve transposition, but continued to have significant problems with his left arm. He had pain in his wrist and elbow. He was able to return to work, but had difficulty because his arm is weaker and he cannot completely straighten his arm.
6. He settled this case with Employer for 17.5 % PPD to his left elbow and 17.5 % PPD to his left wrist.
7. In 2004, Claimant was diagnosed with arthritis in both thumb joints as well as an aggravation of his right carpal tunnel syndrome. Claimant had numerous injections into his thumbs, and arthroplasty was considered.
8. Claimant first injured his left knee in 1993. He had physical therapy, and was diagnosed with a strain. In 1997, he reinjured his left knee when he fell and fractured his knee cap. Claimant continued to have problems with his left knee leading up to his primary injury. He had problems going up and down stairs, squatting and kneeling at work.
9. Claimant settled his knee injuries with Employer for 21 % PPD of the left knee. In addition, the SIF settled with Claimant admitting he had preexisting disabilities of 55 % of the back, 17.5 % of the left wrist, 17.5 % of the left elbow, 26 % of the right hand, and 15 % of the neck.
10. Claimant developed pain in his left foot in 1996 and was diagnosed with left plantar fasciitis. He had a series of injections, and was given a splint and anti-inflammatories. Surgery was discussed, but Claimant declined. Claimant has continued to have pain,

stiffness, and tenderness in his foot. He has difficulty standing and walking for extended time periods, making his job more difficult.

1. Claimant had problems with his right shoulder before his primary injury. He had an MRI in 1999, and was diagnosed with an impingement syndrome. He had a series of injections, and used over the counter medications on a daily basis. He continued to have pain and limitations in his shoulder leading up to his primary injury.
2. Claimant also had problems with his right knee prior to the primary injury. He has had numerous injections, but continued to have knee pain, stiffness, and limitations leading up to his primary injury.
3. Claimant had psychiatric problems prior to his primary injury. His step-father physically and mentally abused him as a child. He was in combat in Vietnam, and saw many of his fellow soldiers and friends killed. He had treatment at the VA on numerous occasions, and was diagnosed with PTSD and a major depressive disorder. He continues to have flashbacks of h