James Ryan v. Murphy Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-080003

Employee: James Ryan

Employer: Murphy Company

Insurer: ACIG Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Denied)

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 10, 2012. The award and decision of Administrative Law Judge Suzette Carlisle, issued August 10, 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 $\qquad 18^{\mathrm{TH}} \qquad$ 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: James Ryan

Injury No.: 07-080003

Dependents: N/A

Employer: Murphy Company

Additional Second Injury Fund (Denied)

Insurer: ACIG Insurance Co.

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: July 27, 2007
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 left shoulder while operating a lift at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left shoulder
14. Nature and extent of any permanent disability: 10 % permanent partial disability of the left shoulder
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? \$1,853.04

Employee: James Ryan

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 1,238.96
3. Weekly compensation rate: $\$ 742.72 / \ 389.04
4. Method wages computation: Stipulated

1. Amount of compensation payable:

23.2 weeks of permanent partial disability from Employer

$\ 9,025.73

1. Second Injury Fund liability: Denied

TOTAL:

$\ 9,025.73

1. Future requirements awarded: N/A

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: James Ryan

Departments: N/A

Employer: Murphy Company

Additional: Second Injury Fund (Denied)

Insurer: ACIG Insurance Co.

Injury No.: 07-080003

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 June 4, 2012 for a hearing for a final award at the request of James Ryan ("Claimant") to determine the liability of Murphy Company ("Employer"), ACIG Insurance Company ("Insurer"), and the Second Injury Fund (SIF) for permanent partial disability benefits. Attorney D. Andrew Weigley represented Claimant. Attorney Jennifer L. Dickerson represented the Employer \& Insurer ${ }^{1}, and Assistant Attorney General Carol Barnard represented SIF. { }^{2}$ The record closed after presentation of the evidence. Also present was Mr. Dennis Johnson, Loss Control Director for Employer.

Prior to the hearing, Attorney Shaun M. Falvey withdrew from representation of Claimant with a lien totaling $\ 7,303.50. Mr. Falvey was not present at the hearing, and none of the parties made arrangements with Mr. Falvey concerning the lien.

Venue is proper and jurisdiction lies with the Division of Workers' Compensation. The court reporter was Stacy L. Waterkotte.

The parties stipulated that on or about July 27, 2007:

1. Claimant was employed by the Employer, and sustained an accident, which arose out of and in the course of employment in St. Louis County, Missouri;
2. Employer and Claimant operated under the Missouri Workers' Compensation Law; ${ }^{3}$
3. Employer's liability was fully insured;
4. Employer had notice of the injury;
5. The claim for compensation was timely filed;
6. Claimant's average weekly wage $\ 1,238.96 which resulted in rates for temporary total disability ("TTD") of $\ 742.72 and $\ 389.04 for permanent partial disability ("PPD") benefits;

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

{ }^{2}$ Ms. Barnard appeared prior to the hearing and offered a written stipulation regarding SIF liability, but did not participate in the hearing.

${ }^{3}$ All statutory references in this award are to Chapter 287 of the Revised Statutes of Missouri (2005) unless otherwise stated.

1. Employer paid no TTD benefits and paid $\ 1,853.04 in medical benefits;
2. If the court finds for Claimant on causation, the Claimant is entitled to $185 / 7 weeks of TTD benefits which equals \ 13,899.47 and $\ 12,019.16 is owed by Employer in medical liens.

The parties have identified four issues:

1. Whether Claimant's need for surgery and post-operative treatment for the left shoulder is medically, causally related to the work accident?
2. Whether the Employer is liable for medical expenses totaling $\ 12,019.16 ?
3. Whether Claimant is entitled to TTD benefits during recovery of his left shoulder?
4. What is the nature and extent of the Employer's liability for PPD benefits, if any?

Claimant's exhibits A through Q were admitted into evidence without objection. The SIF offered no additional exhibits. To the extent that there are marks or highlights in the exhibits they were made prior to becoming part of this record and were not made by the undersigned administrative law judge.

All evidence was reviewed but only evidence which supports this award will be summarized below. Any objections not expressly ruled on during the hearing or in this award are now overruled.

1. At the time of the hearing, Claimant was 58 years old. At work, Claimant performed heavy sheet metal work. He fabricated ductwork and placed hangers to installed ductwork.
2. Claimant had the following injuries before July 27, 2007:

a. In 1992, Claimant injured both shoulders while at work for Ryan Heating Company. The shoulders continued to hurt for years at work. An MRI revealed spur formation and degenerative changes in the acromioclavicular joint, questionable impingement, possibly tendonitis.

b. Right shoulder surgery took place on February 8, 1993, where Dr. Lehman repaired a torn labrum, impingement syndrome, and acromioclavicular arthritis. Left shoulder surgery was performed on January 14, 1993, and he debrided the labrum. The subacromial space contained significant joint changes. A large spur that was bone on bone was seen at the joint. A decompression was performed, and the clavicle was resected.

c. Dr. Lehman prescribed physical therapy, and Claimant missed 23 weeks from work.

d. Dr. Lehman concluded Claimant did "exceptionally well," with full range of motion of the left shoulder and good mechanics. Dr. Lehman released him to work full duty in June 1993, with a 7 % rating of the left shoulder, and 7 % rating of the right shoulder.

e. Right shoulder complaints include occasional pain when he does not perform his exercises. Prior to 2007, he had pain when lifting heavy objects over his shoulder.

f. In July 1993, Thomas F. Musich provided an independent medical evaluation (IME) for Claimant's bilateral shoulders and concluded his sheet metal work for another employer caused arthritis, impingement and the need for surgery. He rated 35 % disability of the left shoulder and 30 % of the right shoulder. Further, the combined disabilities were greater than their simple sum.

1. On March 26, 2002, Claimant sustained a left shoulder sprain while carrying duct work with three other workers. ${ }^{4}$ Claimant settled the case for 6 % of the left shoulder.
2. Prior to July 2007, Claimant had occasional left shoulder pain in winter and with overhead work. During deposition, Claimant testified he had no left shoulder pain between 1991 and 2007.

1. On July 27, 2007, Claimant sustained a left shoulder injury while working on a machine. Exhibit D is a picture of a lift similar to the one Claimant used on the date of injury. The lift was suspended 15 feet in the air. To install ductwork he drilled holes in the ceiling to install a strap to hold ductwork. Hangars were placed above pipes.
2. To operate the machine, Claimant pushed a pedal and then pushed hard on the lever which should have extended out 2 feet. He extended the lift, but it jammed at 1 foot and Claimant felt extreme left shoulder pain.
3. The rails Claimant pushed were not visible in Exhibit D. Claimant pushed hard with his arms, pressed on the foot pedal; however, the foot pedal jammed. He began to feel pain after he pushed the machine and it stopped. The majority of the pain came from pushing but there was also some pain with pulling back from the machine. On cross-examination, Claimant did not recall if he pulled the lever.
4. The work accident occurred in the morning and Claimant remained in the safety trailer until noon when he left for an appointment with Dr. Leston, a neurologist, for left hand numbness. Claimant does not recall if he told Dr. Leston about his left shoulder injury earlier that day, or his chronic left shoulder pain. However he does not dispute information contained in medical records.

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[^0]: ${ }^{4}$ During Claimant's deposition, he testified he did not recall the injury.

1. Claimant reported the injury to Employer, who provided an aspirin and placed him on a different crew to avoid extending his arms overhead.

1. On August 3, 2007, Claimant received medical treatment at St. Luke's Urgent Care, and was placed on light duty with no overhead work until August 10. He gave a history of "pulling extender lift tray out and felt pop in left shoulder."
2. An x-ray of the left shoulder revealed left distal clavicle deformity, probably related to previous surgery. Claimant was diagnosed with a sprain/strain of the left shoulder.
3. On August 10, Employer terminated Claimant and refused to provide additional treatment.
4. On August 20, 2007, Claimant gave Dr. Steven D. Stahle a history that: "He installs ductwork and he has pain and soreness in his left shoulder. He states that he was at work and it almost came out. He felt a pull. Now it is sore and tender."
5. Dr. Greg A. Jamroz ordered an MRI of the left shoulder on August 21, 2007, which revealed possible supraspinatus tendinitis but no evidence of rotator cuff tear or labral tear. On August 22, 2007, Claimant was placed on light duty and referred to an orthopedic surgeon.
6. In September 2007, Dr. Stahle inj