David Phillips v. The Doe Run Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 11-068998

Employee: David D. Phillips

Employer: The Doe Run Company

Insurer: American Zurich Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480$ RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated May 23, 2013.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

The award and decision of Administrative Law Judge Gary L. Robbins, issued May 23, 2013, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $30^{\text {th }}$ day of August 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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? August 7, 2011.
5. State location where accident occurred or occupational disease contracted: Jefferson 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.

On March 6, 2013, the employee, David D. Phillips, appeared in person and with his attorney, Michael P. Corrigan, for a temporary or partial award. The employer-insurer was represented at the hearing by their attorney, Michelle M. Symank. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. The Doe Run Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act and liability was fully insured by American Zurich Insurance Company.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of The Doe Run Company and was working under the Workers' Compensation Act.
3. The employer had notice of the employee's claim.
4. The employee's claim was filed within the time allowed by law.
5. The employee's average weekly wage was $\ 885.96 per week. His rate for temporary total and permanent total disability is $\ 590.64 per week. His rate for permanent partial disability is $\ 425.19 per week.
6. The employer-insurer paid $\ 37,372.71 in medical aid.
7. The employer-insurer paid $\ 0 in temporary total disability benefits.
8. The employee is not seeking any reimbursement for any previously incurred medical bills.
9. The employee is not seeking any claim for mileage.
10. The employee is not seeking any claim for temporary disability at this time.
11. The employee is not seeking permanent partial or permanent total disability benefits at this time.

1. Whether the employee sustained an accident or occupational disease arising out of and in the course of his employment?
2. Whether the employee's injury was medically causally related to his accident or occupational disease?
3. Whether the employer-insurer should be required to provide additional medical care?

The following exhibits were offered and admitted into evidence:

A. Deposition of Bruce Schlafly, M.D.

B. Report of Bruce Schlafly, M.D.

C. Deposition of Kenneth Giffin.

D. Medical records of James T. Doll, D.O.

E. Medical records from Occupational Medicine Center.

1. Deposition of Bill Miller.
2. Deposition of David M. Brown, M.D.

The employee, David D. Phillips and Nick Streisal were the only two witnesses to personally testify at trial. All other evidence was presented in the form of written records, medical records or deposition testimony.

The employee testified that he lives in Leadwood, is thirty-eight years old and has five children. The employee began working for Doe Run in 2005. He started working in feed floor operations, then worked on the trestle. After the first three months, he worked as a blast furnace operator. He worked as a blast furnace operator up until August 7, 2011, when he was injured. Occasionally he would fill in as a crane operator but only did this a total of three weeks.

The employee described the duties as a blast furnace operator. Blast furnace operators work a twelve hour shift, working 48 hours one week and then 36 hours the next week. For two weeks the crew will work night shift and two weeks the crew will work day shift. The position requires one to use a jackhammer, punch tuyeres, burn pipe, and shovel, change pots, clean out the hood, and clean the notch. The jackhammer weighs about 20-25 lbs. It is air powered and vibrates continuously. The jackhammer is used to clean hard materials out of the furnace and specifically it is used to get lead out of the lead track, clean the slag launders, clean out the notch, clean out the hood, and to open the tuyeres. He testified that he also uses both of his arms to push a bar in to the furnace to knock crust off. He indicated that the bar is about four feet long and weighs fifteen pounds. He also indicated that he uses a bar that is about fifteen feet long to clean tap holes. He testified that jack hammering is required in a lot of his duties.

The employee explained that the blast furnace operators are supposed to have three one-hour breaks. However, if the furnace is "running bad," meaning that the lead is not flowing and slag is high, the blast furnace operators may have only two breaks, one break, or may have to forego all

**Injury No. 11-068998**

breaks. When the furnace is "running good," there are three operators who rotate work on the furnace. One person takes a break, while another is in the cool shaft and another is working on the furnace until he finishes a pot. It takes fifteen to thirty minutes on average to finish one pot, then the worker in the cool shaft and the worker on the furnace switch places. When the furnace "runs bad," more workers are needed to keep the furnace running and so more than one worker will be working on the furnace. When this occurs, the operators must jackhammer more and burn pipe more. The employee testified that until one and half years ago, the furnace "ran bad" about 70-80% of the time. When things are "running bad," the employee said he would use the jackhammer from three to five hours per twelve hour shift and when the furnace is "running good," the employee would use the jackhammer about an hour over a twelve hour shift. The employee estimated that he used the jackhammer three to five hours per shift on two shifts each week and about two hours on two shifts per week.

The employee testified that prior to his work at Doe Run, he had never had pain, numbness, or tingling in his upper extremities. He testified his hands started going numb and his elbows first started hurting probably about three years ago. When he used the jackhammer his hands would tingle and go numb. He would have to shake his hands out and try to shift his hold. He did not miss work due to these symptoms prior to the injury of August 7, 2011.

The employee testified that on August 7, 2011, he picked up a heavy piece of steel and as he picked it up, felt pain from his left elbow shooting into his left hand. The next day he told his supervisor, Richard Horton. He was taken off the furnace and placed in the position of feed floor operator. He indicated that after this injury he was switched to the feed floor. Now his job involves pushing buttons to bring material to the furnace for melting.

The employee testified that he has high blood pressure and gout. When he started working for Doe Run he reported that he weighed 215-220 pounds. He now says he weighs 308 pounds and has weighed over 300 pounds for the last one and one-half years. He said his maximum weight was 354 pounds. He reported that since he stopped jack hammering his symptoms have improved slightly. He indicated that he got some care on his own, but stopped when the doctor asked him why surgery was not being done. He wants medical care for his problems.

Mr. Streisal testified at the hearing about the duties of a blast furnace operator. He has worked with the employee on the same crew for six and a half years. Mr. Streisal testified that when the furnace is "running bad," the operators will jackhammer three to five hours per shift and that this occurs probably once or twice per week. He testified that on a good day, the operators will jackhammer about one and a half to two hours per shift. Mr. Streisal testified that when the furnace "runs bad," they have to jackhammer more because there is more slag and there is less time for cooling off in the clean air booth. Mr. Streisal stated that he has a slight case of carpal tunnel syndrome and filed a workers' compensation claim that was settled without surgery.

Mr. Giffin testified by deposition on November 7, 2012. He is a co-worker of the employee who also works as a furnace operator. He testified that he has worked at Doe Run since November of 2005 and worked with the employee on the same crew the whole time he was there. He provided a description of the various jobs that were per