Herbert Schnell v. Eilermann Transfer Company

(Affirming Corrected Award and Decision of Administrative Law Judge)

Injury No.: 04-008702

Employee: Herbert Schnell

Employer: Eilermann Transfer Company (Settled)

Insurer: Missouri Employers Mutual Insurance (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 § 286.090 RSMo, the Commission affirms the corrected award and decision of the administrative law judge dated October 17, 2011. The corrected award and decision of Administrative Law Judge Suzette Carlisle, issued October 17, 2011, 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 $\qquad 2^{\text {nd }}$ day of October 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Herbert Schnell

Departments: N/A

Employer: Eilermann Transfer Company (Settled)

Additional Party: Second Injury Fund

Insurer: Missouri Employers Mutual Insurance (Settled)

Hearing Date: June 27, 2011

Injury No.: 04-008702

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC

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: February 4, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis City, 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 fell on ice onto his outstretched left arm at work and injured both shoulders, and his cervical spine.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Bilateral shoulders, cervical spine
14. Nature and extent of any permanent disability: Permanent Total Disability - Second Injury Fund
15. Compensation paid to-date for temporary disability: $\ 9,117.28
16. Value necessary medical aid paid to date by employer/insurer? $\ 9,305.24

Employee: Herbert Schnell

1. Value necessary medical aid not furnished by employer/insurer? NA/
2. Employee's average weekly wages: $\ 670.00
3. Weekly compensation rate: $\$ 446.30 / \ 347.05
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Employer previously settled

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential (\99.25 per week) payable by SIF for 745 / 7 weeks beginning

February 3, 2006 and, thereafter, on July 12, 2007, \ 446.30 per week for Claimant's lifetime

TOTAL:

TO BE DETERMINED

1. Future requirements awarded: None

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: Daniel Walkenhorst

Employee: Herbert Schnell

Dependents: N/A

Employer: Eilermann Transfer Company (Settled)

Additional Party: Second Injury

Injury No.: 04-008702

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Missouri Employers' Mutual Insurance (Settled) Checked by: SC

The parties appeared before the undersigned administrative law judge on June 27, 2011 for a final hearing at the request of Herbert Schnell (Claimant) to determine the liability of the Second Injury Fund (SIF) for either permanent partial disability (PPD) or permanent total disability (PTD) benefits. Attorney Ellen Morgan represented Claimant. ${ }^{1}$ Attorney Daniel Walkenhorst is also Claimant's attorney of record, and he appeared at the hearing. Assistant Attorney General Kristin Frazier represented the SIF. The record closed after presentation of the evidence.

Claimant submitted three separate claims for disposition, 00-131749, 04-008702, and 04048993. ${ }^{2}$ Although separate awards were issued for each injury number, the body of each award contains similar evidence as the issues raised in each claim are closely related.

Prior to the hearing, Employer, Eilermann Transfer Company, and Insurer, Reliance Insurance Company, settled the primary injury with Claimant for 8.25 % PPD of the cervical spine and 15 % PPD of the right shoulder. The Employer did not participate in the hearing. ${ }^{3}$

The parties stipulated that on or about February 4, 2004:

1. Claimant was employed by Employer and sustained an accident, which arose out of and in the course of employment in St. Louis City, Missouri;
2. Employer and Claimant operated under the Missouri Workers' Compensation Law;
3. Employer's liability was fully insured.
4. The Employer had notice of the injury;
5. A Claim for Compensation was timely filed;

[^0]

[^0]: ${ }^{1}$ At the beginning of the hearing, Ms. Morgan entered as co-counsel for Claimant.

${ }^{2}$ All references in this award are to the 2000 Revised Statues of Missouri unless otherwise stated

${ }^{3}$ Any reference in this award to the Employer also refers to the Insurer.

1. Claimant's average weekly was $\ 670.00 which resulted in a rate for temporary total disability (TTD) and permanent total disability (PTD) of $\ 446.30, and a rate for permanent partial disability (PPD) of $\ 347.05;
2. The Employer paid TTD benefits totaling $\ 9,117.28 which represents $203 / 7 weeks; and
3. Employer paid medical benefits totaling \ 9,305.24

The issues for disposition are:

1. What is the nature and extent of Claimant's disability from the primary injury, if any?
2. What is the nature and extent of the Second Injury Fund liability for permanent partial disability, if any?
3. What is the nature and extent of Second Injury Fund liability for permanent total disability, if any?

Claimant's Exhibits A through T were received into evidence without objection. The SIF offered no additional exhibits.

All evidence was reviewed but only evidence needed to support this award will be summarized below. Any objections contained in the depositions and made during the hearing but not expressly ruled on in this award are now overruled. To the extent that marks and highlights are contained in the exhibits, those were made prior to becoming part of this record and were not placed there by the undersigned administrative law judge.

1. At the time of the hearing, Claimant was 69 years old. In 1960, Claimant joined the U.S. Navy and built diesel motors on ships. He earned a GED in 1961 while in the military. He has not received any formal training since the GED.
2. On July 25, 1963, Claimant fell overboard a navy ship and into the water and sustained an injury to his sacroiliac and left buttocks when the boat's propeller hit him. Claimant worked light duty for a year. After he returned to the ship he was unable to perform his duties. In 1964 Claimant received a medical discharge and 30 % disability from the military.
3. Since Claimant's discharge in 1964, he has received pain medication for his back from the Veteran's Administration (VA). Prescription medication includes; Darvon, Dorvacet, Oxycodone, and methocarbinale. Three weeks before the hearing, Claimant switched to morphine for his back, shoulders, knee, and hands. The VA records are not in evidence.
4. Claimant began his civilian career as a dock hand but later became a truck driver. He worked as a truck driver 95 % of the time. As a result of the Navy injury, he was unable to lift and carry as much as the other drivers because of his back. Claimant had problems standing,

bending, and lifting. Pain slowed his production. He sought assistance from others when handling drums and heavy items.

1. On May 20, 1996 Claimant fell and injured his left elbow, and on October 27, 1997 the ulnar nerve was surgically transposed. After surgery, it became difficult to lift items. Claimant settled the case with his employer for 17.5 % PPD of the left elbow, and he settled with the SIF for 30 % PPD of the body as a whole for the sacroiliac and left gluteus.
2. In April 1997 Claimant had bilateral carpal tunnel releases. Symptoms improved for a short time, then returned and have continued since the 1990's. Fine motor skills decreased. Claimant settled the claim for 15 % PPD of each wrist. Claimant returned to regular duty after treatment for the left elbow and both wrists.
3. Employer hired Claimant around 1999. Claimant worked eight to twelve hour days, and ten hours of overtime per week. Claimant's duties included standing, walking, and sitting, bending, kneeling, squatting, and climbing.
4. Claimant transported empty bottles from two warehouses to the Dial plant in St. Louis. Claimant "dropped and hooked" a three pound air line to the trailer twenty times a day, and transported goods to a facility in Illinois. He bent and lifted air lines, pulled pins, opened and closed doors, and "cranked up" the dolly. Claimant lifted heavy items when a load spilled or returned goods were transported. Claimant lifted up to 20 pounds at chest level.
5. On October 10, 2000, Claimant slipped and fell while climbing steps on his truck and fractured a bone spur of the right calcaneus. After conservative treatment failed, Gary Schmidt, M.D., surgically removed the bone spur and reinserted the Achilles tendon on December 15, 2000. When complaints continued, Dr. Schmidt prescribed therapy and orthotics. On April 19, 2001, Dr. Schmidt determined Claimant had achieved maximum medical improvement (MMI). However, Claimant continued to take Vioxx for pain.
6. On May 22, 2001, Dr. Schmidt rated 6\%PPD of the ankle. For the first time, Claimant reported left knee locking and weakness, which Dr. Schmidt opined may be related to prolonged crutch walking. Ongoing foot complaints include pain with walking and cold weather.
7. During rehabilitation for the heel, Claimant fell, and injured his left knee. In December 2002 Stephen M. Benz, M.D., provided an Independent Medical Examination and opined that multiple falls during treatment for the heel aggravated the preexisting degenerative joint disease, which resulted in a tear of the left meniscus.
8. On March 6, 2003, Dr. Benz performed a meniscectomy, prescribed physical therapy, and rated Claimant in June 2003. After surgery, Claimant had ongoing complaints. Dr. Benz injected the knee, prescribed a brace, and rerated Claimant in September 2003.
9. On February 14, 2005 Dr. Benz performed a total knee replacement, which he opined was due to the combination of preexisting degenerative arthritis, a series of falls, and increased

stress on the left knee from using crutches. On June 17, 2005, Dr. Benz returned Claimant to work