Clifford Hutchings v. W. B. Young Co.

The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued August 29, 2013, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $23^{\text {rd }}$ day of January 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Clifford Hutchings

Injury No. 09-032321

Dependents:

Before the

Employer: W. B. Young Co. (settled)

DIVISION OF WORKERS' COMPENSATION

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Insurer: Hartford Insurance Company of the Midwest (settled)

Jefferson City, Missouri

Hearing Date: July 25, 2013

Checked by: RJD/njp

1. Are any benefits awarded herein? No additional benefits are awarded.
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: May 4, 2009.
5. State location where accident occurred or occupational disease was contracted: Saline 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: Employee tripped and fell and struck his right knee.
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 lower extremity.
14. Nature and extent of any permanent disability: 25 % permanent partial disability of the right knee.
15. Compensation paid to-date for temporary disability: Unknown.
16. Value necessary medical aid paid to date by employer/insurer? Unknown.
17. Value necessary medical aid not furnished by employer/insurer? Unknown.

Employee: Clifford Hutchings

1. Employee's average weekly wages: $\ 522.87.
2. Weekly compensation rate: $\ 348.58.
3. Method wages computation: Stipulation.

1. Second Injury Fund liability:

NONE. The claim against the Second Injury Fund is denied in full.

Employee: Clifford Hutchings

Injury No. 09-032321

Dependents:

Employee: W. B. Young Co. (settled)

Address: 09-032321

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The evidence consisted of the testimony of Claimant, Clifford Hutchings, as well as the deposition testimony of Claimant; the report and testimony of Terry Cordray, a vocational rehabilitation counselor; medical records; the deposition testimony and medical report of Dr. James Stuckmeyer; the stipulation for compromise settlement in this case between Claimant and Employer, W. B. Young Co.; and extensive records from the Missouri Division of Workers' Compensation ("Exhibit H"). The objection of the Second Injury Fund to uncertified medical records contained in Exhibit H was sustained; the medical records contained in Exhibit H were not entered into evidence.

Clifford Hutchings ("Claimant") was born on March 7, 1952. He is a high school graduate and has no specialized training other than on-the-job training as a welder and a truck driver. Claimant filed a claim for permanent partial disability against Employer and a claim of permanent total disability against the Second Injury Fund ("the Fund"). Claimant's primary injury to his right knee occurred on May 4, 2009. Claimant also alleged prior disabilities due to injuries to his lower back, left knee and right foot as well prior disability from insulin dependent diabetes. Claimant and Employer reached a compromise settlement for 25 % permanent partial disability of Claimant's right knee on March 18, 2013.

Claimant testified at hearing that he is a single, sixty-one year old male who lives with his mother and has no dependents. He is currently receiving Social Security disability benefits. Claimant testified that he worked for Employer as a welder from approximately 1985 through 1992 and from approximately 2005 through 2009. In his full-time work with Employer, Claimant did welding, metal fabricating and heavy labor. Between his stints with Employer, Claimant worked as an over-the-road truck driver.

Claimant testified that prior to May 4, 2009 he frequently lifted up to thirty pounds, with additional physical requirements including walking, standing, bending, kneeling, and climbing. Claimant testified that, during his second stint with Employer, he worked full time and performed his job duties with no accommodations or restrictions and did not have to miss work due to any prior injuries or disabilities.

As stipulated, Claimant sustained a compensable accident on May 4, 2009, which caused injury to Claimant's right knee. Claimant testified that on May 4, 2009, after clocking in and gathering his tools, he was walking through the break room, when he stumbled over a steel block that was usually used to prop open a door. Claimant fell forward and struck the inside of his right knee against a picnic table. He immediately felt pain but began to work his shift anyway. Claimant testified that the pain worsened during the day, so he left work and went to Missouri Valley Physicians. On May 8, 2009 an MRI of the right knee was performed, which suggested a meniscus tear.

On May 15, 2009, Claimant was examined by Dr. Kelly Ross at Marshall Orthopedic and Sports Medicine. Claimant complained of clicking, catching and pain in his right knee. Dr. Ross took additional x-rays and recommended a right knee arthroscopy. On June 25, 2009, Dr. William Quinn of Columbia Orthopaedic Group performed a partial right medial meniscectomy; a chondroplasty of the articular surfaces of the medial femoral condyle, lateral femoral condyle and patella; and a pick arthroplasty of the articular surface of the lateral femoral condyle. From July 6, 2009 through July 10, 2009, Claimant received physical therapy at Peak Performance.

On July 13, 2009, Dr. Quinn examined Claimant and released him without restrictions. On February 15, 2010, Dr. Quinn conducted his final examination of Claimant, at which time Dr. Quinn found "no ligamentous instability and no effusion with crepitation" and rated Claimant's disability at 10 % at the level of the knee.

It is not clear when or if Claimant returned to work. On April 15, 2010, in an interview with Dr. Stuckmeyer, Claimant told Dr. Stuckmeyer he was still employed at Employer. On July 5, 2012, in deposition, Claimant testified that he worked four, five or six months after the injury to his right knee. On July 25, 2013, at the hearing, Claimant testified that when he tried to return to work, he only worked one to two days before determining that he was unable to perform the requirements of the job due to pain in his right knee and foot and instability standing. Claimant testified that Employer did not offer any accommodations and that he quit and did not seek further employment. The fact that Employer stated in the STIPULATION FOR COMPROMISE SETTLEMENT between Claimant and Employer (Exhibit G) that Claimant was paid 48 weeks of temporary total disability benefits would strongly suggest that Claimant performed little or no work for Employer after May 4, 2009.

At deposition and hearing, Claimant testified regarding alleged prior injuries to his back, right foot and left knee as well as his history of diabetes. Claimant's testimony was inconsistent and vague. There are no medical records in evidence documenting the alleged injuries to his back and only incomplete records with regard to his treatment for diabetes.

In reciting his medical history, Claimant testified that he was diagnosed with Type II noninsulin dependent diabetes in 1996. In his deposition, Claimant stated that he became insulin dependent in 2006. However, at the hearing, Claimant testified that he became insulin dependent in December 2009. Medical records from Missouri Valley Physicians and Marshall Orthopedics also indicate that, at least through July 2009 when Claimant was being treated for the injury to his right knee, he was diagnosed with non-insulin dependent diabetes and was not prescribed insulin. Claimant testified that his diabetes did not affect his ability to work until he started taking insulin. Plaintiff stated that at that point he could no longer "drive commercial" because a driver who is dependent on insulin to control diabetes is ineligible for a Commercial Drivers' License ("CDL").

Claimant testified that in approximately 1988 and 1992, while working for Employer, he suffered injuries to his back. There