Matthew Branson v. B & G Skid Removal

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 10-058282

Employee: Matthew Branson

Employer: B \& G Skid Removal (Settled)

Insurer: Travelers Indemnity Company (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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated November 18, 2013. The award and decision of Administrative Law Judge Vicky Ruth, issued November 18, 2013, 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 $14^{\text {th }}$ day of March 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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 14, 2010.
5. State location where accident occurred or occupational disease was contracted: Callaway 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 slipped on a mat that did not have grips to attach it to the floor. Claimant injured his right shoulder in the fall.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: right shoulder.
14. Nature and extent of any permanent disability: 22.5 % permanent partial disability of the right shoulder.
15. Compensation paid to-date for temporary disability: N/A.
16. Value necessary medical aid paid to date by employer/insurer? N/A.
17. Value necessary medical aid not furnished by employer/insurer? N/A.

1. Employee's average weekly wages: N/A.
2. Weekly compensation rate: $\ 282.81.
3. Method of wages computation: By agreement.

1. Amount of compensation payable from employer: Previously settled.
2. Second Injury Fund liability: Yes.

$35.596 \mathrm{weeks} \times \$ 282.81=\ 10,066.90.

1. Future medical awarded: N/A.

Said payments to begin immediately and to be payable and 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 Keefe.

Employee: Matthew Branson

Injury No. 10-058282

Dependents: N/A

Employer: B \& G Skid Removal (SETTLED)

Additional Party: Second Injury Fund

Insurer: Travelers Indemnity Company (SETTLED)

Hearing Date: August 19, 2013

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On August 19, 2013, Matthew Branson (the claimant) and the Second Injury Fund appeared in Jefferson City, Missouri, for a final award hearing regarding the Second Injury Fund claim. Claimant was represented by attorney Daniel Keefe. The Second Injury Fund was represented by attorney Adam Rowley. Claimant testified in person at the hearing. The parties submitted briefs on or about September 9, 2013, and the record closed at that time.

The parties stipulated to the following:

1. On or about July14, 2010, Matthew Branson (the claimant) was an employee of B \& G Skid Removal (the employer) when he sustained an injury by accident to his right shoulder while in the course and scope of his employment with employer.
2. The employer was operating subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was insured by Travelers Indemnity Company.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Callaway County is proper. For trial purposes, venue is also proper in Jefferson City, Missouri.
5. Notice is not an issue.
6. Claimant filed a Claim for Compensation within the time prescribed by law.
7. Claimant's weekly compensation rate for permanent partial disability benefits is $\ 282.81.
8. The parties agree that if Second Injury Fund liability is found, the appropriate loading factor is 15 % for opposing shoulders and 10 % for all other pre-existing conditions/disabilities.

The parties agreed that the issues to be resolved in this proceeding are as follows:

1. Nature and extent of claimant's permanent partial disabilities; and
2. Liability, if any, of the Second Injury Fund.

On behalf of the claimant, the following exhibits were entered into evidence without objection:

Exhibit A Medical records from Dr. Michael Snyder.

Exhibit B Medical records from Dr. Mark Adams.

Exhibit C Medical records from St. Mary's Health Center.

Exhibit D Medical records from The Therapy Source.

Exhibit E Medical records from Boone Hospital Center.

Exhibit F Medical records from Capital Region Medical Center.

Exhibit G Medical report of Dr. David Volarich.

Exhibit H Compromise Lump Sum Settlement, Injury No. 10-058282.

The Second Injury Fund did not offer any exhibits.

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings:

1. Claimant is 44 years of age. He is divorced and his three children live with him.
2. Claimant worked for B \& G Skid Removal (the employer). On July 14, 2010, as claimant was leaving the shop where he worked, he stepped on a rubber mat. The mat did not have any grips securing it to the floor. The mat slipped, causing claimant to fall and strike his right shoulder against the raised threshold of the door and also causing him to hit his neck on the door.
3. Claimant treated at the St. Mary's Health Center emergency room on July 14, 2010, the date of the accident. ${ }^{1}$ At the emergency room, he complained of right shoulder pain. He

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[^0]: ${ }^{1}$ Exh. C.

was diagnosed with a right shoulder sprain and contusion.

1. On or about August 25, 2010, claimant saw Dr. Michael Snyder. Dr. Snyder reviewed the x-rays taken in the emergency room and noted an avulsion fracture around the acromion. Due to claimant's persistent symptoms, the doctor ordered an MRI of the right shoulder to rule out a rotator cuff tear.
2. The right shoulder MRI, taken September 8, 2010, showed marked edema and inflation in the distal clavicle, acromion, and acromioclavicular joint with partial intrasubstance tear of the anterior and infraspinatus tendon fairly diffuse, and posterior labral tear with small paralabral cyst. Claimant was then referred to Dr. Mark Adams.
3. Claimant saw Dr. Adams on or about October 19, 2010. Dr. Adams reviewed the MRI and diagnosed a right shoulder acromioclavicular joint injury with resulting osteolysis, and labral tear/infraspinatus partial thickness tear. He recommended surgery.
4. On November 3, 2010, Dr. Adams performed surgery on claimant's shoulder. The surgery consisted of a right shoulder arthroscopy, debridement of the partial rotator cuff tear, and debridement of the posterior labrum. Claimant underwent a course of physical therapy after the surgery.
5. On April 28, 2011, Dr. Adams placed claimant at maximum medical improvement and released him with no restrictions.
6. On December 15, 2011, Dr. David Volarich examined claimant for an Independent Medical Examination. ${ }^{2}$ As to the July 14, 2010 work injury, Dr. Volarich diagnosed claimant with an internal derangement of the right shoulder (rotator cuff and labral tears), status post arthroscopic debridement of the rotator cuff and labral tears. The doctor opined that the July 14, 2010 work accident was the substantial contributing factor as well as the prevailing or primary factor causing the right shoulder labral and rotator cuff tears that required surgical repairs. Dr. Volarich opined that claimant was at maximum medical improvement regarding his 2010 shoulder injury. Dr. Volarich further opined that as a result of the that work injury, claimant had sustained a permanent partial disability of 40 % of the right upper extremity rated at the shoulder due to the rotator cuff and labral tears that required arthroscopic repairs. He noted that his rating accounted for ongoing discomfort, lost motion, weakness, crepitus, and atrophy of the dominant arm. Dr. Volarich also addressed claimant's pre-existing conditions and noted that the combination of claimant's disabilities creates a substantially greater disability than the simple sum or total of each separate injury or illness, and that a loading factor should be added. Dr. Volarich's opinions as to claimant's pre-existing disabilities are more thoroughly addressed later in this award. In addition, Dr. Volarich imposed significant restrictions on claimant.
7. On or about June 19, 2012, claimant and the employer/insurer settled the workers' compensation claim arising out of the July 14, 2010 accident for 22.5 % permanent partial disability of the right arm at the shoulder.

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[^0]: ${ }^{2}$ Exh. G.

1. Claimant indicates that he fractured his right elbow twice as a child. No medical records regarding the right elbow injuries were offered into evidence, nor were they provided for Dr. Volarich's review.
2. Claimant reported to Dr. Volarich that motion in his right elbow was limited and his elbow sometimes caught and locked. He also told the doctor that over the past ten years, he believes he may have missed one or two days from work due to elbow pain. Claimant did not recall seeking any treatment for his elbow as an adult. Dr. Volarich diagnosed claimant with right elbow fracture twice in adolescence, status post non-operative care. The doctor opined that claimant had sustained a permanent partial disability of 35 % of the right elbow due to the fractures that were not surgically repaired. He noted that his rating accounts for lost motion in the dominant arm.

1. In June 2003, claimant slipped on a ramp and twisted his right knee. Claimant was diagnosed with a medial meniscus tear. On July 1, 2003, Dr. Michael Snyder performed a right knee arthroscopy and a partial medial and lateral meniscectomy.
2. Claimant continued to have problems with his right knee and Dr. Snyder later administered a cortisone injection. A subsequent MRI showed a tear of the lateral menis