Thomas Almany v. Union Electric Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 10-025613

Employee: Thomas L. Almany

Employer: Union Electric Company

Insurer: Self-Insured

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 award and decision of the administrative law judge dated February 11, 2014, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Gary L. Robbins, issued February 11, 2014, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $7^{\text {th }}$ day of October 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: | Thomas L. Almany | Injury No. 10-025613 |

Employer: Union Electric Company

Insurer: Self Insured

Appearances: Jagadeesh B. Mandava, attorney for the employee. Susan M. Kelly, attorney for the employer.

Hearing Date: November 13, 2013

Checked by: GLR/rm

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease? Alleged April 9, 2010.
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? No.
9. Was claim for compensation filed within time required by law? Yes.
10. Was employer insured by above insurer? Yes.

On November 13, 2013, the employee, Thomas L. Almany, appeared in person and with his attorney, Jagadeesh B. Mandava for a hearing for a final award. The employer was represented at the hearing by its attorney, Susan M. Kelly. 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. Union Electric Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self-insured.
2. On April 9, 2010, Thomas L. Almany was an employee of Union Electric Company and was working under the Workers' Compensation Act.
3. The employer had notice of the employee's accident.
4. The employee's claim was filed within the time allowed by law.
5. The employee's average weekly wage was $\ 1,324.40, resulting in a compensation rate of $\ 807.48 per week for temporary total disability benefits and $\ 422.97 per week for permanent partial disability benefits.
6. The employer paid $\ 3,307.74 in medical aid.
7. The employer paid $\ 0 in temporary disability benefits.
8. The employee had no claim for previously incurred medical bills.
9. The employee had no claim for mileage.
10. The employee had no claim for future medical care.
11. The employee had no claim for permanent total disability.
12. The parties agreed that if liability is found, the employer would hold the employee harmless for medical bills.

1. Occupational Disease.
2. Medical Causation.
3. Temporary Total Disability.
4. Permanent Partial Disability.

The following exhibits were offered and admitted into evidence:

Employee Exhibits:

A. Medical report of David T. Volarich, D.O.

B. Medical report of Bruce Schlafly, M.D.

C. Records regarding the primary claim.

D. Records regarding the pre-existing carpal tunnel claim/June 3, 2005.

E. Records regarding the pre-existing left knee claim/June 13, 1988.

Employer Exhibits:

1. Medical report of R. Evan Crandall, M.D.
2. Report from Pro Rehab.
3. DVD.
4. Job description.

The employee, Thomas L. Almany and Mark D. Schmitz personally testified at trial. All other evidence was received in the form of written reports or medical records. No deposition testimony was presented by either party.

Mr. Almany has been employed by Union Electric Company since 1975. He began work as a janitor in the Venice Power Plant. He then switched to the operations department. In 1977, he moved to the Rush Island Power Plant. He held various positions at the Rush Island Power Plant. In 2002, Mr. Almany testified he became a Lube Service Technician, a job he has held ever since. Mr. Almany is 54 years old and resides in Festus, Missouri. He has not had any other employers other than Union Electric since 1975. Generally he worked 40 hours per week with very little over time.

The employee described his job as a lubrication technician in detail. He testified his job duties involved checking equipment oil levels on all of the equipment in the power plant. If the oil levels are low he adds oil. He described his daily responsibilities as the following: he performs setup work three days a week, Monday, Wednesday, and Friday. This involves checking the equipment oil levels and if it is low, adding oil. These duties involve taking the cap off of the oil and putting oil in it and putting the cap back on. The other two days a week involve oil changes and grease jobs. This requires him to drain the oil and put oil into the equipment. When draining the oil, he described the steps as taking the plug out with a wrench, draining the oil into a container. He uses some force with the wrench. Sometimes he has to push on the wrench. The pressure used on the wrench varies. He also uses his hands to twist the plug out. On some machines, some of the plugs are underneath the machinery. Mr. Almany testified that he changes the oil on a variety of equipment. This involves machinery such as pumps and motors. There is no real typical oil change. If you are changing the oil in a 250 pound gear box it can take all day. As far as the greasing goes, there is a battery operated grease gun that does make the job easier. Mr. Almany testified he pushes and holds the button.

Mr. Almany testified he was present and working the day that Pro-Rehab videotaped his job. He testified he did not believe the DVD covered all of the duties. He testified that the DVD only demonstrated a small part of the job. Mr. Almany did admit that the DVD did demonstrate the

Monday, Wednesday, Friday routine of filling the oil. He notes that he did use the wrench, fill the cap, go through the belts, use the hose, and took out the valve or plug in the video. Mr. Almany testified that the other duties not covered were: walking through the entire plant, checking equipment, showing some of the outside big fans where he checks the levels and showing the intake structure which he checks once a week.

The employee testified that he first began having problems in both of his hands in 2005. He had issues with sleep and numbness. This condition was reported to his safety supervisor. Mr. Almany was provided treatment with Dr. Ollinger who provided him an examination, nerve conductions, and surgery on both hands. Mr. Almany testified he returned to work subsequent to that surgery with no restrictions. He did have some problems subsequent to that surgery with some gripping, but testified he had no major problems. He testified that he received a settlement in 2005 for both hands, but could not recall the amount. The Injury Number in that case is 05049365 . The employee was unrepresented and settled the case for 13.5 % permanent partial disability of each hand.

In 2010, the employee began to have the same problems in his right hand. He noticed that he was dropping things and had numbness in his right hand. He reported this injury to the safety person and was sent to Dr. Ollinger. Dr. Ollinger provided him with a splint and medication. Dr. Ollinger eventually recommended surgery. Subsequent to that recommendation, the video of Pro-Rehab was taped. The employee then stated he received a letter denying that his condition was work-related.

The employee then received treatment to his right hand on his own from Dr. Schlafly. Dr. Schlafly performed surgery which did relieve some of the pain. That surgery was performed on March 22, 2011. The employee testified he had some occasional pain; however, no longer has any numbness. He does have some problems with grip issues. At times, his right hand does swell. The employee returned to work and is currently working without any restrictions due to the right hand.

The employee testified he also has high blood pressure and type II diabetes. He was diagnosed with type II diabetes approximately four years ago some time in 2008 or 2009. He receives treatment through his primary care physician, Dr. Killian. His medication controls his blood sugar. Mr. Almany testified he did not share his diabetes diagnosis with any other doctors because he does not recall any of the doctors asking about his diabetic condition. He indicated he also did not think it was any of their business.

On cross-examination, the employee admitted that he did not spend the entire eight hours of his day using his hands checking and draining oil. He testified that they would have a meeting for 45 minutes every morning. He would also spend time filling out reports. This could take anywhere from 10-15 minutes to 1 hour with the average being 20-30 minutes. There was also a break in the morning, a lunch break, and a break in the afternoon. Mr. Almany admitted that the only pieces of equipment he works on are motors, gear boxes and fans, conveyor belts and grinders. This is all the equipment that runs the power plant. Mr. Almany testified the equipment is all various sizes, but the valves are all the same size. Mr. Almany did not add any further job duties

other than that were contained in the job descriptions, in Pro-Rehab as well as the DVD. Mr. Almany did admit that he testified in his deposition that what they have on the film is not $1 / 500$ hundredth of what his job is.

The employee on cross-examination again denied that any of the doctors asked him about his diabetic condition. He did not recall Dr. Ollinger asking him that question. He did not recall the Pro-Rehab employees asking that question about diabetes. He did not recall Dr. Peeples asking him about