Timothy Maloney v. Alpha Energy and Electric, Inc.

We approve and affirm 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 $5^{\text {th }}$ day of February 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Timothy Maloney

Injury No. 10-048928

Employer: Alpha Energy and Electric, Inc.

Insurer: Auto Owners Insurance Co.

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: April 16, 2014

Checked by: PAM/drl

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: June 11, 2010
5. State location where accident occurred or occupational disease was contracted: Kansas 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: Maloney injured his neck, shoulder, and arms after suffering an electrical shock.
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: neck, shoulder, arms, body as a whole.
14. Nature and extent of any permanent disability: Permanent total disability.

1. Compensation paid to date for temporary disability: $\ 70,535.41
2. Value necessary medical aid paid to date by employer/insurer? $\ 62,498.85
3. Value necessary medical aid not furnished by employer/insurer? N/A
4. Employee's average weekly wages: N/A
5. Weekly compensation rate: $\$ 807.48 / 422.97$
6. Method wages computation: By agreement

1. Amount of compensation payable: Permanent total disability benefits beginning April 5, 2012. Employer/Insurer liability of $\ 807.48 per week.
2. Second Injury Liability: No.
3. Future requirements awarded: Yes - see finding and rulings.

Said payments to begin immediately 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: J. R. Boyd.

Employee: Timothy Maloney

Injury No. 10-048928

Employer: Alpha Energy and Electric, Inc.

Insurer: Auto Owners Insurance Co.

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: April 16, 2014

Checked by: PAM/drl

On April 16, 2014, the parties appeared for final hearing. The Division had jurisdiction to hear this case pursuant to Mo. Rev. State §287.110. The Employee, Timothy Maloney, appeared in person and with counsel, J. R. Boyd. The Second Injury Fund appeared through Assistant Attorney General Eric Lowe. The Employer/Insurer appeared through attorney Michael Halloran.

The parties stipulated to the following:

1) That on or about June 11, 2010 Alpha Energy and was an employer operating under and subject to the provisions of the Missouri workers' compensation law;

2) That Maloney was its employee working subject to the law in Missouri;

3) That Maloney notified his employer of his injury and filed his claim in the time allowed by law;

4) That Maloney's weekly compensation rate is $\$ 807.48 / 422.97$; and

5) That on or about June 11, 2010 Maloney sustained an injury arising out of the course of his employment which resulted in injury to his body as a whole.

6) That medical expenses were paid totaling $\ 62,498.85 and past temporary total disability was paid in the amount of $\ 70,535.41.

The issues to be determined by this hearing are the following:

1) What is the nature and extent of disability

2) Liability for future medical

3) Liability of the Second Injury Fund.

Maloney testified live. His testimony was credible. Maloney graduated from high school in 1974. Maloney began his four-year apprenticeship to become a qualified electrician immediately after high school. Maloney spent his 38-year career as an active electrician in both an industrial and commercial setting.

Maloney's job duties varied based on the job, but included: running conduit; pulling wire; installation of wire; wearing heavy ( 18 lb ) tool belt; carrying wire spools of various weights between 25 to 80 lbs.; use of harness, drills, wire strippers, pliers, screwdrivers, hammers, as well as ladders and lifts.

On June 11, 2010, Maloney was working on a receptacle box when he was shocked by hot wires. He felt instant impact of the shock in his arm, shoulder, and hand. He had difficulty opening his hand and was sweating profusely. He had subsequent complaints that went into his neck.

Maloney received authorized medical treatment, which ultimately resulted in an anterior cervical discectomy and fusion from C5-6 to C6-7 with instrumentation performed by Dr. Hess.

Dr. Hess placed medium category physical restrictions on Maloney with occasional 50 lb lifting, 40 lb frequent, and 20 lb constant. Dr. Hess assessed 25 percent permanent partial disability body as a whole attributable to Maloney's June 11, 2010, electrical shock injury. He released Maloney from treatment April 4, 2012.

Dr. Stuckmeyer evaluated Maloney for permanent restrictions and disability associated with his June 11, 2010, injury. Dr. Stuckmeyer, in addition to weight lifting restriction of 20 lbs , limits Maloney's ability to work over head with either arm. He also restricts Maloney from extending his neck beyond neutral position which directly impacts Maloney's ability to use his neck in up and down positions. Dr. Stuckmeyer assessed 45 percent permanent partial disability body as a whole to Maloney's cervical spine and 10 percent permanent partial disability body as a whole due to myofacial pain.

Maloney complains about pain at the base of his neck on both sides. He states he is unable to look up. His side-to-side range of motion is restricted which effects his ability to drive. He feels strain in his back when he looks down. He has difficulty reaching overhead or up and out with his arms. He has difficulty sleeping and uses a special neck support pillow. Maloney is unable to fully extend at his right elbow and has numbness in his right index finger.

Maloney currently receives social security disability as well as pensions. Maloney claims he is permanently and totally disabled.

Maloney had two prior injuries, including a right knee injury without surgery, which was rated at 10 percent permanent partial disability, and prior right carpal tunnel surgery. Maloney returned to work without restriction following both of those prior injuries.

Terry Cordray, vocational expert, testified that Maloney's only relevant education is as an electrician, which does not transfer or relate to other occupations. Cordray does not believe Maloney is a candidate for retraining due to his age. He notes that even though Maloney is of high average intelligence and highly skilled, it is craft specific and not transferable. Cordray opines that based on Dr. Stuckmeyer and Dr. Hess's permanent restrictions, Maloney is unable to return to work as an electrician. Cordray further opines that Dr. Stuckmeyer's restrictions prohibit Maloney from even light jobs. The inability to look up and down or move his neck from neutral is vocationally profoundly limiting from Maloney according to Cordray. Cordray opines Maloney is permanently and totally disabled as a result of his June 11, 2010, injury. Cordray testified that no employer would reasonably be expected to hire Maloney given the residuals of his injury.

Dr. Stuckmeyer, after consideration of Cordray's vocational assessment, finds Maloney permanently and totally disabled as a result of his June 11, 2010, injury alone and in isolation.

Chatmon v. St. Charles County Ambulance District, 555 S.W. 3d 451 (Mo. App. 2001) outlines the basis for permanent total disability.

"Total disability" means inability to return to any employment and not merely...inability to return to the employment in which the employee was engaged at the time of the accident." §287.020.7 (RSMo. 2000). "The test for permanent total disability is a worker's ability to compete in the open labor market and that it measures the worker's potential for returning to employment." Sutton v. Vee Jay Cement Contracting Company, 37 S.W. 3d 803 (Mo. App. 2000). "The critical question then becomes whether any employer in the usual course of employment would reasonably be expected to hire this employee in his or her present physical condition." Reese v. Gary and Roger Link, Inc., 5 S.W. 3d 522, 526 (Mo. App. 1999).

The phrase "inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment. Gordon v. Tri-State Motor Transit Co., 908 S.W. 2d 849, 853 (Mo.App. 1995) and Kowalski v. M-G Metals and Sales, Inc.

There is substantial evidence to support Maloney's claim of permanent total disability. Mr. Cordray, the vocational expert, testified that Maloney was unemployable in the open labor market due to his permanent restriction and not a candidate for retraining.

I find Maloney to be permanently totally disabled.

Since I have determined Maloney to be permanently totally disabled, the next question is whether he is permanently totally disabled due to the accident or from the combination of preexisting disabilities.

Maloney's permanent restrictions, as imposed by Dr. Stuckmeyer, greatly erodes Maloney's employment opportunities. I find Dr. Stuckmeyer's restrictions more accurately reflect the extent of Maloney's injury and complaints than Dr. Hess's restrictions. I further find Dr. Stuckmeyer's opinion regarding Maloney's permanent total disability attributable to his June 11, 2010, injury alone and in isolation is credible and persuasive. Accordingly, I find Maloney to be permanently and totally disabled as a result of the electrical shock and resulting injury sustained on June 11, 2010. I find Maloney became permanently and totally disabled effective April 4, 2012, when released to maximum medical improvement by Dr. Hess.

The employer/insurer liability for permanent total disability benefits at the rate of $\ 807.48 commenced April 5, 2012, and continues for as long as Maloney remains so disabled and entitled to benefits pursuant to law. Having found Maloney permanently and totally disabled from the construction accident alone, the Second Injury Fund has no liability for payment in this claim.

Maloney asks for an award of future medical care. Dr. Hess testified that Maloney, while not currently in need of medical care, could have some future medical needs associated with the plates and screws that have been installed in his neck.

In Missouri, the right to medical aid is a component of the compensation to an injured worker, under §287.140.1. See Sullivan v. Masters Jackson Paving Company, 35 S.W.3d 879, 888 (Mo.App. 2001), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. 2003). Future medical care must, however, flow from the accident before the employer may be held responsible for it. Sullivan v. Masters Jackson Paving Company, 35 S.W.3d at 888. Conclusive evidence is not necessary to support a claim for future medical benefits, but rather, is sufficient to show that the need for additional medical treatment is a reasonable probability. Sullivan v. Masters Jackson Paving Company, 35 S.W.3d at 889. The term "probable," means founded on reason and experience, which inclines the mind to believe, but leaves room for doubt. Sullivan v. Masters Jackson Paving Company, 35 S.W.3d at 889. It is not required that the claimant present evidence of specific medical treatment or procedures which shall be necessary in the future. Sullivan v. Masters Jackson Paving Company, 35 S.W.3d at 889. Based upon the evidence presented, I find Maloney is entitled to future medical as necessary to cure and relieve the effects of his June 11, 2010, injury.

The compensation awarded to Maloney shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of J. R. Boyd for necessary legal services.

Made by:

Paula A. McKeon

Chief Administrative Law Judge

Division of Workers' Compensation