Eric Sharp v. Tarlton Corporation; C. Rallo Contracting Company, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 13-072248

Employee: Eric Sharp

Employer: 1) Tarlton Corporation

2) C. Rallo Contracting Company, Inc.

Insurer: 1) Old Republic Insurance Company

2) National Fire Insurance Company of Hartford

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480$ RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated October 17, 2014.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

The award and decision of Administrative Law Judge John K. Ottenad, issued October 17, 2014, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $10^{\text {th }}$ 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:

Employee: Eric Sharp

Injury No.: 13-072248

Dependents: N/A

Employer \#1: Tarlton Corporation

Employer \#2: C. Rallo Contracting Company, Inc.

Additional Party: Second Injury Fund (Open)

Insurer \#1: Old Republic Insurance Company

C/O Gallagher Bassett Services, Inc.

Insurer \#2: National Fire Insurance Company of Hartford

Hearing Date: July 15, 2014

Checked by: JKO

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: September 20, 2013
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 was employed as a laborer for Tarlton, when he developed bilateral hand/wrist/arm complaints as a result of his repetitive hand-intensive activities in this position (jackhammering concrete) for this Employer.
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 and Left Hands/Wrists
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00

Employee: Eric Sharp

Injury No.: 13-072248

1. Value necessary medical aid paid to date by employer/insurer (Tarlton)? \$4,208.04
2. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
3. Employee's average weekly wages: $\ 1,194.00
4. Weekly compensation rate: $\ 796.00 for TTD/\$446.85 for PPD
5. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

See body of the award and future requirements section below

1. Second Injury Fund liability: N/A

1. Future requirements awarded: Continued and ongoing future medical care for Claimant's right and left hands/wrists for bilateral carpal tunnel syndrome, including but not limited to surgery, to cure and relieve him of the effects of the injury, as explained in the body of the award.

Each of said payments to begin immediately and to be payable and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

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: Dean L. Christianson

Employee: Eric Sharp

Injury No.: 13-072248

Dependents: N/A

Employer \#1: Tarlton Corporation

Employer \#2: C. Rallo Contracting Company, Inc.

Additional Party: Second Injury Fund (Open)

Insurer \#1: Old Republic Insurance Company

C/O Gallagher Bassett Services, Inc.

Insurer \#2: National Fire Insurance Company of Hartford

Hearing Date: July 15, 2014

Deore the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On July 15, 2014, the employee, Eric Sharp, appeared in person and by his attorney, Mr. Dean L. Christianson, for a hearing for a Temporary or Partial Award on his claim against the employer, Tarlton Corporation, its insurer, Old Republic Insurance Company C/O Gallagher Bassett Services, Inc., the employer, C. Rallo Contracting Company, Inc., and its insurer, National Fire Insurance Company of Hartford. The employer, Tarlton Corporation, and its insurer, Old Republic Insurance Company C/O Gallagher Bassett Services, Inc., were represented at the hearing by their attorney, Mr. Patrick A. Patterson. The employer, C. Rallo Contracting Company, Inc., and its insurer, National Fire Insurance Company of Hartford, were represented at the hearing by their attorney, Ms. Randee E. Schmittdiel. The Second Injury Fund is a party to this case, but was not represented at the hearing, as this was a temporary hearing.

The parties agreed that this was being tried as a non-Section 203 temporary hearing. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) Eric Sharp (Claimant) was an employee of the various employers at the following times:

a) Claimant was employed by C. Rallo Contracting Company, Inc. (Rallo) from January 24, 2012 to February 21, 2012; March 27, 2012 to April 3, 2012; August 28, 2012 to October 30, 2012; March 26, 2013 to May 7, 2013; and May 29, 2013 to July 31, 2013;

b) Claimant was employed by Tarlton Corporation (Tarlton) from May 9, 2013 to May 24, 2013 and August 5, 2013 to October 31, 2013.

2) Venue is proper in the City of St. Louis.

3) The Claim was filed within the time prescribed by the law.

4) At the relevant time, Claimant earned an average weekly wage of $\ 1,194.00, resulting in applicable rates of compensation of $\ 796.00 for total disability benefits and $\ 446.85 for permanent partial disability benefits.

5) Tarlton paid medical benefits totaling $\ 4,208.04.

1) Did Claimant sustain an accident and/or occupational disease?

2) Did the accident and/or occupational disease arise out of and in the course of employment?

3) Are Claimant's injuries and continuing complaints medically causally connected to his alleged accident and/or occupational disease at work?

4) What is the appropriate date of injury?

5) What is the effect, if any, of the application of the Last Exposure Rule to this Claim?

6) Did Claimant provide Employer with proper notice of the injury under the statute?

7) Is Employer liable for future medical care?

The following exhibits were admitted into evidence:

1. Deposition of Dr. Bruce Schlafly, with attachments, dated April 23, 2014
2. Certified medical treatment records of Concentra Medical Centers
3. Certified medical treatment records of SSM (Dr. Steven Baak)
4. Certified medical treatment records of Bell Chiropractic Center
5. Certified medical treatment records of Mercy Clinic Internal Medicine
6. Certified medical treatment records of Dr. Jeffery Faron
7. Certified records of the Missouri Division of Workers' Compensation for Claimant in Injury Numbers 89-088889, 94-155554, 94-159130, 95-096262, 96-046098, 96-099992, 97-004223, 98-122508 and 02-087899

A. Deposition of Dr. Mitchell Rotman, with attachments, dated May 19, 2014

B. Laborers' Claim Form dated October 1, 2012 from Claimant

C. Deposition of Claimant taken on February 7, 2014

Nothing separate offered or admitted, but Rallo adopted the Employee Exhibits offered and admitted above

Notes: 1) Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on July 15, 2014.

2) Some of the deposition Exhibits were admitted with objections contained in the record. Unless otherwise specifically noted below, the objections are overruled and the testimony fully admitted into evidence.

3) The parties asked that I take judicial and/or administrative notice of the file contents, including the pleadings, in the Division of Workers' Compensation file in this matter. Without objection, I will take such judicial and/or administrative notice of those file contents in making my rulings in this case.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and depositions, the medical treatment records, and the other records, as well as my personal observations of Claimant at hearing, I find:

1) Claimant is a 44-year-old, right-handed laborer, who had worked out of the union hall for various employers over the last 26 years. He said that he has moved around quite a bit for work and has not worked for one employer for any extended period of time. Claimant's job as a laborer required extensive and repetitive use of his hands over the years for operating compression hammers, jackhammers and other vibratory tools, as well as demolition, cleanup and lifting and moving objects.

2) Claimant testified that he is pursuing a Claim here for bilateral hand, wrist and arm problems. He denied ever being diagnosed with diabetes and also denied any history of rheumatoid arthritis.

3) In terms of prior problems, complaints or injuries, Claimant admitted that he fractured his right forearm as a child. He had a fracture to his left fifth finger, which required surgery. He injured his left upper extremity and back, when he fell off a truck in 1994, and he injured his right arm and shoulder in 1995, when he was hit by a scissor lift and knocked into a wire spool. The records of the Division of Workers'

Compensation (Exhibit 7) confirm that Claimant had injuries to his right leg in 1989, left knee in 1994, low back in 1994 ( 15 % body as a whole-low back settlement), right shoulder/arm in 1995, left ankle in 1996, low back in 1996, low back in 1997 ( 8.5 % body as a whole-low back settlement), low back in 1998 ( 10 % body as a whole-low back settlement) and low back in 2002.

4) The earliest reference to hand complaints or problems in the record of evidence is contained in the medical records of Dr. Jeffery Faron (Exhibit 6), Claimant's primary care physician at that time. In a note dated January 3, 2005, Dr. Faron records complaints of right elbow pain and bilateral hand numbness. The note indicates that Claimant works in construction and is unable to rest his arm. Dr. Faron assessed Claimant as having carpal tunnel syndrome and tennis elb