Timothy Gladish v. Enersys, Inc.

Contributed to what is already a preexisting condition" corroborates Dr. Hopkin's testimony. We find the April 24, 2009, accident was the prevailing factor causing employee's condition.

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Mark S. Siedlik, issued August 8, 2014, is attached and incorporated by this reference.

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 $24^{\text {th }}$ 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 Gladish

Injury No: 09-029659

Dependents: N/A

Employer: Enersys, Inc.

Insurer: Travelers Insurance Co. of America

Additional Party: N/A

Hearing Date: June 19, 2014

Checked by: MSS/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: April 24, 2009
5. State location where accident occurred or occupational disease was contracted: Warrensburg, Johnson 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: While in the scope and course of his employment the employee was pushing a tub of batteries down a conveyer belt when the tub got stuck in a curve in the belt causing the employee to hyper extend his right knee thereby sustaining an injury.

Employee: Timothy Gladish

Injury No: 09-029659

Dependents: N/A

Employer: Enersys, Inc.

Insurer: Travelers Insurance Co. of America

Additional Party: N/A

Hearing Date: June 19, 2014

Checked by: MSS/drl

On June 19, 2014, the employee and the employer/ insurer appeared for a hearing for a permanent partial disability award. The case was tried with Injury Number 11-079239, which was for an accident of August 31, 2011, where in the employee seeks permanent partial disability payments and future medical benefits.

The Division had jurisdiction to hear this case pursuant to Sec. 287.110 R.S.Mo. The employee, Tim Gladish, appeared in person and with counsel, Jerry Kenter. The employer/insurer appeared with counsel, Samantha Benjamin-House.

For the reasons noted below, I find that the claimant is entitled to an Award of 30 % permanent partial disability to the right knee and 5 % permanent partial disability to the low back and a total knee replacement for the right knee.

The parties stipulated that:

1. On or about April 24, 2009, the parties were operating subject to the Missouri Workers' Compensation Law.
2. The employee had an average weekly wage of $\ 694.17 resulting in a temporary total disability rate of $\ 462.78 and a permanent partial disability rate of $\ 404.66.

The parties requested the Division determine:

1. Whether the employee sustained an accident arising out of and in the course of his employment with the employer on April 24, 2009.
2. The nature and extent of any permanent partial disability sustained by the claimant.

1. Whether the accident of April 24, 2009 caused an injury to the right knee and low back.
2. Whether the employer is responsible for future medical treatment to the right knee.

Claimant testified on his own behalf and presented the following exhibits, all of which were admitted into evidence without objection. The objections within the deposition testimony are deemed overruled unless specifically addressed:

Exhibit No. A - Various Medical Records ${ }^{1}$

Exhibit No. B - Internal Report of Injury for the accident of April 24, 2009

Exhibit No. C - Official state Report of Injury for the accident of April 24, 2009.

Exhibit No. D - Work restrictions from James Zarr, M.D.

Exhibit No. E - Deposition of William Hopkins, M.D. taken on March 30, 2012. ${ }^{2}$

The employer offered the following exhibits all of which were admitted without objection.

Exhibit No. 1 - Deposition of Gerald Dugan, M.D., taken on August 14, 2012.

Exhibit No. 2 - Deposition of James Zarr, M.D. taken on March 19, 2013.

Tim Gladish was present at the hearing and his testimony was credible. He was born on September 29, 1960 and was 53 years of age, at the time of the hearing. He is stands about 5' 11 inches tall and weighs about 270 lbs .

He has a high school diploma with no post high school vocational training.

From 1980 to 1999, he worked for the Wal-Mart store in Warrensburg. He started out in the receiving area and then shifted to maintenance as a supervisor, in about 1993. He was on his feet about 50 % of the time. His general maintenance duties included use of a floor scrubber and polisher in general floor maintenance and cleaning windows and vacuuming mats. He testified that during this employment he had no major problems with his knees and missed no time due to knee problems.

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[^0]: ${ }^{1}$ The Employer/Insurer objected to causation opinions contained in the treatment records. That objection is discussed below.

${ }^{2}$ While stipulating to the doctor's qualifications as a physician, counsel for Employer/Insurer later after crossexamining the doctor, moved to strike his testimony because the doctor was not holding a current Missouri license to practice medicine. A strict construction of $\S 287.120$ makes no requirement that a doctor have current Missouri licensure to be able to render opinions. Employer's objection is overruled.

While working at Wal-Mart, he had a second job from about 1994 to about 2004 selling cell phones from his home for Mid Missouri Cellular. He had about 2,000 customers. This was a sedentary job. When he left Wal-Mart this became his principal occupation until Mid Missouri Cellular sold out to Verizon. He then started working for Enersys in July of 2004.

Enersys makes batteries ranging from small ones to huge ones for the U.S. Army used in Tanks and Humvee vehicles. Claimant took a physical with Enersys when he stared in 2004, and passed it.

He has had related but varied jobs with Enersys. He started in the formation department where he worked for about fourteen months. He would have to push carts of batteries weighing from fourteen to one hundred and sixteen pounds down a conveyer belt and slide them toward a machine. While he had at least one other job with the company prior to the accident of April 2009, all the jobs he had were similar, and described by him as strenuous.

After the knee injury of April 24, 2009, the employer has accommodated him with sit down jobs. After the knee injury, he worked on the "CVA line" welding together battery parts with a reduction in pay of about 93 cents an hour. He held this job until he was bumped off of it, when an employee with more seniority came back to work and was then shifted to the "Valued Added Center" and "Direct Ship Area" with another pay reduction. He described this job as the lowest paying job in the plant.

On August 31, 2011 claimant testified that he injured his right knee a second ti