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Frank Ponticello v. D & D Distributors (a/k/a Grey Eagle Distributors)

Decision date: September 4, 201520 pages

Summary

The Commission affirmed the Administrative Law Judge's award of workers' compensation benefits to Frank Ponticello for a right shoulder injury sustained on July 14, 2010 while reaching to move cases of beer. The claimant was awarded 58 weeks of permanent partial disability compensation totaling $24,277.64 for 25% permanent partial disability of the right shoulder.

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This workers' comp decision may point to a separate injury claim.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 10-054964

Employee: Frank Ponticello

Employer: D \& D Distributors

a/k/a Grey Eagle Distributors

Insurer: Sentry Casualty Co.

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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 22, 2015. The award and decision of Administrative Law Judge Margaret D. Landolt, issued January 22, 2015, 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 $4^{\text {th }}$ day of September 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

AWARD

Employee: Frank Ponticello

Injury No.: 10-054964

Dependents: N/A

Employer: D \& D Distributors AKA Grey Eagle Distributors

Additional Party: Second Injury Fund

Insurer: Sentry Casualty Co.

Hearing Date: October 27, 2014

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

FINDINGS OF FACT AND RULINGS OF LAW

  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: St. Louis, 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 was reaching to move cases of beer when he felt pain in his right shoulder.
  12. Did accident or occupational disease cause death? No
  13. Part(s) of body injured by accident or occupational disease: Right shoulder
  14. Nature and extent of any permanent disability: 25 % PPD of the right shoulder
  15. Compensation paid to-date for temporary disability: $\ 10,087.17
  16. Value necessary medical aid paid to date by employer/insurer? $\ 34,655.27
  1. Value necessary medical aid not furnished by employer/insurer? N/A
  2. Employee's average weekly wages: Unknown
  3. Weekly compensation rate: $\$ 799.11 / \ 418.58
  4. Method wages computation: By stipulation

COMPENSATION PAYABLE

  1. Amount of compensation payable:

58 weeks of permanent partial disability from Employer \24,277.64

  1. Second Injury Fund liability: No

TOTAL:

\ 24,277.64

  1. Future requirements awarded: None

Said payments to begin 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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. James S. Haupt

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Frank Ponticello

Departments: N/A

Employer: D \& D Distributors AKA Grey Eagle Distributors

Additional Party: Second Injury Fund

Insurer: Sentry Casualty Co.

Injury No.: 10-054964

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

PRELIMINARIES

A hearing was held on October 27, 2014 at the Division of Workers' Compensation in the City of St. Louis, Missouri. Frank Ponticello ("Claimant") was represented by Mr. James S. Haupt. D \& D Distributors AKA Grey Eagle Distributors ("Employer") and its insurer Sentry Casualty Co. were represented by Mr. Michael Banahan. The Second Injury Fund (SIF) was represented by Assistant Attorney General Maria Daugherty. This case was tried concurrently with Injury No. 11-108606, which is the subject of a separate award. Mr. Haupt requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about July 14, 2010 Claimant sustained an accidental injury arising out of and in the course of employment; Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri; Employer received proper notice of the injury; the claim was timely filed; Claimant's rates of compensation are $\ 799.11 for Temporary Total Disability ("TTD") benefits and $\ 418.58 for Permanent Partial Disability ("PPD") benefits; and Employer paid medical benefits of $\ 34,655.27 and TTD benefits of $\ 10,087.17.

The issues to be determined are medical causation; nature and extent of PPD; and liability of the SIF.

SUMMARY OF EVIDENCE

Claimant is a 56 year old man who worked for Employer as a delivery truck driver from 2000 until 2010. Claimant's job involved heavy manual labor. On July 14, 2010 Claimant was making a delivery when he grabbed a case of beer from an overhead compartment and felt a pop in his right shoulder. Claimant finished his route, returned to the warehouse and reported the injury. Claimant was referred to Dr. Cynthia Byler for medical treatment. Dr. Byler ordered an MRI which was performed on July 22, 2010, and revealed mild acromioclavicular and glenohumeral joint osteoarthritis; moderate supraspinatus and infraspinatus tendinopathy, but no full thickness tear; long head biceps tendon and labrum were grossly negative; and some possible mild partial thickness tearing of the far anterior supraspinatus. The labrum was grossly negative. After the MRI, Claimant was referred to Dr. James Burke, a board certified orthopedic surgeon, for further medical treatment.

Following a course of conservative treatment Dr. Burke performed surgery on September 3, 2010. Dr. Burke performed a right shoulder arthroscopy with arthroscopic subacrominal decompression and a limited intraarticular debridement of mild undersurface thinning of the supraspinatus tendon. Claimant completed a course of physical therapy and work hardening following the surgery and was released to full duty on December 13, 2010. Claimant returned to work as a delivery driver but because of persistent symptoms in his right arm and shoulder, he bid on and took a lighter job in the warehouse as a forklift or tow operator in January 2011. The job of a forklift driver did not involve heavy lifting with the right arm or overhead use.

Dr. David Volarich examined Claimant on October 5, 2011 and June 26, 2012, prepared reports, and testified on behalf of Claimant. At his examination on October 5, 2011 Claimant had persistent symptoms of pain, loss of motion, weakness, crepitus, decreased endurance and stiffness in his right shoulder. These symptoms made it difficult for him to reach, work overhead, push, pull and lift with his right shoulder. He had difficulty washing between his shoulder blades, and difficulty performing personal hygiene. He had difficulty looping his belt and putting on clothing overhead. Yard work and housework were more difficult and he often took breaks. His sleep was disrupted and he awakened with pain in his right shoulder when he rolled over on his right side. His right shoulder was very stiff in the morning. He avoided playing softball and golf since his injury to his dominant right arm. Dr. Volarcih diagnosed Claimant with internal derangement of the right shoulder (impingement and partial rotator cuff tear), status post arthroscopic subacromial decompression with debridement of the supraspinatus. Dr. Volarich rated the disability at 35 % of the right shoulder due to the impingement and rotator cuff tear that required arthroscopic repair. The rating accounted for ongoing discomfort, lost motion, weakness, crepitus and atrophy in the dominant arm.

At his second examination of Claimant on June 26, 2012, Dr. Volarich noted a worsening of the condition in Claimant's right shoulder. Claimant had more loss in range of motion, impingement testing was moderately positive, there was more weakness in the muscle groups and his symptoms had worsened. Since Claimant's symptoms had worsened, Dr. Volarich's modified his rating to 40 % PPD of the right shoulder.

Dr. Burke testified on behalf of Employer. Dr. Burke described Claimant's September 3, 2010 surgery as a general cleanup and decompression. Dr. Burke found a moderate to small sized spur in his shoulder, but no significant thinning or fraying of the rotator cuff. The rest of the shoulder looked very good. Dr. Burke testified Claimant responded well to surgery and physical therapy, and he released Claimant without permanent restrictions on December 13, 2010. Dr.Burke's December 13, 2010 physical examination was normal. He found Claimant had a small decrease in internal rotation, but there was no instability or impingement in his shoulder. Claimant reported some pain in his shoulder with overuse. Dr. Burke rated Claimant's disability at 5 % PPD of the right shoulder.

Currently Claimant has constant pain and decreased range of motion in his right shoulder especially with overhead motion and behind his back. He has weakness and crepitus in his right shoulder and decreased endurance in his right arm. It is difficult for him to reach overhead, push, pull or lift. Sleep is disrupted because of this right shoulder injury. He avoids golf and hunting

because of right shoulder pain. Claimant takes over the counter medication for pain. Claimant had no prior injuries to the right shoulder.

RULINGS OF LAW

Based upon a comprehensive review of the evidence my observations of Claimant at hearing, and the application of Missouri law, I find:

Claimant met his burden of proving the work accident of July 14, 2010 caused his shoulder injury and the need for surgery. Although medical causation was raised as an issue, there is no evidence to suggest that Claimant's need for treatment and disability was caused by anything other than the work injury of July 14, 2010. The treatment and resulting disability to Claimant's right shoulder is causally related to the described work injury.

Claimant sustained 25\% PPD of the right shoulder as a result of the work injury of July 14, 2010. Claimant's work injury caused him to bid on a less demanding physical job. He also experiences pain, and has modified his activities of daily living as a result of his work injury. Claimant is entitled to 58 weeks of compensation at the rate of $\ 418.58 or $\ 24,277.64.

There is no expert medical evidence to rate any prior disabilities. Although Claimant had some minor pre-existing injuries, Dr. Volarich did not diagnose or rate them and there is no evidence to suggest they were a hindrance or obstacle to employment or re-employment. The claim against the SIF is denied.

CONCLUSION

Claimant sustained an accident on July 14, 2010, arising out of and in the course of his employment for Employer which resulted in permanent disability to his right shoulder. Claimant's medical treatment was required to cure or relieve him from the effects of his injury. Employer shall pay PPD benefits in the amount of $\ 24,277.64.

This award is subject to an attorney's lien of 25 % in favor of Claimant's attorney, Mr. James S. Haupt.

Made by: $\qquad$

MARGARET D. LANDOLT

Administrative Law Judge

Division of Workers' Compensation

Page 7

Full decision text continues in the plain-text archive copy.

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