William Palmer v. City of Columbia

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 11-041865

Employee: William Palmer

Employer: City of Columbia

Insurer: Self-Insured

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 May 18, 2015. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued May 18, 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 $\qquad 3^{\text {rd }} \qquad$ day of November 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: William Palmer

Injury No. 11-041865

Dependents:

Employer: City of Columbia

Address: 201100000

Address: 201100000

Address: 201100000

Address: 201100000

Address: 201100000

Address: 201100000

Address: 201100000

Address: 201100000

Address: 201100000

Address: 201100000

Address: 201100000

Address: 201100000

Address: 201100000

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 2, 2011.
5. State location where accident occurred or occupational disease was contracted: Boone 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? Employer is self-insured..
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was on the back of the trash truck when the driver reversed and pinned Employee between the truck and a pole; a lever on the truck pierced and crushed Employee's left shoulder.
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: Left shoulder.
14. Nature and extent of any permanent disability: Employee is permanently and totally disabled as a direct result of the work-related left shoulder injury alone.
15. Compensation paid to-date for temporary disability: $\ 1,049.58
16. Value necessary medical aid paid to date by employer/insurer? $\ 29,563.19

Employee: William Palmer

1. Value necessary medical aid not furnished by employer/insurer? None.
2. Employee's average weekly wages: $\ 648.27.
3. Weekly compensation rate: $\ 432.18 for permanent total disability benefits; $\ 418.58 for permanent partial disability benefits.
4. Method wages computation: Stipulation.

Employer is ordered to pay Claimant weekly permanent total disability benefits of $\ 432.18 beginning August 31, 2011 for the remainder of Claimant's life, subject to review and modification by law. Claimant's attorney, Allen \& Nelson, PC, is allowed 25 % of all permanent total disability benefits awarded herein, including future benefits, as and for necessary attorney's fees, and the amount of such fees shall constitute a lien on those benefits.

Employer is also ordered to provide Claimant with future medical benefits per Section 287.140, RSMo.

Any past due compensation shall bear interest as provided by law.

Claimant's Claim for Compensation against the Second Injury Fund is denied in full.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

Employee: William Palmer

Injury No. 11-041865

Dependents:

Employee: City of Columbia

Address: 201 S. 11th Street, New York 11th, New York 12, 111 552-0000

Address: 201 S. 11th Street, New York 11th, New York 10026-4000

Address: 201 S. 11th Street, New York 11th, New York 10026-4000

Address: 201 S. 11th Street, New York 11th, New York 10026-4000

Address: 201 S. 11th Street, New York 11th, New York 10026-4000

The evidentiary hearing in this case was held on April 8, 2015 in Columbia. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on May 1, 2015. The hearing was held to determine the following issues:

1. Whether Employer shall be ordered to provide future medical benefits pursuant to $\S 287.140$, RSMo;
2. The liability, if any, of Employer for permanent partial disability benefits or permanent total disability benefits; and
3. The liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Boone County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That Claimant's average weekly wage is $\ 648.27, with compensation rates of $\ 432.18 for temporary total disability benefits and permanent total disability benefits, and $\ 418.58 for permanent partial disability benefits;
6. That Claimant, William Palmer, sustained an accident arising out of and in the course of his employment with the City of Columbia on June 2, 2011;

1. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation;
2. That Employer paid medical benefits of $\ 29,563.19 and temporary total disability benefits of $\ 1,049.58; and
3. That the City of Columbia was an authorized self-insured for Missouri Workers' Compensation purposes at all relevant times.

The evidence consisted of the testimony of Claimant, William Palmer, Jr., as well as Claimant's deposition testimony; the deposition testimony and narrative report of Dr. David Volarich; the deposition testimony and narrative report of Dr. Russell Cantrell; the deposition testimony and narrative report of Dr. Michael Nogalski; the deposition testimony and report of Gary Weimholt, a vocational rehabilitation consultant; the deposition testimony and report of James England, a vocational rehabilitation consultant; medical records; and school records.

William Palmer ("Claimant") is now 61 years of age and was 57 on the date of injury. Claimant has a 12th grade education, but was in Special Education classes throughout the majority of his schooling. Claimant received a high school diploma but spent his senior year in the COE program (Cooperative Occupation Education) where he received high school credit for working as a dishwasher at International House of Pancakes and at Chef Cafeteria in Columbia. Claimant's IQ testing runs from 64 to 82 with four of the six tests in the 60s.

Shortly after Claimant's graduation from high school, Claimant's father, a policeman for the City of Columbia, helped Claimant get hired by the City of Columbia ("Employer") as a Refuse Collector I. As a Refuse Collector I, Claimant would walk between residences or sometimes hop back on the trash truck to ride to the next stop and would pick up trash from residential curbsides and throw it into the trash truck. Claimant worked 38 years for Employer in this job except for a short period of time.

During a short period during this 38 year employment, Claimant worked as a Refuse Collector II. A Refuse Collector II drove the trash truck rather than picked up trash from the curbside and threw it into the truck. During this time, Claimant alternated between Refuse Collector I and Refuse Collector II. As a Refuse Collector II, he had to drive the truck, complete some hand written forms regarding the completed routes and status of special request pickups and check the truck for safety and maintenance. As a Refuse Collector II or driver, Claimant was responsible for the maintenance of the truck, but he would always ask for assistance from the mechanics regarding simple duties including checking the oil or hydraulic fluid. He would show the oil and hydraulic dipstick to the mechanics because he was not confident in his ability to read the dipsticks.

Claimant has never married and has lived in the same house for 61 years which he shared with his parents while they were living. He has a driver's license which he obtained when he was 22 and can drive within Columbia without problems. Claimant relies primarily on his right arm to drive. He has difficulty with directions and often has to stop to ask for help when driving to a new location. Claimant had to ask for directions several times on a trip to Branson, and had a friend meet him to show him how to get to his friend's house when he arrived in Branson. He does not type or use a computer. Claimant does not own a computer or cell phone; his phone at home is a landline.

On June 2, 2011, Claimant was riding on the back of the truck when the driver reversed and pinned Claimant between the truck and a pole. A lever on the truck pierced and crushed Claimant's left shoulder. An ambulance took him to the emergency room. Dr. Volgas performed surgery on Claimant's left arm that same day and debrided portions of the deltoid, biceps, and brachialis muscles. Dr. Volgas noted that Claimant lacerated his biceps and brachialis muscles and he did not expect them to return to function.

Following surgery, Dr. Volgas placed Claimant in an immobilizer until June 10, 2011, and then placed Claimant in a sling. Dr. Volgas prescribed physical therapy to preserve as much range of motion as possible. Physical therapy consisted of passive range of motion exercises and modalities such as ultrasound massage. During the 21 visits Dr. Volgas prescribed, Claimant experienced other medical problems including anemia, endoscopy and colonoscopy procedures to diagnose stomach problems, and a bitter taste in his mouth which eventually proved to be an infected tooth. Claimant experienced fatigue because of the anemia and missed 7 out of the 21 visits because of other medical tests or was too tired. Shortly after physical therapy ended, Claimant was diagnosed with a blood clot which required treatment. Dr. Volgas never criticized or counseled Claimant regarding his missing the physical therapy appointments, and Dr. Volgas discontinued physical therapy because he did not believe it would provide any additional benefit to Claimant. He was not concerned about building strength in the shoulder but only concerned about scar tissue build up which he noted to have begun to be apparent. Dr. Volgas had Claimant off work and released Claimant on August 10, 2011. He noted significant limitation in range of motion and opined that Claimant could do a sedentary job, but only if he uses his left arm directly in front of him. Dr. Volgas did not think Claimant could do repetitive work with his left arm even in front of his body.

Claimant testified that he did not return to work after his injury. Claimant testified that he uses his left arm as little as possible. He cannot raise his left arm all the way up, he has to lean