Kenneth Phillips v. S & H Transportation

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 08-010379

Employee: Kenneth D. Phillips

Employer: S \& H Transportation (Settled)

Insurer: Commerce and Industry Insurance Co. (Settled)

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 April 30, 2015, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Grant C. Gorman, issued April 30, 2015, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $6^{\text {th }}$ 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:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes (Settled)
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: February 13, 2008
5. State location where accident occurred or occupational disease was contracted: Phelps 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: Claimant was stepping over snow and ice when he slipped and fell, landing on his right shoulder, in the course and scope of employment.
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: 65 % Right shoulder (permanent and total disability from last injury alone).
15. Compensation paid to-date for temporary disability: $\ 79,521.92
16. Value necessary medical aid paid to date by employer/insurer? $\ 154,352.73

Employee: Kenneth D. Phillips Injury No. 08-010379

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 877.41
3. Weekly compensation rate: $\ 584.72 TTD/\$389.04 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable: (\$58,667.23 from settlement with Employer)
2. Second Injury Fund liability: No

TOTAL: $\ 0

1. Future requirements awarded: None

Said payments to begin as of the date of this Award 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:

Jonathan Isbell

Employee: Kenneth D. Phillips

Hearing on the above-referenced case was held before the undersigned Administrative Law Judge on August 20, 2014 at the Division of Workers' Compensation in St. Charles County, Missouri. Kenneth D. Phillips ("Claimant") was present and represented by Jonathon Isbell. The liability of S \& H Transportation ("Employer"), and its insurance carrier, was previously settled. Assistant Attorney General Tracey Cordia represented the Second Injury Fund. Mr. Isbell requested a fee in the amount of 25 %. The parties submitted post-trial briefs.

The parties entered into the following stipulations:

1. On or about February 13, 2008, Claimant sustained an accident arising out of and in the course of his employment that resulted in injury to Claimant's right shoulder, neck and body as a whole referable to psychological impairment. The accident occurred in Phelps County, Missouri.
2. Claimant was an employee of Employer pursuant to Chapter 287 RSMo.
3. Venue is proper in St. Charles County, Missouri.
4. Employer received the proper notice of the claim.
5. Claimant filed the claim within the time allowed by law.
6. At the time of the accident, Claimant earned an average weekly wage of $\ 877.41, resulting in applicable rates of compensation of $\ 584.72 for permanent total disability benefits and $\ 389.04 for permanent partial disability benefits.
7. Employer paid TTD benefits in the amount of $\ 79,521.92, representing a period of 136 weeks.
8. Employer paid $\ 154,352.73 in medical benefits.
9. Claimant reached maximum medical improvement ("MMI") on September 14, 2010.

1. Liability of the Second Injury Fund.

Only evidence necessary to support this Award will be summarized. Any objections not expressly ruled on during the hearing or in this Award are now overruled. Certain exhibits offered into evidence may contain handwritten markings, underlining and/or highlighting on portions of the documents. Any such markings on the exhibits were present at the time they were offered by the parties. Further, any such notes, markings and/or highlights had no impact on any ruling in this case.

Claimant offered the following exhibits which were received into evidence without objection:

1. Deposition of Robert P. Poetz, D.O. , F.A.C.O. F.P. taken March 5, 2013, including deposition exhibits: Curriculum Vitae; Independent Medical Examination report.
2. Deposition of Delores E. Gonzalez taken June 20, 2013, including deposition exhibits: Curriculum Vitae; Vocational Rehabilitation Evaluation.
3. Advanced Radiology Medical Record d/o/s 2-11-09 through 9-10-09.
4. Barnes Jewish Hospital outpatient Medical Record d/o/s 10-27-09 through 2-16-10.
5. Barnes Jewish Hospital inpatient Medical Record d/o/s 1-28-10.
6. Barnes Jewish Hospital outpatient Medical Record d/o/s 3-16-10 through 9-14-10.
7. Jimmy Bell, FNP Phelps County Medical Group Medical Record d/o/s 11-26-08 through 6-3-10.
8. BJC Urgent Care Medical Record d/o/s 2-14-08 through 2-25-08.
9. BJC Urgent Care Medical Record d/o/s 12-14-08 through 12-19-08.
10. Christopher Miller M.D., Orthopedic Specialists of Springfield Medical Record d/o/s 10-6-08 through 9-17-09.
11. Ken Yamaguchi, M.D., Washington University Dept of Orthopedic Surgery Medical Record d/o/s 10-27-09 through 1-30-10.
12. Ken Yamaguchi, M.D., Washington University Dept of Orthopedic Surgery Medical Record d/o/s 1-30-10 through 9-14-10.
13. Ken Yamaguchi, M.D., Washington University Dept of Orthopedic Surgery Medical Record d/o/s 11-5-10 through 11-1-11.
14. Phelps County Regional Medical Center Medical Record d/o/s 3-12-08 through 1-6-10.
15. Phelps County Regional Medical Center Medical Record d/o/s 3-28-10 through 9-17-10.
16. Rolla Radiology Group Medical Record d/o/s 2-25-08.
17. Salem Memorial District Hospital Medical Record d/o/s 2-25-08 through 2-26-08.

1. Christopher M. Miller, M.D. Springfield Surgical Specialists d/o/s 10-17-08 through 3-509 .
2. St. John's Clinic DOT Physical Medical Record d/o/s 3-5-07.
3. St. John's Clinic Medical Record d/o/s 3-3-06 through 7-22-11.
4. St. John's Clinic Operative Report Medical Record d/o/s 4-11-11.
5. Mercy Clinic Medical Record d/o/s 4-19-12.
6. Approved Stipulation for Compromise Settlement/ Employer Only 1-26-12.
7. Original and Amended Claim for Compensation.
8. Contract of Employment for Legal Services.

The Second Injury Fund offered the following Exhibits which were received into evidence. The objection by Claimant to the admission of SIF Exhibit II in its entirety, for the stated purpose of providing additional information to the ALJ, was overruled:

I. Deposition of James M. England, Jr., taken on November 19, 2013, including deposition exhibits: Curriculum Vitae and Vocational Rehabilitation Evaluation.

II. Mercy Clinic - Rolla, Medical Records

Claimant is a 55 year old right hand dominant male. Claimant is a high school graduate and also received a diesel mechanic certification. He worked for S \& H Transportation for 15 years as an over the road truck driver. Claimant's last date of employment was February 13, 2008. Claimant's job duties required him to load and unload, drive approximately 650 miles a day, and perform lift and pull type motions. Claimant's work was occasionally strenuous. Claimant took a DOT physical every two years and passed the most recent physical before 2008 work injury.

Claimant allegedly sustained a work injury on February 13, 2008, when falling on his right shoulder while at work. Claimant testified he experienced no symptoms in his left or right shoulder before the primary work injury.

On October 17, 2008, Claimant underwent a rotator cuff repair of the right shoulder and acromioclavicular joint arthrosis. On February 19, 2009, Dr. Miller diagnosed a retear of the supraspinatus of the right shoulder. On March 5, 2009, Claimant underwent a right shoulder diagnostic arthroscopy and open revision rotator cuff repair. On September 17, 2009, Dr. Miller diagnosed a retear of the rotator cuff with retraction and significant atrophy in the muscle belly of

the supraspinatus of the right shoulder. On January 28, 2010, Claimant underwent a right shoulder reverse total arthroplasty.

On June 30, 2010, Dr. Kowalsky opined that Claimant would not be able to return to manual labor due to persistent disability of the right shoulder and noted that Claimant may have to file for disability. On September 14, 2010, Dr. Yamaguchi placed Claimant at MMI and indicated he will have severe restrictions on his activity level because of the reverse ball and socket arthroplasty. Dr. Yamaguchi opined that Claimant cannot do any overhead elevation activities higher than shoulder height, no lifting greater than 10 pounds, and no repetitive activity. On June 14, 2011, Dr. Yamaguchi rated the right shoulder at 70 % and noted Claimant had severe impairment of the shoulder. (Exhibit 11).

Claimant testified that in October of 2010, he tried to work with a friend to see if he could get back to truck driving. He testified that he obtained a temporary card to drive. He testified that he had difficulty getting in and out of the truck because of his back, knees, and shoulder. He only lasted work for three days. He testified his knees became worse which led to knee surgery. Claimant testified that he now has to take shots for his diabetic condition and, therefore, now cannot drive a truck.

Claimant testified he currently experiences many symptoms and limitations as a result of the primary injury. Claimant testified he was unable to return to work because of the limitations tha