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Barbara Fuller v. Elementis Specialties, Inc.

Decision date: January 12, 2017Injury #11-11110212 pages

Summary

The Labor and Industrial Relations Commission affirmed the administrative law judge's award of workers' compensation benefits to Barbara Fuller for an occupational disease injury sustained on August 29, 2011, involving repetitive gripping and grasping work. The employee was awarded compensation for temporary disability, permanent partial disability of both wrists, and disfigurement benefits totaling $55,168.54.

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This archive contains published Missouri Labor and Industrial Relations Commission workers' compensation decisions reproduced for research convenience. Official source links remain authoritative where provided. Joseph Ott, Attorney 67889, Ott Law Firm - Constant Victory - Personal Injury and Litigation maintains these public legal archives to support Missouri case research and to help prospective clients connect that research to the firm's courtroom practice.

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Third-Party Injury Check

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

  • A driver, contractor, property owner, or equipment company may share fault.
  • The injury involved a vehicle, unsafe premises, defective equipment, or a non-employer vendor.
  • A serious injury or death may need both benefits review and civil-claim analysis.

Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 11-111102

Employee: Barbara Fuller

Employer: Elementis Specialties, Inc.

Insurer: ACE American Insurance Company

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 5, 2016. The award and decision of Administrative Law Judge Edwin J. Kohner, issued May 5, 2016, 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 $\qquad 12^{\text {th }} \qquad$ day of January 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

AWARD

Employee:Barbara FullerInjury No.: 11-111102
Dependents:N/ABefore the <br> Division of Workers' <br> Compensation
Employer:Elementis Specialties, Inc.Department of Labor and Industrial
Additional Party:Second Injury FundRelations of Missouri
Jefferson City, Missouri
Insurer:ACE American Insurance Company
Hearing Date:March 9, 2016Checked by: EJK/mk

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: August 29, 2011
  5. State location where accident occurred or occupational disease was contracted: City of 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: Employee worked in heavy manual labor performing repetitive gripping and grasping.
  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: Both thumbs and hands
  14. Nature and extent of any permanent disability: 15 % permanent partial disability of each wrist with a 10 % load and 4 weeks for disfigurement
  15. Compensation paid to-date for temporary disability: None
  16. Value necessary medical aid paid to date by employer/insurer: None
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Barbara FullerInjury No.: 11-111102
  1. Value necessary medical aid not furnished by employer/insurer? Not determined
  2. Employee's average weekly wages: 1,217.60
  3. Weekly compensation rate: 811.73/$425.19
  4. Method wages computation: By agreement

**COMPENSATION PAYABLE**

  1. Amount of compensation payable:
Unpaid medical expenses:Hold Harmless
37 5/7 weeks of temporary total disability (or temporary partial disability)$30,613.82
57.75 weeks of permanent partial disability from Employer$24,554.72
4 weeks of disfigurement from Employer$1,700.76
  1. Second Injury Fund liability: Yes
  2. 22.84 weeks of permanent partial disability from Second Injury Fund: 9,711.34

TOTAL: 66,580.64

  1. Future requirements awarded: None

Said payments to begin immediately 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: Dean L. Christianson, Esq.

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Barbara Fuller

Injury No.: 11-111102

Dependents: N/A

Employer: Elementis Specialties, Inc.

Additional Party: Second Injury Fund

Insurer: ACE American Insurance Company

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/mk

This workers' compensation case raises several issues arising out of a work-related injury in which the claimant, a machine operator, developed CMC (carpometacarpal) arthritis in both hands. The issues for determination are: (1) Future medical care, (2) Temporary Disability, (3) Permanent disability and disfigurement, and (4) Second Injury Fund Liability. The evidence compels an award for the claimant for temporary and permanent disability benefits. The parties stipulated on the record that the defense will hold the claimant harmless for any medical bills from medical services in connection with this occurrence.

At the hearing, the claimant testified in person and offered depositions of David T. Volarich, D.O., and J. Stephen Dolan, M.A., C.R.C., records from the Division of Workers' Compensation, medical bills, correspondence between legal counsel regarding additional medical care, and voluminous medical records. The defense offered depositions of the claimant and W. Christopher Kostman, M.D., records from the Missouri Division of Workers' Compensation, records of a prior workers' compensation settlement in Illinois, records of the defense payments in the case, a medical report from Andrew M. Wayne, M.D., and personnel records from the employer.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the occupational disease occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

SUMMARY OF FACTS

On August 25, 2011, this then 59-year-old claimant, a machine operator, was diagnosed with CMC arthritis and surgery was recommended. She testified she began working for this employer as a packer filling bags with pigment for four or five years. As she did this job, she developed pain in her thumbs and hands. She then performed other jobs, but continued to have pain in the thumbs. In 2000, the claimant returned to the packing job and the painful condition in her thumbs worsened over the next several months. In 2010, she consulted her primary care physician, who referred her to an orthopedic surgeon, Dr. Ungacta. On August 10, 2011, Dr. Ungacta performed injections into her thumbs, though she received no significant relief. See Exhibit 18. Dr. Ungacta referred her to Dr. Goldfarb. On August 25, 2011, Dr. Goldfarb

diagnosed CMC arthritis. See Exhibit 22. On August 31, 2011, Dr. Goldfarb performed a right thumb trapezial excision, suspensionplasty with FCR tendon, and interposition arthroplasty, and he performed the same procedure on the claimant's left thumb on December 14, 2011. See Exhibit 22. The claimant then received extensive physical therapy. The claimant worked up until the first surgery on August 31, 2011, and returned to work on May 21, 2012, after the second surgery. See Exhibits 9, 10, 11, 22.

The claimant testified that she has ongoing pain in the thumb and hand pain worse on the right that on the left. She testified that her thumbs hurt and ache, especially with weather changes. She has difficulty opening packages such as small packets of applesauce. She has trouble twisting the tops off of bottles, such as a soda bottle, and has to use pliers. She testified that her hands make it more difficult for her to perform yard work, and how it took three days for her to plant a bush in her yard. She reduces the pain in her hands by rubbing them, holding them under warm water, or applying ice. She exhibited a 2-inch scar on each of her thumbs at the base of the hand.

David T. Volarich, D.O.

On March 5, 2015, Dr. Volarich examined the claimant, took a medical history, and reviewed her medical records. With regard to the occupational disease of August 29, 2011, Dr. Volarich diagnosed overuse syndrome of the hands, causing irreversible aggravation of thumb CMC arthritis, status post trapezial excision with suspensionplasty and tendon interposition arthroplasty. See Dr. Volarich deposition, page 31. He opined that the claimant's work, leading up to August 29, 2011, was the prevailing factor causing these conditions. See Dr. Volarich deposition, pages 31-32. With regard to the occupational disease of August 29, 2011, he opined that the claimant suffered a 30 % permanent partial disability of each hand.

With regard to pre-existing medical conditions, Dr. Volarich diagnosed: (1) Bilateral carpal tunnel syndrome, status post open carpal tunnel releases in 1995; (2) Left elbow ulnar nerve decompression and partial medial epicondylectomy in 1995; (3) Right elbow lateral epicondylitis, status post excision of degenerated common extensor tendon with limited lateral epicondylectomy and muscle flap coverage in 2001; (4) Right long finger laceration and extensor tendon injury, status post arthrotomy at the proximal interphalangeal joint with tendon repair and exploration in 2007; (5) Left shoulder internal derangement, status post arthroscopic biceps tenotomy and subacromial decompression in 2008; and (6) Left knee contusion, resolved in 1999. See Dr. Volarich deposition, pages 38-39. He opined that the claimant suffered the following pre-existing permanent partial disabilities: (1) 25 % of the right wrist due to the carpal tunnel surgery and long finger laceration and exploration; (2) 20 % of the left wrist due to the carpal tunnel syndrome; (3) 25 % of the right elbow due to the lateral epicondylitis; (4) 25 % of the left elbow due to the ulnar neuropathy and decompression; and (5) 20 % of the left shoulder due to the internal derangement and arthroscopic repair. See Dr. Volarich deposition, pages 4042. He opined that all of the disabilities combine with each other to create a substantially greater disability than the simple sum and testified extensively how they combine to create synergism. See Dr. Volarich deposition, pages 42-44.

Andrew M. Wayne, M.D.

On June 30, 2015, Dr. Wayne examined the claimant and opined that repetitive job duties were the prevailing factor compelling the claimant's bilateral thumb surgical requirements. He opined that the claimant suffered a 7 % permanent partial disability of the right thumb and a 10 % permanent partial disability of the of the left upper extremity based on surgery involving the left thumb; separately a 3 % permanent partial disability rating at the right upper extremity due to persistent mild pain and stiffness in the right wrist. He did not indicate a need for future medical treatment. See Exhibit 2.

LIABILITY FOR PAST MEDICAL EXPENSES

The statutory duty for the employer is to provide such medical, surgical, chiropractic, and hospital treatment ... as may be reasonably required after the injury. Section 287.140.1, RSMo 1994.

The intent of the statute is obvious. An employer is charged with the duty of providing the injured employee with medical care, but the employer is given control over the selection of a medical provider. It is only when the employer fails to do so that the employee is free to pick his own provider and assess those against his employer. However, the employer is held liable for medical treatment procured by the employee only when the employer has notice that the employee needs treatment, or a demand is made on the employer to

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

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