Donald Clift v. Queen City Winnelson Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 13-051327

Employee: Donald Clift

Employer: Queen City Winnelson Company

Insurer: Travelers Insurance Company of America

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 November 3, 2016. The award and decision of Administrative Law Judge Victorine R. Mahon, issued November 3, 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 $\qquad 22^{\text {nd }} \qquad$ day of February 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

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: May 8, 2013.
5. State location where accident occurred or occupational disease was contracted: Springfield, 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: Clamant injured his back while performing repetitive heavy lifting.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: Body as a whole referable to the back.

The undersigned Administrative Law Judge conducted a final hearing in Springfield, Missouri, to determine the liability of the Employer/Insurer and the Second Injury Fund. Attorney John Wise represented Donald Clift. He seeks a 25 percent fee of any amounts awarded. Assistant Attorney General Catherine Goodnight represented the Treasurer of Missouri, as Custodian of the Second Injury Fund. Christina Madrigal represented Queen City Winnelson Co., and its insurer, Travelers Insurance Company of America. The parties reached the following stipulations of fact:

1. On May 8, 2013, Donald Clift (Claimant) sustained an injury by occupational disease from repetitive trauma that arose out of and in the course of Claimant’s job duties while working for Queen City Winnelson Co. (Employer).

2 At the time of this injury, Employer was fully insured with Travelers Insurance Company of America (Insurer). Both Claimant and Employer were subject to and protected by the Missouri Workers’ Compensation Act. 3. Venue and jurisdiction are proper in Springfield, Greene County, Missouri, where the injury occurred. 4. There is no challenge to the statute of limitations or notice. 5. Claimant’s average week wage was $\ 576.93, yielding a compensation rate of $\ 384.62 for all purposes. 6. Employer/Insurer paid no temporary total disability and no medical benefits under the Workers’ Compensation Law. 7. Claimant reached maximum medical improvement on August 5, 2013.

The sole issues for the hearing are as follows: ${ }^{1}$

- What is the nature and extent of any disability from the last injury?

- What is the nature and extent of any liability of the Second Injury Fund?

- Is Claimant entitled to future medical to cure and relieve the effects of the work injury?

- Is Claimant entitled to 6 and $4 / 7 weeks in past temporary total disability totaling \ 2,527.50 ?

The parties offered the following exhibits which were admitted:

Exhibits offered by Claimant:

1. Deposition - Dr. Allen Parmet
2. Vocational Report - Phillip Eldred
3. Curriculum Vitae - Phillip Eldred
4. Medical Records - Mercy Hospital System
5. Medical Records - Neurological and Spine Institute
6. Medical Records - Neurological and Spine Institute
7. Medical Records - CoxHealth
8. Medical Records - Typaldos Physical Therapy
9. Medical Records - Mercy Hospital System
10. Medical Records - University Hospital
11. Medical Records - Phelps County Hospital
12. Medical Records - Barnes Jewish Hospital

Exhibits offered by Employer/Insurer

A. Deposition - Dr. Brent Koprivica

B. Deposition - Michael Dreiling

C. Deposition - Donald Clift

Exhibits offered by the Second Injury Fund

I. Deposition - Donald Clift

Claimant, Donald Clift, testified credibly. He was born on March 21, 1971. He presently is 45 years old. Claimant began his employment at Queen City Winnelson on January 2, 2013. He last worked for that employer on May 17, 2013, at which time he was terminated based on his employer's representation that it no longer had work available for him. Claimant has not worked anywhere since that date.

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[^0]: ${ }^{1}$ Although the records of the Division of Workers' Compensation indicate that there is an unreleased Medicaid/Medicare lien of $\ 910.17 connected to this case, Claimant has not sought reimbursement for any medical benefits, and the parties did not identify the lien as an issue. Moreover, no evidence was presented indicating that the lien related to medical treatment for Claimant's work injury. This Award, therefore, does not include a provision for the lien.

Claimant described a limited educational background. He possesses an 11th grade education, but never obtained a diploma or a GED. He has no formal post-secondary academic or vocational training. He never served in the military. He has a varied work career.

Following high school, Claimant worked less than two years at a Chinese restaurant in Chesterfield, Missouri, and with Conoco Pipeline, performing general labor work. In approximately 1990, Claimant went to work for his father's construction business, Gary Clift Construction. He worked for approximately two years with that employer as a foreman. This job required Claimant to lift and carry up to 100 pounds and use saws, hammers, and other construction tools.

After leaving the construction business, Claimant established a career in the automobile sales industry. He worked for a variety of dealerships selling cars and in customer service. It was during this time that Claimant suffered an injury to his right knee, necessitating an arthroscopic procedure. After receiving treatment for his right knee injury, he experienced only mild, intermittent soreness about once every six weeks. Claimant was adamant, however, that the right knee symptoms never interfered with his job activities.

In approximately 2000, Claimant suffered a laceration to his right hand while pushing a shopping cart in a Wal-Mart. As a complication of that injury, he developed reflex sympathetic dystrophy in his right upper extremity. Claimant underwent a series of stellate ganglion blocks at Barnes-Jewish Hospital and eventually underwent a right dorsal sympathectomy on February 1, 2000, also performed at BarnesJewish Hospital. Claimant missed approximately one week of work following the right hand injury. He had some residual problems, including an inability to sweat on the right side of his body. His right hand also gets cold when he is outside during cold temperatures, and he sweats excessively on his left side because of his inability to sweat on his right side. Again, however, Claimant fiercely denied that this condition ever impacted any employment that he had throughout the years, and doubted it would have prevented him from performing any job tasks.

From 2002 through 2006, Claimant returned to work for his father as a general carpentry foreman at Gary Clift Construction Company. Claimant said the prior hand injury and resulting condition never prevented him from performing any job tasks.

In 2009, while working for Kingdom Kia as a salesman and floor manager, Claimant suffered a heart attack. He under