Ricky Volner v. Meramec Group, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 09-040794

**Employee:** Ricky Volner

**Employer:** Meramec Group, Inc.

**Insurer:** Self-insured

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 October 10, 2017, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Marvin O. Teer, Jr., issued October 10, 2017, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 13th day of November 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Issued by DIVISION OF WORKERS COMPENSATION

Injury Number: 09-040794

Employee: Ricky Volner

Jury No.: 09-040794

Dependents: N/A

Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Employer: Meramec Group, Inc.

Additional Party: N/A

Insurer: Self-Insured c/o Cannon Cochran Management Services

Hearing Date: July 6, 2017

Checked by: MOT;ls

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? No

1. Was there an accident or incident of occupational disease under the Law? No

1. Date of accident or onset of occupational disease: June 1, 2009

1. State location where accident occurred or occupational disease was contracted: Sullivan, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? No

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant alleges injuries to the upper extremity as a result of repetitive work related duties.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Bilateral hands and wrists

1. Nature and extent of any permanent disability: N/A

1. Compensation paid to-date for temporary disability: None

1

1. Value necessary medical aid paid to date by employer/insurer? $0.00

1. Value necessary medical aid not furnished by employer/insurer? 0.00

1. Employee's average weekly wages: 510.00

1. Weekly compensation rate: $340.00/$340.00

1. Method wages computation: Pursuant to Section 287.250 RSMo.

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer

1. Second Injury Fund liability: N/A

N/A

TOTAL: $0.00

1. Future requirements awarded: N/A

Issued by DIVISION OF WORKERS COMPENSATION

Injury Number: 09-040794

Employee: Ricky Volner

Dependents: N/A

Employer: Meramec Group, Inc.

Additional Party: N/A

Injury No.: 09-040794

Before the

Division of Workers’

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Self-Insured c/o Cannon Cochran Management Services

On July 6, 2017, Ricky Volner (“Claimant”) appeared in person at the Missouri Division of Workers’ Compensation St. Louis Office for a hearing to determine whether he contracted an occupational disease while in the employ of Meramec Group, Inc. (“Employer” or “Meramec”). Attorney Mark E. Moreland appeared for Claimant. Meramec was represented by Attorney Michael F. Banahan. The record closed after presentation of all the evidence. Venue is proper and jurisdiction for this matter lies within the Division of Workers’ Compensation.

The parties stipulated the issues to be resolved are as follows:

1. Did Claimant contract an occupational disease arising out of and in the course of his employment as a mold technician for Employer?
2. Is Claimant’s work the medical cause of his condition?

The following Exhibits were offered into evidence and admitted without objection:

Exhibit 1 August 24, 2011 Deposition transcript for Testimony of Dr. Bruce Schlafly

Exhibit 2 January 22, 2014 Deposition Transcript for Testimony of Dr. Bruce Schlafly

3

Exhibit 3 Certified medical records of Dr. Bruce Schlafly covering periods from September 7, 2010 to April 21, 2012

Exhibit 6 Employees Injury Report of Meramec Group, Inc. for date: 5-27-09

Exhibit 7 Supervisor's Incident Investigation report dated May 28, 2009

Exhibit 9 Records of Austin Plaza Primary Care of Dr. Rustico Simpelo covering periods from February 7, 2008 to May 4, 2010

Exhibit 10 Washington County Memorial Hospital Records

Employer/Insurer Exhibits:

Exhibit A Report of Dr. Sandra Tate

Exhibit B Report of Dr. Evan Crandall

Exhibit C June 3, 2014 Deposition transcript for Testimony of Dr. Evan Crandall

Exhibit D November 14, 2011 Deposition transcript for Testimony of Dr. Gerald Lionelli

Exhibit E September 15, 2014 Deposition transcript for Testimony of Dr. Gerald Lionelli

At the Hearing, Employee testified.

Note: Unless otherwise specifically noted below, any objections raised during the hearing or contained in the deposition exhibits, but not ruled on in this award, are overruled and the testimony is fully admitted into evidence in this case. Any notations made on the exhibits were not placed there by the undersigned Administrative Law Judge.

STIPULATED FACTS

1. Employer and Employee were operating under the provisions of Missouri Workers' Compensation Law ("The Act");

1. Employer's liability was fully insured;

1. Venue is proper in the City of St. Louis;

1. Employer had notice of the alleged occupational disease and the Claim for

1. Compensation was timely filed;

TI11980186

Issued by DIVISION OF WORKERS COMPENSATION

Injury Number:09-040794

1. Employee's average weekly wage was 510.00, yielding a compensation rate of 340.00 for temporary total disability ("TTD"), and a rate of $340.00 for permanent partial disability ("PPD");

1. Employer has paid no compensation to date for TTD benefits.

1. Claimant reached Maximum Medical Improvement on April 8, 2012 and returned to work on April 9, 2012;

1. If the claim is compensable, the employer will pay for outstanding medical bills. If the claim is denied the Employee will submit for payment through group insurance;

1. If the claim is compensable, the Employer will pay $944.00 in TTD benefits for 6-weeks in lost time. If the claim is denied, the Employer will not make any TTD payments;

1. If the claim is compensable, the Employer will pay disfigurement as directed by ALJ Teer. If the claim is not compensable, the Employer will not pay for any disfigurement.

FINDINGS OF FACT

Claimant's Testimony Background

At the time of the hearing, Claimant is a 59 year old right-hand dominant male who works for Meramec Group Industries as a Mold Tech and has done so for over 30 years. Claimant is currently 5' 8" tall and weighs 218 pounds, and has been diagnosed with Type II diabetes controlled with oral medication, as well as medically controlled high blood pressure. Claimant is a former smoker and currently chews tobacco for over 14 years, consuming one can of Copenhagen every three days. Claimant testified that he likes to hunt and is an occasional gardener.

Claimant's Work History

Claimant provided credible and concise testimony wherein he has been employed at Meramec Valley Industries in Sullivan, Missouri since August 5, 1987. He has held the title and position of "mold tech" throughout his 30 years of employment with Meramec. As a mold tech, he assists in the making of shoe soles and knee pads. The job requires him to alternate between different functions daily. During the time frame of 2008-2010, the Claimant worked 8-hour days. He received two 10-minute breaks and one 20-minute break during his shift for 5 days a week. Claimant received 2 weeks of vacation time and had time off during 2 yearly "mandatory shut down weeks," for a total of 4 weeks off work or 48 weeks worked a year.

Claimant described his mold changing duties, which is one of his three other duties, at trial. Claimant testified that the molds [used to make soles or pads] ranges from 15 to 20 inches long, 8 to 12 inches wide, and 8 inches tall. The molds weigh between 35 and 100 lbs. For molds weighing 100 lbs, Claimant usually needed help. Claimant testified he performs between 10 and 30 mold changes per shift, and each mold is lifted about 8 times to get it on the table. The molds have latches to help with carrying them.

At the start of his day he removes four to six molds from the rack and places them on the cart to take them to the heat room, to heat them up for use. The molds are lifted off the cart and placed on a heater. After they are warm enough for use the molds are placed back on the cart, then wheeled to the table. Once at the table, Claimant removes a pin from the mold on the table, and places the mold in current use on his cart, then places a new mold on the table. Molds are handled two more times to take them off the table and placed back on the rack.

Claimant's mold changing duties also include changing the plate on the mold which required the use of a T-handle tool that was 11 to 12 inches long. The T-handle is used to remove 4 bolts on the plate. Claimant testified this job is performed for about half of his mold changes.

On the days where Claimant was not doing mold changes he rotates to another job on the line where he changes out the mixing barrels that contained the material shot into molds to make shoe soles. This requires Claimant to undo the gun that is attached to the mixer, knock off the mixing, and using a hammer to beat off fork handles. Barrel changes are done 30 to 40 times a shift.

On cross-examination, Claimant admitted he did the mold changing job duties every other day, approximately 5 out of 10 days in a pay period. In other words, he performs this duty either 2 or 3 days in a 5 day work week. Claimant also states the mixing barrels he lifts to refill do not weigh very much. During the mold changing days, Claimant also has to check a computer screen several times a day, clean the molds, and does some sweeping and maintenance. Claimant has performed the mold changing task since 1989 but did not begin experiencing symptoms of carpal tunnel until 2009. In roughly 2008, Claimant was diagnosed with diabetes and began taking an oral pill to control his diabetes. In 2009 Claimant reported problems of burning sensations in his lower extremities, thighs and legs, to Dr. Simpelo.

Claimant stated after he experienced issues with his hands on the job he reported those issues to his supervisor Linda Lee, and ultimately, Claimant was sent to Dr. Sandra Tate for evaluation. Dr. Tate did not treat the Claimant. Dr. Simpelo, Claimant's primary care doctor, performed a nerve conduction study ("NCS"), and referred Claimant to Dr. Bruce Schlafly. Dr.

Issued by DIVISION OF WORKERS COMPENSATION

Injury Number:09-040794

Schlafly performed surgery on Claimant's left and right wrists. The Court noted Claimant has a slight scar of about 2 inches on each wrist.

Claimant states he has some loss of grip strength in both hands after his carpal tunnel release surgery. Claimant bought a drill to help remove hex bolts. He no longer has numbness and tingling in his hands since his surgery.

Following his carpal tunnel rele