Archie Winnett v. Builders Bloc

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 14-089700**

**Employee:** Archie Winnett

**Employers:**

1. Builders Bloc
2. State of Missouri Department of Social Services

**Insurers:**

1. Missouri Employers Mutual Insurance Company
2. Central Accident Reporting Office (CARO)

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 July 3, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Lorne J. Baker, issued July 3, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 3rd day of April 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

**Employee:** Archie Winnett

**Dependents:** N/A

**Employer:** Builder's Bloc

**Additional Party:** Missouri Department of Social Services

**Insurer:** Missouri Employers Mutual Insurance

**Hearing Date:** April 9, 2018

**Injury No.:** 14-089700

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

**Checked by:** LJB

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: Alleged through October 29, 2014
5. State location where accident occurred or occupational disease was contracted: Alleged St. Louis 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? No
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 alleges through repetitive use of his upper extremities he sustained an occupational disease of peripheral compression neuropathies, including bilateral carpal tunnel and cubital tunnel syndrome.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: None
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: $0
16. Value necessary medical aid paid to date by employer/insurer? $0

WC-32-R1 (6-81)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

1. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: 429.00

1. Weekly compensation rate: 286.00/$286.00

1. Method wages computation: By stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable: 0

Unpaid medical expenses: 0

TOTAL: $0

1. Future requirements awarded: None

Injury No.: 14-089700

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 14-089700

Employee: Archie Winnett

Dependents: N/A

Employer: Builder's Bloc

Additional Party: Missouri Department of Social Services

Insurer: Missouri Employers Mutual Insurance

The matter of Archie Winnett ("Claimant") proceeded to hearing to determine the liability of Employer Builder's Bloc ("Builder's Bloc") and Employer Missouri Department of Social Services ("MDSS"). Attorney Daniel Keefe represented Claimant. Attorney Timothy Maurer represented Employer 1 and its Insurer, Missouri Employers Mutual Insurance. Attorney Da-Niel Cunningham represented MDSS and its Insurer, Central Accident Reporting Office.

The parties dispute that up through October 29, 2014, Claimant sustained a compensable injury arising out of and in the course of his employment. The parties stipulated Claimant was, at different times, an employee of both employers and had an average weekly wage of $429.00 at the time of the alleged injury, which resulted in applicable rates of compensation of $286.00 for both temporary total disability benefits ("TTD") and permanent partial disability ("PPD") benefits. The parties further stipulated venue is proper in the city of St. Louis, that both employers received proper notice, and that Claimant filed the claim within the time required by law. Neither employers paid TTD or medical benefits.

The issues for determination are the following: 1) Accident/occupational disease; 2) arising out of and in the course and scope of employment, 3) medical causation; and 4) liability for future medical care and treatment.

At the hearing, Claimant testified in person. The parties offered a joint exhibit into evidence. The exhibit contained the following records:

1. Dr. Brent Koprivica medical report
2. Dr. David Brown medical records
3. Capital Region Physicians medical records
4. Missouri Dept. of Social Services Employment records
5. Employer's First Report of Injury and Information forms dates October 23, 2014, Claimant's Application for Employment dated August 14, 2013, and Claimant's Employment Verification report/wage information
6. Division of Employment Security business records
7. Transcript of Claimant's deposition on February 2, 2015
8. SSM Healthcare/SMJMC Occupational Medicine records
9. Wheat Chiropractic medical records
10. Dr. Brent Berliner business records
11. Dr. Brent Berliner medical records (187 pages)

INC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

In addition, Builder's Bloc offered the following exhibit which was admitted into evidence without objection.

A. Transcript of Claimant's recorded Statement taken on October 24, 2014

The parties asked for a final award if Claimant was found to be at maximum medical improvement ("MMI"). Claimant sought a temporary award only in the event Claimant was not determined to be at MMI and additional medical treatment was awarded.

Findings of Fact

Claimant is a thirty-nine year old single person and the father of four children. Prior to working for MDSS or Builder's Bloc, Claimant became a certified massage therapist in 2010 after completing a nine-month massage therapy program. He worked as a licensed massage therapist for Therapeutic Touch from March 2011 through February 8, 2013. Claimant then worked as a self-employed, subcontracted massage therapist with Berlener Chiropractic, PC beginning March 11, 2013, through late August 2014. During this period of time, Claimant performed 149 massages. When he was not required to be at Dr. Berlener's office, he also separately performed massages at his clients' homes. Overlapping part of his time as a subcontracted massage therapist, he also worked 30 to 50 hours a month for an event venue, La Maison. His hand intensive duties included busing dishes, setting up and breaking down the event, general cleaning of the venue which included mopping, sweeping, cleaning, laundry, dishwashing and tending bar. He stopped working at La Maison in late summer 2014. Claimant also worked for UPS during the winter season of 2013 into early 2014.

Claimant worked full time for MDSS as an office support assistant beginning in March of 2014 through August 30, 2014. His job duties involved significant file work, some computer work, copying, organizing, phone work, basic customer service and other office tasks. He left his job with MDSS for a better paying position as a full-time carpenter's apprentice and was hired by Builder's Bloc in this capacity on September 22, 2014. Claimant hoped his apprenticeship would later lead to a journeyman or master carpenter position with a future pay.

1 Claimant testified he is engaged to be married in May 2018 and is also expecting the birth of another child.

2 Joint Ex. 6.

3 Joint Ex. 10.

4 Joint Ex. 10.

5 Joint Ex. 7.

6 Id., p. 7.

7 Claimant denied at his deposition and at hearing that he had other employment or side jobs while working for MDSS. The business records from Berlener Chiropractic, Inc., indicate to the contrary that Claimant was performing massage therapy services during this time.

8 According to the transcript of Claimant's recorded statement taken on October 24, 2014, Claimant answered affirmatively when asked if he was hired by "McBride" on September 22, 2017. The statement was taken by a representative from Missouri Employers Mutual Insurance. The transcript indicates the policy holder is McBride & Son Services Co. The Court assumes any reference to McBride related to Claimant's job duties is referring to Claimant's work for Builder's Bloc. The parties did not attempt to clarify or explain this distinction at hearing, but based upon the questions and answers contained therein, the Court assumes any reference to McBride is also a reference to Employer Builder's Bloc.

9 Dr. David Brown's narrative report states Claimant indicated to him his first day of work was September 29, 2014. Wage records indicate Claimant worked a total of 10 hours the week ending September 22, 2014 and worked 38 hours the week ending September 29, 2014.

WC-32-R1 (8-81)

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Increase. His apprenticeship job duties included heavy physical labor, carrying heavy loads of lumber and supplies, using hand tools, sweeping, picking up debris, and using power tools including drills, saws, and a nail gun. The use of power tools exposed his hands to a lot of vibrations. He carried items ranging from small scraps of wood to long pieces of lumber of various lengths and widths.

Claimant was asked during his recorded statement and at his deposition when his symptoms started and when he first noticed them. On both occasions, Claimant indicated the pain began the morning of October 23, 2014. The pain was in his right arm and ran approximately from his shoulder down to the digits in his hand and he had numbing in both hands and numbing from the right elbow down to the right finger tips. He testified at hearing his uncomfortable symptoms began "roughly two weeks" after starting work for Builder's Bloc.

During his recorded statement of October 24, 2014, he stated the symptoms included joint pain in his elbow, some minor issues with his shoulder and numbness and tingling in his hands and forefinger, middle finger, index finger and thumb roughly two weeks after he started working for Builder's Bloc. He did not know what was causing his pain and could not depict a specific time or act that was causing his complaints. He complained of numbing and tingling from his mid forearm down to his hands and from his right shoulder down to his hand. He had pain only on his right upper extremity, but had feelings of numbness and tingling in both hands. He did not know what was causing his right arm pain, but indicated the pain ran from approximately his shoulder down to the digits in his hand. He first had symptoms of numbing and tingling when he attempted to go to sleep between October 6 and October 10, 2014.

At deposition, he stated he woke up around 1:00 or 2:00 a.m., with excruciating pain in his hands and that his hands felt fat and tingly. The pain was up his right forearm and he had shooting pain down the back of his right shoulder. Through the rest of the morning he had shooting pain coming down both arms and into his hands. He further indicated he had problems getting dressed to go to work and could not hold a coffee cup. He then called Builder's