The matter of Jeffrey Hicks ("Claimant") proceeded to hearing on June 27, 2018. Attorney Elizabeth W. Skinner represented Claimant. Assistant Attorney General Rachel Harris represented the Missouri Department of Corrections ("Employer"). The Second Injury Fund did not appear, having agreement of all parties to bifurcate the trial as to their liability.
The parties stipulated:
- On or about January 2, 2014, Claimant sustained an accident arising out of and in the course of his employment.
- The accident occurred in St. Francois County and venue is proper in Ironton, Missouri.
- Claimant was employed by Employer and was working under the Workers' Compensation Act (the "Act").
- Employer was operating under and subject to the provisions of the Act and was either fully insured or was duly qualified as a self-insured employer.
- Employer had notice of Claimant's accident.
- Claimant filed his claim within the time allowed by law.
- Claimant's average weekly wage is $546.23, and the rate of compensation for both temporary total disability ("TTD") and permanent partial disability ("PPD") is $364.15.
- Claimant's injury was medically causally related to the accident on January 2, 2014.
- Employer furnished medical aid totaling 75,855.44.
- Employer paid TTD benefits of 1,794.72 for the periods reflected in Exhibit 13.
- Claimant reached maximum medical improvement ("MMI") on February 10, 2016.
The issues submitted for determination are:
- Whether Claimant is entitled to additional temporary total disability benefits in the amount of $26,999.12; and
- What is the nature and extent of Claimant's permanent partial disability, including disfigurement?
Issued by DIVISION OF WORKERS' COMPENSATION
Claimant testified on his own behalf and presented the following exhibits, which were admitted into evidence without objections:
- Dr. Michael J. Snyder Reports dated January 22, 2015, and May 13, 2015, and CV
- Dr. David T. Volarich Report dated August 1, 2016, and CV
- Metro Imaging
- Parkcrest Orthopedics, LLC
- Parkcrest Orthopedics, LLC
- Farmington Physician Associates
- Pro Rehab
- Pro Rehab
- Pro Rehab
- Orthopedic Ambulatory Surgery Center of Chesterfield
- Excel Orthopedics
- Correspondence Printout of Indemnity Payments
- VCLF Expenses
- VCLF Contingent Fee Agreement
Employer presented the following exhibits, which were admitted into evidence:
A. Rating report of Dr. Christopher Lenarz
B. Deposition of Mr. Dave Dormire, and all attached exhibits
C. Personnel Records of Jeff Hicks
D. Personnel Records of Jeff Hicks
E. ERDCC D2-8.6 Leave Without Pay Policy
F. ERDCC D2-8.3 Sick Leave Policy, D2-8.4 Compensatory Time Policy, and Jeff Hicks Probationary Extension Memo
G. Return to Work Notice dated October 7, 2014
H. Memorandum dated October 28, 2014
At the request of the parties, the undersigned Administrative Law Judge took administrative notice of the Division of Worker's Compensation records.
FINDINGS OF FACT
Claimant is a 46-year old, left-handed man who lives in Farmington, Missouri with his wife of 21 years, Angela Hicks. In lieu of graduating from high school, Claimant obtained his GED and joined the Army as a military policeman. His service was cut short when he was honorably discharged after three months due to medical issues related to previous foot surgeries. For a few years, Claimant worked various part-time "kid-jobs" at grocery stores, gas stations, and in a factory in Poplar Bluff. Beginning in 1992, and for two decades thereafter, Claimant held three long-term positions in furniture and glass installation businesses, working up to manager status at each employment. Even as a manager, Claimant engaged in physical activities, including lifting, pushing and pulling. Claimant also started his own business in 2013 selling e-cigarette and vaping merchandise.
In late 2013, Employer hired Claimant as a Corrections Officer I ("COI") at the Eastern Regional Diagnostic Correctional Center ("ERDCC") in Bonne Terre. Claimant began work on
WC-32-R1 (6-81)
Injury No.: 14-004926
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Issued by DIVISION OF WORKERS' COMPENSATION
probationary status, and was required to complete a formal training program, with five weeks of classroom work (written, physical, firearm and defensive tactics training) and the last two weeks on-the-job training, working alongside other COIs. This early training included becoming familiar with the employee handbook, which contained Employer's policies regarding sick time, leave without pay, reviews, and other employment matters. Defensive tactics training required perfecting techniques such as flips, falls, take downs, various blocks and throws of an average-sized adult; application of leg irons, cuffs and belly chains; CPR and first aid, including lifting, rolling and dragging an average-sized adult; and firearms training.
On January 2, 2014, as part of a classroom role-playing exercise with Claimant as the inmate, his partner attempted to place Claimant in the appropriate hold and restraints. The partner did not use the proper technique when he pulled Claimant's left arm up and behind him, and then pushed down, causing Claimant to fall and land on his left arm and shoulder. Claimant felt a pop, exhibited visible signs of injury (sweating), and could not lift his arm. Claimant reported the injury to the training staff, but did not ask for medical treatment at the time. He attempted to use over-the-counter medication, ice and other home remedies for several weeks, and resisted filling out a report of injury for fear of losing his job. However, his arm got progressively worse, inmates commented, "Yo, CO! What's up with your wing?" and he became concerned his injury made him vulnerable.
Dr. Carl Killion began treating Claimant on January 30, 2014, diagnosed possible internal derangement of the shoulder, and ordered an MRI, which when taken on February 6, 2014, showed a posterior labral tear and tendinosis of the cuff attachment. Employer directed Claimant to orthopedist Dr. James Emanuel, who, on February 21, 2014, performed a left shoulder arthroscopic posterior glenoid labral repair, subacromial decompression, and distal clavicle resection with debridement of a torn cartilaginous homolog at the AC joint.
Soon after the surgery, Claimant declined sick pay in addition to TTD during his recovery by writing a letter to Warden Russell. He was concerned he would be fired if he had to exhaust his leave because of this injury. Warden Russell approved 30 days leave without pay as of March 7, 2014.
In the weeks following surgery, Dr. Emanuel took Claimant off work completely, started active physical therapy as of March 3, 2014, found him capable of one-arm duty on March 20, 2014, and changed work status to l