Donald Nash v. Ardagh Glass, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 15-103744**

**Employee:** Donald Nash

**Employer:** Ardagh Glass, Inc.

**Insurer:** Travelers Property Casualty Company

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 December 15, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Maureen Byrne, issued December 15, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this ______ 15th ______ day of June 2021.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Employee: Donald Nash

Injury No. 15-103744

Dependents: N/A

Employer: Ardagh Glass, Inc.

Additional Party: N/A

Insurer: Travelers Property Casualty Company

Hearing Date: September 24, 2020

Checked by: $\mathrm{MB} / \mathrm{kg}$

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 alleged accident or occupational disease? $11 / 23 / 15$
5. State location where alleged accident or occupational disease occurred: Pevely, MO
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 alleged 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

Employee: Donald Nash

Injury No. 15-103744

1. Describe work employee was doing and how accident happened or occupational disease contracted: Employee alleged that he sustained a burn to his big toe that eventually required amputation of the toe and part of the foot.

1. Did alleged accident or occupational disease cause death? No

1. Parts of body alleged to have been injured by alleged accident or occupational disease: Left big toe and left foot

1. Nature and extent of any permanent disability: Claim denied/None

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

1. Value necessary medical aid paid to date by employer-insurer: None

1. Value necessary medical aid not furnished by employer-insurer: Claim denied/None

1. Employee's average weekly wage: 1,435.55

1. Weekly compensation rate: Permanent partial disability: 464.58; Temporary total disability: $886.92

1. Method wages computation: By agreement

1. Amount of compensation payable: None

1. Second Injury Fund liability: N/A

1. Future requirements awarded: N/A

On September 24, 2020, the employee, Donald Nash, appeared in person and with his attorney, David Jerome, for a hearing for a final award. The employer was represented at the hearing by its attorney, Robert Frayne. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was fully insured by Travelers Property Casualty Co.
2. Covered Employee: That on November 23, 2015, Employee was an Employee of Ardagh Glass Inc. in Jefferson County, Missouri and was working under the Missouri Workers' Compensation Act.
3. Notice: That Employer had notice of Employee's accident and injury.
4. Statute of Limitations: That Employee's claim was filed within the time allowed by law.
5. Average weekly wage and rate: That the average weekly wage was $\$ \ 1,435.55, the temporary total disability rate was $\ 886.92 and the permanent partial disability rate was $\ 464.58.
6. Medical aid furnished by Employer-Insurer: Medical aid has been furnished by the Employer in the amount of $\ 0.
7. Temporary disability paid by Employer-Insurer: No temporary total disability benefits have been paid.
8. Parties stipulated that if this matter is found compensable, Employer will reimburse the group carrier to the extent of $\ 45,675.34 as noted Employee's Exhibit \#7.

1. Accident: Whether Employee sustained an accident arising out of and in the course of his employment.
2. Medical causation: Whether Employee's injury was medically and causally related to the accident.
3. Temporary total disability: Employee is making a claim for temporary total disability benefits for the time period of $12 / 21 / 15 to 5 / 9 / 16$ ( 20 weeks).

1. Permanent partial disability: Employee is making a claim for permanent partial disability against Employer-Insurer.

The following exhibits were offered and admitted into evidence:

1. Report of Injury
2. Photographs of foot
3. Medical report of Dr. David Volarich
4. Medical records of St. Anthony's Medical Center
5. Medical records of Dr. Mahesh Bagwe
6. Medical records of Southroads Internal Medicine
7. Group Lien

A. Deposition of Dr. John Krause

B. Deposition of Aaron Shipley

C. Deposition of Kim Ravellette

D. Deposition of Ron Jones

E. Furnace Crown

Donald Nash, Employee, testified that prior to this work injury, he had been diagnosed with having severe diabetes as far back as the year 2000. His doctor had him undergoing injections three times per day. Even while taking these injections, he had trouble controlling his A1C levels. As a result, Employee developed peripheral neuropathy that consisted of numbness in both of his feet. Employee testified that the numbness dated as far back as 2001 and he was unable to feel anything on the bottom of his feet.

Employee testified that he was able to perform all of his work duties and had no problems with balance or walking. He wore the steel-toed boots provided by the company and had no problem wearing these shoes.

Employee testified prior to this work accident, he had never had any form of ulcers or infections on either of his feet.

On November 23, 2015, Employee testified he was filling in for a coworker performing maintenance on the furnace instead of Furnace Operator. Employee described the facility with

**Injury No. 15-103744**

Having a furnace in the middle of the warehouse that processed glass at 2800°. Surrounding the furnace and running across the top of the furnace was metal scaffolding that allowed them to walk above the top of the furnace to inspect the crown of the furnace to look for thinning or holes.

Employee testified that on the date of accident, he was working with Aaron Shipley, performing maintenance activities of patching spots that had thinned along the roof line of the furnace. This activity began with Employee preparing mortar in buckets and carrying the buckets up a catwalk made of metal railings and metal steps. The metal steps and scaffolding traversed the center of the furnace with ambient temperatures between 200 to 300 degrees. Employee testified that he had been advised that workers could only remain in this environment for 15 minutes maximum without risking overheating their body, leading to heat exhaustion or heat stroke.

On the date of accident, Employee was walking with Mr. Shipley on the catwalk along the top of the furnace looking for thinning spots. When he suspected thinning spots, Employee would use a metal rod to poke the brick to see if it would fall through. When the brick fell through, the full heat of the furnace would be felt on the metal railing where he was standing. Employee testified that he could not feel the heat in his feet, as they were completely numb.

Employee testified that on the date of accident, he went home at the end of the day and was not aware of the burns he had sustained. However, once he got home and took a shower, he noticed that he had sustained burns to his belly and hand. He returned to work the next day and reported these injuries to the Assistant Human Resources Director Kimberly Ravellette who provided him with silvadene cream and instructions to continue applying it. Employee noted that she did not complete a physical examination or inquire regarding any further burns.

Employee testified that immediately following the injury, he did not think that he had any issues with either foot and continued working. However, on November 26, 2015, Employee's girlfriend, Carla Short, returned from a business trip and inspected his feet. At that time, she noted a red dot on his left big toe that had never been present previously. Employee testified that he had no other accident or injury other than the work accident. He testified that Carla continued to put silvadene ointment on the toe but it did not serve to resolve the issues as his toe continued to worsen.

Within four weeks, Employee was seen at St. Anthony's Medical Center due to the infection in his toe. Although he was having significant problems, he still felt no pain as his foot was numb. Employee presented pictures of his toe at the time of the emergency room visit. Employee testified that when he was admitted in the emergency room, he advised the doctors that the problems started with the burn at work and worsened over the weeks leading up to the admission. Similarly, when he was seen by the orthopedist, Dr. O'Boynick, he provided an identical history of injury.

Employee testified that after being seen in the emergency room, he was admitted and remained hospitalized from December 21, 2015 to December 24, 2015. While hospitalized, he underwent a complete amputation of his left big toe. Thereafter, he followed up with Dr. Bagwe who kept him off work in post-operative care until releasing him to return to work full duty on May 9.

Employee: Donald Nash

Injury No. 15-103744

1. Employee testified that while he did return to work, he never again went up on the catwalk. Employee testified that while he was off work, he was not paid any lost time benefits, although he was paid short-term disability.

Employee testified that at the time of trial, his entire left big toe has been amputated as well as part of the foot. He currently uses an orthotic shoe that assists in his ability to ambulate. He does not have any pain in his foot as the diabetes continues to keep the foot numb. Employee testified that as a result of the loss of his toe, he is unable to stand exclusively on his left foot.

Additionally, he has problems trying to walk long distances. He notes that he now uses a scooter when he goes shopping. Employee also testified that as a result of this injury, he is no longer able to walk, run or climb steps. Employee testified that the only injury that he has had with his left foot surrounds this work injury. He noted that both feet were fully functional and he had never had any problems with either foot until this burn injury to his foot.

Testimony of Carla Short

Carla Short testified at the hearing. Ms. Short testified she has been the girlfriend of Employee since before the incident. However, she testified she did not live with Employee at the time of the incident.

Ms. Short is not a nurse or a medical professional. Ms. Short testified that she had previously worked at a nursing home that included taking care of diabetic patients. She stated that she had completed training that was similar to that of the CNA and she stated that her job was to inspect the feet of diabetic