Gonzales v. Butterball, L. L.C.

• Decision Date: 13 March 2015
• Docket Number: No. SD 33268,SD 33268
• Citation: 457 S.W.3d 880
• Parties: Eleazar Gonzales, Claimant–Respondent, v. Butterball, L.L.C., Employer–Appellant, Ace American Insurance Company, Insurer–Appellant, and Treasurer of the State of Missouri, As Custodian of the Second Injury Fund, Additional Party–Respondent.
• Court: Missouri Court of Appeals

457 S.W.3d 880

Eleazar Gonzales, Claimant–Respondent

v. Butterball, L.L.C., Employer–AppellantAce American Insurance Company, Insurer–AppellantandTreasurer of the State of Missouri, As Custodian of the Second Injury Fund, Additional Party–Respondent.

No. SD 33268

Missouri Court of Appeals, Southern District, Division Two.

Filed March 13, 2015

Attorney for Appellants: Ronald G. Sparlin, of Blanchard, Robertson, Mitchell & Carter, P.C., Joplin, Missouri

Attorney for Respondent Gonzales: Jennifer L. Newman, of Newman Law Firm, LLC, Springfield, Missouri

Attorneys for Respondent Second Injury Fund: Chris Koster, Attorney General, Jefferson City, Missouri, and Stephen Nathanael Freeland, Assistant Attorney General, Springfield, Missouri

Opinion

GARY W. LYNCH, J.

Butterball, L.L.C., and its insurer, Ace American Insurance Company (collectively “Employer”), appeal the award of permanent total disability benefits to Eleazar Gonzales for an injury to his right hand on August 7, 2009. In a single point relied on, Employer claims the Labor and Industrial Relations Commission's (“the Commission”) award is erroneous because it is not supported by sufficient and competent evidence in the record; Employer contends that the record established that Gonzales was only permanently partially disabled or, in the alternative, that Gonzales was permanently totally disabled but such permanent total disability was not the result of the August 7, 2009 injury. We disagree, and affirm the Commission's award.

Factual and Procedural Background

Gonzales was born during May 1947 in Guatemala and currently resides in Joplin, Missouri. He reached the third grade in Guatemala and did not obtain a GED. Although Gonzales has lived in the United States for approximately twenty years and is a United States citizen, his native language is Spanish; he does not read or write English. Although he attempted to learn English in 2000, Gonzales was also working at the time and was too tired to complete the program.

Before his employment with Butterball, which began in January 2001, Gonzalez held several jobs in Guatemala, including as a shoe manufacturer and with a textile company, both of which were hand-intensive jobs. Gonzales also worked for the Guatemalan government police department, which was a physical job.

Gonzales also held numerous jobs in the United States before working for Butterball, including as a cement mixer for a construction company and as a manual laborer for plastic and metal companies. He also completed some training pertaining to soldering pieces used in electronics and worked as a laborer in soldering electric parts. All of Gonzales's positions while in the United States have been hand intensive.

On August 7, 2009, Gonzales was working in Butterball's evisceration department, controlling the only machine used in that department. The machine was used to sort and clean turkey gizzards. Gonzales's responsibilities included cleaning and separating the gizzards, both cut and uncut; hanging up the gizzards; and pushing the gizzards into the machine with his right hand.

At the time of his injury, Gonzales, who is right-hand dominant, was wearing four gloves while working the machine, pursuant to Butterball's rules and safety protocols. These gloves were made of steel mesh, plastic, and fabric. He was also wearing a security glove. While pushing the gizzards into the machine with his right hand, the machine's roller grabbed the tip of Gonzales's glove, and all four of Gonzales's fingers on his right hand became stuck in the machine. Gonzales tried to remove his right hand from the machine but was unsuccessful. Another employee shut down the machine, but Gonzales still could not remove his hand. Even after Butterball mechanics turned off and disassembled the machine, a process which took some time, Gonzales was unable to remove his right hand.

Following the unsuccessful attempts to free Gonzales's hand, a Butterball employee called paramedics. Upon the arrival of the paramedics, it took an additional 37 minutes before Gonzales's hand was able to be removed from the machine. Gonzales was then taken by ambulance to McCune Brooks Hospital in Carthage, Missouri. The ambulance report showed that Gonzales's fingers on his right hand were crushed and blue with little sensation and delayed capillary refill. Records from McCune Brooks indicate that Gonzales was diagnosed with a traumatic crush injury to his right hand, consisting of an avulsion injury

with controlled bleeding and crepitus, crushed deformity dislocation, ecchymosis, and soft tissue swelling of his hand. Following his initial treatment, Gonzales was flown by helicopter to Freeman Hospital in Joplin. Records from Freeman Hospital indicate an obvious deformity of Gonzales's right hand and partial amputation of the fifth digit, as well as lacerations on his right index, ring, and small fingers requiring sutures; the records also indicate Gonzales suffered tenderness with a limited range of motion and functional deficit. X-rays revealed Gonzales's right fifth finger to be dislocated. A subsequent x-ray following treatment showed a reduction of the dislocation along with a small avulsion fracture

at the base of the distal phalanx.

Gonzales underwent evaluation by Dr. Dennis Estep on August 10, 2009. Gonzales was unable to hold any tools in his right hand and complained of pain. Gonzales had significant discomfort when changing the dressings

on his wounds, and Dr. Estep administered a regional block both median and ulnar at the right wrist. At that time, Dr. Estep diagnosed Gonzales with a crush injury of the right hand with a moderate amount of edema; a fifth-digit dislocation; a fifth-digit fracture, distal of the DIP joint; lacerations to the index, ring, and fifth digits; and a degloving injury to the distal aspect of the third, fourth, and fifth digits, with the major damage being to the fourth and fifth digits. X-rays taken later that day found fractures in both the fourth and fifth digits, with a possible fracture of the third digit. Dr. Estep released Gonzales to work but restricted Gonzales such that he not use his right hand, not lift more than ten pounds, and not operate dangerous machinery. Gonzales was also referred to an orthopedic surgeon for evaluation.

The following day, Gonzales was evaluated by Dr. Paul Toma, an orthopedic surgeon. Dr. Toma determined that Gonzales suffered a crush injury to his right hand and a degloving

injury of varying thickness to all of the fingers on his right hand. Dr. Toma released Gonzales to work but without the use of his right hand. After a follow-up visit one week later, Dr. Toma referred Gonzales to a hand therapist.

Gonzales attended twenty-three visits with IPT Physical Therapy, from August 20, 2009, through October 12, 2009. Throughout the entire course of therapy, Gonzales suffered from throbbing pain in all of the fingers on his right hand and had difficulty performing physical tasks because of that hand's hypersensitivity.

Following Gonzales's completion of physical therapy, he was again evaluated by Dr. Toma, on November 3, 2009. Dr. Toma found an area on Gonzales's right ring finger that had not completely healed, as well as a reduced range of motion at the DIP joint. Dr. Toma found Gonzales not to be a candidate for surgery. Although Gonzales continued to complain of numbness in his right hand, Dr. Toma found Gonzales to be “fairly functional[.]”

Gonzales underwent a final evaluation by Dr. Toma on November 24, 2009. Dr. Toma noted that Gonzales still complained of pain in his right hand and was very sensitive along the finger pads of the middle and ring fingers; he also noted that Gonzales had had a difficult time regaining motion in his right hand and likely had an avulsion of the FDP on his right ring finger. In Dr. Toma's opinion, Gonzales had achieved maximum medical improvement at that time, and he was released back to work full time.

At his final evaluation of Gonzales, Dr. Toma determined that Gonzales had suffered 10 percent impairment for scarring and sensory changes in his right middle finger, as well as 26 percent impairment for the loss of DIP motion. This combined for a 36 percent impairment of the right middle finger, which equates to 7 percent impairment of the right hand or 6 percent impairment of the upper extremity. Dr. Toma further found a 10 percent impairment of the right ring finger due to the scarring and sensory changes, along with 36 percent impairment due to loss of motion at the DIP joint. This combined for 46 percent impairment of the right ring finger, equating to a 4 percent impairment of the right hand or a 4 percent impairment of the upper extremity. These combined for a 10 percent impairment of the upper extremity.

Following his release from medical treatment, Gonzales continued to experience pain in his right hand and fingers. Although Employer did not provide for any further medical treatment, Gonzales sought treatment on his own from Dr. Jeff Wool, who prescribed pain medication.

Upon returning to work full-time at Butterball, Gonzales was assigned to a different area with new job duties. Initially, his new duties consisted of plucking turkeys. He was limited in his ability to use his right hand effectively, however, and was only able to use his left hand to pluck the turkeys. After approximately two weeks, Gonzales was again moved to a new position, this time removing the innards, fries, and eggs from the turkeys. Though this position required the use of both hands, Gonzales was only able to use his left hand as he was still suffering from pain and lack of function in his right hand. Gonzales was repeatedly called into his supervisor's office and told that he must use both hands, and Gonzales was written up on multiple occasions for failing to use both hands. According to Gonzales, he was unable to complete his new duties because of the continuing pain, loss of motion, and sensitivity in his right hand and,...