Court of Appeals of Missouri, Southern District, Second Division
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION.
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.
GARY W. LYNCH, J. -- Opinion author. MARY W. SHEFFIELD, P.J. -- concurs. DON E. BURRELL, J.-- concurs.
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 ...