Josh Rudolfi of Ankin Law helped an injured PepsiCo worker receive $32,551 for permanent partial disability after he injured his shoulder trying to open a door on his delivery truck. After paying $13,000 for a permanent partial disability advance PepsiCo was ordered by the arbitrator to pay an additional $19,551.60. The arbitrator ruled that the worker had suffered permanent partial loss of use of 10% of the person when he injured his left shoulder opening the door that had become stuck.
(Read the full Arbitrator Decision below)
The driver testified that he continues to experience shoulder pain and he needs to take Tylenol PM at night for pain. He testified to difficulties sleeping and that he is unable to sleep on his shoulder because, if he does, his shoulder is painful and hard to move the next day. The driver has returned to work but not in his former capacity as a “D-Bay Driver”. He now works as Bulk Driver, a less physically demanding job.
Below is an important excerpt from the arbitrator decision:
For accidental injuries that occur on or after September 1, 2011, permanent partial disability shall be established using the following criteria:
(a) A physician licensed to practice medicine in all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing. The report shall include an evaluation of medically defined and professionally appropriate measurements of impairment that include but are not limited to: loss of range of motion; loss of strength; measured atrophy of tissue mass consistent with the injury; and any other measurements that establish the nature and extent of the impairment. The most current edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” shall be used by the physician in determining the level of impairment.
(b) In determining the level of permanent partial disability, the Commission shall base its determination on the following factors:
(i) the reported level of impairment pursuant to subsection (a);
(ii) the occupation of the injured employee;
(iii) the age of the employee at the time of the injury;
(iv) the employee’s future earning capacity; and
(v) evidence of disability corroborated by the treating medical records.
No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order. Id.
Considering these factors in light of the evidence submitted at trial, the Arbitrator addresses the factors delineated in the Act for determining permanent partial disability.