Mark Duffy v. City of St. Louis

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-018713

Employee: Mark Duffy

Employer: City of St. Louis (settled)

Insurer: Self-Insurer (settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: January 4, 1999

Place and County of Accident: St. Louis, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 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 Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated May 11, 2004. The award and decision of Administrative Law Judge Linda Wenman, issued May 11, 2004, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 3rd day of January 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Ken Jacob, Chairman

Bill I. Foster, Member

Attest: John J. Hickey, Member

Secretary

Employee: Mark Duffy Injury No.: 99-018713

Dependents: N/A Before the

Division of Workers'

Employer: City of St. Louis (settled) Compensation

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: January 4, 1999
5. State location where accident occurred or occupational disease was contracted: St. Louis City, 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 accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While responding to a fire call, Claimant slipped on ice and fell on his left wrist.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left wrist
14. Nature and extent of any permanent disability: 25% left wrist from Employer
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? $402.46 Employee: Mark Duffy Injury No.: 99-018713
17. Value necessary medical aid not furnished by employer/insurer? None
18. Employee's average weekly wages: Disputed for temporary total disability, stipulated as maximum for permanent partial disability calculations.
19. Weekly compensation rate: Disputed / $294.73
20. Method wages computation: Stipulated for permanent partial disability

1. Amount of compensation payable from Employer: Previously settled
2. Second Injury Fund liability: Yes 17.81 weeks of permanent partial disability from Second Injury Fund $5,249.14

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Ray Marglous

On January 4, 1999, Mark Duffy (Claimant) injured his left wrist while in the course and scope of his employment with the City of St. Louis (Employer). The parties stipulate that on October 1, 2001, Claimant and Employer entered into a stipulation for compromise settlement. Employer agreed to settle Claimant's work related injury for 25 % permanent partial disability referable to Claimant's left wrist. At the time of settlement, Claimant's claim against the Second Injury Fund (SIF) was left open, to be concluded at a later date.

The SIF claim was heard by the undersigned Administrative Law Judge on March 8, 2004. Briefs were received, and the case was formally submitted on April 7, 2004. Attorney Ray Marglous represented Claimant. Assistant Attorney General Jennifer Sommers represented SIF. Any objections not expressly ruled on in this award are overruled.

Prior to the start of the hearing the parties identified the following issues for disposition in this case: liability of SIF for permanent total disability benefits, wage rate for permanent total disability, SIF liability for permanent partial disability, and assessment of costs. Claimant offered Exhibits A-C, and Exhibit C was admitted into the hearing record. SIF objected to admission of Exhibits A \& B on foundation grounds. SIF offered Exhibits I \& II, and the exhibits were admitted without objection. The parties were asked to address SIF's objection in their post-hearing briefs, and the briefs have been reviewed.

Exhibit A contains the deposition testimony of Dr. Jerome Levy. Exhibit B contains the deposition testimony of vocational expert, Mr. James England. SIF objects to Exhibits A \& B on foundation grounds, specifically that both depositions contain medical/psychological records relied on by Dr. Levy and Mr. England when forming their opinions that are not offered into evidence, and as such are hearsay. Section 490.065.3 RSMo., allows an expert to consider facts not in evidence when forming an opinion. To determine admissibility, a two-step approach is to be followed. The facts must be reasonably relied upon, and the trial judge must determine if the foundational facts meet a minimum standard of reliability before the offered opinion is considered admissible. Bruflat v. Mister Guy, Inc., 933 S.W. 2d 829 (Mo.App. 1996) (overruled on other grounds). A determination regarding the admissibility of evidence will not be overturned unless an abuse of discretion is shown. Id. In the case at bar, Dr. Levy conducted a physical evaluation, and Mr. England conducted a vocational evaluation of Claimant. Mr. England in reaching his opinion of permanent total disability, relied heavily on psychological records of a psychiatrist, and testing conducted by a clinical psychologist. These records are not in evidence (Exhibit A, pg.44). In turn, Dr. Levy initially defers an opinion on permanent total disability to psychiatric and vocational experts, and later adopts the opinion of Mr. England (Exhibit B, pgs. 19-23). Regarding Exhibits A \& B, I find the facts relied on meet the minimum standard of reliability, Exhibits A \& B will be admitted, and the objections will be considered when determining the weight to be accorded the exhibits versus the admissibility.

Only testimony necessary to support this award will be reviewed and summarized.

Mark Duffy: Claimant is a 49 year-old former firefighter. Following graduation from high school, Claimant was selected and entered the fire academy. During the course of his 23-year career, he was routinely promoted, eventually reaching the rank of acting battalion commander where he supervised 20-30 firefighters. Other than firefighting training, Claimant has pursued no additional education or training. On occasion Claimant taught at the fire academy.

During the late 1970's Claimant injured his left knee, and underwent surgery to repair a tendon. He returned to his job duties and discovered kneeling caused discomfort. In the early 1980's Claimant injured his left wrist, and was diagnosed with a sprain. Following treatment he returned to firefighting, but experienced weakness, and at times severe pain in the wrist. Claimant re-injured his left wrist in 1984 and again in the 1990's. With each re-injury Claimant returned to firefighting duties, but reports further weakening of the wrist, and the need to "work around the injury". Claimant testified that each injury or re-injury bothered him mentally, but he didn't seek mental health treatment.

On January 4, 1999 while responding to a fire, Claimant slipped on ice falling on his left wrist. Claimant was seen by several physicians and was told the injury couldn't be treated. He was informed that he had previously broken a bone that had never healed. He was placed on light duty, which amounted to a desk job at fire headquarters. Eventually, Claimant requested firefighting duty, and was returned to a firehouse. Shortly after his return to active duty, Claimant determined he was unable to complete his firefighting duties without assistance. Claimant testified that working with assistance placed other firefighters at risk, and the fire department suggested he retire. During March 1999, Claimant retired from the fire department.

Claimant reports that today his left hand is virtually useless, he has difficulty griping, and experiences pain in the wrist. He continues to experience pain in his left knee, and complains of instability of the knee. Claimant reports he suffers from depression with associated loss of appetite, sleep disturbance, and increased alcohol consumption. Claimant associates his depression due to losing his "lifetime dream of being a firefighter". He spends his day tending to his small handyman business, and keeping up with his family. Claimant believes he is unable to be employed due to his physical problems.

Upon cross-examination, Claimant describes firefighting duties as being physically demanding. Claimant started his small business in 1997 or 1998. Claimant describes his current business as a "small job specialist" and that at one time he employed 4-5 people, now he has 1 employee, and Claimant does non-physical work such as estimates. Claimant acknowledges his depression arose after his retirement, and that the only medication he takes is Lipitor for his elevated cholesterol.

Dr. Jerome F. Levy: Dr. Levy examined Claimant on September 23, 2003, and provided diagnoses with rating percentages for Claimant's January 4, 1999 (primary) injury, and his pre-existing injuries. Dr. Levy obtained a history and conducted a physical examination. Additionally, Dr. Levy reviewed Claimant's medical/psychological records.

During the examination, Dr. Levy noted Claimant walked with a normal gait, and is right hand dominant. The abnormal findings in the upper extremities involved only the left wrist/hand. Dr. Levy noted a loss in range of motion involving dorsiflexion, palmar flexion, radial deviation, and ulnar deviation. Claimant's grip strength was $45-50 \mathrm{~kg} on the right, and 30-35 \mathrm{~kg}$ on the left. The abnormal findings in the lower extremities involved only the left leg. Dr. Levy noted discomfort with motion of left knee, 2 cm loss in circumference of the left thigh, and moderate weakness in left leg.

Dr. Levy listed eight diagnoses which included; fracture with non-union of the left carpal navicular, contusion of left carpal navicular non-union, left wrist chronic strain, left wrist degenerative arthritis, repair of left quadriceps tendon, left knee chr