Rick Wiseman v. First Fleet, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-069251

Employee: Rick Wiseman

Employer: First Fleet, Inc.

Insurer: Travelers Casualty and Surety Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

Date of Accident: July 22, 2003

Place and County of Accident: Maryland Heights, St. Louis County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (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 February 9, 2005, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Margaret D. Landolt, issued February 9, 2005, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 23^{\text {rd }} \qquad$ day of March 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest: John J. Hickey, Member

Secretary

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? Yes
4. Date of accident or onset of occupational disease: July 22, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis
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: Employee was getting out of a truck when he fell in a manhole.
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: Lower extremities
14. Nature and extent of any permanent disability: -0 -
15. Compensation paid to-date for temporary disability: $\ 1,260.33
16. Value necessary medical aid paid to date by employer/insurer? $\ 3,558.01

Employee: Rick Wiseman Injury No.: 03-069251 17. Value necessary medical aid not furnished by employer/insurer? $\ 12,480.48 18. Employee's average weekly wages: $\ 549.27 19. Weekly compensation rate: $\$ 366.18 / \ 347.05 20. Method wages computation: Stipulation

1. Amount of compensation payable:

None 22. Second Injury Fund liability: No

1. Future requirements awarded: None

Said payments to begin N/A 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

$\mathrm{N} / \mathrm{A}$

A hearing was held on October 13, 2004 and November 10, 2004 at the Division of Workers’ Compensation in the City of St. Louis. Rick Wiseman ("Claimant") was represented by Mr. Ben Messina. First Fleet, Inc. ("Employer") and its Insurer, Travelers Casualty and Surety Company, were represented by Mr. Stephen Larson. Although the Second Injury Fund is a party to this case, pursuant to the agreement of the parties the Fund did not participate at hearing. Mr. Messina requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about July 22, 2003, Claimant was an employee of Employer; venue is proper in the City of St. Louis; Employer received proper notice of injury; and the claim was timely filed. Claimant was earning an average weekly wage of $\ 549.27 resulting in applicable rates of compensation of $\ 366.18 for temporary total disability benefits and $\ 347.05 for permanent partial disability benefits. Employer has paid

temporary partial disability benefits in the amount of $\ 1,260.33 representing a period of time from July 24, 2003 to September 2, 2003. Employer also paid medical benefits of $\ 3,558.01.

The issues for determination by hearing are whether or not the accident Claimant sustained on July 22, 2003 resulted in an injury to his left knee; medical causation; liability of Employer for past medical benefits; liability of Employer for past temporary total disability benefits from October 17, 2003 to February 2, 2004; and nature and extent of permanent partial disability sustained by Claimant.

Based upon the competent and substantial evidence, I find:

Claimant began working for Employer on April 1, 2003 as a spotter/dispatcher. On July 22, 2003, Claimant was pulling a trailer out of a dock. When Claimant climbed down from the tractor he partially fell into a manhole. Claimant testified that he hit his left ankle, shin bone and knee when he fell. Claimant testified that his right leg was above the manhole, and he was in a splits-like position. Claimant testified that he caught himself with his elbows before he fell all the way into the hole, and was able to push himself out of the hole. According to Claimant's testimony, after the accident his left knee was painful, and the outer calf and ankle on his right leg hurt. Below the knee on both of his legs was the most severe pain. On his left, on the inner calf, he lost an approximately one-half dollar size of flesh. His right leg had contusions, and his right ankle was black and blue. The lower left part of his left leg was worst pain he had.

Claimant testified that he notified Employer of his fall, and he was advised to report to Concentra for treatment.

Claimant testified that he had treated for problems with his left knee with Dr. Mannis before the injury. Claimant had arthroscopic surgeries in 1987 and 1988, and an ACL reconstruction in 1999. Claimant testified that he had pain in his left knee beginning in late 2001 or early 2002. According to Claimant, when he first saw the doctors at Concentra on July 22, 2003, he specifically complained of left knee pain. According to Claimant, when he complained to Concentra about his left knee he was told that his pain was from his previous injuries. According to Claimant, Concentra put him on light duty but there was no light duty available. Claimant testified that he showed up every morning for an hour, did payroll, faxed the payroll and then went home and dispatched trucks from his home via a Nextel radio.

Claimant testified that from July 22 until September 2, 2003, he followed the same routine of work every day.

Claimant testified that after he returned to full duty as a spotter, he had increased pain in his left knee. The pain in his left knee became more severe because he had to start using a clutch which made his left knee pain more severe. Claimant told his Employer that his left knee was getting worse, but he was told that he had been released and there was no more treatment available. Claimant testified that he then called Dr. Leo Warren, his primary care physician, who saw him on September 22, 2003. At that time Dr. Warren gave Claimant a cortisone injection in his left knee and referred him to Dr. Mannis, the orthopedic doctor who had performed Claimant's prior knee surgeries.

Dr. Mannis recommended an MRI, and then ultimately performed surgery on October 24, 2003. Dr. Mannis took Claimant off work on October 17, and performed the surgery at Missouri Baptist on October 24. After the surgery Dr. Mannis kept him off work and prescribed physical therapy. After Claimant's surgery he had another cortisone shot and three injections in his left knee. Claimant's surgery did not correct his pain.

Dr. Mannis saw Claimant again in February 2004, and at that time told him he should find another type of work besides driving a delivery truck. Claimant has not been employed anywhere since he last worked for Employer.

Claimant currently complains that his left knee still hurts constantly. He takes Darvocet and antiinflammatories and wears a knee brace on his left leg. Claimant's right ankle pain and the pain on his inner calf on his left leg went away. Claimant has no further pain in his left shin, left ankle or right ankle. The only pain

Claimant still has is in his left knee.

Claimant reported to Concentra on July 22, 2003, three hours after the injury. The records give a history that Claimant injured his lower legs and left upper leg. The medical records reflect that Claimant's left knee, which has been injured the past, indicates no pain or effusion, and has full range of motion and a negative McMurray's test. The diagnosis was contusion and abrasions of both lower legs and left upper leg. X-rays were negative for fracture.

Claimant returned to Concentra on July 24, 2003. Claimant developed cellulitis of the abrasion on his left shin. He was given antibiotics and continued on limited duty. Claimant followed up again on July 28 and was continued on his antibiotics. Treatment notes state that Claimant injured his left lower leg between his knee and down to his ankle when he stepped down into a manhole at work on July 22, 2003. The knee was not injured by his reports. Claimant was prescribed physical therapy.

On July 31, Claimant was examined at Concentra and allowed to return to full duty on August 4, 2003. On August 7, 2003, Claimant returned to Concentra because his cellulitis had worsened. His antibiotic was changed and he was put back on restricted duty. Claimant's cellulitis continued to improve, and on August 26, 2003 Claimant was released to full duty.

On September 22, 2003, Claimant reported to his personal physician, Dr. Leo Warren. Claimant gave a history of a recent left knee injury status post falling through a manhole. Claimant was given a cortisone injection by Dr. Warren and was referred to Dr. Mannis for an orthopedic evaluation.

On September 23, 2003, Claimant completed a condition and/or injury report for Dr. Mannis at Metropolitan Orthopedics. The history given by Claimant of the area of body affected was the left knee. Claimant indicated that the injury happened at work in 1987 when he fell from a truck. No mention of falling through a manhole on July 22 was made. In Dr. Mannis' office notes under "history of present illness" Dr. Mannis states that, "Claimant gave a history of over the past year to noting gradually increasing pain in his left knee. He did not describe a specific incident or injury. Claimant stated that he got so bad that yesterday he had a cortisone shot. He noted that three months ago he fell through a manhole and had an injury to his left lower tibia." Dr. Mannis recommended an MRI which was performed on October 1, 2003. The impressions were ACL cyst, small joint effusion, and thickening of