Philip Rose v. Lambur Contracting, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-043126

Employee: Philip Rose

Employer: Lambur Contracting, Inc.

Insurer: Missouri Employer's Mutual Insurance Company

Date of Accident: May 1, 1998

Place and County of Accident: St. Louis, 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 December 10, 2004. The award and decision of Administrative Law Judge Margaret D. Landolt, issued December 10, 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 $\qquad 27^{\text {th }} \qquad$ day of May 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest: John J. Hickey, Member

Secretary

Employee: Phillip Rose Injury No.: 98-043126

Dependents: N/A Before the

Division of Workers'

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: May 1, 1998
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 threw a ladder into a truck when he felt pain in his rib cage.
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: Body as a whole, ribs
14. Nature and extent of any permanent disability: 5% permanent partial disability of the body as a whole referable to the ribs
15. Compensation paid to-date for temporary disability: $38,982.86
16. Value necessary medical aid paid to date by employer/insurer? $42,252.72

Employee: Phillip Rose Injury No.: 98-043126

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee’s average weekly wages: 439.65
3. Weekly compensation rate: 293.10 for temporary total disability and $278.42 for permanent partial disability benefits
4. Method wages computation: Per statute/By agreement

1. Amount of compensation payable: 20 weeks of permanent partial disability from Employer 5,568.40 Less credit to Employer (35,588.52)

1. Future requirements awarded: N/A

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:

N/A

A hearing was held on September 15, 2004, at the Division of Workers’ Compensation in the City of St. Louis. Phillip Rose (“Claimant”) was represented by Mr. Harry J. Nichols. Lambur Contracting, Inc. (“Employer”) and its Insurer Missouri Employers Mutual Insurance Company were represented by Mr. Patrick N. McHugh. Although the Second Injury Fund is a party to this case, counsel for the Second Injury Fund did not participate in the hearing. Mr. Nichols sought a fee of 25 % of any benefits awarded to Claimant.

The parties stipulated that Claimant sustained an accident arising out of and in the course of his employment on or about May 1, 1998; Employer received timely notice of the accident, and a Claim for Compensation was timely filed. The parties further stipulated that the applicable permanent partial disability rate is $\ 278.42; Employer has paid temporary total disability benefits for 108 2/7 weeks at a rate of $\ 360.00, for a total of $\ 38,982.86. These benefits were paid for the periods of May 7, 1998 through July 8, 1998 and October 22, 1999 through January 9, 2002. Employer has also paid medical benefits in the amount of $\ 42,252.72. The parties further stipulated that Employer has paid Claimant an advance on compensation in the amount of $\ 2,227.36 and that Employer is entitled to a credit in this amount against any benefits awarded.

The issues for determination by hearing are whether the injuries claimed are medically/causally related to the accident

of May 1, 1998; whether Employer is liable for past temporary total disability benefits; nature and extent of permanent partial disability benefits; the applicable temporary total disability rate and, if it is found that the applicable rate is less than the $\ 360.00 rate paid, Employer's entitlement to a credit for overpayment of temporary total disability benefits paid to date; and Employer's entitlement to a credit for past medical expenses incurred in the event the Employer is successful on its medical causation defense.

Based upon the substantial and competent evidence, I find:

Claimant, a 39-year-old male, has been employed as a laborer for Employer for 14 years. Employer is in the business of residential tree trimming. Claimant's work involves trimming and removal of tree branches. This involves climbing trees by hand and using chainsaws to remove branches.

On Friday, May 1, 1998, Claimant threw a 12 foot wooden steep ladder into the back of a truck and felt a "pull" in the bottom of his right rib cage. He described this as a "cramp" type sensation and assumed he had pulled a muscle.

Claimant was seen at St. Joseph Emergency Room on May 4, 1998, and gave a history consistent with his testimony. A diagram of his injury referenced tenderness of the right rib cage below the chest and a reference that he had sustained a "similar rib injury one year ago." X-rays of the right ribs revealed no evidence of fracture and he was referred to follow-up with Dr. Nogalski.

Claimant was seen by Dr. Nogalski on May 7, 1998, who diagnosed a right rib strain (seventh anterior). Physical therapy was recommended and Claimant was given a 5-pound lifting restriction.

Claimant testified his pain moved to his chest and right shoulder, and he was again seen at St. Joseph Hospital on May 10, 1998. This medical record revealed Claimant developed marked respiratory distress, fever, and persistent right-sided chest pain 48 hours prior to this admission. Chest x-rays revealed a huge right pleural effusion, and a chest tube was inserted in the emergency room to evacuate fluid that had collected in his lung. Claimant was admitted to the hospital through May 13, 1998, and the final diagnosis was exudative right pleural effusion/early empyema and right lower lobe consolidation. The chest tube was removed on May 13, 1998, and Claimant was discharged that day.

Claimant followed up with Dr. Victor Ruiz and Dr. Joseph Ojile who had treated him during his hospitalization. Neither physician could explain the cause of his right lung condition. Dr. Ruiz commented, "As you know, we have not been able to find a cause for his huge effusion and consolidation of the right lower lobe." Dr. Ojile also described this illness as "ill defined." Both Dr. Ruiz and Dr. Ojile released Claimant to return to full work activities as of July 9, 1998.

Claimant testified that his right side again started to hurt upon his return to work. He was then referred to Dr. Gerlyn Friesenhahn, a Board Certified Neurologist. Dr. Friesenhahn took a history of his accident and course of treatment and specifically noted, "A chest tube was placed on May 10, 1998, the tube was removed after three days, and immediately when it was pulled out he felt an irritation that radiated around the anterior chest. Over a few weeks it spread to an anterior portion of the chest and it has not changed since then. Now when he wears a shirt it irritates the skin. He complains of numbness in the area of the chest tube site. He has no back pain. He has some slight shoulder pain." Dr. Friesenhahn diagnosed Claimant's symptoms as compatible with "intercostal nerve injury and neuralgia status post-chest tube placement." Dr. Friesenhahn re-examined Claimant on July 31, 1998, noted no improvement and considered referring him for a nerve block of the intercostal nerve. She also prescribed Neurontin. This provided no benefit. By October 19, 1998, Claimant's symptoms had worsened and Dr. Friesenhahn advised that he be referred for an intercostal nerve block, with a consideration of a nerve oblation procedure.

Claimant was seen on March 10, 1998 by Dr. Cynthia Guy at West County Pain Control Center. Dr. Guy also recorded a history that Claimant felt immediate pain when his chest tube was removed and that Claimant had asked a thoracic surgeon about this pain before he left the hospital. She further noted, "He describes a right-sided

chest pain as constant pain, 'pulled muscles and nerves', burning in nature and fatigue from the pain. Any activity or slight touch increases the pains in this area." Dr. Guy recommended trying trigger point injections to relieve musculoskeletal pain and dysfunction prior to subjecting Claimant to an intercostal nerve block. She administered a series of three trigger point injections followed by physical therapy. Claimant testified that these trigger point injections provided him no relief. On January 13, 1999, Dr. Guy referred Claimant to a physical medical and rehabilitation specialist, Dr. Russell Cantrell.

Dr. Cantrell examined Claimant on January 26, 1999. He concluded that Claimant's work injury of May 1, 1998 of throwing a ladder into a truck and lifting heavy logs could have resulted in an intercostal and pectoralis muscle strain injury, but he concluded Claimant's pneumothorax, pleural effusion and right lower lobe consolidation was not substantially caused by his work injury. He specifically noted that the placement of a chest tube and its reported sequelae was not a direct result of the work injury. He noted the trigger point injections performed by Dr. Guy were to address residual tightness in the pectoralis minor and serratus anterior muscles and related to the work injury. He recommended Claimant continue his regular job duties. Claimant returned to Dr. Cantrell on February 16, 1999 reporting that he had experienced transient anterior