Paul Bratcher v. GKN Aerospace

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: June 3, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Claimant wore rigid, steel-toed shoes on hard concrete floors for long periods of time, causing plantar fasciitis.
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: Bilateral feet at the 150 week level.
14. Nature and extent of any permanent disability: 5% of the right foot and 2% of the left foot.
15. Compensation paid to-date for temporary disability: $0
16. Value necessary medical aid paid to date by employer/insurer? $0 Employee: Paul Bratcher Injury No.: 02-153178
17. Value necessary medical aid not furnished by employer/insurer? 1,205.00.
18. Employee's average weekly wages:
19. Weekly compensation rate: 628.90 / $329.42
20. Method wages computation: By agreement

1. Amount of compensation payable: Unpaid medical expenses: 1,205.00 10.5 weeks of permanent partial disability from Employer 3,458.91

1. Future requirements awarded: Employer shall provide replacement custom orthotic inserts as described in the Award.

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: Richard Ameduri

Injury No.: 02-153178

Before the

Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Checked by: KOB:tr

The matter of Paul Bratcher (“Claimant”) proceeded to hearing to determine whether Claimant sustained an occupational disease arising out of and in the course of his employment. Attorney Richard Ameduri represented Claimant. Attorney Michael Finley represented GKN Aerospace (“Employer”) and its Insurer, Zurich North America c/o Crawford & Company. The Second Injury Fund was not a party to the claim.

The parties agree that on or about June 3, 2002, Claimant was an employee of Employer and earned an average weekly wage that qualified him for the maximum rates of compensation of 628.90 for total disability benefits and 329.42 for permanent partial disability benefits. Claimant alleges an injury to his feet on account of work related steel-toed shoes. Employer denied any liability and paid no benefits.

The issues to be determined are: 1. Did Claimant sustain an occupational disease arising out of and in the course of employment; 2. Is Claimant’s medical condition causally related to his work requirements; 3. Did Claimant provide proper notice; 4. Is Employer liable to reimburse Claimant for past medical expenses up to the amount of $4,871.24; 5. Is Employer liable to provide Claimant with future medical care in the form of orthotics; and 6. What is the nature and extent of Claimant’s permanent partial disability?

With respect to the exhibits, all exhibits were admitted without objection except for the medical bills contained in Claimant’s Exhibit C, to which Employer’s attorney objected citing lack of foundation and proof of medical necessity. That objection is overruled, and the medical experts provide the appropriate foundation, including Employer’s expert who stated the treatment in question was appropriate and reasonably successful.

Based on a thorough review of the entire record, considering the testimony of the Claimant, who I had the opportunity to observe in person and find credible, and the applicable law of Missouri, I find:

Claimant is a 34-year-old man whose job with Employer as a bonding mechanic involves constant standing. From March 1997 to December 2001, Claimant wore good solid tennis shoes. Claimant never had problems with his feet, despite the fact he has bi-lateral pronation, or flat feet, an innate condition of which he was unaware prior to 2002.

In January 2002, Employer initiated a safety policy requiring all employees to wear steel-toed shoes or boots. Employer arranged for a mobile-shoe store to come to the plant, and provided discount vouchers to employees to aid in the purchase of the shoe of their choice from the mobile unit. Claimant purchased his shoes, and wore the shoes as required. The shoes fit, but were uncomfortable, rubbed on his toes, and altered his gait. Upon the advice of a safety committee, Claimant got a new pair, but did not obtain relief. With each pair of shoes he tried, the symptoms were improved as he broke in the shoe, but he never was symptom free when he wore the steel-toed shoes.

Sometime in May 2002, Claimant reported his shoe and foot complaints to Alice Holts, his supervisor, who informed Claimant Employer was not providing any medical treatment for complaints regarding work shoes. Claimant then sought treatment on his own, with family practitioner Dr. Hammersmeier, chiropractor Dr. Clay, $\underline{[1]}$ and podiatrist Dr. Liu, who provided the greater part of the foot treatment, including x-rays, a cortisone injection, exercises, and custom made orthotic inserts. Claimant had a total of five visits to Dr. Liu's office - the charges associated with those visits total \$1,205.00.

The custom orthotics provided Claimant with the most relief. Dr. Liu told Claimant he has to wear the inserts as long as he has to wear safety shoes. Dr. Liu testified that the inserts should last three to five years, but Claimant testified that his first pair is beginning to wear out after two years. Dr. Liu's records indicate the total cost associated with the bi-lateral orthotics is $\ 660, for two office visits, casting, inserts, and fittings.

While Claimant has received a benefit from the treatment and orthotics, he has not been pain free since his foot symptoms began in 2002. He wears the orthotics and is careful to do the stretching exercises prescribed by his doctors. In February 2004, Claimant injured his left ankle when he fell off a ladder, and the treatment that followed that injury is related to that injury. In fall of 2004 he bought new work boots, but not from the company provided truck.

Dr. Sophie Liu, a podiatrist, first saw Claimant on May 23, 2003 for complaints of pain primarily in the right heal, although he also had some mild pain in the left. Symptoms were worst upon rising in the morning and after a long day standing at work. Dr. Liu diagnosed plantar fasciitis stemming from chronic irritation. She also diagnosed bi-lateral pronation, which predisposed Claimant to plantar fasciitis. She indicated that while they were not the only reasons he had plantar fasciitis, the conditions at Claimant's employment, specifically steel-toed boots and constant standing on a hard surface, were "significant" factors in aggravating his disease. Her conservative treatment consisted of taping, splints, stretching, anti-inflamatories, ultrasound, an injection, and orthotics. While acknowledging Claimant would forever have plantar fasciitis with a varying degree of symptoms, she did not feel he had "disability" in the sense he is "not disabled to the point where he cannot do any work of any type."

Dr. Russell Cantrell is a physiatrist who evaluates and treats a variety of musculoskeletal conditions, and unlike Dr. Liu, does not confine his practice to treatment of the feet and ankles. In evaluating Claimant on Employer's behalf, Dr. Cantrell recorded a history consistent with the evidence at hearing, and noted Claimant reported the symptoms to Employer, who refused treatment. Dr. Cantrell agreed with Dr. Liu's diagnosis of plantar fasciitis, assigning permanent partial disability of 2 % of each hind foot, but felt that it was not substantially caused by his occupational activities or footwear - the etiology of the disease was Claimant's bi-lateral foot pronation (flat feet). Dr. Cantrell also agreed that the treatment provided by Dr. Liu was reasonable for a diagnosis of plantar fasciitis, including the continued use of orthotics. The doctor noted that prolonged standing can exacerbate symptoms, but could not be the substantial causative factor of plantar fasciitis.

Based on the substantial and competent evidence, I find that Claimant has met his burden of establishing he has sustained an occupational disease arising out of and in the course of his employment, and that he is entitled to benefits under the Workers' Compensation Law of Missouri.

Employers are only liable to compensate employees for injuries arising out of and in the course of employment. § 287.120.1. Thus, aggravation of a pre-existing condition is a compensable injury if the claimant establishes a direct causal link between her job duties and the aggravated condition. See Smith v. Climate

Engineering, 939 S.W.2d 429, 433-34 (Mo.App. E.D.1996). Work must have been a "substantial factor" causing the aggravated condition. $\S 287.020 .2$. But