Lynn Knox v. Garden Ridge Management

(Affirming Award and Decision of Administrative Law Judge)

Date of Accident: July 15, 2002

Place and County of Accident: 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 May 11, 2005. The award and decision of Administrative Law Judge Edwin J. Kohner, issued May 11, 2005, 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 $\qquad 6^{\text {th }} \qquad$ day of October 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: July 15, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis County, Missouri
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: The claimant injured her right shoulder while reaching for merchandise, which fell on her.
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: Right shoulder
14. Nature and extent of any permanent disability: 30\% Permanent partial disability to the right shoulder
15. Compensation paid to-date for temporary disability: $\ 274.32
16. Value necessary medical aid paid to date by employer/insurer? $\ 12,039.86

Employee: Lynn Knox Injury No.: 02-114014 17. Value necessary medical aid not furnished by employer/insurer? $\ 664.00 18. Employee's average weekly wages: $\ 309.72 19. Weekly compensation rate: $\ 206.48 20. Method wages computation: By agreement

1. Amount of compensation payable: 69.6 weeks of permanent partial disability from Employer $\ 14,371.01
2. Second Injury Fund liability: Yes

1. Future requirements awarded: See additional Findings of Fact and Rulings of Law

Said payments to begin 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 A. Gerritzen, Esq.

This workers' compensation case raises several issues arising out of a work related injury in which the claimant injured her right shoulder while reaching for merchandise, which fell on her. The issues for determination are (1) Liability for Past Medical Expenses, (2) Future medical care, (3) Permanent disability, and (4) Liability of the Second Injury Fund. The evidence compels an award for the claimant for future medical care and permanent partial disability benefits.

At the hearing, the claimant testified in person and offered a deposition of Robert Poetz, D.O., medical records from St. Anthony's Medical Center and Forbes McMullin, M.D. The defense offered depositions of David Fagan, M.D., and medical records from Tesson Heights Orthopedic medical records.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident occurred in Missouri.

This forty year old claimant has a GED and was a medical assistant for a year-and-a-half, but worked as a stocker, packer, and warehouse worker for the last twenty years. She started working for this employer on September 5, 2001, as a stocker.

On July 15, 2002, while assisting a customer, a bar stool that the claimant was reaching for fell on her, injuring her right shoulder. She sought treatment that day at St. Anthony's Medical Center with complaints of right shoulder pain. She was diagnosed with a dislocation of the right shoulder. On July 19, 2002, she sought treatment with Dr. Fagan. She underwent an MRI of the right shoulder on September 30, 2002, which revealed an incomplete joint side tear of the distal supraspinatus tendon. She followed up with Dr. Fagan, who recommended surgery. On November 6, 2002, she underwent

an arthroscopy of the shoulder with debridement of the rotator cuff. She returned to work for this employer in a supervisory capacity, but eventually left in October 2003. The claimant never returned to work. The claimant testified that she is still having constant pain in the right shoulder and left knee. She cannot lift anything heavier than a gallon of orange juice or milk, no pushing, pulling, kneeling, squatting, can't sit for a long period of time and can't kneel. The claimant also testified that on July 19, 2004, Dr. Fagan told her that her shoulder would get worse as she got older, and she testified her shoulder is getting worse.

On May 7, 2003, Dr. Fagan, a board certified orthopedic surgeon, examined the claimant and reported limited ranges of motion compared to the left shoulder, but found fairly good strength in her shoulder. X-rays demonstrated a very flat acromion, and Dr. Fagan opined that the claimant will always have problems with her shoulder. He opined that the claimant had a permanent partial disability rating of twelve percent. On July 19, 2004, he did a follow up evaluation and reported that the claimant still had a lot of discomfort. He again reported limited ranges of motion, including but not limited to both internal and external rotation. He reviewed a January 2004 MRI and opined that the claimant had mild acromioclavicular arthritis. He repeated his disability rating and opined that the claimant will remain symptomatic given the passing of two years from the surgery.

Dr. Poetz, a board certified family practice physician, examined the claimant in 2003 and provided conservative treatment of the claimant's shoulder injury in 2004. He testified that the right shoulder anterior dislocation occurs when the ball comes completely out of the socket and moves forward below the socket of the shoulder. See Dr. Poetz deposition, pages 8-9. In 2003, Dr. Poetz opined that the claimant had a forty percent permanent partial disability of her right shoulder from the 2002 accident and a forty percent preexisting permanent partial disability of her left knee. He also opined that she had a thirty percent preexisting permanent partial disability of her right elbow. He testified that the right shoulder disability combines with a right elbow disability, in the sense they are both part of the same limb and combine to make those disabilities exceed the simple sum. See Dr. Poetz deposition, page 4. In 2004, Dr. Poetz increased the disability from his 2003 report because of the continued increasing severity of pain and disability, clinically and historically. See Dr. Poetz deposition, pages 1112 .

In his June 27, 2003, report, Dr. Poetz recommended Cox II non-steroidal anti-inflammatory medications, which are prescription only drugs. He testified that she has a chronic problem that will require chronic pain management and long-term use of an anti-inflammatory pain reliever. Unless she has a surgical procedure, which successfully improves her range of motion, relieves her pain, and allows her to get better strength of the shoulder, she is likely to have pain for the rest of her life. See Dr. Poetz deposition, pages 30-31. He opined that the pain that her shoulder pain will not suddenly go away, and will require pain relief, unless she learns how to tolerate pain at a different level than she is now tolerating. He testified that when he last treated her she was taking prescription Cox II anti-inflammatory medication. See Dr. Poetz deposition, page 32. He testified she took Darvocet-100 and Mobic on two, three or four different occasions. See Dr. Poetz deposition, page 33. In his August 2003 report, Dr. Poetz also recommended warm, moist heat packs, range of motion exercises for the shoulder, knee and elbow, and avoid overhead reaching and lifting with the right shoulder and elbow, and avoid bending, stooping, squatting, and kneeling with the left knee. See Dr. Poetz deposition, page 13, and Deposition Exhibit B. Between August 2003 and December 2004, he examined the claimant on five occasions. See Dr. Poetz deposition, page 14, and Deposition Exhibit C. In his December 2004 report, he also recommended steroid injections, an MRI arthrogram, and additional surgery. See Dr. Poetz deposition, page 15, and Deposition Exhibit D-4.

Dr. Poetz testified the treatment he rendered, conservative care including non-steroidal anti-inflammatory medications, range of motion exercises, and hot packs, was reasonable and necessary for the work related shoulder injury. See Dr. Poetz deposition, pages 16-17. His total treatment bill was $\ 664.00. Dr. Poetz testified that his treatment charges were also reasonable and that the claimant will need treatment for the right shoulder for the rest of her life, because she has marked restriction of range of motion, scar tissue, and crepitus. See Dr. Poetz deposition, page 18. He testified that the scar tissue, crepitus, and degenerative changes in the joint is progressive and will worsen over time. He opined that the degenerative changes are from the trauma and that the joint will age at a faster rate than a healthy one. Dr. Poetz opined that the arthritic and degenerative changes that she has in the joint are related to the 2002 work related injury. See Dr. Poetz

Dr. Poetz testified that the claimant suffered less than a fifty percent tear of the rotator cuff. See Dr. Poetz deposition, page 24. The claimant had a debridement of the rotator cuff tear