Dan Whitt v. Warren County Concrete

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 September 13, 2005. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued September 13, 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 $26^{\text {th }}$ day of October 2005. LABOR AND INDUSTRIAL RELATIONS COMMISSION 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: September 11, 1998
5. State location where accident occurred or occupational disease was contracted: Warren 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: Claimant climbed up a silo to knock loose some jammed concrete when the platform broke, he fell through the floor, and landed 40 feet below on the left side of his body
12. Did accident or occupational disease cause death? No.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: Multiple parts, including tailbone, left lower extremity, left hip, mouth, and body as a whole.
14. Nature and extent of any permanent disability: Permanent and total disability.
15. Compensation paid to-date for temporary disability: $\ 29,771.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 86,054.01 E Employee: Dan Whitt Injury No.: 98-111699
17. Value necessary medical aid not furnished by employer/insurer? $\ 355.77
18. Employee's average weekly wages: $\ 760.28
19. Weekly compensation rate: $\$ 506.85 / \ 294.73
20. Method wages computation: By agreement.

1. Amount of compensation payable:

Unpaid medical expenses: $\ 355.77 Permanent total disability benefits of $\ 506.85 per week from Employer

a good attendance work record and had never been written-up for poor work habits by any employer. At the time of his injury, Claimant was working in a supervisory position for Employer, which involved overseeing six to eight employees, taking orders, answering phones, and batching concrete.

Late in the evening on September 11, 1998,[2] Claimant climbed up a silo to knock loose some jammed concrete when the platform broke, he fell through the floor, and he landed 40 feet below on the left side of his body. He lost consciousness, and sustained fractures of the left tibia and fibula, left ischial tuberosity and pubic rami, a laceration of the left buttock, and injury to his mouth and teeth. Claimant was attended at the scene by a firefighter, and was ultimately taken by helicopter to the University Hospital in Columbia, Missouri. Claimant spent approximately thirteen days as an in-patient, where he underwent several surgical procedures to his leg, hip, and tailbone. In March of 1999, Claimant had an additional surgical procedure performed to address a non-union of the left tibia fracture.

Claimant testified as a result of his work-related injury of September 11, 1998 he had the following injuries: a tailbone fracture, which left an indentation in his buttock cheek and causes difficulty with bowel movements; broken bones in his left tibia and fibula requiring surgical intervention; a surgically repaired left hip injury; instability in his left knee due to a torn medial meniscus and ACL joint; a fractured left ankle; and knocked out teeth that required subsequent medical attention.

Claimant has been under a doctor's care since August 30, for the medical and psychological (anxiety) problems he has as a result of his work-related injury. Additionally, Dr. Larry Ficklin treated Claimant's teeth. Claimant testified Dr. Ficklin removed all of his upper teeth and put in a plate, and indicated he would require future dental attention for replacement of his upper plate and teeth.

Claimant testified that following a functional capacity examination, the authorized treating physician released him to go back to work on a light duty basis. Claimant did so beginning on or about April 19, 1999 for a maximum of one to two hours per day doing sedentary work like answering phones, doing light paperwork, emptying ashtrays, etc. When the doctors released him to a full eight-hour day, he was ordered to operate and run a heavy end-loader (Exhibit G). Claimant indicated he could not operate the equipment more three hours, did it on one occasion, and was incapable of doing so thereafter. The last day Claimant worked for Employer was on or about December 14, 1999.[3]

The disabling complaints Claimant attributes to his accident are numerous. He has difficulty with stairs, standing, sitting, and sleeping. He cannot kneel, carry anything heavy, walk over half a city block, or climb a ladder. He no longer cuts the grass, helps with housework, works on his car, does laundry, or rides in a car for any period of time. He feels his personality has changed, and he is more argumentative and less enjoyable to be around. Claimant was consistently and constantly standing up and sitting down during his testimony in the hearing of June 15, 2005. Claimant insisted he uses a cane a vast majority of the time, although the videotapes presented by Employer show him without the cane on two occasions.

Claimant requested reimbursement of his outstanding pharmaceutical bills of $\ 594.20 and out-of-pocket expenses of $\ 138.65. He requested that the medical and dental medical treatment associated with his injuries be left open.

Mitch Parrish, Claimant's supervisor and a partner in Employer, testified his company was able to accommodate Claimant's work restrictions, found work for him at several of their plant locations, and would have continued to employ him had he not voluntarily quit. Mr. Parrish indicated Claimant was and would be allowed to sit, stand, and move as needed, and could work significantly less than eight hours a day if necessary.

The medical record evidence is consistent with the other credible evidence, and includes hospital records and x-rays showing significant hardware in the left lower extremity. There is no real dispute over the medical treatment as all evidence indicates the treatment to date has been reasonable and necessary.

On January 11, 2000, Claimant saw Dr. Jeffrey Anglen, an orthopedic trauma specialist, who declared Claimant had healed, was at maximum medical improvement, and had no permanent disability. He saw no physical reason why Claimant could not continue to work. On January 21, 2000, Dr. Keith Kenter reevaluated Claimant, whose knee was stable, but had complaints of pain and discomfort with sitting and when using stairs. Dr. Kenterdid not believe surgical intervention was necessary, and gave him a rating of 10 percent of the knee. He noted long-term restrictions include limited ladder climbing and mostly sedentary work at a desk.

Dr. Joel Jeffries, an orthopedic surgeon, evaluated Claimant on behalf of Employer and testified by deposition on May 27, 2004. Dr. Jeffries felt the tests he performed showed Cla