Charles Kelson v. Admiral Limousine Service, Ltd.

Furthermore, the administrative law judge found that the medical treatment and lost time benefits associated with the left hip were not medically causally related to the work accident.

Accordingly, the Commission concludes that the competent and substantial evidence indicates employee reached maximum medical improvement from his work related injury on June 15, 2001, when he was released by Dr. Mirkin.

As a result, permanent total disability benefits from the Second Injury Fund are payable beginning June 16, 2001, for 100 weeks at the weekly rate of $\ 52.41, and, thereafter, $\ 366.67 weekly for employee's lifetime. All remaining findings of fact and conclusions of law are affirmed.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued October 12, 2005, as modified, is attached and incorporated by 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 $5^{\text {th }}$ day of June 2006.

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

Said payments to begin as of November 24, 2004, 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: David J. Jerome, Esq.

This workers' compensation case raises several issues arising out of a work related injury in which the claimant, a commercial driver, fell on a wet surface on the employer's premises and suffered an aggravation to preexisting disorders. The issues for determination are (1) Medical causation, (2) Liability for past medical expenses, (3) Temporary disability, (4) Permanent disability, and (5) Second Injury Fund liability. The evidence compels an award for the claimant for permanent disability benefits.

At the hearing, the claimant testified in person and offered depositions of David T. Volarich, D.O., and Timothy Lalk, a vocational rehabilitation counselor, voluminous medical records, prior workers' compensation settlements, and a medical bills summary with attached bills. The defense offered a deposition of Joseph Williams, M.D., a medical report from Peter Mirkin, M.D., and a vocational rehabilitation report and testimony from Donna K. Abram, another vocational rehabilitation counselor.

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.

On February 27, 2001, while walking through the employer's garage near the wash area, this fifty-five year old claimant slipped on standing water and his feet came out from under him. The claimant fell backwards, landed on his back and left hip, and struck his head on the rear wheel of a nearby vehicle. The claimant testified that he originally noted problems in his low back, head, neck and left hip. The claimant testified that he was no longer able to walk on his left hip without a great deal of pain.

The claimant originally denied any need for medical care and hoped that the symptoms would pass. However, as time went on, the claimant's pain became worse. On March 6, 2001, the claimant went to his family doctor, Dr. Jerome Williams and reported pain in his head, neck, left knee, left hip and low back. Dr. Williams prescribed pain medication and referred the claimant to Dr. Whiteside, the claimant's longstanding hip surgeon. On March 16, 2001, Dr. Whiteside examined the claimant and released him to return to work with restrictions, "Limited duty - minimal lifting, walking distance and climbing. To be scheduled for revision left total hip replacement."

The claimant took those work restrictions to his employer who advised that the employer had no such light duty. The claimant also advised his employer of the need for further medical care. Eventually, the employer referred the claimant to Dr. Mirkin, who examined the claimant on April 2, 2001, for low back pain and bilateral hip pain. Dr. Mirkin noted that the patient was referred to him exclusively for treatment of the low back. Following a physical examination, Dr. Mirkin prescribed conservative treatment consisting of physical therapy. Dr. Mirkin

released the claimant to return to work without restrictions for his back but observed that the hip surgeon would not allow the claimant to return to work due to the hip condition. Dr. Mirkin recommended that the claimant observe the hip surgeon's work restrictions. Dr. Mirkin released the claimant from treatment on June 15, 2001, and reported that the claimant had persistent hip pain but that the back had improved. Dr. Mirkin reported that the claimant had 90 % range of motion and continued to have pain with passive rotation of both hips. He opined that the persistent hip pain was secondary to the severe pre-existing spine disease and hip disease. On August 24, 2001, Dr. Mirkin opined that