Robert Sebra v. The St. Louis National Baseball Club, Inc.

Injury No.: 98-108270

Employee: Robert Sebra

Employer: The St. Louis National Baseball Club, Inc.

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund

Date of Accident: July 15, 1993

Place and County of Accident: Various

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. We have heard the oral arguments of the parties. We have reviewed the evidence and considered the whole record and we find 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, except as modified herein. Pursuant to section 286.090 RSMo, we issue this final award and decision modifying the November 23, 2005, award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The Commission modifies the administrative law judge's allowance of attorney's fees. We reject the administrative law judge's cap on the attorney's fee. Harry Nichols, Attorney at Law, is allowed a fee of 25 % of the benefits awarded for necessary legal services rendered to employee, which shall constitute a lien on said compensation.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued November 23, 2005, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this 28th day of July 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Robert Sebra

Injury No.: 93-108270

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: July 15, 1993
5. State location where accident occurred or occupational disease was contracted: Various
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer reExhibitive proper notiExhibit? 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 was a baseball pitcher and developed right elbow symptoms.
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 elbow
14. Nature and extent of any permanent disability: 25\% PPD of right elbow; 5 weeks disfigurement; 47.3 weeks PPD from SIF.
15. Compensation paid to-date for temporary disability: $\ 65,808.40
16. Value neExhibitssary medical aid paid to date by employer/insurer? \$30,636.12

Employee: Robert Sebra Injury No.: 93-108270 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: Unknown 19. Weekly compensation rate: $\$ 470.06 / \ 246.22 20. Method wages computation: Stipulation

This case involves right elbow repetitive traumas resulting to Claimant with the reported onset date of July15, 1993. Employer admits Claimant was employed on said date and that any liability was fully self-insured. The Second Injury Fund is a party to this claim. All parties are represented by counsel.

1. medical causation/attribution;
2. nature and extent of permanent partial disability;
3. liability of the SIF; and,
4. liability for any temporary partial disability.

FINDINGS OF FACT

The parties stipulated that Employer paid medical expenses of $\ 30,636.12 and temporary total disability of $\ 65,808.40 was paid for the dates: $9 / 7 / 93 to 6 / 20 / 95 ; 627 / 95 to 5 / 21 / 96$.

The claimant testified that he was employed by the Cardinals in late 1992 or early 1993 as a professional baseball player and pitcher having previously been with various other professional baseball teams before then. He was assigned to the Louisville Cardinals and pitched every 5 days under his contract. At the time of his injury, July 15, 1993, his right arm locked up on him so that he could not pitch. Thus, he underwent surgery in September 1993 to remove bone spurs and the tip of olecranon. While playing Celebrity golf in 1995, Dr. Andrews examined him to determine if something could be done to help him from slicing the ball and, indeed, another surgery improved his motion.

In 1998 he signed a contract and began pitching for an independent league, the Sommerset Patriots; he pitched every 5 days. He testified that he was feeling pretty good. He had approximately 7 starts and 40 innings of pitching when he had another accident. On July 1, 1998, he was pitching when he "arm exploded" while pitching in a game. It filled with blood, went black and blue and had to seek immediate medical care. This resulted in a surgery by Dr. Redler on August 17, 1998. He had physical therapy. He was examined by Dr. Emanuel in June 2002, for the Cardinals and advised to have ulnar nerve surgery which he had on June 25, 2003 in Orlando by Dr. White.

As a result of this injury the Sommerset Patriots have paid him approximately 72 weeks of temporary total compensation from 8/17/98 to 1/9/99, and 6/25/03 to 3/17/04, and 4/6/04 to 7/13/04. He has a pending workers' compensation claim against this team and recently testified in May 2005, requesting medical treatment and vocational rehabilitation.

Claimant is not currently working, but acknowledged that he has done various jobs since this injury in 1998. These include selling time shares for a year and a half; working as a stage hand in Philadelphia; doing construction work with a friend from September 2004 to the end of February 2005, including putting a metal roof on his mother's home, which involved lifting up to 50 pounds. The most money he has made is around $\ 15,000.00 since his injury and thinks he has averaged about $\ 8,000.00. He acknowledged other medical conditions, cirrhosis of the liver diagnosed in 2001 for instance have affected his ability to work. He has not returned to baseball since this 1998 injury. He has not played any golf for the last several years. He has lost about 50 % of the strength in his elbow and cannot straighten it out or fully bend it. It is markedly smaller than his uninjured left elbow and arm. Claimant stated Dr. White placed permanent restriction on him on September 29, 2003 of no lifting greater than 20 pounds, no repetitive lifting, pushing or pulling.

He has an extensive prior history of physical problems and injuries. He was treated in 1984 for his left shoulder, in 1985 for left foot fracture, in 1987 for sciatic low back pain, in 1988 for right shoulder bursitis and bone

chips in his right elbow which led to surgery in the off-season; for sciatica in 1989, for shoulder and sciatic problems in 1990, for fracture of right foot in 1991 and for back and shoulder problems in 1992, and also for right thumb and right elbow bone chips with surgery in 1992, and then for right knee and right shoulder problems in 1993. His two prior right elbow surgeries in 1988 and 1992, were both done in the off-season so he did not miss his turn at pitching.

In 1998, Dr. James Andrews of Healthsouth Medical Center, performed arthroscopy of the right elbow, removing some chips. (Exhibit 4:1). In 1992, the Cubs doctor also performed an operation, making a small incision posteriorly and performing arthroscopic work. (Exhibit 4:1). On September 2, 1993, Dr. Walter Badenhausen performed a debridement and diagnosed osteocartilagenous loose body, right elbow. (Exhibit A).

Dr. Richard Gaines of the Halifax Orthopaedic Clinic, Daytona Beach, Florida, treated and evaluated the claimant from September 14,1993 until August 12, 1994, (Exhibit 11) for a diagnosis of arthrofibrosis, right elbow. He found that range of motion was restricted from 40 to 114 degrees of flexion and a loss of 10 degrees of pronation/supination and rated the claimant under Florida guidelines as having a 25 % permanent partial impairment of the right upper extremity. He further found the claimant to have reached MMI. (Exhibits 11:2-3; B). On August 12, 1994, Dr. Gaines recommended surgery, namely a partial osteophytectomy of the olecranon, removal of part of the olecranon and re-insertion of the triceps as he found the claimant's condition was worsening and would not improve with further surgery. (Exhibits 11:1; B). His record does not state whether this treatment recommendation was due to the injury of July 1993, or to the pre-existing degenerative arthritis condition.

On May 2, 1995, a Dr. Spears noted osteoarthritic change of the right elbow with multiple osteocartilagenous loose fragments and bone spur formation. (Exhibit C). On July 11, 1995, Dr. Spears performed arthroscopy, manipulation, capsulectomy, scar debridement, and olecranon osteotomy. (Exhibit D). He underwent chiropractic treatment from July 19, 1995 through October 23, 1995 for his chronic right elbow problem. (Exhibit E).

On July 2, 1996, Dr. Hankins, Orthopaedic Clinic of Daytona Beach, Florida, examined on behalf of Cigna and Charles D. Hood, Jr., Esq. (Exhibit G:2). He assessed post-traumatic arthropathy and early cubital tunnel syndrome of the right elbow. (Exhibit G:2). He placed Claimant at MMI from his previous surgeries and estimated a 25 % permanent partial impairment of the right upper extremity based on Florida Guidelines, but he did not state whether this impairment was related to the injury of July 1993 (Exhibit G:2). He recommended cubital tunnel release with anterior transposition of the ulnar nerve due to scarring and entrapment neuropathy at the cubital tunnel on the medial side of the elbow but further noted Claimant would not be able to