David Busch v. Fred Weber, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-031665

Employee: David Busch

Employer: Fred Weber, Inc.

Insurer: St. Paul Fire \& Marine Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

Date of Accident: January 18, 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 April 6, 2006. The award and decision of Administrative Law Judge Matthew D. Vacca, issued April 6, 2006, 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 $\qquad 22^{\text {nd }} \qquad$ day of August 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: David Busch

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Fred Weber, Inc.

Injury No.: 02-031665

Before the

Division of Workers'

Compensation

1. Claimant was 61 years old on the date of the injury. He will have worked for Fred Weber, Inc., the Employer herein, for 24 years as of June of 2006. At the time of the hearing Claimant was working as an equipment inspector/light mechanic. In this capacity he would inspect up to 900 pieces of equipment and determine what repairs were necessary. He had been working in this capacity since February or March of 2004. From January 2004 to February 2004 he was working light duty updating records on the equipment. From July 11, 2003 to January 2004 he was off work undergoing knee surgeries. Prior to that, Claimant had been working as a shop mechanic for one and one-half years, which involved working on any of the equipment that came into the Fred Weber shop and performing maintenance and repairs.
2. At the time of the injury Claimant was working as a maintenance supervisor and had worked as a maintenance supervisor for 12 years. In this capacity he would supervise 24 mechanics and 4 laborers. He would make all of the repair decisions and assign others to perform the work. He would be up on his feet and up and down in a chair at his desk and perform quite a bit of fieldwork.
3. On the date of the accident, January 18, 2002, it was approximately 4:00 p.m. and Claimant was engaged in closing the shop. He was halfway down from the end of the shop when he stepped on a hose, twisting his knee and fell to the floor. The right knee popped, but as it was late Friday afternoon, no one else was at work to whom to report the injury, so he went home.
4. Claimant spent a difficult weekend with the knee hurting and swelling. Claimant retrieved a pair of crutches in his garage, which had been last used by his mother and used those to ambulate. On the following Monday he immediately reported the injury to the Head of Safety, Lynn Schwartz.
5. Claimant was sent for care at SSM on January 22, 2002 and an MRI was performed on January 23, 2002.
6. On February 6, 2002 Claimant was examined by a surgeon, Dr. Markenson, and surgery was performed by him on Friday, February 7, 2002.
7. Claimant returned to work immediately on the following Monday, not missing any work. Claimant returned to light duty, performed physical therapy over the next few months, and was released in May of 2002. The knee still hurt but Claimant did his job nevertheless.
8. In the summer of 2002 there was a change in management and Claimant was reassigned back to regular mechanic duties when a new supervisor was named. Claimant went from maintenance supervisor to line mechanic. This was heavy work involving a lot of standing to perform undercarriage manipulation.
9. Dr. Markenson testified on behalf of the Employer/Insurer by way of deposition. Dr. Markenson treated Claimant following the January 18, 2002 knee injury. Claimant had told Dr. Markenson about his previous knee surgeries.
10. Dr. Markenson examined the Claimant, reviewed the MRI, performed arthroscopic surgery on February 7, 2002 with a diagnosis of a tear of the lateral meniscus with the patient having previously undergone a near complete previous medial meniscectomy. Dr. Markenson described the knee having the inside cartilage basically gone. There was only a little thin rim left when Dr. Markenson performed his surgery. He saw no new tears of the remaining meniscus but noted there was not much left to tear. He also discovered chondromalacia which means a significant amount of damage and change and wear over the smooth joint surfaces. Instead of a nice white smooth surface, parts of it were worn down to the bone. The other parts that were not worn down to the bone were extremely worn, irregular and lumpy. Chondromalacia was underneath the patella on both sides of the joint.
11. Dr. Markenson thought that the chondromalacia preexisted the January 2002 injury. He removed the torn piece of lateral meniscus, smoothed what was left of it down as best he could and performed a chondroplasty, which is a smoothing down of the rough areas.
12. Following this, Dr. Markenson also injected Claimant's knee with cortisone and Hyalgan. Hyalgan is a purified cartilage substance believed to help lubricate the joint and spur cartilage growth. Dr. Markenson doesn't believe that either of these treatments gave Claimant any major significant relief.
13. When Dr. Markenson last saw Claimant he told him his knee was arthritic and the next step was going to be a knee replacement to get relief from the symptoms. Dr. Markenson discharged Claimant from treatment on May 10, 2002 at maximum medical improvement. Dr. Markenson also rated Claimant at 5\% permanent partial knee disability as a result of the work related injury.

1. Claimant returned to see Dr. Markenson on July 15, 2002 still complaining of soreness and discomfort in his knee. Dr. Markenson suggested that Claimant obtain a position where he didn't have to do a lot of squatting, kneeling, bending and utilizing of the knee. Claimant told Dr. Markenson he had switched to a different job but that the one that he switched to was more physical and actually required more flexing of the knee. Claimant wanted more injections and Dr. Markenson told him he had to wait six months in between injections.
2. Claimant sought treatment thereafter on his own.
3. Dr. Markenson saw Claimant again June 2,